Vartelas v. Water Resources Commission

• Decision Date: 28 July 1959
• Citation: 146 Conn. 650,153 A.2d 822
• Court: Connecticut Supreme Court
• Parties: Gus J. VARTELAS, Executor (Estate of John K. Vartelas) v. WATER RESOURCES COMMISSION. Supreme Court of Errors of Connecticut

Page 822

153 A.2d 822

146 Conn. 650

Gus J. VARTELAS, Executor (Estate of John K. Vartelas) v. WATER RESOURCES COMMISSION.

Supreme Court of Errors of Connecticut.

July 28, 1959.

Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellant (defendant).

Carl A. Lundgren, Ansonia, for appellee (plaintiff).

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

BALDWIN, Associate Justice.

The defendant, the water resources commission, acting under what is now § 25-3(c) of the Revision of 1958, established, along the west bank of the Naugatuck River in Ansonia, a line beyond which, in the direction of the river, no structure or encroachment could be placed unless the commission specifically authorized it. The plaintiff was the executor of an estate which included a parcel of land affected by the commission's action. The land is on the north side of Maple Street in Ansonia; it adjoined in part the north side of the westerly end of the bridge which, prior to the flood of August 19, 1955, crossed the river at this point. For more than sixty years, there had been buildings, containing five stores and six dwelling apartments, on this land. On August 19, 1955, the river overflowed its banks and destroyed the buildings and the bridge. A new bridge is in process of construction. When the construction is finished, the land in question will front on the north side of the bridge at its westerly terminus. The line established by the commission leaves only sixty square feet of the property for the erection of any structure apart from one approved by the commission. § 25-3(c). Proceeding under that statute, the plaintiff appealed to the Court of Common Pleas, claiming that the action of the commission in establishing the line constituted an unconstitutional taking of the property for a public use without compensation, in violation of article first, § 11, of the Connecticut constitution. The trial court sustained the appeal, and the commission has appealed from the judgment.

The commission claims that the plaintiff has no standing in this appeal to question the constitutionality of its action. It is true that as a general rule one cannot question on appeal the constitutionality of the statute under which he appeals. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; National Transportation Co. v. Toquet, 123 Conn. 468, 478, 196 A. 344; Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 42 note, 61 A.2d 89. We do not view the plaintiff's appeal as a broad attack on the constitutionality of § 25-3(c) but as a challenge to the validity of the action taken by the commission under that statute. The basic question presented by the appeal is whether the commission has so used the powers conferred upon it by the statute as to deprive the plaintiff of all use of the property under his control and, in effect, to appropriate it to a public use without compensation. Where, on appeal under the provisions of a statute, the validity of the statute as a whole is not attacked but the issue is whether it applies, or properly can apply, in a particular manner to the particular appellant, that issue may be determined. Spector Motor Service, Inc. v. Walsh, supra. We hold that the mere fact that the plaintiff is appealing under the provisions of the statute governing the establishment of encroachment lines does not deprive him of standing to raise the question of the constitutionality of the establishment of the line on his property.

Section 25-3(c) was enacted at a special session of the General Assembly in November, 1955, following the disastrous floods of August of that year. Nov. 1955 Sup., § N191. Its obvious purpose was to enable the water resources commission to forestall, by stream clearance, channel improvement and other flood control measures, a repetition of the havoc wrought in those floods. The legislation was an exercise of the police power of the state in the interest of the public welfare. 11 Am.Jur. 1022; 56 Am.Jur. 580, § 97; note, 70 A.L.R. 1274, 1275. The police power has limitations in the extent to which it can properly destroy or diminish the value of property. Where those limitations would be exceeded, the power of eminent domain must be used. Rockville Water & Aqueduct Co. v. Koelsch, 90 Conn. 171, 176, 96 A. 947; State v. Hillman, 110 Conn. 92, 106, 147 A. 294; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322.

The police power regulates use of property because uncontrolled use would be harmful to the public interest. Eminent domain, on the other hand, takes private property because it is useful to the public. Town of Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354, 12 A.L.R. 669. Freund, Police Power § 511. These propositions are now so generally accepted that they do not require extended citation of authority. Whether the exercise of the one or the other of these great powers of government is required depends upon the circumstances of the particular case. See Phillips' Appeal, 113 Conn. 40, 43, 154 A. 238. That the General Assembly recognized the distinction between them is manifest in § 25-3(c). It not only authorizes the establishment of encroachment lines as a regulatory measure but provides that '[w]henever the commission finds that existing encroachments within lines established or to be established constitute a hazard to life and property in the event of flood, it is empowered to take land as provided by chapter 835.' Chapter 835 of the 1958 Revision sets forth the procedure for taking land for public use by eminent domain. The provision quoted works no illegal discrimination against the plaintiff as he claims. In authorizing the exercise of the police power with respect to situations where there are no existing structures or encroachments within the lines established or to be established, as in the instant case, and the exercise of the power of eminent domain where there are structures or encroachments in existence within the lines established or to be established, the statute creates a classification within the power of the legislature to make. Between the two situations there is a natural and substantial difference germane to the subject and purposes of the legislation. State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477; Franklin Furniture Co. v. City of Bridgeport, 142 Conn. 510, 514, 115 A.2d 435; Murphy, Inc. v. Town of Westport, 131 Conn. 292, 304, 40 A.2d 177, 156 A.L.R. 568; Second National Bank of New Haven v. Loftus, 121 Conn. 454, 460, 185 A. 423; see Chouinard v. Zoning Commission, 139 Conn. 728, 732, 97 A.2d 562.

There is nothing in the record to support the claim of the plaintiff that he has been unconstitutionally deprived of the use of the property in his control. Section 25-3(c) contains this language: 'Said commission shall...