Toffolon v. Town of Avon

• Decision Date: 04 October 1977
• Citation: 378 A.2d 580,173 Conn. 525
• Court: Connecticut Supreme Court
• Parties: John E. TOFFOLON et al. v. TOWN OF AVON. CONNECTICUT SAND & STONE CORPORATION v. TOWN OF AVON.

Page 580

378 A.2d 580

173 Conn. 525

John E. TOFFOLON et al. v. TOWN OF AVON.

CONNECTICUT SAND & STONE CORPORATION v. TOWN OF AVON.

Supreme Court of Connecticut.

Argued June 9, 1977.

Decided Oct. 4, 1977.

Paul W. Orth, Hartford, with whom was Robert C. Hunt, Jr., Hartford, Town Atty., for the appellant-appellee (defendant in the first case) and for the appellee (defendant in the second case).

Steven D. Bartelstone, Hartford, with whom was A. Ned Rogin, Hartford, for the appellees-appellants (plaintiffs in the first case) and for the appellant (plaintiff in the second case).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and WALL, JJ.

LONGO, Associate Justice.

In the Toffolon case, the defendant, the town of Avon, has appealed from a judgment rendered by a state referee who, exercising the powers of the Superior Court, reassessed the damages sustained by the plaintiffs in the taking of their land. The defendant claimed that the assessment was excessive and the plaintiffs cross appealed, claiming that the award was inadequate. In the Connecticut Sand and Stone case the plaintiff (hereinafter CSS), the owner of land contiguous to that of the plaintiffs in the Toffolon case, has appealed from the failure of the court to award severance damages resulting from the defendant's taking. By agreement of counsel, the two actions were consolidated and tried together.

In the Toffolon case, the defendant on appeal has assigned as error the refusal of the court to find the facts set forth in sixty-one paragraphs of its drafts finding, claiming them to be admitted or undisputed; the finding of twenty-three paragraphs of facts without evidence; the finding of facts in language of doubtful meaning in seventeen paragraphs of the finding; the reaching of unsupportable conclusions in twenty-four paragraphs of the finding; and the overruling of eleven claims of law a total of one hundred thirty-five claims of error. The court refused corrections. In the cross appeal the plaintiffs have assigned approximately thirty-five errors.

This court strongly disfavors such an unwieldly method of presenting an appeal. Southern New England Contracting Co. v. State, 165 Conn. 644, 646, 345 A.2d 550; Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 3, 327 A.2d 583; Warner v. Warner, 124 Conn. 625, 639, 1 A.2d 911. It is futile to assign error involving the weight of testimony or the credibility of witnesses. Hartford-Connecticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 699, 88 A.2d 393; McMahon v. Malloy, 109 Conn. 505, 506, 147 A. 26. Because of the nature of the attack we do not discuss those claims in detail. We have examined them and have concluded that the finding is not subject to corrections which will affect the result.

The following facts are among those found by the court: On October 26, 1972 the defendant, the town of Avon, pursuant to the provisions of General Statutes § 8-129, filed a statement of compensation in the amount of $83,112 for three contiguous parcels of land, consisting of approximately 73.4 acres, owned by the plaintiffs, John E. and Roger L. Toffolon. A portion of that land, parcel 2 of parcel A, with which this appeal is principally concerned, contained 61.3 acres, and upon this land the plaintiffs operated a sand, gravel and earth material removal and processing business. The town later filed an amended statement of compensation alleging that CSS was a lessee of the Toffolon property and was allowed to remove sand and gravel for a five-year period commencing July 26, 1971. CSS also owned a contiguous parcel of land, parcel B, located south of the Toffolon property, consisting of open land with two man-made ponds used in connection with the processing of earth materials from both CSS's property and the Toffolon property. Both properties were located in an industrial zone and operated as prior nonconforming uses. Located on the southerly side of the Toffolon property was a processing and crushing plant approximately 400 feet long and 91 feet in height which weighed several thousand tons and was owned by CSS. The court found that the depreciated value of the processing plant, together with the depreciated cost of land preparation, drainage, sewers and roads was $324,800.

