Town of Trumbull v. Ehrsam

• Decision Date: 05 January 1961
• Court: Connecticut Supreme Court
• Parties: TOWN OF TRUMBULL v. Frederick F. EHRSAM et al. Supreme Court of Errors of Connecticut

Page 844

166 A.2d 844

148 Conn. 47

TOWN OF TRUMBULL v. Frederick F. EHRSAM et al.

Supreme Court of Errors of Connecticut.

Jan. 5, 1961.

Michael J. Sicilian, Bridgeport, and George A. Saden, Bridgeport, for appellant (named defendant).

Frank Logue, Trumbull, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

SHEA, Justice.

This action was brought under authority of what are now General Statutes §§ 48-4 and 48-5 to condemn land of the named defendant, hereinafter called the defendant, for use as a public high school. In the course of the proceedings, the court granted the plaintiff's motion for permission to withdraw the action. From that ruling the defendant has appealed.

The legislative body of the plaintiff, the town of Trumbull, was created in 1953 by Special Act No. 27 and is known as the representative town meeting, hereinafter called R.T.M. 26 Spec.Laws 704. Under § 13 of the act, as amended, the qualified electors of the town are granted the power, by referendum, to reverse, modify or approve any act of the R.T.M., provided a written petition for such a referendum, signed by not less than 5 per cent of the total number of qualified electors in the town, shall be filed with the town clerk before the effective date of the act. 26 Spec.Laws 708, as amended, 27 Spec.Laws 643.

In February, 1957, the R.T.M., having fixed on the defendant's land as a school site, attempted to purchase twenty-one acres from him. The parties were unable to agree on a price; in August, the plaintiff filed its petition to condemn the property, following the procedure outlined in § 48-12 of the General Statutes. Under the provisions of § 48-16, the plaintiff obtained permission from the court to enter immediately and to devote the property to the use specified in the petition. The plaintiff made test borings on the property and cut down a number of trees. In the spring of 1958, a controversy arose in Trumbull over the acquisition of the defendant's land. On March 21, the R.T.M. voted to acquire other property for the high school and to abandon the proceedings to acquire the defendant's property.

In a referendum held under § 13 of 1953 Special Act No. 27 on April 10, 1958, the action taken by the R.T.M. on March 21, 1958, was overruled. On May 26, 1958, the R.T.M. appropriated more than $3,000,000 to construct and equip a high school on the defendant's property. On June 6, 1958, the R.T.M. published a warning of a meeting to be held to consider abandonment of the proceedings to acquire the defendant's land. On June 11, 1958, the committee appointed by the Superior Court to assess damages to the defendant filed its report in court. On the following day, the R.T.M. voted to abandon the proceedings. Thereafter, the court granted the plaintiff's motion to withdraw the action. A series of procedural irregularities ensued in the trial court as a result of the motion to withdraw, but the parties and the trial court ignored these defects and we shall adopt the same course. Anselmo v. Cox, 135 Conn. 78, 79, 60 A.2d 767.

The defendant claims that the entry made by the plaintiff on his land constituted a taking of it which barred the plaintiff from abandoning the proceedings to condemn. So far as the rights of an owner of property are concerned, eminent domain proceedings are, from their inception until the taking is complete, wholly within the control of the state which authorizes them. The question as to when a taking is complete is one of substantive law and depends upon the law of each state. Crawford v. City of Bridgeport, 92 Conn. 431, 437, 103 A. 125; 6 Nichols, Eminent Domain (3d Ed.) § 26.42.

The procedure for condemning land for school purposes is outlined in § 48-12. The law provides that a petition may be preferred to the Superior Court of the county in which the property lies and that the court shall appoint a committee of three disinterested persons to ascertain the value of the property and assess just damages to the owner. The committee is then required to report its doings to the court. If the report of the committee is accepted, the acceptance has the effect of a judgment in favor of the owner of the property against the petitioner for the amount of the assessment made by the committee, and an execution may issue. Section 48-12 specifies that, except as provided under § 48-16, the property shall not be used or enclosed by the petitioner until the petitioner pays the amount of the judgment to the party to whom it is due or deposits it for his use. Section 48-12 further specifies that upon such payment or deposit the property shall become the property of the petitioner. The legislature has clearly fixed the time when the respective rights of the parties are changed by the transfer of title to the land. After that time the proceedings cannot be discontinued. City of Bristol v. Bristol Water Co., 85 Conn. 663, 670, 84 A. 314; Stevens v. Borough of Danbury, 53 Conn. 9, 22, 23, 22 A. 1071; Carson v. City of Hartford, 48 Conn. 68, 88; note, 121 A.L.R. 12, 31.

Under § 48-12, the petitioner is not entitled to possession of the land before the amount of the judgment has been paid or deposited with the county treasurer unless the petitioner has been given permission under § 48-16 to enter into possession pending the condemnation proceedings. ¹ Section 48-16 provides that the court may, when satisfied that the public interest will be prejudiced by delay, direct that the petitioner be permitted to enter immediately upon the property to be taken and devote it temporarily to the public use specified in the petition, upon deposit with the court of a sum fixed by it. Section 48-16 also provides that if the petition is dismissed, or no award is made, or the proceedings are abandoned, the court shall direct that the money deposited shall be applied, so far as necessary, 'to the payment of any damages which the [owner] may have sustained' by reason of the entry upon, and use of, his property. Finally, the statute provides for the method to be followed in the ascertainment of such damages and for the restoration of possession of the property to the owner.

The possession contemplated under § 48-16 is temporary in character and covers only the period during which the condemnation proceedings are pending. It lacks any of the elements of permanency, and the possibility of dismissal or abandonment of the proceedings is clearly foreseen. The recognition by the legislature that these eventualities may occur clearly demonstrates the temporary character of the possession and that it does not affect the right of the petitioner to abandon the proceedings at any time before the time of transfer of title as fixed under § 48-12. If for some reason, it is desired to give up the undertaking, the proceedings may be discontinued before the payment of the judgment. 6 Nichols, loc. cit.

The defendant contends that he was dispossessed by the plaintiff, that his property was entered, despoiled and used by the plaintiff with every mark of ownership and dominion over it, and that the possession of the plaintiff was in nowise temporary or limited. This claim is unsupported by the finding. Since the defendant failed to file an appendix to his brief, the finding cannot be supplemented. Practice Book § 447. Moreover, the plaintiff's right to enter the property was limited to the authority granted under § 48-16. There can be no doubt that the order made by the court was issued under that statute. The language of the plaintiff's application and of the order issued pursuant to it closely follows the language of the statute. The action of the plaintiff in entering the land under permission of the court in accordance with the provisions of the statute did not constitute a taking or an appropriation of the land so as to bar the plaintiff from discontinuing the proceedings. 6 Nichols, op. cit. § 26.42.

There is nothing in the case to create an estoppel against the plaintiff's abandonment of the proceedings. When public improvements are contemplated in a particular community, there may be some inconvenience or hardship imposed upon a landowner because of an uncertainty as to whether his land may be taken to promote the improvement, but this inconvenience attends all such proceedings and is incident to the ownership of property. Carson v. City of Hartford, 48 Conn. 68, 88; Stevens v. Borough of Danbury, 53 Conn. 9, 22, 22 A. 1071. The filing of the petition and the temporary entry upon the defendant's property subject to the condition that he might recover for any damage resulting from such entry did not estop the plaintiff from withdrawing the petition.

The next claim advanced by the defendant is that...