Opinion
The parties waived the statutory requirement ( 13a-76) that the referee view the land in connection with his duties in the reassessment of the damages the plaintiffs sustained in the taking of a portion of their land for highway purposes. Held that the waiver was permissible and, in the absence of legitimate reasons, could not be recanted by the plaintiffs.
Argued April 8, 1965
Decided April 27, 1965
Appeal from an appraisal of damages for land taken for a highway, brought to the Superior Court in Middlesex County and referred to Hon. Ernest A. Inglis, state referee; judgment for the plaintiffs on the referee's report, Pastore, J., and appeal by the plaintiffs. No error.
Francis R. Danaher, for the appellants (plaintiffs).
Jack Rubin, assistant attorney general, with whom, on the brief, was Harold M. Mulvey, attorney general, for the appellee (defendant).
The plaintiffs have appealed from a judgment rendered on a report of a state referee reassessing the damages sustained by the plaintiffs in the taking by the defendant of a portion of their property for highway purposes. General Statutes 13-150 (now 13a-76). The parties waived the statutory requirement that the referee "shall view the land" in connection with his duties in the reassessment. The plaintiffs, dissatisfied with the referee's determination of damages, sought unsuccessfully to have the report rejected on the ground that the viewing of the land was mandatory and could not be waived. That is the principal question for our determination.
We have consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath. They are in fact supplemental evidence. Altman v. Hill, 144 Conn. 233, 237, 129 A.2d 358; Hollister v. Cox, 131 Conn. 523, 525, 41 A.2d 93; G. F. Heublein, Inc. v. Street Commissioners, 109 Conn. 212, 218, 146 A. 20; Forbes v. Orange, 85 Conn. 255, 257, 82 A. 559; McGar v. Bristol, 71 Conn. 652, 655, 42 A. 1000; 29 C.J.S., Eminent Domain, 298. It is axiomatic that, in litigation, the parties may waive their right to offer evidence and may stipulate to the facts. General Statutes 13-150, now 13a-76, requires the referee to view the property, but this requirement may be dispensed with by the mutual agreement of the parties. The plaintiffs have advanced no legitimate reason why they should be permitted to recant the waiver voluntarily relinquishing their right to have the referee view the land. See State v. Rankin, 102 Conn. 46, 49, 127 A. 916; Goldberg v. Krayeske, 102 Conn. 137, 141, 128 A. 27; Nowey v. Kravitz, 133 Conn. 394, 395, 51 A.2d 495; Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914; Rockford, R.I. St. L.R. Co. v. Coppinger, 66 Ill. 510, 512; 29 C.J.S., Eminent Domain, 288.
The plaintiffs have also assigned as error the denial by the referee of a request for a special finding under Practice Book 355. As indicated in the decision of the referee, the facts requested either appeared in the report or were of an evidential character and were thus improper. Alishausky v. MacDonald, 117 Conn. 138, 140, 167 A. 96. The only fact omitted in the original report was included in an amendment filed later in response to a motion to correct. No harm to the plaintiffs resulted from the denial of the request for the special finding.