Stocker v. City of Waterbury

• Decision Date: 24 January 1967
• Citation: 226 A.2d 514,154 Conn. 446
• Court: Connecticut Supreme Court
• Parties: Charles D. STOCKER et al. v. CITY OF WATERBURY et al.

Page 514

226 A.2d 514

154 Conn. 446

Charles D. STOCKER et al. v. CITY OF WATERBURY et al.

Supreme Court of Connecticut.

Jan. 24, 1967.

H. Meade Alcorn, Jr., Hartford, with whom was Ralph G. Elliot, Hartford, for appellants-appellees (plaintiffs).

Alfred L. Finkelstein and Francis M. McDonald, Waterbury, for appellee-appellant (defendant Waterbury Parking Authority).

Before THIM, SPEZIALE, DOHERTY, SHEA and SIDOR, JJ.

THIM, Associate Justice.

The plaintiffs brought this action against the defendant the Waterbury Parking Authority, hereinafter referred to as the authority, wherein they sought to restrain the authority, the duly authorized municipal agency, from taking in the name of the defendant city of Waterbury their properties in the central downtown area of Waterbury for the construction of a public parking facility pursuant to §§ 48-6 and 48-12 of the General Statutes. Injunctive relief was sought on the grounds that (a) their properties were not necessary for or incidental to a public use, (b) the attempted taking was arbitrary and an abuse of discretion, and (c) two members of the authority wrongfully participated in the proceedings and in the voting of the authority to acquire the plaintiffs' properties. The authority filed a demurrer to the complaint wherein it asserted, inter alia, that the complaint neither alleged facts showing that the plaintiffs would suffer irreparable injury by the proposed taking nor alleged that they lacked an adequate remedy at law.

The trial court overruled the demurrer. It failed, however, to comply with the specific provisions of General Stautes § 52-232 and Practice Book § 114 so the grounds on which its decision was based remain undisclosed. Thereupon, the authority filed an answer in which it alleged, by way of special defense, that the plaintiffs had an adequate remedy at law. General Statutes § 52-95. Upon trial, the court concluded that the vote of the authority to acquire the plaintiffs' properties was void because Charles Rosengarten, a member of the authority, was disqualified from participating in the discussions and votes of the authority leading up to and culminating in the decision to acquire the properties of the plaintiffs. The court further concluded that the authority should be permanently enjoined from taking the plaintiffs' properties. From the judgment, both the plaintiffs and the authority appealed. In view of the conclusion which we have reached, we need only discuss the issue raised by the authority's appeal relating to its demurrer and special defense.

A demurrer is the proper remedy before trial by which to determine whether the allegations of a complaint state a good cause of action in law or equity. Practice Book § 106; Rutt v. Roche, 138 Conn. 605, 607, 87 A.2d 805; Zamatha v. Harak, 134 Conn. 480, 483, 58 A.2d 704. 'An injunction is a harsh remedy'; Leo Foundation v. Cabelus, 151 Conn. 655, 657, 201 A.2d 654, 655, and when an equitable injunction is the specific relief claimed, it is incumbent upon the party seeking relief to allege facts showing irreparable damage and the lack of an adequate remedy at law. Theurkauf v. Miller, 153 Conn. 159, 161, 214 A.2d 834; Weaver v. Ives, 152 Conn. 586, 590, 210 A.2d 661. Where a demurrer is overruled and the case goes to final judgment, the ruling on the demurrer may be claimed as error, since an erroneous ruling on a demurrer is a proper subject of review. Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550. Here, one of the issues raised by the authority in its demurrer, and again in its special defense, is whether the plaintiffs have an adequate remedy at law. "Adequate remedy at law' means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance.' Wheeler v. Bedford, 54 Conn. 244, 249, 7 A. 22, 24; Brainard v. Town of West Hartford, 140 Conn. 631, 635, 103 A.2d 135. If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183, 96 A. 966; Gorham v. City of New Haven, 82 Conn. 153, 156, 72 A. 1012; 6 Nichols, Eminent Domain (3d Ed.) § 28.22, p. 622.

The plaintiffs alleged in their complaint that the authority was authorized to acquire by condemnation, subject to the provisions of § 48-6 of the General Statutes, real property necessary for or incidental to the construction, maintenance or operation of parking facilities. They further alleged that they received notice of the intention of the authority to condemn their properties and that condemnation petitions are pending in the Superior Court at Waterbury. The authority admitted giving notice of an intention to condemn the properties of some of the plaintiffs, and it alleged that it had commenced condemnation proceedings as to the others.