Following extensive hearings, the court visited the premises and reached the following conclusions: The highest and best use of the plaintiffs' land at the time of taking was as an earth material excavation and processing operation; the fair market value of a portion of the plaintiffs' property (parcel 2 of parcel A) consisting of 61.3 acres was $183,900, computed at $3000 per acre; the nonconforming use of the premises as an earth material excavation operation had not been abandoned; there was earth material remaining to be processed on parcel 2 consisting of 200,000 cubic yards of sand and gravel, 2,000,000 cubic yards of glacial till and 1,700,000 cubic yards of ledge which could be excavated and sold; and the processing plant had to be regarded as a fixture and an integral part of the real estate and its value had to be included in the taking. The court awarded the plaintiffs the sum of $494,900 for their land and the processing plant, together with interest and appraisal, expert witness, engineering and surveying fees.

Essentially, the plaintiffs claim that there were large quantities of valuable earth materials which were excavatable, processable and salable in an active operation being conducted as a nonconforming use in an industrial zone. The defendant claims that the land had been largely depleted of the valuable sand and gravel; that the operation had been dormant for years until just before the taking, and that the processing plant had no significant remaining useful life.

The defendant, the town of Avon, in its appeal, and the plaintiffs, in their cross appeal, have challenged the court's valuation of the land at $3000 per acre. The plaintiffs offered the testimony of appraisers who valued the land at $17,000 and $17,500 per acre. The defendant offered the testimony of appraisers who suggested valuations between $1250 and $1400 per acre. One of the defendant's appraisers, Peter Marsele, was allowed to return to the stand and offer an alternative appraisal of $3000 per acre based on recent sales of sand and gravel banks in the area. The court arrived at the same ultimate valuation which the defendant now claims was excessive and which the plaintiffs claim was inadequate. The trier of fact is free to accept or reject in whole or in part expert testimony offered by either party and may give constructions to the evidence which are at variance with the claims advanced by the parties. Gentile v. Ives, 159 Conn. 443, 270 A.2d 680, cert. denied, 400 U.S. 1008, 91 S.Ct. 566, 27 L.Ed.2d 621; Whewell v. Ives, 155 Conn. 602, 236 A.2d 92. Further, "(n)othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." Morgan v. Hill,139 Conn. 159, 161, 90 A.2d 641, 642. With these principles in mind, we cannot conclude that it was error for the court to decide as it did. The defendant contends that the court erred in concluding that there was a sufficient quantity of valuable earth materials remaining in the land to increase its value. We note only that there was evidence from which the court could reasonably have concluded that eighteen earth materials exclusive of sand and gravel had been excavated from the property, processed and sold in the past and that there was evidence that substantial quantities of those materials remained in the land.

The plaintiffs, in challenging the valuation as inadequate, contend that the court failed to consider that the use of the land was nonconforming, that there was a going business located on the premises and that the parcel was unique. The plaintiffs acknowledge that the expert testimony of Marsele was based on sales of similar land in the area. Though those parcels were not identical to the parcels in question they did serve as a valid basis for his valuation. Furthermore, it is clear from the findings and conclusions that the court was conscious of and considered all those factors mentioned by the defendant. We conclude that the court's determination that the land was worth $3000 per acre was based on credible testimony and was neither logically nor legally inconsistent with the subordinate facts found. Whewell v. Ives, supra.

The defendant contends that CSS had abandoned stockpiled processed earth materials located on parcel A. The court found that at the time of the taking there were stockpiles of processed materials on parcel A including 25,000 tons of sand, stone and gravel which had been excavated during 1971 and 1972. Severed earth materials, like topsoil or fill, are personal property which if not removed from the owner's land can be found to have been intentionally abandoned. Sharkiewicz v. Lepone, 139 Conn. 706, 96 A.2d 796. A question of intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which cannot reasonably be reached. International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 102 A.2d 366; Glotzer v. Keyes, 125 Conn. 227, 5 A.2d 1. In support of the claim of abandonment, the defendant relies upon the fact that the plaintiffs failed to remove the stockpiled materials following the sending of three letters by the defendant's counsel in the spring of 1973 demanding removal of all personal property. The trial court's conclusion of nonabandonment, however, was amply supported by the findings that in the fall of 1972, following the filing of the certificate of compensation on October 26, 1972, the plaintiffs painted the processing plant at great expense, that there was considerable activity in November, 1972, and that in March, 1973, shortly before the three letters were sent, the plaintiffs sold...