Wilson v. Town Of Darien.
| Decision Date | 22 July 1943 |
| Citation | 130 Conn. 318,33 A.2d 320 |
| Parties | WILSON v. TOWN OF DARIEN. |
| Court | Connecticut Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Fairfield County; Daly, Judge.
Action by Rollin C. Wilson against the Town of Darien to recover damages because of the alleged violation of an easement appurtenant to land owned by the plaintiff, brought to the Superior Court in Fairfield County, where a demurrer to the second defense of the answer was sustained, and the issues were tried to the court. Judgment for plaintiff, and defendant appeals.
No error.
Mark W. Norman, of Stamford, for appellant.
Samuel Gordon and Joseph K. Sherman, both of Stamford, for appellee.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.
The defendant, in connection with the erection of a sewage disposal plant, condemned certain land in Darien and thereby destroyed an equitable easement which the plaintiff, as owner of neighboring land, had in it. The plaintiff brought this action to recover damages for the destruction of the easement. The court rendered judgment for the plaintiff for $800. The defendant has appealed, assigning error as to certain of the court's findings of fact, conclusions and rulings on evidence.
The plaintiff is the owner of vacant lot number twenty-one in a one hundred and thirty-five lot development known as Noroton Shores in Darien. He purchased the lot on October 10, 1927, for $2,750. As a part of the general plan of the development, the use of all lots was restricted to residential purposes only, and appurtenant to each was the right to use a private beach on Long Island Sound about 1,000 feet south of the plaintiff's lot. In 1939, the defendant condemned lots 13, 14, 15, 16 and 17 for use in connection with its new sewer system and erected thereon a sewage disposal plant, consisting of a brick building and a glass structure with a driveway between, surrounded by landscaped grounds. This was directly opposite the plaintiff's lot. The use made of the lots which the defendant took was a violation of the restrictions for which no compensation has been paid to the plaintiff. These facts are undisputed, and the defendant makes no complaint of the court's conclusion that by virtue of the restrictive covenants the plaintiff was owner of his lot has an easement in the defendant's premises entitling him to compensation for any damage due to the taking of it. The defendant claims, however, that the plaintiff sustained no damage. It accordingly assigns error in the court's conclusions and judgment fixing his damages at $800.
The court expressly found that the value of the plaintiff's lot before the defendant's conduct complained of was $1,800, and as to this no error is assigned by the defendant. The gist of the defendant's argument is that the court refused to include certain facts in the finding which it claims are vitally material factors in determining what damage if any the plaintiff sustained, and that its judgment was therefore based upon misconceptions and mistaken premises rendering it erroneous. We can make no corrections which we could hold sufficiently material to invalidate the trial court'$ conclusion.
The further material facts, including such corrections as the defendant is entitled to, may be thus summarized: The major part of the development was created in 1926 by filling in a salt marsh with sand pumped from the Sound. All of the lots including the plaintiff's are above high water level and are approximately within the same grade level. There is no other shore-front property in Darien where a lot may be purchased at $2,000 or less. A total of fourteen residences have been erected on the development at a cost in excess of $10,000 each, three of them being within five hundred feet of the plaintiff's lot. One of these, located about two hundred feet from and on the same grade level with it, was built twelve years ago upon what had been an island in the original marsh, and has a cellar under the whole house and an underground septic tank which have since been used without interruption. The defendant's plant with a cellar and foundation twenty feet deep is also built on the same grade level as the plaintiff's lot. Access to the plaintiff's lot from Darien can only be had by passing the defendant's plant. Noxious odors emanating from it reach the plaintiff's lot, and the loading of trucks upon the defendant's driveway with...
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...bill of exceptions. Cox v. McClure, 73 Conn. 486, 492, 47 A. 757. No cross appeal was filed for recovery of the fees. Wilson v. Darien, 130 Conn. 318, 322, 323, 33 A.2d 320; Watson v. New Milford, 72 Conn. 561, 567, 45 A. 167; see Rizzo v. Price, 162 Conn. (504, 512, 294 A.2d 529); Maltbie,......
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...as codefendants. Affirmative relief can only be sought under a cross appeal or cross complaint, not through an answer. Wilson v. Darien, 130 Conn. 318, 322, 33 A.2d 330; Equitable Life Assurance Soc. v. Slade, 122 Conn. 451, 465, 190 A. 616; Sturges v. Wagner, 109 Conn. 1, 5, 144 A. 471; Un......
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