Town of Winchester v. Cox

• Decision Date: 22 May 1942
• Citation: 129 Conn. 106,26 A.2d 592
• Court: Connecticut Supreme Court
• Parties: TOWN OF WINCHESTER et al. v. COX.

26 A.2d 592

129 Conn. 106

TOWN OF WINCHESTER et al.

v. COX.

Supreme Court of Errors of Connecticut.

May 22, 1942.

[Copyrighted material omitted.]

Appeal from Superior Court, Litchfield County; Frank P. McEvoy, Judge.

Proceeding by the Town of Winchester and others against William J. Cox, in the nature of an appeal from an award of nominal damages made by highway commissioner in the taking of certain lands for highway purposes, brought to the Superior Court and referred to the Honorable John W. Banks, state referee. From a judgment on the report of a referee finding the issues for the defendant, and awarding the plaintiff town $1 damages, plaintiffs appeal.

Error and case remanded with direction.

Before MALTBIE, C. J., and AVERY and BROWN, JJ.

Wallace W. Brown and Reese H. Harris, Jr., both of Hartford, for appellants.

Leo V. Gaffney, Asst. Atty. Gen., and Francis A. Pallotti, Atty. Gen., for appellee.

MALTBIE, Chief Justice.

Under our statutes as they existed in 1939, the highway commissioner was given power to take any land he might find necessary for the layout, alteration, widening or improvement of any trunk line highway, the owner of such land to be paid for all damages by the state; the commissioner was authorized to file with the clerk of the Superior Court an assessment of damages and benefits and might thereafter proceed with the improvement; any person aggrieved by the assessment might apply to the court or, if the court was not in session, to any judge thereof, for a reassessment of the damages and benefits so far as he was affected by them; and the matter was then to be referred to a state referee for hearing and report. General Statutes, §§ 1528-1531. Proceeding under these statutes, the highway commissioner took parts of two tracts of land for the purpose of improving a trunk line highway within the plaintiff town, and filed an assessment in the Superior Court in which the town and Dudley L. Vaill were named as parties and damages of $1 were awarded to the town. The town, Vaill and the executor and residuary legatees of the estate of Mary D. V. Talcott, one of the grantors in one of the deeds hereafter referred to, applied to the court for a reappraisal of the damages awarded.

The matter was referred to a state referee. He found that the land taken had been conveyed to the town by Vaill and Mrs. Talcott by three deeds, two of which recited that the consideration was the agreement of the town forever to maintain the land as a park, and the third recited that the land conveyed was to be forever used as a public park. None of the deeds expressly provided for a reverter to the grantor or grantors in case the land was no longer used by the town for that purpose. After the conveyance the town did use the land for a park until it was taken by the highway commissioner. The referee found that "the only evidence produced, as to the value of the land taken to the Town of Winchester as a public park, was that it had no value as a park," and that "the appellants" suffered no damage by reason of the taking, but that if the land were unrestricted as to its use the value of the tracts after the highway commissioner took a portion of them was reduced by $4,800. A remonstrance filed by the plaintiffs having been overruled, judgment was rendered that the town recover the sum of $1. From that judgment the plaintiffs have appealed. The plaintiffs other than the town are not claiming before us that the lands reverted to them or that any damages should be awarded to them, but unite in the claim of the town that it should be paid as damages the value of the land taken.

