111 F. 350 | D. Conn. | 1901
The respondent has remonstrated against the report of the committee finding the value of the land of the respondent sought to be taken. A writ of error was taken to the United States circuit court of appeals, and there dismissed on the motion of the petitioner. 39 C. C. A. 156, 98 Fed. 540. Afterwards a bill of exceptions was allowed and signed, which is as follows:
“Rill of Exceptions.
“(3) Upon the return of the mandate and summons upon the plaintiff’s application to this court for the condemnation of the defendants’ land, as appears by the files and records of this court, the parties appeared by attorney; the plaintiff appearing by O. W. Comstock, the United States attorney for the district of Connecticut. (21 On May 28, 1808, which was the day assigned for the appointment of the committee as prayed for, Mr. Comstock, the United States attorney, and the attorneys for the defendants Judson and Hicks, appeared and informed the court that the case would furnish no business at that time, as the parties would probably reach an agreement as to a committee. No action was taken by the court at that time. (3) On August 10, 1808, counsel for the plaintiff and the defendants Judson and Hicks, filed in court an agreement to submit the case to arbitration, dated June 8, 1808, and signed by C. W. Comstock, United States attorney, and by Robert E. De Forest, attorney for R. M. Judson, and also an award purporting to have been made by the arbitrators therein named, dated August 8, 1808. These papers are on file, and are, by reference, made a part hereof. (4) On October 4, 3808, an entry of the discontinuance of the case as to the defendants Hicks and Bishop was entered. (5) On October 5, 189S, counsel for the plaintiff appeared in court and stated that the government was satisfied with the award of the arbitrators, and moved that the award be accepted as to the said Judson, and that the case be discontinued as to the other defendants. (6) Thereupon I made entries in my private minute book as follows: ‘Oct. 5. 517. Gage, Sec’y Treasury, vs. Judson. Award of $32,000 in favor of Judson, and U. S. is satisfied with award, and asks report he accepted and discontinue as to others. Order discontinuance granted. Balance continued.’ ‘Oct. 7. U. S. Gage vs. Judson. Award approved and accepted, $32,000.’ (7) No entry was made on the docket of the court on cither October 5th or 7th, no judgment or order was entered up at either of these dates, nor was the clerk instructed to enter up any such judgment or order. (8) Afterwards, during the following term, to wit, on the 3d day of January,*352 1899, upon the motion of the plaintiff’s attorney, judgment was rendered, and the formal judgment file was signed by the court, as appears on file. (9) No objection was ever made, in this court or elsewhere, so far as appears, by the plaintiff, or any one else representing him or the government, to said award, or to any of the proceedings in the cause, until the 8th day of February, 1899, when the plaintiff brought his petition to reopen said judgment as on file. (10) On February 15, 1899, plaintiff amended his said petition, and on February 25, 1899, he filed a substituted petition as on file. (11) Upon motion of the defendant Judson, the court ordered the plaintiff, if he proposed to offer evidence in support of the allegations of paragraph 5 of his petition, dated February 6, 1899, and filed two days later, to state the names of the witnesses there referred to. (12) The case subsequently came on for a hearing upon the questions of fact and law presented by the plaintiff’s substituted motion, dated February 24, 1899, and filed the next day. (18) After hearing the parties, by their witnesses and by their counsel, I find that the only authority given to Mr. Comstock in relation to this case was as set forth in the correspondence annexed to said substituted motion as an exhibit; and I find that no authority, other than as set forth in said correspondence, was ever conferred upon Mr. Comstock to submit this ease or any part of it to arbitration, as agreed to by him in the paper dated June 8, 1898. (14) The plaintiff at no time introduced any evidence in support of the allegations of paragraph 5 of his original motion to reopen the judgment, or in support of the allegations of the corresponding paragraph of his said substituted motion.
