235 A.2d 330 | Conn. Super. Ct. | 1967
This action involves an appeal to the Superior Court from the assessment of damages by the highway commissioner resulting from the acquisition of the property of the plaintiffs for the construction of route 25. On August 14, 1967, the highway commissioner, pursuant to §
On September 20, 1967, the plaintiffs filed a motion for disclosure and production, pursuant to §§ 168 et seq. of the Practice Book. The defendant filed a timely objection, attacking the entire motion for disclosure and production.
The motion for disclosure is a sweeping motion which requests reports of "All Appraisers, Opinions of Value and Governor's Screening Committee." The defendant objects to the disclosure on the basis that the disclosures are (1) not material to the plaintiffs' cause of action; (2) a fishing expedition; and (3) seek "opinions and not facts"; and that *241 (4) the highway condemnation appeal is not a "civil action" contemplated by §§ 167 and 168 of the Practice Book.
At this stage of the proceeding, this case has not been referred to a referee, so that the amended § 352 of the Practice Book is not effective, since the matter has not been referred. Section 352 comes into effect "[i]n making a reference." However, § 352 does allow an exchange of "copies of . . . appraisal reports," so that the objections as to materiality, fishing expedition, and seeking "opinions and not facts" have been taken care of by rule of the courts. The court herein will note the policy of the courts and rule out the first three objections of the defendant. The court also takes the position that in making a reference it is mandatory to fix the date for the exchange of copies of the appraisals. Even though § 352 is not applicable, the court takes into consideration the spirit of the rule passed by the judiciary.
This leaves the objection that an appeal is not a civil action as contemplated in §§ 167 and 168 of the Practice Book. The defendant cites the following as authority for this objection: "But a condemnation proceeding is not a civil action, nor a civil process within the meaning of the statutes relating to civil process. It is a special proceeding to determine in a single action the damages done by the taking." New Haven Water Co. v. Russell,
When the matter is entered upon the docket of the Superior Court and an appeal is taken by the landowner, there is no question that the review is judicial. New York, N.H. H.R. Co. v. Long,
Distinction must be made between the taking of the property and the determination of just compensation. Where the taking is for public use, the due process clause of the fourteenth amendment does not require the necessity and expediency that the taking be determined upon notice and hearing. With respect to compensation for the taking, however, due process requires that the owner be given reasonable notice and an opportunity to be heard. Due process does not require that notice be given at the initial stage of the proceedings, it being sufficient if the owner be given notice and then a hearing at some stage at which he can still protect his rights. The matter of compensation is subject to an appeal to a court, carrying out the right to have the matter determined on a jury trial. Bragg
v. Weaver,
"The landowner is not entitled as a matter of right to a jury trial, because the Constitution has not so required; but he is entitled to have an impartial tribunal, with the usual rights and privileges which attend judicial investigations. It is a suit at law." New York, N.H. H.R. Co. v.Long,
The court concludes that a condemnation proceeding is a civil action within the meaning of §§ 167 and 168 of the Practice Book.
The court orders that all appraisal reports which the parties will utilize at any hearing shall be exchanged and, in addition, the highway department will produce a copy of the "up-to-date" appraisal report.