The functions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes, and those of a proprietary nature where it carries on activities for the particular benefit of its inhabitants. Hannon v. City of Waterbury, 106 Conn. 13, 16, 136 A. 876, 57 A.L.R. 402; 1 McQuillin, Municipal Corporations, 2d Ed., §§ 108, 190. Towns are authorized to exercise functions of both kinds. General Statutes, §§ 390, 391. Where land is held by a municipality in its proprietary capacity, it cannot be taken for public use without compensation to the municipality. Town of Southington v. Southington Water Co., 80 Conn. 646, 656, 69 A. 1023, 13 Ann. Cas. 411; Higginson v. Treasurer, etc., of Boston, 212 Mass. 583, 585. 99 N.E. 523, 42 L.R.A.,N.S., 215; Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 511, 33 N.E. 695, 35 Am.St.Rep. 515; City of Clinton v. Cedar Rapids & Missouri River R. R. Co., 24 Iowa 455, 476; State Highway Commission v. City of Elizabeth, 102 N.J.Eq. 221, 226, 140 A. 335, affirmed 103 N.J.Eq. 376, 143 A. 916; State ex rel. Board v. Stanolind Pipe Line Co., 216 Iowa 436, 441, 249 N.W. 366. As regards property held by a municipality in its governmental capacity, the legislature may in general exercise final authority over its use or disposition, and, if it decides to take land so held or authorize its taking by others for a public purpose, the municipality is ordinarily not entitled to compensation. Proprietors of Mt. Hope Cemetery v. City of Boston, supra; People v. Kerr, 27 N.Y. 188; In re Milbridge v. C. Electric R. R. Co., 96 Me. 110, 116, 51 A. 818; Chester County Institution District v. Commonwealth, 341 Pa. 49, 57, 17 A.2d 212; City of Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St. 67, 81, 59 N.E. 781, 52 L.R.A. 150, 83 Am. St.Rep. 725; Portland & Willamette Valley R. R. Co. v. Portland, 14 Or. 188, 195, 12 P. 265, 58 Am.Rep. 299; In re Certain Land in Lawrence, D.C., 119 F. 453; 18 Am.Jur. 805, § 170; note, 56 A.L.R. 367. Where a municipality in this state holds and administers property for use as a public park, it is acting in its governmental and not its proprietary capacity. City of Hartford v. Maslen, 76 Conn. 599, 611, 57 A. 740; Conners v. City of New Haven, 101 Conn. 191, 194, 125 A. 375; Epstein v. City of New Haven, 104 Conn. 283, 284, 132 A. 467; Hannon v. City of Waterbury, supra, 106 Conn, page 17, 136 A. 876, 57 A.L.R. 402. Hence it follows that it is ordinarily within the power of the legislature to authorize the state to take land so held without compensation to the municipality.

Where land is given to a municipality in trust for the purpose of using it as a public park it is probably true, as the plaintiffs contend, that that land could not be taken under the power of eminent domain without compensation being made therefor, any more than it could if the land had been given to individuals as trustees to hold and administer it for that purpose. They further claim that the conveyances to the town in this case were to it as trustee for a charitable use and that therefore this principle would apply. Where land is given to a municipality for such a use as that of maintaining a park, where it is dedicated for such a use, and even where the municipality itself acquires it and uses it for that purpose, the municipality is often referred to in the decisions as holding the land in trust or as a trustee for the public, and in our own decisions we have used this language. See, e. g., Town of Derby v. Ailing, 40 Conn. 410, 438; Driscoll v. New Haven, 75 Conn. 92, 101, 52 A. 618; City of Hartford v. Maslen, supra. It is of course not necessary for the creation of a trust that any particular language be used if the intent of the creator is to establish it; but we have repeatedly held that where property is conveyed to a charitable corporation, simply with the requirement that it be used for one of its authorized purposes, this is not in itself sufficient to establish a trust. Pierce v. Phelps, 75 Conn. 83, 86, 52 A. 612; Dwyer v. Leonard, 100 Conn. 513, 519, 124 A. 28; Lyme High School Ass'n v. Ailing, 113 Conn. 200, 204, 154 A. 439; Connecticut Junior Republic Ass'n, Inc., v. Town of Litchfield, 119 Conn. 106, 114, 174 A. 304, 95 A.L.R. 56; sec note, 130 A.L.R. 1133. It is true that in Bristol Baptist Church v. Connecticut Baptist Convention, 98 Conn. 677, 120 A. 497, we held that a trust was created where land was conveyed to a Baptist society for the purpose of a site for a meeting house and parsonage for the use of the society and the church connected with it, with a provision limiting the doctrines to be preached and taught in the church; but in that case the society and church were separate entities, the church carrying on religious work in the building the legal title to which was in the society. To characterize the capacity in which a municipality holds land conveyed to it for carrying out one of its proper purposes as that of a trustee, while useful in many instances in working out the rights of the parties, is not, in the absence of statute, altogether accurate, and its capacity is rather that of a quasi trustee. 1 Bogert, Trusts and Trustees, § 34, p. 171; and see Codman v. Crocker, 203 Mass. 146, 150, 89 N.E. 177, 25 L.R.A.,N.S., 980. We cannot construe the deeds involved in this action as sufficient to make the town strictly a trustee of the lands in question so as to hold that it is entitled, as such, to damage for their taking.

When, however, the town accepted the lands under the agreements and for the purpose of perpetually maintaining them as a park, a valid charitable use came into existence; Town of Hamden v. Rice, 24 Conn. 350, 355; Restatement, 2 Trusts, § 373; and the perpetual maintenance of this use is required by the statute of charitable uses. General Statutes, § 5000; Eccles v. Rhode Island Hospital Trust Co., 90 Conn. 592, 598, 98 A. 129. Apart from the statute, the town, by accepting the conveyances, became bound to observe the provisions in them as to the use to which the land was to be put; Lyme High School Ass'n v. Ailing, supra, 113 Conn, page 205, 154 A. 439; and it has been held that the legislature could not lawfully authorize a...