The rule for estimating damages where a portion of a tract of land is taken for a public improvement is thus stated: "The true measure of the special damages arising from the defendant's taking which the plaintiffs were entitled to have appraised in favor of the estate, was 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 and after the completion of the public improvement." Martin v. West Hartford, 93 Conn. 86, 88, 105 A. 342; Young v. West Hartford, 111 Conn. 27, 33, 149 A. 205. Undoubtedly in many cases, as where the remaining land would be available for sale as building lots, the extent to which access to it would be affected by the construction of a highway would be a very material element in determining its value. The plaintiff, however, points us to no authority nor have we been able to find any which imposes upon a public corporation which is condemning land for a highway the obligation, as a condition of taking it, of fixing the grade at which it is proposed to construct the road.
The existence and terms of this ordinance are not found by the committee and we do not take judicial notice of the ordinances of cities. Young v. West Hartford, 111 Conn. 27, 31, 149 A. 205. But even if we did we would not be able to accept the contention of the appellant that, from its existence and the construction and maintenance of her building over the building line a presumption of a valid location would arise. Permission to the then owner of the appellant's land to locate the building over the building line would be a grant to him of an individual privilege withheld from the other property owners across whose land the line runs and could hardly be regarded otherwise than as a violation of the constitutional guarantee against the denial to any person of the equal protection of the laws.
Turning now to the plainness of the remedy available in the state courts, we find a considerable and definite line of authorities, applied in tax proceedings as well as generally, holding that one who accepts the remedy of appeal provided by a statute has thereby agreed to its validity and cannot at the same time challenge its legality. In addition to the Lawler case cited by the district court are Holley v. Sunderland, 110 Conn. 80, 86, 147 A. 300, 302; Young v. West Hartford, 111 Conn. 27, 149 A. 205, 207; Coombs v. Larson, 112 Conn. 236, 246, 152 A. 297; Chudnov v. Board of Appeals, 113 Conn. 49, 51, 154 A. 161, 164; and National Transp. Co. v. Toquet, 123 Conn. 468, 196 A. 344, 348. The rule has also been applied in a case where the state officials themselves sued to collect a tax.
"Whether conditions require the degree of regulation imposed by an ordinance is a matter for the judgment of the legislative body of the municipality." Id., 265, citing Connecticut Theatrical Corporation v. New Britain, supra. Given the fact that courts indulge every legal presumption and reasonable inference of fact in favor of the validity of police power legislation, the existence of facts justifying the enactment are presumed. 6 E. McQuillin, supra, 24.31. "This strong presumption of legislative validity is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare. Young v. West Hartford, 111 Conn. 27, 31-32, 149 A. 205 (1930)." Blue Ski Bar, Inc. v. Stratford, supra, 266.
In other jurisdictions generally following the "before and after" rule of valuation such inflexibility has been countenanced. Cf. Sorensen v. Cox, supra; Young v. Town of West Hartford, 111 Conn. 27, 149 A. 205. Again, in the case of In re Bagley Avenue in City of Detroit, 248 Mich. 1, 226 N.W. 688, 689, it was thus succinctly stated that:
Reasonable regulation of the size and area of buildings and of the type of material used in them and the method of construction has long been recognized as legally proper. Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 529, 107 A.2d 403; State ex rel. Rowell v. Boyle, 115 Conn. 406, 411, 162 A. 26; Young v. West Hartford, 111 Conn. 27, 31, 149 A. 205; Ingham v. Brooks, 95 Conn. 317, 329, 111 A. 209. In fact, Zoning, which has now become widespread, rests upon the reasonable exercise of this police power in the public interest.
New Milford Water Co. v. Watson, 75 Conn. 237, 246, 52 A. 947, 53 A. 57; 2 Lewis, Eminent Domain (3d Ed.) 645. Under the circumstances of this case, the method of assessing damages followed by the first committee was proper. Young v. West Hartford, 111 Conn. 27, 34, 149 A. 205; Sorensen v. Cox, 132 Conn. 583, 586, 46 A.2d 125.
It is established by these decisions that, even though the court does not apply the before and after rule, if the result it reaches gives to the plaintiff all the damages to which he is entitled he cannot claim error because the trier adopted the method followed by the referee in this case. Heublein, Inc. v. Street Commissioners, 109 Conn. 212, 215, 146 A. 20; Bissell v. Bethel, 113 Conn. 323, 327, 155 A. 232; Young v. West Hartford, 111 Conn. 27, 34, 149 A. 205; see South Buffalo Ry. Co. v. Kirkover, 176 N.Y. 301, 68 N.E. 366; Hauge v. La Crosse S.E. R. Co., 148 Wis. 288, 134 N.W. 368; 2 Nichols, Eminent Domain (2d Ed.), p. 727. Accordingly, what we stated as to the defendant in McGrath v. Waterbury, 111 Conn. 237, 242, 149 A. 783, holds good as to the plaintiff in this case: "It is true that the court did not specifically find the value of the property before and after the taking, but we cannot see how its failure to do this can be regarded as working any harm to the defendant."
Gaylord v. Bridgeport, 90 Conn. 235, 239, 96 A. 936; Cook v. Ansonia, 66 Conn. 413, 431, 34 A. 183." Martin v. West Hartford, 93 Conn. 86, 88, 105 A. 342; Young v. West Hartford, 111 Conn. 27, 33, 145 A. 205. The use to be made of the land taken is necessarily a factor to be considered in the application of this rule. The finding is that upon completion of the parkway the plaintiff will be deprived of the access across the land taken between his north and south tracts which he had previously enjoyed, and that in so far as his south tract is concerned the condemnation will prevent his right of access to an existing public highway.
The right of the State in the exercise of its police power to limit the use of property even when prejudicial to the pecuniary interests of the owner, has been made increasingly clear by our more recent decisions. Windsor v. Whitney, supra; State v. Hillman, supra; Young v. West Hartford, 111 Conn. 27, 149 A. 205; Rice v. Zoning Board of Appeals of Milford, 122 Conn. 435, 190 A. 257. Whether a statute enacted pursuant to the police power is a means reasonable in quality and extent, and in time, place and circumstance, presents a question to be determined by the court. Windsor v. Whitney, supra, 369. It is the court's duty in such case, in the exercise of great care and caution, to make every presumption and intendment in favor of the validity of the statute, and to sustain it unless its invalidity is beyond a reasonable doubt.