Sorensen v. Cox

• Decision Date: 13 February 1946
• Citation: 46 A.2d 125,132 Conn. 583
• Court: Connecticut Supreme Court
• Parties: SORENSEN v COX, Highway Commissioner.

132 Conn. 583

46 A.2d 125

SORENSENvCOX, Highway Commissioner.

Supreme Court of Errors of Connecticut.

Feb. 13, 1946.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Proceeding in the matter of appeal by Arthur W. Sorensen from an appraisal of damages and assessments of benefits made by William J. Cox, Highway Commissioner, for land taken for a highway, brought to the Superior Court and referred to a state referee. From a judgment accepting referee's report and awarding $6,395 to plaintiff, plaintiff appeals.

No error.

Robert J. Woodruff and William Dimenstein, both of New Haven, for appellant.

Harry L. Brooks, Asst. Atty. Gen. (William L. Hadden, Atty. Gen., on the brief), for the appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

This is an appeal from an appraisal of damages by the state highway commissioner, proceeding under the authority of § 1528 of the General Statutes, for the taking for trunk highway purposes of 29.88 acres of the plaintiff's property in Woodbridge together with drainage rights over certain of his remaining land. The court accepted the report of the state referee to whom the case had been referred, by which damages for the taking were reassessed at $6,391, and rendered judgment therefor in favor of the plaintiff who had appealed.

The facts as found by the referee are undisputed and in so far as material may be thus summarized: Prior to the taking, the plaintiff owned a 114.5 acre dairy farm in Woodbridge consisting of a single tract with house, large barn, and other buildings. From it the highway commissioner took for the layout and construction of the Wilbur Cross Parkway the southerly portion, consisting roughly of a parallelogram 2,720 feet long and containing 29.88 acres. The tract was vacant land located thirteen hundred feet from the buildings on the remaining tract. The taking also included the right to drain water upon the plaintiff's remaining land at two places. Of the land taken, 12 acres is more or less tillable and is of the fair market value of $275 per acre, a total of $3,300; and 17.88 acres is pasture and woodland worth $75 an acre, a total of $1341. The grade of the parkway when constructed will vary from 12.4 feet below to 43.2 feet above the adjoining land. No damage from noise or from traffic in consequence of the construction of the parkway will result to the plaintiff's remaining land. The consequential damage to the land not taken and to the buildings and equipment thereon and the use made thereof, which is the most practicable and profitable use to be made of the property, amounts to $1,500. The damage resulting from the drainage rights taken, including the incumbrance on the remaining land, is $250. The total damage resulting from the taking is $6,391.

The plaintiff filed a thirteen paragraph remonstrance to the report of the referee to which the defendant demurred. The court sustained the demurrer and rendered judgment for the plaintiff for $6,395 and costs. The demurrer was properly sustained as to ten of the paragraphs on the ground that they presented nothing for the court to consider in the absence of the evidence, and to two others because they were immaterial. The sole question for decision, by reason of the court's ruling on the remaining paragraph, is whether the referee erred in that he did not arrive at the damages for the land taken by determining the value of the farm before the taking. It is true that ‘It is one of the general rules governing the right of eminent domain that just compensation for taking a part of a parcel of land or an easement in such a part is to be ascertained by comparing the value of the entire parcel before the taking with the value of what remains after the taking, and in view of the new conditions created by the taking. If the latter of these two values be less than the former, the amount of the difference measures the damages to be paid.’ New York, N. H. & H. R. Co. v. New Haven, 81 Conn. 581, 583, 71 A. 780, 781; Stock v. Cox, 125 Conn. 405, 418, 6 A.2d 346. More recently in restating the rule we have said that the proper measure of damages is ‘the difference between the market value...