228 A.2d 153 | Conn. Super. Ct. | 1966
This is a condemnation proceeding. The plaintiffs are the owners of 80.3 acres of land in the town of North Haven. On April 27, 1964, the defendant filed a notice of condemnation wherein he found it necessary to take two parcels of the plaintiffs' land, one containing 8.8 acres, the other 0.34 acres. In addition, he acquired the right to enter the plaintiffs' remaining land for the following purposes: (a) To construct and maintain certain wing walls; (b) to relocate a brook channel; (c) to construct a permanent berm; (d) to set in place permanent riprap; (e) to construct and maintain a paved ditch; (f) to place permanent slope pavings; (g) to construct a permanent dike; (h) to construct permanent slopes. Damages were assessed at $27,000. On September 2, 1964, the plaintiffs applied to this court for a reassessment of damages. After the filing of an answer, on October 16, 1964, the matter was referred to a state referee.
On March 9, 1965, the defendant filed with the clerk of this court an amended notice of condemnation involving the same land as that involved in the original notice. No change was made in the 8.8 acre parcel. The 0.34 acre parcel was reduced to 0.31 acres. All rights of entry and easements in the original notice were eliminated and in their place the defendant acquired the right to enter the remaining land of the plaintiffs in order to construct and maintain a special end wall and to install and maintain twin eighty-four-inch reinforced concrete pipes together with the right to discharge water from the end wall and pipes upon, over and across the plaintiffs' remaining land. Damages were reassessed at $85,000. Plaintiffs did not apply to this court or to a judge hereof for a reassessment. In lieu of making another application and referring it to a state referee, the plaintiffs obtained the consent *25 of the defendant to file an "amended complaint" incorporating all of the essential allegations to present their grievances as to the amount of damages stated in the amended notice of condemnation. The amended complaint was filed on May 26, 1965. On June 1, 1965, the defendant filed his answer. When the hearing was held, the parties submitted evidence on the issues created by the amended complaint and answer thereto. At no time before the presentation of evidence began did the defendant claim that the referee was without jurisdiction to hear such evidence or report on the issues raised by the amended complaint and answer. Defendant has filed a motion to erase from the docket so much of the plaintiffs' appeal as regards matters contained in plaintiffs' amended complaint. He has also filed exceptions and objections to the referee's report. Plaintiffs have moved for the acceptance of the referee's report.
Jurisdiction is the power in a court to hear and determine the cause of action presented to it. It must exist in three particulars: the subject matter of the cause, the parties and the process. Mazzei v.Cantales,
Even were the court to treat the amended notice of condemnation as an abandonment of the original notice and the commencement of a new condemnation, the present motion would not lie. Since the amended complaint meets all the requirements for an appeal except for service upon the defendant and since the defendant not only consented to the filing of the amended complaint but also filed an answer thereto, the principle of waiver still applies. The defendant suggests that public policy prevents the defendant from waiving the statutory requirements for service of process but points to no authority for this unusual position. Under the facts of this case, for the court to accept the defendant's suggestion would result in the announcement of a doctrine that the state, acting through its highest legal officer, can engage in sneaky legal tactics with impunity. No court worthy of its name could *27 condone such tactics, much less incorporate them into a rule of law.
It remains to consider the matter of reference with respect to the amended notice. This is not a jurisdictional question. The Superior Court is not ousted of jurisdiction merely for failure to make a proper reference. The matter is at best irregular and could also be waived by conduct of the parties.Andrews v. Wheaton,
Defendant has interposed three basic objections to the report of the referee: First, he was denied an opportunity to offer evidence tending to show that plaintiffs tortiously interfered with defendant's original easement; second, the referee erred in allowing any depreciation for loss of access; third, the referee erred in allowing any depreciation for future flooding.
Where a property owner has access to his property in two directions, one more circuitous than the other, the mere removal of the more convenient route will not result in damage peculiar to him.Warner v. New York, N.H. H.R. Co.,
Accordingly, an order may enter, effective June 1, 1965, referring to the Hon. Patrick B. O'Sullivan, referee, for reassessment of damages the matters contained in the defendant's amended notice of condemnation, the plaintiffs' amended complaint relating thereto, and the defendant's answer. Defendant's motion to erase is denied. Defendant's exceptions and objections to the referee's report are overruled. Plaintiffs' motion for acceptance of the referee's report is granted; the referee's report is accepted. Judgment may enter for the plaintiffs to recover damages of $162,500, less $85,000 already paid, together with interest and costs. Plaintiffs are entitled to interest at the legal rate of 6 percent on $162,500 from April 27, 1964, to the date the deposit of $27,000 became available to them; on $135,500 from the date of availability of the $27,000 deposit to the date the deposit of $85,000 became available to them; on $77,500 from the date of the availability of the $85,000 deposit to the date of final judgment.