Wilusz v. Ives
| Decision Date | 26 January 1965 |
| Court | Connecticut Supreme Court |
| Parties | Joseph P. WILUSZ v. Howard S. IVES, Highway Commissioner. Supreme Court of Errors of Connecticut |
Joseph P. Wilusz, pro se, appellant (plaintiff).
Frederick D. Neusner, Asst. Atty. Gen., with whom, on the brief, were Harold M. Mulvey, Atty. Gen., and Milton H. Richman, Asst. Atty. Gen., for appellee (defendant).
Before KING, C. J., and MURPHY, ALCORN, COMLEY, and SHANNON, JJ.
On April 20, 1960, the defendant, the highway commissioner, took 10.31 acres of the plaintiff's land or highway construction purposes, and thereafter, on May 27, 1960, took an additional .19 acre for the same purposes. The defendant assessed damages for the entire taking at $3900. The plaintiff appealed to the Superior Court, claiming that the damages assessed were inadequate. A motion to amend the appeal to attack the legality of the taking was filed but was not pursued, and the trial court took no action on it. The case was referred to a state referee, who heard the evidence pursuant to § 13-150 of the General Statutes (now § 13a-76) and found the plaintiff to be entitled to damages of $11,000. The plaintiff moved to correct the referee's report. Certain corrections were made by the referee, and the court overruled the plaintiff's objections to the amended report, accepted the report as amended, and rendered judgment thereon. 1 The plaintiff has appealed from the judgment. He requested a finding, but the court properly made none, since it had heard no evidence. Sorensen v. Cox, 132 Conn. 583, 587, 46 A.2d 125.
The plaintiff was represented by counsel at all stages of the appeal through and including the referee's correction of his original report. Beginning, however, with the filing of objections to the acceptance of the referee's amended report, the plaintiff undertook to handle the case personally, without the assistance of counsel. From that point on, the proceedings have become understandably and unnecessarily complicated. A number of motions have been made in this court by the plaintiff and have been decided. Wilusz v. Ives, 152 Conn. ----, 203 A.2d 674; Id., 152 Conn. ----, 204 A.2d 168. Numerous other motions made to this court were pending when the appeal came on for argument, and these motions we consider in the footnote. 2
Of the plethora of errors assigned, some are inaccurately stated, repetitious, abandoned, or concerned with matters not in issue in the case. We construe the issues which the plaintiff is attempting to raise to be that the damages awarded in the judgment are inadequate in that the referee erred (a) in failing to take into account the presence of valuable deposits of sand and gravel in the land taken, (b) in considering the cost of installing drainage pipes as a separate item of damage, (c) in failing to include damages for the potential flooding of the plaintiff's land in future storms, (d) in failing to compensate the plaintiff for the landlocking of some 34.6 acres of his remaining land, and (e) in refusing to allow a witness produced by the plaintiff to testify concerning the gravel deposits in the land.
The land taken was a portion of 125 acres owned by the plaintiff on which he conducted what is described as marginal farming operation. The property has been used by the plaintiff over the years for cutting wood, farming and the sale of sand and gravel. Beyond this usage, the plaintiff has, to some extent, used gravel and fill from the land in grading and constructing driveways for others. The highway for which the land in issue was taken bisects the plaintiff's land, and it is the plaintiff's contention that the construction of the highway interferes with the free access which he formerly had to all of his land and has left about 34.6 acres landlocked. The plaintiff claims, further, that the construction has subjected his remaining land to drainage from the highway and has created a diking situation which will subject him to flooding in future storms.
The referee found that the taking does bisect the plaintiff's land and has resulted in some depreciation in value. He found that the access to 34.6 acres of the land was partially destroyed but was reinstated when the state took an additional .19 acre and constructed a fifty-foot road on it which gave the plaintiff access to the area. The .19 acre thus referred to was the land taken by the defendant on May 27, 1960, as stated above. The referee found that the highway did drain water onto the plaintiff's land but that this condition did not appear to be serious. He found further that the plaintiff's house was not taken but would be depreciated in value because of the proximity of the highway, and that the well supplying water to the house would have to be rebuilt. A large shed or chicken coop which was used by the plaintiff when he raised chickens was taken. The referee concluded that the value of the land taken amounted to $5250, that the plaintiff's dwelling house was depreciated $1000 in value, that the barn or chicken coop taken had a value of $1500, that the cost of building a new well would be $1500, and that the bisecting of the farm and the drainage onto the 34.6 acres north of the highway would depreciate the value of that portion by $50 an acre, or a total of $1730. The sum of these items, $10,980, was rounded out by the referee to $11,000, and the court accordingly awarded damages in that amount.
We consider first the plaintiff's claim that the referee failed to take into account the presence of deposits of sand and gravel on the land taken. It is clear that the presence of any such deposits properly enter into the determination of the market value of land taken for a public purpose. Hollister v. Cox, 131 Conn. 523, 526, 41 A.2d 93, 156 A.L.R. 1412. While the referee's report does not specifically mention deposits of sand and gravel, it appears that two real estate appraisers offered by the plaintiff did consider the sand and gravel deposits in computing the market value of the land and that the valuation placed by one of these appraisers on the whole ten and one-half acres taken was only $215 more than the value found by the referee. The conclusion seems obvious, therefore, that the referee did not overlook the presence of sand and gravel deposits in the acreage taken in arriving at his estimate of fair compensation.
The referee indicated in his report that installation of drainage pipes at a cost of $30,000 would be unwarranted. Consequently, he disallowed it. The plaintiff claims that the referee erred in considering this item separately rather than as an element entering into the market value of the land. The plaintiff is in no position to make this complaint since it appears that he attempted, by his own witness, to induce the referee to treat...
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