Weaver v. Ives

• Decision Date: 25 May 1965
• Citation: 210 A.2d 661,152 Conn. 586
• Court: Connecticut Supreme Court
• Parties: Howard S. WEAVER et al. v. Howard S. IVES, Highway Commissioner. Supreme Court of Errors of Connecticut

Page 661

210 A.2d 661

152 Conn. 586

Howard S. WEAVER et al. v. Howard S. IVES, Highway Commissioner.

Supreme Court of Errors of Connecticut.

May 25, 1965.

Ira B. Grudberg, New Haven, for appellants (plaintiffs).

Jack Rubin, Asst. Atty. Gen., with whom, on the brief, was Harold M. Mulvey, Atty. Gen., for appellee (defendant).

Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.

ALCORN, Associate Justice.

Nine plaintiffs have joined in bringing this action to restrain the highway commissioner from proceeding with the construction of a highway through a public park. The complaint is in three counts. In the first count the plaintiffs sue as residents and taxpayers of the state and allege that the threatened action will damage them, as taxpayers, through an illegal expenditure of funds raised by taxation, will adversely affect the value of their properties and will interfere with their enjoyment and use of the park which is near their individual properties. In the second count they sue individually and as members of the 'Save The Park Committee', an unincorporated association, alleging that they, and other persons similarly situated, use and enjoy the park as beneficiaries of a trust created by the gifts of individual citizens and by legislative action of the state and the city of New Haven. In the third count three of the plaintiffs sue as owners of interests in real estate across the street from the park and near the area which the defendant is proposing to take for a trunk-line highway, alleging that the taking and construction of the proposed highway will create a nuisance, impair the value of their real estate and cause irreparable injury.

The basic facts alleged, applicable to each count, may be summarized as follows: The defendant has already taken, under what is now § 13a-73 of the General Statutes, approximately 38.5 acres of land in East Rock Park, located partly in New Haven and partly in Hamden, and he intends to take at least another thirity acres. The taking is intended for the layout and construction of a section of trunk-line highway. East Rock Park was incorporated by a special act of the General Assembly approved March 12, 1880. 8 Spec. Laws 385. The park land was acquired from time to time by gift, purchase or condemnation and has been continuously held and maintained as a public park to the present time.

The plaintiffs claim that the taking, and the proposed additional taking, of park land by the defendant is illegal and in excess of the power conferred on him by the General Statutes because, without specific legislative authority, he lack the power to take land previously designated by the General Assembly for a public park; that the construction of a trunk-line highway on the land will cause irreparable damage to a unique area of natural beauty and will be inconsistent with the use of the land for a public park; and that the dust, noxious fumes, noise and unsightliness generated by heavy automobile and truck traffic on the proposed highway will constitute a nuisance to the plaintiffs who claim to own interests in nearby real estate, greatly impair the value of that real estate and cause irreparable injury to those plaintiffs.

The defendant demurred to the complaint as a whole without attacking the individual counts. The grounds of the demurrer are that (1) the complaint does not allege statutory authorization for the bringing of an action against the state or any officer acting on behalf of the state; (2) it does not appear that any property of the plaintiffs will be taken for which the law requires the payment of compensation; and (3) the complaint does not show that the construction of a highway will cause any special injury to the plaintiffs. The trial court sustained the demurrer, holding, in substance, that the cause of action stated is one against the state to which the doctrine of sovereign immunity is a bar. The plaintiffs did not plead over, judgment as rendered on the demurrer, and the plaintiffs have appealed.

The trial court relied heavily on the case of Somers v. Hill, 143 Conn. 476, 123 A.2d 468, in which a demurrer to a complaint seeking an injunction to restrain the highway commissioner from collecting and discharging surface water on the plaintiff's land was sustained. The complaint in the present case, however, does not contain comparable allegations. In the Somers case, the action sought to enjoin and alleged illegal exercise of an undisputed legal statutory authority. In the present case, the objective is to enjoin acts which are alleged to be done or threatened without legal authority. The present plaintiffs allege, in brief, that he state, having by special act incorporated East Rock Park as a public park, must specifically authorize the taking of any part of that park for another public purpose, namely, a highway, and that no general powers of eminent domain residing in the highway commissioner authorize him to take the land. The demurrer admits all well-pleaded facts, and, since it is general, the complaint must be held good if any of the three counts sets forth a...