“Upon the foregoing facts the defendant claimed: (1) That the award of the arbitrators had been presented to and accepted by the court at its previous term, and therefore it was not within the jurisdiction or legal pow-er of. the court to entertain the plaintiff’s motion and petition to open said judgment, or to open the same or make any alteration therein; (2) that, if the court had power to entertain said motion, no cause was shown for opening said judgment; (3) that, upon the facts proved and found, the said arbitrators, so agreed upon bj' the parties, became and were the committee of the court for the purposes of said appraisal and assessment, and that the plaintiff, by his conduct through his attorney, had estopped himself, as against the defendant, from questioning the validity of the appointment of said arbitrators.
“The court overruled the said claims of the defendant and opened said judgment. Thereupon the defendant, on the 27th day of April, 1899, moved the court to accept the award of said arbitrators as being the report of the committee. The attorney for the plaintiff not being present, the court continued the case, wdth leave to the attorney for the plaintiff, if he saw fit, to file a remonstrance to the acceptance of the award, or any other motion, within five days from said 27th day of April, 1899, and appointed the 5th day of May. 1899, at half past 2 o’clock in the afternoon, for further hearing-upon the defendant’s said motion for the acceptance of said aw;ard. Thereupon the parties appeared by attorney in court on said 5th day of May, 1899, at the hour appointed, to be heard on said motion. No remonstrance was filed by the plaintiff, but he claimed and urged that, inasmuch as no committee had ever been appointed by the court and the court had never ratified said arbitration agreement, the court had no jurisdiction to accept said award, and moved that the award be set aside. Defendant claimed that said award should be accepted, that no cause to the contrary had been shown, and that upon the facts already proved and found by the court, as appear of record, as matter of law, the defendant was entitled to have said award accepted as the report of the committee. The court took said claims into consideration, and on May 23, 1899, overruled the defendant’s said claims, found the facts to be as above stated, and ruled that no committee had ever been appointed by the court; that said award did not entitle the defendant to a judgment in said action for the amount thereof; that no judgment had been rendered in said action until January 3, 1899; and, acting at the same term as that in which January 3, 1899, occurred, vacated said judgment of January -3, 1899. William K. Townsend, Judge.”
“Lyman Gage, Treasurer, vs. R. M. Judson.
“District Court of the United States, Second Judicial District,
District of Connecticut.
“Know all men that we, Charles W. Comstock, United States attorney for the district of Connecticut, and Robert TO. De Forest, of Bridgeport, attorney for the said R. M. Judson, do hereby promise and agree to and with each other to submit, and do hereby submit, all questions and claims between the United States and the said R. M. Jndson, in the action above mentioned and pending in said court, to the arbitrament and determination of Alex. G. Robertson, of Montville, Conn., Charles B. Marsh, of Bridgeport, Conn., and Frederick A. Bartlett of Bridgeport, Conn.; and a decision and award of a majority of said arbitrators shall he final and conclusive, upon the aj>proval of the award so made by the court. The hearings are to he in Bridgeport.
“In witness whereof, we have hereunto set our hands and seals this 8th day of June, A. D. 1898.
“0. W. Comstock, U. S. Attorney. [L. S.'|
“Robert E. De Forest, Atty. for R. M. Judson. [L. S.j”
“Lyman Gage, Treasurer, vs. R. M. Judson.
“District Court of the United States, Second Judicial District, District of Connecticut.
“Whereas, by a certain agreement in writing, bearing date the 8th day of June, A. D. 1898, made between Charles W. Comstock, United Slates attorney for the district of Connecticut, and Robert E. De Forest, of Bridgeport, attorney for R. M. Judson in the county of Fairfield, and state of Connecticut, reciting that all questions and claims between the said United States and the said It. M. Judson, in the above-mentioned action and pending in said court, were submitted to the arbitrament and determination of Frederick A. Bartlett, of said Bridgeport, Alexander C. Robertson, of Montville, Conn., and Charles B. Marsh, of said Bridgeport, to whom it was agreed- that the said questions should he referred to the final determination of said arbitrators, a copy of which submission is hereunto annexed: Now we, the said arbitrators, having been duly sworn, having heard the witnesses on behalf of the said United States and also witnesses of the said R. M. Jndson, and having viewed the premises and property owned by the said R. M. Judson and sought to he condemned for public purposes by the said United States, to wit, the enlargement and extension of the government building, and having heard the arguments of counsel thereon, do award the sum. of thirty-two thousand dollars to the said R. M. Jndson for damages sustained by him by reason of the proposed enlargement of the said government building and the condemnation of his property, to he paid to the said R. M. Judson by the said government of the United States; and we do hereby direct the said government of the United States to pay to the said R. M. Judson the amount of the award in a reasonable and proper time. In witness whereof, we have hereunto set our hands and seals this eighth day of August, A. D. 1898.
