29 A.2d 587 | Conn. | 1942
In this appeal from an appraisal of damages by the highway commissioner for the taking, for highway purposes, of a small portion of a tract of land belonging to the plaintiff, the state referee to whom it was referred made an alternative finding, fixing the damages at $9 if only the value of the land taken is to be considered, but at $1700 if effect be given to "consequential" damages. The trial court gave judgment for the former sum, and the plaintiff has appealed.
The plaintiff owned a lot of land in Wethersfield, fronting fifty feet on McMullen Avenue and one hundred and fourteen feet in depth, upon which was a house. The commissioner took, for the purpose of constructing a new highway, a small triangular piece at one of the rear corners of the lot. The highway *477 when constructed will be about twenty feet above the level of the plaintiff's land, with an upward slope from that level to the grade of the highway at a rate of two feet horizontal to one foot vertical. The surface of the highway will be about sixteen feet above the first floor of the plaintiff's house, and the embankment will materially obstruct the view from the house to the north and west. These facts will materially depreciate the market value of the plaintiff's house and remaining land. A portion of the slope will be on the land taken, and the toe of it will be about two feet from the taking line at its nearest point to the plaintiff's house. It has been the custom of the defendant, where a portion of a tract of land is taken by him for highway purposes, to include "consequential" damages to the remaining land, but not to allow them as regard lands no part of which is taken. The issue was raised before the state referee in this case whether such damages could be allowed in this case. As a result he made the alternative finding of damages previously stated.
The statute which authorizes the highway commissioner to take land for highway purposes merely provides for the payment of damages to the owner, without fixing any measure of compensation. General Statutes, 1528. The constitution provides that the property of no person shall be taken for public use without just compensation. Const. Conn. Art. 1 11. Under this provision, unless some property is taken no compensation need be made. Bradley v. New York New Haven R. Co.,
In the case before us, a portion of the plaintiff's premises was taken and there can be no question as to the general rule applicable in such a situation; the method of measuring damages "is to determine 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,
Of the alternative determinations as to damages which the referee reported, one was based solely upon the value of the land taken. This finding was no doubt made because of the claim of the defendant before him that the plaintiff was not entitled to any "consequential" damages, which we take to mean any damages due to the depreciation in value of the land remaining to her by reason of the use of the land taken. But the referee also found that if "consequential" damages were to be considered, the plaintiff was entitled to $1700. The report makes it clear that in these "consequential" damages the referee meant to include the amount of depreciation in value of the plaintiff's remaining land by reason of the highway construction not only on the land taken but also upon adjoining lands not belonging to her. There is no finding in the report as to any depreciation in value of the remaining land due solely to the use of the land taken for the portion of the embankment which stood upon it. Consequently there was nothing before the court which would justify an award of damages upon that basis and unless the plaintiff was entitled to have considered the highway construction not only on the land taken from her but also on the adjoining land of others, the trial court was correct in its decision.
In Tyler v. Darien,
In the case at bar the embankment for the highway, raised beyond the boundaries of the plaintiff's land to a level of twenty feet, started on the land taken. It would be very difficult to separate the effect upon the value of the plaintiff's remaining land of so much of the embankment as was on the land taken from the effect upon that value of the embankment as a whole. But the allowance of damages resulting from the whole of an improvement in such a case has another basis than the impracticability of such a separation. The element of cause and effect is present in any award for depreciation in the value of the remaining land due to use of the land taken for the making of the improvement; damages of that kind are given because they are caused by the use of the land taken; and where the making of the improvement requires as an integral and inseparable part the use of the land taken, though the improvement as a whole extends to adjoining land, that use is a contributing cause of the effect produced by the entire improvement. See Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, 444. In Walker v. Old Colony Newport Ry. Co.,
It follows that the trial court was in error in fixing *483 as damages only the value of the land taken, and that the plaintiff was entitled to the sum of $1700 alternately found by the state referee to be the amount of the damage suffered by the layout and construction of the highway.
There is error, the judgment is set aside and the case is remanded with direction to enter judgment that the damages to which the plaintiff is entitled are $1700.
In this opinion the other judges concurred.