Slavitt v. Ives

• Decision Date: 06 June 1972
• Citation: 163 Conn. 198,303 A.2d 13
• Parties: Jennie A. SLAVITT et al. v. Howard S. IVES, Highway Commissioner. The HOLSON COMPANY v. Howard S. IVES, Highway Commissioner.
• Court: Connecticut Supreme Court

Page 13

303 A.2d 13

163 Conn. 198

Jennie A. SLAVITT et al. v. Howard S. IVES, Highway Commissioner.

The HOLSON COMPANY v. Howard S. IVES, Highway Commissioner.

Supreme Court of Connecticut.

June 6, 1972.

Robert J. Randell, New York City, of the New York bar, with whom was Michael Schless, Hartford, for appellant (plaintiff The Holson Co.) in each case.

Clement J. Kichuk, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and Jack Rubin, Asst. Atty. Gen., for appellee (defendant) in each case.

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellees (plaintiffs) in the first case.

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

SHAPIRO, Associate Justice.

On May 9, 1966, the state of Connecticut, through the defendant highway commissioner, acquired, by condemnation, property of Diamondhead Corporation (hereinafter referred to as Diamondhead). The commissioner assessed as total damages for the entire taking the sum of $211,000.

On October 30, 1967, the state of Connecticut through the defendant commissioner, acquired by condemnation property of Jennie A. Slavitt and Ems Bergerman (hereinafter referred to as Slavitt). The commissioner assessed as damages to these owners resulting from the taking, the sum of $126,000.

Both the Diamondhead and Slavitt properties were interior parcels situated over 100 feet off Belden Avenue in Norwalk, behind other property fronting on that street. Diamondhead had access to Belden Avenue only by means of a single roadway, 40 feet wide by 115 feet long, delineated and designated as 'right of way,' owned in fee by Diamondhead and used in common by Diamondhead, Slavitt and a third adjoining owner, Belden Manufacturing Company. The roadway extended south to Belden Avenue along the easterly boundary of the Diamondhead property.

The Slavitt property was so situated to the west of Diamondhead that its only access to Belden Avenue was over a second 'right of way' roughly 54 x 185 feet, which ran easterly across the Diamondhead property to connect to the aforementioned right-of-way, thus giving access to Belden Avenue.

The Holson Company (hereinafter referred to as Holson), a lessee at the time of the taking, conducted a manufacturing business in a one-story building located on the Diamondhead property and also in an adjoining two-story building located on the Slavitt property. The buildings were connected by a covered loading platform and storage area.

The Diamondhead building was occupied by Holson under a sublease which commenced February 1, 1963. It was thereafter extended until December 31, 1966. At the time of the Diamondhead taking, Holson's sublease had an unexpired term of seven months and twenty-two days. After the Diamondhead taking in May, 1966, the state permitted Holson to continue in its use and occupancy of the Diamondhead building at the same rate paid previously by Holson under its sublease. Subsequently, the state demanded that Holson vacate the Diamondhead building to make way for demolition and Holson began to move in January, 1967, and finished moving in March, 1967.

The Slavitt building was occupied by Holson under an initial lease for a term of ten years beginning on April 1, 1955, and expiring March 31, 1965. It was extended for a further term ending March 31, 1970. At the time of the earlier Diamondhead taking, the Slavitt leasehold had an unexpired term of three years, ten months and twenty-four days and at the time of the later Slavitt taking, that leasehold's unexpired term was two years, five months and four days.

Holson moved from both the Diamondhead and Slavitt properties between January 3, 1967, and March 18, 1967. After Holson moved from the Slavitt property, it continued to pay rent to the Slavitt owners, pursuant to its lease, until October 30, 1967, the date of the Slavitt fee taking.

Slavitt and Diamondhead each appealed to the Superior Court from the assessments of damages filed by the defendant highway commissioner. Holson was permitted to file an intervening appeal as a coplaintiff in the Slavitt appeal; it filed a separate appeal from the assessment of the Diamondhead property. The Superior Court referred the actions to a state referee, who, having heard all three appeals, rendered two separate amended reports. One amended report was rendered in the Slavitt appeal and an amended joint report was rendered in the Diamondhead and Holson appeals. Two separate judgments were rendered in these actions by the Superior Court which accepted the referee's amended reports. The judgment in the Slavitt appeal awarded Slavitt $196,000 for the value of its property while Holson was awarded $1615 for the value of its trade fixtures and $600 for the nominal value of its leasehold interest at the time of the taking. Both parties also received compensation for appraisers' fees. No other items of damage claimed by Holson were allowed.