“Frederick A. Bartlett. [L. S.]
“Alex. C. Robertson. [L. S.]
“Charles B. Marsh. [L. S.]”
The present remonstrance undertakes to allege facts not contained in said bill of exceptions, and respondent has taken evidence as to the truth of his allegations. The principal allegations of the remonstrance, not included in the bill of exceptions, state an agreement by remonstrant and his attorneys and Charles W. Comstock, United States district attorney (representing the petitioner), upon two members of a committee; a report thereof to the court by said counsel, and that they would agree upon a third member of the committee; that the court made no objection thereto; that the clerk of said court
The position of respondent is that the judge of a court may dele- . gate to counsel the appointment of a committee; that thereupon they may agree upon such committee, and such committee may act, without the names of the persons agreed upon ever having been approved by the court. Respondent, in support of his position, quotes a large number of Connecticut cases. In Andrews v. Wheaton, 23 Conn. 112, the case was tried before an auditor. After his report, it was claimed not to be a proper case for an auditor. In Crone v. Daniels, 20 Conn. 331, two auditors were appointed and the hearing was had before one. - In Post v. Williams, 33 Conn. 147, the committee had not been sworn. In Sherwood v. Stevenson, 25 Conn. 431, the recorder and one alderman, instead of two, acted as a city court. In White v. Fox, 29 Conn. 570, after hearing and award, the defeated party claimed that the agent who signed the award on his part was not duly authorized. In Smith v. Town of New Haven, 59 Conn. 203, 22 Atl. 146, a committee of onty two acted, when the statute required three. In State v. Tuller, 34 Conn. 280, objection of disqualification of a juror was not taken before the verdict. In Kimball v. Society, 2 Gray, 517, hearing had been had before an auditor, and the defeated party then claimed that it was not a proper case for an auditor. In Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085, the arbitrators were ' not sworn.
In all of these cases it was held that the party had waived objection by not taking it.until after the conclusion of the trial-and decision against him. In all of these cases the party had a right to waive the objections. In all, except the criminal case, the party might have submitted his claims to a tribunal, or agreed upon the question
The essential fact not contained in the bill of exceptions, claimed to have been proved, is that the counsel agreed on May 28, 1898, upon two members of the committee, and thereafter upon a third member of the committee, and they were agreed upon as a committee under the statute, and not as arbitrators. The written agreement is for a submission to arbitration. The decision filed is in form an award of arbitrators, not the report of a committee. To find the fact claimed, namely, that they were agreed upon as a committee of the court, it must be found that able and experienced attorneys believed that the court could delegate to them the power to appoint a committee under the statute, and that they by mistake drew up and signed an agreement for arbitration, insteád of an agreement appointing a committee of the court, and presented to the court an award, instead of a committee’s report. ¡ Written documents are tnore certain than oral testimony, and the court is unable to find the fact desired by the respondents. The United States district attorney and counsel for respondent did, on May 28, 1898, agree upon two of the names mentioned in the arbitration agreement, and afterwards appeared before said two persons, with the third afterwards agreed upon, and were heard, with witnesses and arguments, in regard to the premises in question; but it is not found that the three were agreed upon as a committee under the statute, and not as arbitrators. On the whole evidence, there appears no occasion for changing the finding 011 the hill of exceptions as to what was done on May 28, 1898, so far as the court is concerned, to wit:
“The attorneys tor the petitioner and defendant appeared and informed the court that the case would furnish no business for the court at that time, as the parties would probably reach an agreement as to a committee. No action was taken by the court at that time.”
