Walz v. Bennett

• Decision Date: 22 December 1920
• Citation: 111 A. 834,95 Conn. 537
• Court: Connecticut Supreme Court
• Parties: WALZ v. BENNETT, State Highway Commissioner.

111 A. 834

95 Conn. 537

WALZ v. BENNETT, State Highway Commissioner.

Supreme Court of Errors of Connecticut.

December 22, 1920

Appeal from Superior Court, New Haven County; Donald T. Warner Judge.

Appeal from assessment of special damages or benefits by Charles J Bennett, the State Highway Commissioner, by an application by Jacob Walz to the superior court for a reassessment of the same. The court appointed a committee, who reported a reassessment in favor of the applicant, and the Highway Commissioner filed a remonstrance thereto. The court sustained a demurrer to the third paragraph of the remonstrance, overruled the remonstrance, and afterwards rendered judgment awarding the petitioner $2,250 special damages. No error.

Omar W. Platt, of Milford, for appellant.

Thomas M. Cullinan and Samuel B. Plotkin, both of Bridgeport, for appellee.

CURTIS, J.

When the report of the committee came before the superior court upon remonstrance, it appeared from the report that the committee had made a reassessment in favor of the petitioner in the alternative for the sum of $2,250 or $1,750, dependent upon whether or not the petitioner (Walz) owned the full riparian rights in the Housatonic River attached to his upland, a portion of which upland was taken for highway purposes.

In the remonstrance the highway commissioner stated as one ground for rejecting the report:

" (3) Because the said committee have made an alternative finding in their report in paragraph 6 thereof in which paragraph they find that, if said riparian rights did not belong to the appellant, then the special damages above the special benefits resulting to said appellant by reason of the proceedings described in the complaint would be $1,750, thereby leaving it for the superior court to determine whether or not such rights in fact exist."

To this ground of remonstrance Walz demurred on the ground that-

" It was proper and legal for the committee to find the facts and award damages in the alternative depending upon the construction by the court of a question of law."

This demurrer the court properly sustained.

It is customary and proper for a committee to report all the facts bearing upon certain alternative claims made before them, and make report giving its finding in the alternative dependent as to the judgment upon the ruling of the court as to which of the alternative findings the facts reported legally sustain.

It appears, however, from the report that subordinate facts essential to the determination of the question whether or not Walz owned such riparian rights were not contained in the report. The report should have then been recommitted to the committee for a report upon the subordinate facts underlying their finding that Walz owned the full riparian rights in the Housatonic River.

Instead of taking that course, counsel entered into a stipulation to the effect that three warranty deeds and two maps filed in court by the parties were the subordinate facts upon which the committee based its finding that Walz owned the full riparian rights in the Housatonic River attached to his upland. This stipulation became in this irregular way, by the indulgence of the court, in substance a part of the report of the committee. The court therefore had before it by the stipulation of the parties the question whether Walz, under the report of the committee supplemented in this irregular way, owned the full riparian rights in the Housatonic River attached to the upland, which he owned and possessed.

In this court the parties by mutual consent presented the documents referred to in their stipulation, namely, the originals of the three warranty deeds and two maps, as subordinate facts made a part of the committee's report by their stipulation and the indulgence of the superior court. This also was an irregular proceeding, which we shall overlook in this instance in order that this litigation may be speedily ended.

As the questions of fact tried by the committee could not be retried by the superior court, the finding of facts made by that court was out of place and must be ignored in this court.

As stated above, the only question for the superior court to determine was whether the committee's report as supplemented by the documents filed in court as a part thereof by stipulation, as relevant subordinate facts in relation to riparian rights, sustained the report of the committee that Walz owned the full riparian rights in the Housatonic River attached to the upland, of which he was the undisputed owner. The superior court ruled that the committee's report as to this fact was sustained by such subordinate facts. This ruling was correct.

It appears from the committee's report, thus supplemented, that in May, 1912, there was conveyed by warranty deed to one Jessie L. Lewis nine acres of land, within which was included the Walz upland, in which deed her westerly boundary was described as " on the Housatonic River." That this deed conveyed to her the upland with full riparian rights in the Housatonic River was not questioned. This property was divided into building lots in 1913 and mapped by Jessie L. Lewis, the lots extending from the old highway, which crosses Washington bridge, to the Housatonic River. The width and depth of the lots were given on the map, including the width at high-water line.

In 1917 Jessie L. Lewis conveyed to one Charles Ornstein by warranty deed lot No. 11 on said map and one-half of lot...