Opinion
A strip of the plaintiff's land on the Hartford-New Haven turnpike was taken as of Feb. 3, 1941, by the defendant in connection with a state highway by-passing Hartford. As a result of the improvement the value of the plaintiff's property for use for roadside business was increased and this increase was taken into consideration in determining benefits and damages. The plaintiff claimed that there was a governmental order, issued subsequent to the taking, prohibiting the building of gasoline stations for the duration of the war. Even if established this would not affect the validity of the award, as ordinarily damages are determined as of the time of taking. Where there was no subordinate finding in the referee's report as to the cost of removal or destruction of the plaintiff's buildings and no motion was made to recommit the report to have it added, it must be assumed that the cost was included in the ultimate estimate of damage. The referee might well have found under the circumstances that the slight change in grade would not affect the indicated uses of the property. The referee applied the proper measure of damages for the taking of a portion of a tract of land.
Argued May 4, 1943
Decided June 4, 1943.
APPEAL from an assessment of benefits and damages with respect to land taken for a state highway, brought to the Superior Court in Hartford County and referred to Hon. George E. Hinman, state referee; judgment (Wynne, J.) upon the report reassessing the damage, from which the plaintiff appealed. No error.
John W. Joy, for the appellant (plaintiff).
Leo V. Gaffney, assistant attorney general, with whom, on the brief, was Francis A. Pallotti, attorney general, for the appellee (defendant).
The Hartford-New Haven turnpike runs north and south. The Hartford by-pass starts in East Hartford, crosses a new bridge over the Connecticut River, turns in a southwesterly direction and, after several miles, merges with the Hartford-New Haven turnpike in Wethersfield at the plaintiff's property. It appears from the referee's report that this property consisted of a tract of land containing about twenty-eight acres with a house and outbuildings located on the west side of the turnpike. The defendant took as of February 3, 1941, a triangular strip of the land fronting six hundred and fifty-four feet on the turnpike, sixty-six feet in depth at the north end and running southerly to a point at the highway. The acreage of the strip was forty-one hundredths of an acre and the westerly taking line ran through the plaintiff's house, necessitating its removal. The defendant assessed as damages to the plaintiff $2000, and as benefits $3000. The new highway is a dual-lane concrete road; the lanes are twenty-six feet wide, with a separation strip between. The improvement will cause no change of grade which will materially affect access to or the use and value of the plaintiff's remaining land. No access to this highway from land of adjoining owners will exist for some distance beyond the Connecticut River bridge. The plaintiff's land will therefore be the first location available for roadside business for several miles. This fact will increase its usefulness and value for that purpose. The fair market value of the property before the taking was $11,850 and afterwards $10,750, and the plaintiff is entitled to $1100 damages.
The plaintiff filed a remonstrance to this report on the grounds that certain facts were found without evidence and that the only evidence of increase in value for roadside business "had in contemplation a use for a gasoline station," which use was prohibited for the duration of the war. The trial court overruled the remonstrance but, before final judgment was entered, allowed the plaintiff to amend his remonstrance by alleging more specifically that at the time of the hearing and since then a ruling of an agency of the United States government prohibited the opening of any new business during the war; that the existence of this ruling made the use of his land for business purposes impossible at present, and that therefore its use for such purposes in the future was too speculative to form a basis of value. The trial court overruled the amended remonstrance pro forma and accepted the referee's report. The plaintiff appealed, assigning as error the acceptance of a report in which value was based upon a prohibited use of the property for a gasoline station; that lack of access was not taken into consideration; that the finding of no change of grade was contrary to the evidence; that the cost of removal of buildings was not taken into account; that the value of the property as a farm was not considered; and that the balance between damages and benefits was inadequate on the evidence.
On the date first assigned for hearing before the referee (May 5, 1941) it appeared that, through inadvertence, the writ had not been returned to court, but by agreement of counsel evidence was heard on that day, the procedural defects were subsequently remedied and on October 27, 1941, the parties appeared before the referee and stipulated that the evidence previously taken be considered as having been taken on that date. Counsel for the plaintiff then stated that he had heard over the telephone of a governmental order issued October 9 prohibiting the building of gasoline stations. The referee asked the plaintiff's counsel to send him a copy of the order. The referee's report was filed November 19, 1941. It does not appear that he received a copy of the order, nor is there any copy of such an order in the record before us.
In oral argument before us the parties assumed the existence of some such order without calling it to our attention or asking us to take judicial notice of it. We do not propose to do this on our own initiative in view of the multitude of governmental departments and the orders issued therefrom. The existence of an order of the character suggested would not affect the result in this case, however. It is the settled law of the state that damages are ordinarily determined as of the time of the taking. Andrew v. Cox, 127 Conn. 455, 458, 17 A.2d 507; Fox v. South Norwalk, 85 Conn. 237, 243, 82 A. 642. The plaintiff claims that the rule is subject to exceptions, relying on Orgel, Valuation under Eminent Domain, p. 88, 26. Certain apparent exceptions, indeed, are noted by the author, but they have neither the force of law nor are they applicable in reason to the instant case.
As to failure of the referee to take into account the cost of removal or destruction of the plaintiff's buildings, there was no subordinate finding as to this cost and no motion was made to recommit the report to have it added. State v. Giant's Neck Land Improvement Co., 118 Conn. 350, 355, 172 A. 861. It is to be assumed that the cost was included in the ultimate estimate of damage. The claims that there was a finding of no change of grade and that the referee failed to take into consideration the lack of access from the highway to the plaintiff's land are not tenable. The finding was that there was no change of grade that would materially affect the use and value of the land as compared with the situation previously existing, and it appears that in addition to several hundred feet of frontage on the highway not affected by the taking the plaintiff had some three hundred feet where the change in grade was six inches or less. The referee might well have found in these circumstances that the change would not materially affect the indicated uses. The claim that the referee failed to consider the value of the land as a farm has been answered by the plaintiff himself and the expert witness called by him. The former testified he was unable to make a living on his property as a farmer and the latter that the property could not "be classed as a farm."
As to the ultimate claim of the plaintiff that the balance between the damages and benefits was inadequate and not supported by the evidence, there is nothing to indicate that the referee failed to apply the proper measure of damages, that is, "the difference between the market value of the whole tract as it lay before the taking and the market value of what remained of it thereafter, taking into consideration the changes contemplated in the improvement and those which are so possible of occurrence in the future that they may reasonably be held to affect market value." Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5; Andrews v. Cox, 129 Conn. 475, 478, 29 A. 587.