It is further claimed that the report of the committee should be rejected for errors in rulings upon evidence. A large number of questions, both upon the direct and cross examinations, were exclud
“By application of this method to the case in. hand, what would be the value of this property? and, in your opinion," could an office building of five stories be profitably erected on this site?”
It did not appear that the value of the property was increasing. Experts for the respondent were asked what kind of an, office building could be profitably erected upon the ground; whether there was any well-known or commonly employed rule, custom, or practice in estimating business property of the kind; what was the rental capacity of the lot, taking into consideration all the matters we have spoken of. Respondent, testifying as a witness, was asked:
“State what improvement in the property you had projected.” “With your knowledge of what this property cost you, the price which has been attached to it since you bought, with reference to its location, adaptation to improvement, and of its advantages, state what, in your opinion, the property is worth in the market?”
All these questions were excluded, and exception taken. Even if it be admitted that the report of the committee would not have been set aside for irregular and improper conduct, if all these questions had been allowed, it does not necessarily follow that it should be set aside by reason of their exclusion. The committee to value land, under the Connecticut statute, is not the ordinary committee to find facts merely from evidence, in the place of a judge. They are selected as-men acquainted with the methods of valuing and competent
“It is not a court in tlie strictest sense, and lias not, in all respects, been made subject to tlie technical common-law rules of evidence by which courts are governed.”.
And in Bryan v. Branford, 50 Conn. 246, 250, where the error urged was as to the qualification of experts on the cost of a bridge:
“In this discussion we have assumed, contrary to several decisions in this state, that the strict rules of evidence apply in full force to trials before committees in highway cases.”
In Railway Co. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51, the court says :
“How much latitude should be allowed the parties in the way of bringing out in the testimony collateral, or perhaps we should say cumulative, facts to support the estimates made by witnesses, is a matter that must be left very largely to the discretion of the presiding judge. We would not undertake to fix the limits of a discretion so necessary to be exercised. We deem it proper, however, to say that tlie presiding judge should not allow collateral issues to spring up and multiply, or a jury to be taxed with facts and figures which could throw no appreciable light upon the question in hand, namely, the market value of the property.”
The cases cited by respondent do not seem to furnish any clear precedent for setting aside the report of a committee on value of the land because of the exclusion of such evidence. In Railroad Co. v. Jacobs, 110 Ill. 416, it was held that, where laud had been highly fertilized for gardening purposes, the value of the compost on the land might be shown; but it was also held that, where the land in its then condition had a market value, the award should be on the basis of the market value, and that the jury should not attempt to determine the actual value of the property for a special use. In Haslam v. Railroad Co., 64 Ill. 353, it was held that evidence in regard to the existence and value of a water power and mill site on the property should have been received, although not then utilized for that purpose; but it does not appear that there was any attempt to show the probable profit which could be obtained by utilizing the water power. In Johnson v. Railway Co., 111 Ill. 413, it was held that the fact that the land had a special value for railway purposes, and of offers received within a few months, should have been admitted. The opinion gives no reasons or authority for the admission of these offers. In Lake Shore & M. S. Ry. Co. v. Chicago & W. L. R. Co., 100 Ill. 21, it was held that evidence of obstruction to the use of other property than that taken should be allowed, and that, as some of the property was specially adapted to railway uses, and in its situation was not available for use for general purposes, the fact of
From the cases taken together, it is difficult to deduce any general rule applicable to all situations. Estimates of probable profit from a particular use of the property contemplated, but not yet actual, have generally been excluded. Where there is special need for property for some particular purpose, and the property in question is the only one available for that purpose, evidence as to its value for such purpose may, perhaps, be gone into with more particularity and detail than in ordinary cases; but the extent of such inquiry must be
