Sibson v. State, No. 6144
| Decision Date | 05 October 1971 |
| Docket Number | No. 6144 |
| Parties | , 3 ERC 1316 Howard W. SIBSON et al. v. STATE. |
| Court | New Hampshire Supreme Court |
Shaines, Madrigan & McEachern, Portsmouth, Duncan A McEachern, Portsmouth, for plaintiffs, Howard W. and Olivia F. Sibson.
Warren B. Rudman, Atty. Gen., and Donald A. Ingram, Asst. Atty. Gen., for the State.
Action by the plaintiffs to recover damages from the State as a result of the refusal of the New Hampshire Port Authority (RSA ch. 271-A), under the provisions of RSA ch. 483-A relating to 'Tidal Waters', to allow the plaintiffs to fill portions of their land located in Rye. Details of those proceedings are found in Sibson v. State, 110 N.H. 8, 259 A.2d 397 (1969). It is also to be noted that jurisdiction over these matters was transferred to the Water Resources Board. Laws 1969, ch. 387; Laws 1971, ch. 329.
The State filed a motion to dismiss on the ground that this is an action in tort subject to the defense of sovereign immunity. Plaintiffs' exception to the dismissal of their action was reserved and transferred by Grant, J.
Plaintiffs' declaration alleges that they are the owners of a parcel of land in Rye which on or about January 1, 1968 was zoned by the town for general residential use with a requirement that lots measure 100 100 feet. In compliance with this regulation, plaintiffs allege they intended to divide their property into 11 lots which would have a total value of $158,000. To accomplish this purpose, plaintiffs, on January 12, 1968, petitioned the Port Authority for a permit to fill their property which they allege was of no economic or beneficial value in the absence of fill.
On February 14, 1968, the Port Authority denied plaintiffs' petition to fill their land. Plaintiffs appealed to this court which in an opinion dated November 28, 1969, held that plaintiffs' property did not fall within the purview of RSA ch. 483-A under which the Port Authority purported to act and that its orders were null and void for lack of jurisdiction. Sibson v. State, 110 N.H. 8, 11, 259 A.2d 397, 400 (1969).
Plaintiffs allege further that on March 28, 1968 while they were under the order of the Port Authority not to fill their land, the zoning ordinance of the Town of Rye was amended to require that a residential lot have an area of 150 200 feet thus reducing their property to a maximum of 4 lots with a total maximum value of $40,000.
Plaintiffs allege that as a direct and proximate result of the action of the State, through its Port Authority, they were deprived from about February 28, 1968 to November 16, 1969 of any commercial or economic use of their property which constituted an uncompensated taking in violation of the fifth and fourteenth amendments to the United States Constitution and the Constitution of the State of New Hampshire.
Plaintiffs further allege that as a direct and proximate result of the action of the Port Authority the full enjoyment and use of their property has been reduced by the intervening amendment to the zoning ordinance of the Town of Rye.
Although the constitution of this State does not contain, in any one clause, an express provision requiring compensation to be made when private property is taken for public uses, yet it has been construed by the courts, in view of the spirit and tenor of the whole instrument, as prohibiting such taking without compensation; and it is understood to be the settled law of the State, that the legislature cannot constitutionally authorize such a taking without compensation.' Eaton v. B.C. & M.R.R., 51 N.H. 504, 510-511 (1872); Piscataqua Bridge, Proprietors of v. N.H. Bridge, 7 N.H. 35, 66, 70 (1834); N.H. Const., pt. 1, art. 12. Consequently, if plaintiffs' declaration alleges a cause of action based on a constitutional taking or damaging of their property for public use under the eminent domain power, sovereign immunity would not be a ground for dismissal 'because the constitutional requirement of 'just compensation' is self-executing and not dependent upon waiver of immunity.' N.H. Water Resources Board v. Pera, 108 N.H. 18, 20, 226 A.2d 774, 775 (1967); see National Board of Y.M.C.A. v. United States, 395 U.S. 85, 89, 89 S.Ct. 1511, 1514, 23 L.Ed.2d 117, 122 (1969).
On the other hand, however, if plaintiffs' action is based on a lessening of the value of their property resulting from a proper exercise of the police power, such as regulation of land by zoning or other regulations in the promotion of the general welfare, the resulting damage would not be compensable. Dederick v. Smith, 88 N.H. 63, 68, 184 A. 595, 598 (1936); Maritime Packers, Ltd. v. Carpenter, 99 N.H. 73, 77, 105 A.2d 38, 41 (1954); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Comm'n, 11 Cal.App.3d 557, 89 Cal.Rptr. 897 (1970); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn. 109, 273 A.2d 880 (1970).
The basis of the recovery sought by plaintiffs' declaration is determined, in large measure, by '(t)he source or origin of the duty alleged to have been violated; the nature of the grievance; the character of the remedy such facts indicate; the type of damages sought * * *.' J. Dunn & Sons, Inc. v. Paragon Homes of New Eng. Inc., 110 N.H. 215, 217, 265 A.2d 5, 7 (1970). There is no allegation therein that it was the change in the zoning ordinance of Rye which deprived plaintiffs of the reasonable use of their property and resulted in a taking of it without compensation which would be a required allegation if recovery were sought on that basis. Sundeen v. Rogers, 83 N.H. 253, 257, 141 A. 142, 144 (1928); Lachapelle v. Goffstown, 107 N.H. 485, 489, 225 A.2d 624, 627 (1967); MacGibbon v. Board of Appeals, 356 Mass. 635, 255 N.Ed.2d 347 (1970); Spaid v. Board of County Com'rs, 259 Md. 369, 269 A.2d 797 (1970); see State v. Johnson, 265 A.2d 711 (Me.1970); Boggs v. Board of Supervisors, 211 Va. 488, 178 S.E.2d 508 (1971).
Nor is it alleged that the damages sought resulted from taking of their property under RSA ch. 483-A. This Court decided in Sibson v. State, 110 N.H. 8, 259 A.2d 397 (1969) that their property did not come within the terms of that chapter. Applying the above test, it is clear that the gravamen of plaintiffs' declaration is that they were damaged because the State, acting through its agent the Port Authority, wrongfully assumed jurisdiction...
To continue reading
Request your trial
-
Sibson v. State
...Laws 1970, 22:1 now RSA 483--A:1--a (Supp.1973) clearly includes plaintiffs' land. The litigation which culminated in Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971), although related has no particular relevance to the present In sustaining the denial of a permit to full by the special b......
-
Sundell v. Town of New London
...in the instant case does not depend upon statute or case law but instead derives from a constitutional imperative. Sibson v. State, 111 N.H. 305, 307, 282 A.2d 664, 665 (1971). In Ackerman v. Port of Seattle, 55 Wash.2d 400, 348 P.2d 664 (1960), for example, it was held that an action for a......
-
Smoke Rise, Inc. v. Washington Suburban San. Com'n, Civ. A. No. N-73-1031.
...or useless so as to constitute a taking. Hadacheck v. Sebastian, 239 U.S. 394, 36 S. Ct. 143, 60 L. Ed. 348 (1915); Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971). In the instant case, several of the plaintiffs plan to subdivide their land into small, single-family lots, a use which wil......
-
Cannata v. Town of Deerfield, 88-061
...rights. The Trial Court (Gray, J.), citing Win-Tasch Corp. v. Town of Merrimack, 120 N.H. 6, 411 A.2d 144 (1980) and Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971), dismissed both counts on the ground that the actions of the selectmen, and therefore the town, were protected by the doctr......