172 Conn. 234 | Conn. | 1977
This is an appeal from a judgment rendered by a committee of three state referees on an appeal taken by the plaintiffs, pursuant to the provisions of §§ 13a-76 and 13a-76a of the General Statutes, from the assessment of damages by the defendant commissioner of transportation for the tailing for highway purposes of certain land owned by the plaintiffs in the town of Norwalk. The
Before discussing the merits of the appeal, it is important to note the manner in which it has been presented to us. The defendant’s assignments of error are all predicated on claims of error apparent on the face of the record. “If error appears on the face of the record no finding is necessary”; Practice Book § 612B; and it appears that neither party requested
In the absence of a finding for appeal what is properly before us as a record are the pleadings, the motions made at the trial and the judgments. City Savings Bank v. Lawler, 163 Conn. 149, 152, 302 A.2d 252; Gitlitz v. Davis, 146 Conn. 280, 310, 150 A.2d 213. The only question before us, then, is whether, as the defendant claims, error appears on the face of the record. Maltbie, loc. cit.
The record discloses the plaintiffs’ appeal in five counts alleging that on December 7, 1971, the defendant filed with the clerk of the Superior Court in Fairfield County an assessment of $716,000 damages for the taking of property for highway purposes and that the plaintiffs were aggrieved by that assessment as it was inadequate. The fifth count contained an allegation that “the purported condemnation by the Defendant of the Plaintiffs’ property previously referred to was ineffective for the reason that said purported taking failed to take into consideration that said property was in condominium ownership form.” By way of relief, the plaintiffs requested the appointment of a referee to reassess the damages, $5,000,000 damages, and “[a]n order declaring that the original taking of December 7, 1971 was improper and invalid and . . . [requiring] the Defendant to withdraw said
On July 30, 1974, the committee of three referees filed the following “Memorandum on Determination of Taking Date”: “The taking date in the above-entitled matter is determined to be June 15, 1972,
On September 25, 1975, the committee rendered its judgment finding that there was $1,046,500 due to the plaintiffs as damages for the taking, that $716,000 had been deposited by the defendant and that, accordingly, the defendant should pay to the plaintiffs “the sum of $330,500, interest to the date of payment, and costs.”
On October 28, 1975, the plaintiffs filed with the committee a motion entitled “Motion for Determination re Interest Computation” in which they asked the committee to “determine that said interest runs from December 7,1971 to the date of payment.”
On January 13, 1976, the committee rendered judgment reciting its prior determination that the “true taking date” was June 15, 1972, and its judgment that the defendant pay to the plaintiffs $330,500 with “interest to the date of payment,” and further reciting that the parties had stipulated that that judgment be “reopened for the limited purpose of determining: a. Whether the plaintiffs are entitled to interest from December 7, 1971 (the date of the filing of the certificate of taking and assessment of damages) to June 15, 1972 (the date determined to be the true taking date); and b. The amount of such interest.” The judgment then recites several specific findings. The first is that “[o]n December 7, 1971, the Commissioner of Transportation took and acquired the subject property, and entered upon, took possession, and exercised dominion and all rights of ownership over the property.” The second is that “[t] hereafter it was determined
“The damages sustained in a taking by eminent domain are to be measured as of the date of the taking. Colaluca v. Ives, 150 Conn. 521, 531, 191 A.2d 340; DelVeccio v. New Haven Redevelopment Agency, 147 Conn. 362, 365, 161 A.2d 190.” Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139, 204 A.2d 833. The record does not disclose why the plaintiffs contended that the taking date was June 15,1972, when the amended certificate of condemnation was filed, rather than December 7, 1971, when the original certificate was filed. A suggestion is contained in the plaintiffs’ prayer for relief on their original appeal in which they sought an order “that the original taking of December 7, 1971 was improper and invalid.” In any event, it was the plaintiffs who sought a judicial determination as to what was the actual date of taking, stating in their motion: “It is the claim of the plaintiffs that the taking was not effective, at least until the date of the Amendment.” It was as a result of their motion that the committee expressly concluded that “[t]he taking date in the above-entitled matter is deter
There is merit to the following contention briefed by the defendant: “What transpired prior to June 15, 1972 is not at issue in the present appeal taken pursuant to Sec. 13a-76 of the General Statutes, as amended. An independent proceeding or claim against the State could have been brought to determine what rights were created or extinguished by the action of the Commissioner prior to June 15, 1972. Sec.,13a-76 of the General Statutes sets forth the limited scope of the instant appeal, namely, the reassessment of damages resulting from the taking, which the Court determined took place on June 15, 1972. *. . . a condemnation proceeding is limited under § 13a-76 of the General Statutes to a reassessment of damages caused by the taking. . . .’ Plunske v. Wood, 171 Conn. 280, 370 A.2d 920 (emphasis added).”
On the record before us, it must be concluded that, as claimed by the defendant, the committee erred in awarding the plaintiffs interest for the period from December 7, 1971, to June 15, 1972, when the date of taking was expressly determined by the committee to be June 15, 1972, as stated in the judgment.
There is error with respect to the award of interest for the period December 7,1971, to and through June 15, 1972, and the ease is remanded with direction to recompute the interest and award it on the damages from the date of the taking on June 15, 1972, to the date of payment.
In this opinion the other judges concurred.
“Even where there is no occasion to find the faets, the claims made at the hearing or the conclusions of the court may be material upon the appeal, and in such a situation a party can request the court to find and it may properly find such claims and conclusions.” Maltbie, Conn. App. Proe. § 126, p. 156; Winchester Repeating Arms Co. v. Radcliffe, 134 Conn. 164, 169, 56 A.2d 1.