The principal street of Bridgeport is Main street, running nearly north and south. Cannon street runs westerly from Main street, across Broad street, which is the next street parallel to Mam street. The post-office and custom-house property is at the corner of Cannon and Broad streets, being south of Cannon street and east of Broad street. The property sought to be condemned is south of Camion street, next east of the government property. The Messrs. Bishop some years ago opened a passway, called the “Arcade,” south of Cannon street, extending from Main street through the middle of the block to the government property, and had erected buildings for business purposes on the south side of it, and, for a part of the way, on the north side. Next easterly of respondent’s property are some dwelling houses, called the “Hicks Block,” and a building belonging to the Post Publishing Company. A right of way to feet in width extends along the rear of these buildings, including the respondent’s, adjoining the Arcade, so called, and thence, between the post-office property and the Bishop Block, to Cannon street; thus giving the respondent and the owners of the Hicks Block and of the Post Building access to the rear of their buildings. The respondent’s property has a right to pass over this right of way. If the right of way were extinguished, the owners of the 'Hicks Block and of the Post, property could, apparently, erect stores over their rear land and adjoining said Arcade. Said Arcade is very generally used by the public. There are gates between the Arcade and the government property, which were sometimes closed, and a gate between the Arcade and the gangway of Cannon street, which was sometimes closed. Respondent inquired of petitioner’s expert on cross-examination:
“Did you take into account, in estimating the Judson property, the value of the right of way in rear of Hicks’ property, with a view to the benefit that would be derived to the adjoining property by the extinguishment of that right of way?” “Did you take into consideration, in estimating the value of tlie Judson property, the right of way with reference to the Arcade privilege?” “Assuming that the extinguishment of this right of way would enable 1he owners of Hicks Block and the Post Building to extend their buildings to the Arcade, and assuming that the Arcade was a thoroughfare for pedestrians, how much would that add to the value of the Hicks and Post properties?” “What, in your opinion, would it be worth to the owners of the Hicks property and the Post property to have this right of way extinguished?” “What, in your opinion, is the proper method of computing the south half of the Judson lot per front foot, assuming that it has a right of access upon the Arcade, and that the Arcade is a permanent thoroughfare by dedication?” “Would the method described by you this forenoon be the correct method to apply to property on Arcade, assuming its permanence as a thoroughfare?”
Other similar cross questions and a similar question to an expert witness of the defendant were excluded, as was some evidence that the gangway from Cannon street had immemorially been a driveway extending across the right of way in question, and across the
It was also shown that respondent owned other real estate upon the south side of the Arcade, the two pieces being separated only by the Arcade. The question was asked:
“Assuming that JucLson owns property south of the Arcade, and situated with reference to the property under discussion as indicated on map before you, would you say they could be advantageously developed together, so that that feature would give enhanced value to the property under discussion?”
The respondent, testifying, was also inquired of:
“Property on the south side is directly opposite the Arcade. Is value of that property involved in value of this?”
Also:
“Did your plan of improvement include both pieces?”
These questions were excluded. Where part of a piece of land is taken, and the whole piece can be most advantageously used together, the injury to the whole should be included; and the fact that the two pieces are separated by a narrow strip of land hardly excludes the operation of this rule, if it were the fact that they could most advantageously be used together. In all the cases cited bearing upon this subject, however, the whole property was in fact so used.
Evidence was also offered as to offers which respondent had refused, and especially one of $37,500, which was excluded. While offers have been admitted in some cases, and one Illinois case, re
The question as to the condemnation proceedings preventing improvement, or profitable use of the land by respondent during the proceedings, is not referred to in his brief. There is no evidene'e that the fact that the land of the United States government adjoining the respondent’s would, under the statute, continue to be kept free from buildings, was not considered by the committee. If this report is accepted, there will certainly be an appeal by the respondent. If the report should be rejected by reason of the alleged errors in the rulings of the committee, the acceptance of the next report, however free from errors on this ground, would, unless favorable to the respondent, certainly be appealed from on the ground that the decision of the arbitrators who first acted was final. On the whole, it seems best to accept the report and give the respondent an opportunity to appeal now, and have the main question in dispute decided, rather than to put the parties to the delay and expense of a new trial, which would, unless favorable to respondent, result in further delay.
The motion to amend by making the United States of America the formal petitioner is allowed. The motion for notice to the City Savings Bank of Bridgeport, and for payment of the bank’s mortgage on the property out of the sum awarded the defendants, is denied. Let an order be entered in accordance with this opinion.