In the judgment rendered in the Holson and Diamondhead appeals, Diamondhead was awarded $318,650 and Holson was awarded $2350 for the value of its leasehold interest and $4031 for the value of its trade fixtures. Other items of damage claimed by Holson were disallowed.

Only the lessee Holson has appealed to this court from the judgments in the Slavitt and Holson cases. In this combined appeal, Holson claims in its brief that the court erred in accepting the referee's report, which failed to rule affirmatively on its claims that (1) the taking of a fee subject to a right of way to landlocked property, is an actual taking of the right-of-way and consequently the taking of the fee of the landlocked parcel at the same time; (2) the valuation of a leasehold interest under eminent domain is the difference between the economic rent and the rent reserved in the lease and not the marketability of the lease; (3) the value of the fixtures which enhance the value of leased property is measured by reproduction cost less depreciation and not by the purpose for which fixtures are used; (4) moving expenses of a tenant are an element of compensation in arriving at the market value of the right to immediate possession of realty under eminent domain.

I

Holson claims that the defendant took and legally destroyed its sole right of access to the Slavitt property when it took the Diamondhead property on May 9, 1966, and that as a result of that taking and destruction of the access to the Slavitt property, an effective and de facto taking of the Slavitt property occurred on May 9, 1966, and not on October 30, 1967, when the state condemned de jure the Slavit property. Holson does not contend that its right of access from the otherwise landlocked Slavitt property was physically destroyed at the time of the Diamondhead taking. After the Diamondhead taking, the defendant permitted Holson to continue in the use and occupancy of the Diamondhead property on a month-to-month basis by the specific request of Holson, and Holson paid the defendant for such use and occupancy at the same rate as it had paid under its sublease. Holson continued to use the Slavitt property until it voluntarily vacated the premises in March, 1967, so that on October 30, 1967, the date of the taking, the Slavitt premises were vacant and unoccupied. Holson continued, however, to pay rent to Slavitt under the lease until the date of the taking.

General Statutes § 13a-73(b), under which the defendant acquired the Diamondhead property, provides that the defendant file his assessment of damages for property to be taken with the clerk of the Superior Court and that at any time after such assessment has been made, ¹ the physical construction or other improvement may be made. ² The clerk must then give notice of the assessment to each owner of land affected thereby and to all persons appearing of record as holders of any incumbrance or interest therein which is to be taken. See also General Statutes § 48-21.

Section 13a-73(b) further provides that on the filling of the assessment, the defendant shall 'forthwith' sign and file with the town clerk a certificate 'setting forth the fact of such taking, a description of the real property so taken and the names and residences of the owners from whom it was taken,' and that upon the filing of this certificate, 'title to such real property in fee simple shall vest in the state of Connecticut except that, if it is so specified in such certificate, a lesser estate, interest or right shall vest in the state.' ³

The certificate of taking for the Diamondhead property sets forth the fact of the taking, a description of the property and, among others, the names and residences of Holson as sublessee and of Slavitt as owner of the right of way. It concludes with the statement that '(s)aid premises . . . are taken subject to easements in favor of the Connecticut Light and Power Company, The Southern New England Telephone Company and the City of Norwalk, as of record may appear.' No right-of-way in favor of Slavitt however, was specified as being excluded. We must conclude, then, that under § 13a-73, the right-of-way was included within the taking.

The question as to when a taking is complete is one of substantive law and depends on the law of each state. Crawford v. Bridgeport, 92 Conn. 431, 437, 103 A. 25; 6 Nichols, Eminent Domain (3d Ed.) § 26.42. Although a plaintiff is constitutionally entitled to any damages he may have suffered where physical possession precedes the filing of the certificate and assessment (Carl Roessler, Inc. v. Ives, 156 Conn. 131, 144, 239 A.2d 538; Trumbull v. Ehrsam, 148 Conn. 47, 55, 166 A.2d 844), there is no authority cited by the defendant for his proposition that there was no taking of the right-of-way on May 9, 1966, because possession had not actually been taken, or for his contention that the plaintiff's continuing actual possession precluded its right to damages. But see Clark v. Cox, 134 Conn. 226, 231, ...