Young v. Town of West Hartford

• Decision Date: 03 March 1930
• Citation: 111 Conn. 27,149 A. 205
• Court: Connecticut Supreme Court
• Parties: YOUNG v. TOWN OF WEST HARTFORD.

149 A. 205

111 Conn. 27

YOUNG v. TOWN OF WEST HARTFORD.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

The Bureau of Assessments and Awards of the Town of West Hartford made an assessment and awarded damages to Harry S. Young, and he appeals from the assessment of benefits and award. From a judgment setting aside the assessment of benefits and awarding damages of $495, Harry S. Young appeals.

No error.

Ufa E Guthrie, of Hartford, for appellant.

Richard H. Deming, Corp. Counsel, of West Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

This is an appeal from an assessment of benefits and an award of damages by the defendant town by reason of a layout of a new street. The appellant owns a tract of land on the south side of Park road, comprising two lots known as 15 and 16, with an aggregate frontage of ninety feet, and also other land adjoining these lots upon the west with an aggregate frontage of one hundred and forty-nine feet. The new street follows the line of a proposed street which had never been laid out or accepted by the town, and includes a strip of land between the proposed street and the appellant's land five and one-half feet wide, and also a strip along the east side of his land about twelve and one-half feet wide at the front and five and one-half feet wide at the rear. The layout of the new street did not include the establishment of any building line along the property of the appellant. There was in effect at the time an ordinance which prohibited the owner of any premises abutting upon an accepted street, where no building line had been established by the town plan commission, from building any house within fifty feet of the street line, unless he had secured a permit from the town authorizing him to build within a less distance. The appellant made no application for such a permit. The assessment and award were made solely with reference to the layout of the street, without regard to any building line. The trial court found that the only damages sustained by the appellant were the fair market value of the land actually taken, and that he received no benefit by reason of the improvement. It awarded him damages of $495.

The appellant claims that the entire proceedings were illegal because of a failure to establish building lines as an incident of the layout of the street. The special law under which the town was acting provides as follows: " Whenever the Town Plan Commission shall have approved the location of any street or highway, the alteration, widening or relocation of any existing street or highway or the location or relocation of any building or veranda line within the limits of said town, the Town Council may lay out, grade, make and establish any such street or highway or portion thereof and may establish any such building or veranda line or any portion thereof. * * * The Bureau of Assessment and Award shall estimate and assess the benefits and estimate and award the damages to the owners of the premises affected by such location, alteration, widening or relocation, and by the establishment of such building and veranda lines, including benefits and damages resulting to owners, of abutting land or land in the neighborhood thereof, on account of such work, and including the cost of the land so taken for any such improvement." 19 Special Laws of 1925, p. 947.

A reading of these provisions makes it evident that the words " and" and " or" are not used with a careful regard to their primary significance, and it is clear that the intent was to authorize the establishment of building lines either as incident to the layout of a street or as a separate proceeding after a street had already been laid out. This is made clear by the fact that, until the amendments of 1925 to the charter of West Hartford, the establishment of building lines was provided for under an act distinct from that governing the layout of streets, which was repealed when the latter was broadened to cover this subject. 16 Special Laws of 1913, p. 733; 19 Special Laws of 1925, pt. 2, pp. 693, 947. Moreover, the appeal allowed in assessment proceedings under the law now in force is by the terms of the statute limited to claims for a reassessment and a reaward, and the power of the court is restricted to such a reassessment or reaward, if it shall find cause to change the assessment or award. 17 Special Laws of 1917, p. 1173. The appellant, having appealed from the assessment to the superior court, is in no position to contend that the whole proceedings were void. Holley v. Sunderland, 110 Conn. 80, 147 A. 300. The provisions of this act concerning appeals in the main follow those of the charter of the city of Hartford, as to which we have already stated a like conclusion. Second North School District's Appeal, 92 Conn. 193, 196, 102 A. 574. The appellant's claim necessarily fails.

If the ordinance forbidding the building of any house within fifty feet of a street where no building line has been established, except upon a permit obtained from the town, is valid, it necessarily would become at once operative, and would apply to land of the appellant. To all intents and purposes it would prevent the appellant, or any other owner abutting upon the new street, from building any house within fifty feet of the street line, except as he secured a special permit, just as effectively as if a fifty-foot building line were formally established. As regards the lot of the appellant abutting immediately upon the new street, it may very well have the effect of entirely destroying its availability for residential purposes, unless he can obtain the special permit. The appellant claims that the ordinance is invalid upon the principles laid down in Ingham v. Brooks, 95 Conn. 317, 111 A. 209.

We have not before us the terms of the particular ordinance, or of any related ordinance governing the issuance of special permits, for they are not found by the trial court, and we cannot take judicial notice of them. We are not able to accept as a basis of our opinion the purported provisions of the ordinance quoted in appellant's brief, for they differ materially from the summary of the ordinance stated in the finding of the trial court. Upon this record we should hesitate to hold the ordinance invalid upon this ground. Upon the other hand, the town contends that the ordinance was enacted in the exercise of the police power, and, as such, no person whose lands are affected thereby has a right to claim compensation for the resulting interference to his use thereof. Building lines may be established in the exercise of that power, without compensation to landowners affected...