McGar v. Borough of Bristol

71 Conn. 652 | Conn. | 1899

Baldwin, J.

The plaintiff’s right of action is purely statutory. General Statutes, §2708. The damages recoverable for a change of grade in a highway include such as may result from any change in that of the sidewalks: These, when constructed on the highway, form a part of it, and it is within the discretion of the municipal authorities whether they shall or shall not be maintained on the level of the roadbed traveled by vehicles. To change their grade is to change in part that of the highway, although in other respects it may be left unaltered. Hillhouse v. New Haven, 62 Conn. 344.

An injury from changes of this character was alleged in the complaint, and is established by the finding. It is contended that it was found without evidence. The view of the premises taken by the court, in connection with the testimony as to their previous condition in respect to the means of access to the street, amply sustains it. When parties to a cause affecting real estate request the trier to visit it for a personal inspection, its situation and state, as well as its surroundings so far as they may be material to the issue, are as fully in evidence as if they had been presented to his consideration through descriptions given by witnesses under oath.

The claim that the “ special damages ” for which the statute authorizes a recovery, were not pleaded with sufficient particularity, has no merits. Any direct damages, peculiar to the plaintiff, are special, within the meaning of the statute, and will support an action. Platt v. Milford, 66 Conn. 320.

The photographs of the premises were not inadmissible for want of the testimony of the photographer. The object for which they were offered was to picture to the court how the premises in question looked before and after the change of grade. Evidence that the representation was accurate could be supplied by any one competent to speak from personal observation. The plaintiff’s husband testified that the photographs represented the house in question, and this was enough if it convinced the court. The sufficient verification of a photograph is a preliminary question of fact to be decided by the trial judge. Its weight as evidence may depend largely upon extraneous circumstances.

The borough claims that, by placing her house on the summit of a ridge which crossed the road, the plaintiff was estopped from any recovery for a reduction of grade, the necessity of which she ought to have foreseen. This point of view is countenanced by the common law; but the statute applies wherever damage has been done, without regard to whether the alterations which caused it could have been reasonably anticipated. Fellowes v. New Haven, 44 Conn. 240, 257.

The evidence certified for our consideration under the exceptions to the finding is sufficient to support every fact found, which is material to the judgment. Some of these facts were inferred from other facts or from the personal observation of the court when viewing the premises, but in no instance where the inference was not a legitimate one. Others, as to which there was conflicting testimony, were found against that of the greater number of witnesses, hut it is settled by repeated decisions of this court, that such conclusions will not be reviewed on appeal. Thresher v. Dyer, 69 Conn. 404.

Particular complaint is made that there was no evidence that the original grade of the street was “well settled,” whereas the surface was so uneven as to constitute no grade at all. The description of its character given by these words is quite immaterial. The term “ grade ” is used in the statute, not to signify a level precisely established by mathematical points and lines, but the surface of the highway as it in fact exists. Any elevation or depression of this surface by the municipal authorities, resulting from an attempt to establish a grade, is a change of grade, which, if damages result, will support an action.

There is no error.

In this opinion the other judges concurred.