162 A. 693 | Conn. | 1932
The plaintiff Ida Kaufman is administratrix of the estate of Isic Kaufman to whom and the plaintiff Israel Gordon, Nunziatta Valente, a predecessor in title of the defendant Pasquale Valente, *430 gave a mortgage, June 24th, 1924, on land in New Haven securing a note for $3600. The finding is that on July 20th, 1925, $2600 was paid thereon, leaving a balance of $1000. The defendant Vincenzio D'Elia introduced in evidence a note for $5000 and a mortgage on the same land, subject to the above-mentioned mortgage, dated July 21st, 1925, and executed by Pasquale Valente.
On October 27th, 1927, the city of New Haven commenced an action for foreclosure of a tax lien on the premises covered by these mortgages; on March 28th, 1930, judgment was rendered therein in which D'Elia was given the 14th day of May, 1930, to redeem and the plaintiffs the 15th day of May; D'Elia did not redeem but the plaintiffs did and on May 15th, 1930, became the sole owners of the premises.
On December 5th, 1927, the board of aldermen of the city of New Haven passed on order for the condemnation of a portion of the land which was subject to the mortgages and assessed damages at $1860. On January 10th, 1928, Valente, the owner, and Kaufman and Gordon, D'Elia, and others having an interest in the premises appealed from the order and assessment to the Superior Court. On June 3d 1930, all the parties to the appeal entered into a stipulation for judgment and on June 13th, 1930, in accordance therewith, judgment was entered changing the assessment of damages to $3200. The city is ready and willing to pay that sum to such person or persons as the court may order. The trial court held that the plaintiffs were entitled to the entire sum on the grounds that they were the sole owners of the land at the time when final judgment was rendered on the appeal, and that the city did not appropriate the premises until after that date.
The assignments on this appeal which require discussion *431 pertain to the effect of the above-mentioned proceedings upon the relations and rights of the parties, especially as between Kaufman and Gordon and D'Elia. The charter of the city of New Haven prescribes that before the board of aldermen shall decide to take any land as and for purposes such as are here involved, it shall refer the measure relating thereto to the department of public works which, after notice to all owners and mortgagees of land proposed to be taken or affected, and public hearing, shall cause a survey to be made, and benefits and damages assessed, through the bureau of compensation, and report its doings to the board of aldermen, annexing thereto a survey "showing the particular designation of the land to be taken." That board, after the necessary appropriations have been made, may accept the report, and adopt the assessment or modify the same as it may deem best and "when such report or modification shall have been accepted and recorded in the records of the board of aldermen, and when the damages shall have been paid to the person whose land has been taken or damaged for such public purpose, or shall have been deposited with the city treasurer . . . then . . . the land described in such order of the board of aldermen shall be and remain devoted to the public use for which it shall have been designated." Any party aggrieved by such order may, within thirty days thereafter, apply for relief to the Superior Court and "no land taken as aforesaid shall be occupied by the city until the time for taking appeals shall have expired, and until all appeals have been finally disposed of"; provided, if security for the payment of all such damages as may finally be awarded to the appellant be given, the city may immediately enter upon, take possession of, and use the land. Sections 78, 80, 81, 85, Special Acts, 1899, p. 412 et seq.; Special Acts, 1911, pp. 143, 144, *432 202; Special Acts, 1913, p. 1119; Compilation of 1928, §§ 126, 128, 129, 133.
The point of the present inquiry is not whether, after the order was passed by the board of aldermen on December 5th, 1927, the city could have abandoned the proposed improvement, a question which was involved in Stevens v. Danbury,
It is apparent that the charter provisions attach to that order an effect surpassing a mere incipient or theoretical or proposed taking, as was attributed in the situation presented in Stevens v. Danbury, supra, or an offer, as in Munson v. MacDonald, supra. Different charter and statutory provisions and facts render those cases distinguishable. If we grant that here, as was held in Carson v. Hartford, supra, p. 86, the taking under the order remained tentative and provisional in the sense that, notwithstanding its adoption, the city might thereafter abandon the improvement *433
without liability on account of the assessment, it does not follow that the order was intended by the charter to have, and had, no immediate effect upon the rights of the parties respectively. The general principle applicable, in the absence of specific provision of statute or charter designating otherwise, is that when the taking for public use is by administrative order if "the formal act of some responsible body is required to effect a taking, the filing of such order definitely fixes the time and extent of the taking;" when such formal act is not required, "the first actual authorized physical interference with the property affected marks thepunctum temporis of the taking." 2 Nichols, Eminent Domain (2d Ed.) p. 1152; Fort Wayne S.W. TractionCo. v. Fort Wayne W. Ry. Co.,
We are of the opinion that by the order of the board *434 of aldermen of December 5th, 1927, the city acquired a present right to take possession of and use the Valente land embraced in the order of condemnation upon subsequent payment or deposit of the damages assessed or giving the prescribed security pending termination of an appeal, and that the parties having an interest in the land as an owner and as encumbrancers thereupon acquired present rights in the compensation for the taking, although subject to alteration in amount of the assessment on appeal, or to defeat and termination through a subsequent abandonment by the city.
The interest of holders of encumbrances in the fund assessed as compensation for the taking of real estate by right of eminent domain or by condemnation proceedings and their right to share therein according to the priority of their claims is expressly recognized by statute in this State. General Statutes, § 5077. The charter of the city of New Haven also now recognizes the interest of encumbrancers by requiring notice to them in condemnation proceedings and a right of appeal which it appears was exercised in the present instance. The holdings in Whiting v. New Haven,
After the passage of the order of condemnation on *435
December 5th, 1927, Kaufman and Gordon as first mortgagees and D'Elia as subsequent mortgagee had successive interests, of the nature and extent above indicated, in the damages assessed on account of the taking of the land, as well as in the remaining land not included within the order. If foreclosure of the tax lien had not intervened both would have been entitled to share in the fund when it became payable, the first mortgagees for satisfaction of the unpaid balance of their mortgage and D'Elia to receive the balance of the fund toward payment of his mortgage. The foreclosure, however, embraced all of the interests in the property including the rights in the fund.Fitch v. Baker,
The remaining assignments may be disposed of without extended comment. The finding that a balance of $1000 remains owing to Kaufman and Gordon on their mortgage must stand, as it is supported by evidence. The foreclosure action brought by the city was upon a lien for taxes antedating the inception of condemnation proceedings; therefore the claims of law pertaining to taxes accruing during or after such proceedings do not apply. Also, D'Elia having been a party defendant in that foreclosure action is in no position now to attack collaterally the judgment rendered therein. Spencer v. Mack,
There is no error.
In this opinion the other judges concurred.