The right to decide what property was necessary for the parking facility was primarily within the province of the authority. 27 Spec.Laws 549, No. 611 § 5 (amended, 28 Spec.Laws 470, No. 371 § 1); Water Commissioners v. Johnson, 86 Conn. 151, 158, 84 A. 727, 41 L.R.A.,N.S., 1024. Its decision, however, is open to judicial review to discover if it was unreasonable or in had faith or in abuse of power conferred. Gohld Realty Co. v. City of Hartford, 141 Conn. 135, 146, 104 A.2d 365; Water Commissioners v. Johnson, supra, 86 Conn. 159, 84 A. 727.

The plaintiffs have a right to contest the condemnation proceedings brought and to be brought by the authority. By filing proper pleadings to the condemnation petitions, the claims of the plaintiffs could properly be presented and decided. State v. Simmons, 153 Conn. 351, 353, 216 A.2d 632; State v. Fahey, 146 Conn. 55, 58, 147 A.2d 476, 75 A.L.R.2d 1002; Id., 147 Conn. 13, 17, 156 A.2d 463; Bridgeport Hydraulic Co. v. Rempsen, 124 Conn. 437, 441, 200 A. 348. An adverse determination on these claims could properly be appealed to this court. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 235, 167 A. 715. We conclude the plaintiffs had an adequate remedy at law.

The plaintiffs cite Bahr Corp. v. O'Brion, 146 Conn. 237, 149 A.2d 691, in support of their claim for an injunction. That case is distinguishable in that it involved the application of a significantly different statute governing the taking of property for public use. In the Bahr case, the condemning agency was proceeding to take the property for redevelopment purposes under what are now §§ 8-124 to 8-139 of the General Statutes. Under § 8-129, title to the property and the right to immediate possession vested in the agency immediately upon the filing of a statement of compensation with the clerk of the Superior Court and the town clerk. Because the provisions of § 8-129 failed to provide the property owner with an opportunity to contest the taking, the plaintiff, being without an adequate remedy at law, was entitled to equitable relief to obtain a review of the agency's taking of its property. In the instant case, the plaintiffs have the opportunity to have the decision of the authority judicially reviewed before title and possession are lost. See State v. Simmons, supra; State v. Fahey, supra; Bridgeport Hydraulic Co. v. Rempsen, supra. Therefore, the adequate legal remedy which was lacking in the Bahr case is present here.

The plaintiffs suggest the they collectively instituted this action because their claims can be determined with less expense to them than in individual condemnation proceedings. The mere fact that it is individually less expensive collectively to seek extraordinary relief does not establish a collective right to that relief. See Sheldon v. Centre School District, 25 Conn. 224, 228; 27 Am.Jur.2d 570, Equity, § 47.

The plaintiffs also suggest that the remedy which they pursued will keep them from being subjected to a multiplicity of suits. The answer to that claim is found in Dodd v. City of Hartford, 25 Conn. 232, 238, where the court stated: 'The multiplicity of suits which the petition (for an injunction) seeks to avoid, does not affect injuriously any one of the petitioners. No one of them has occasion to expect any such multiplicity affecting himself. One suit is all that any one of them has to fear'.

Finally, the plaintiffs make the claim that they had a choice of remedies and that they could either raise their claims in answers to the condemnation petitions or institute an injunction action. We conclude they had no such choice. If they wished to contest the petitions which the authority filed pursuant to § 48-12 of the General Statutes, they were required to plead their defenses to those petitions. Bridgeport Hydraulic Co. v. Rempsen, 124 Conn. 437, 442, 200 A. 348; Walter Commissioners v. Johnson, 86 Conn. 151, 166, 84 A. 727.

For the reasons we have stated, the demurrer should have been sustained. Montanaro v. Pandolfini, 148 Conn. 153, 155, 168 A.2d 550. Since, however, there has been a trial on the merits of this case, we may review the question of the plaintiffs' right to pursue their remedy on the facts established at the trial. State v. Sul, 146 Conn. 78, 81, 147 A.2d 686; Mechanics Bank v. Woodward, 74 Conn. 689, 691, 51 A. 1084; Maltbie, Conn.App.Proc. §§ 65, 66.

Having heard all the evidence in a trial on the merits, the court has neither found nor concluded that the plaintiffs would sustain irreparable damage if an injunction did not issue. Nor has the court found that they lack an adequate remedy at law. Hence, these essential allegations have neither been alleged nor proved as is required by Theurkauf v. Miller, 153 Conn. 159, 161, 214 A.2d 834. Accordingly, not only was there error in overruling the demurrer but, having proceeded to a full trial on the merits, and the conditions procedent not having been established, the court erred in granting the permanent injunction.

Under the circumstances, we are unable to reach the question whether the trial court erred...