New Haven Steam Saw Mill Co. v. City of New Haven

| Conn. | Oct 5, 1899

The grade of Chapel street has been changed by the defendant city, and the land of the plaintiff adjoining that highway has been thereby damaged. It is clear that the plaintiff is entitled to recover damages to some amount. The defendant does not controvert this. Counsel for the city say that the committee has estimated damages on a wrong theory; that is, that the committee has estimated the damages on the theory that the plaintiff is the owner in fee of the land adjoining Chapel street and which it claims has been damaged; whereas in fact the plaintiff is not the owner in fee, but has only such title and interest in the lands injured as an upland owner on tide water has in the flats in front of his upland.

We are not able to see how the facts in the case support this claim of the defendant. The committee has not undertaken to determine what interest or title the plaintiff has in the lands. He says that the plaintiff's land has been damaged by the change of grade to the amount of $15 a foot on Chapel street; in other words, that the value of the plaintiff's land is, since the change in the grade, less than it was before that change by $15 a foot. It does not appear that the quantity of the plaintiff's interest in the land enters in anywise into the estimate. The committee seems to have proceeded according to the rule approved by this court. Cook v. Ansonia,66 Conn. 413" court="Conn." date_filed="1895-06-22" href="https://app.midpage.ai/document/cook-v-city-of-ansonia-6583537?utm_source=webapp" opinion_id="6583537">66 Conn. 413; Holley v. Torrington, 63 id. 426.

The committee was correct in holding that the plaintiff has no right of way over the track of the railroad.

Reading the order appealed from in the light of all the facts as they are set forth in the report of the committee in this case and in the two former cases, we are of the opinion that by the true construction of that order the damages to be recovered in this action should include only the damages to the premises lying between the 800-foot point and the harbor line, — namely, $5,043.40 over and above all benefits.

The Superior Court is advised to accept the report and to render judgment for the plaintiff to recover of the city the said sum. The costs in this court will be taxed in favor of the plaintiff.

In this opinion the other judges concurred.