Doyon v. South Windsor , 1 Conn. App. 417 ( 1983 )

The plaintiffs Pamela and Wayne Stone appeal¹ from a judgment rendered for the defendant upon the granting of the defendant's motion to strike the complaint. Those plaintiffs and others² brought this action to enjoin the defendant from implementing a flood and erosion control project which would result in the taking of their properties. On July 6, 1981, the defendant's town council voted to acquire the plaintiffs' property pursuant to General Statutes 25-86³ as part of phase II of the Avery Brook Watershed Protection and Flood Prevention Project. In an attempt to comply with General Statutes 25-84,⁴ the town council designated itself by resolution as the municipal flood and erosion control board.⁵

A hearing on the injunction was scheduled for September 8, 1981. It was the plaintiffs' position that the defendant lacked the authority to take their land by way of eminent domain for purposes of flood control⁶ without first having adopted and implemented the enabling legislation as required by statute. See General Statutes 25-84 et seq. At the hearing, the defendant moved to strike the complaint arguing that the town council is permitted to act as a condemnation board pursuant to 25-84. The motion to strike was granted. The trial court determined that the taking of the plaintiffs' property was authorized by statute by reason of the town's general authority provided in the Home Rule Act; General Statutes 7-194;⁷ and did not require the necessity of the appointment of an independent flood and erosion control board.

Subsequently, the plaintiffs moved to reargue.⁸ The trial court in denying the motion stated that the town council had acted at all times during the condemnation proceedings as the flood and erosion control board and that the taking of the plaintiffs' property and the project had been completed. From a judgment rendered in favor of the defendant, this appeal follows.⁹

The threshold issue to be determined is whether this appeal should be dismissed as moot. "`It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow'. . . . In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal." (Citations omitted.) Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247,249-50, 440 A.2d 310 (1982), quoting CEUI v. CSEA,183 Conn. 235, 246-47, 439 A.2d 321 (1981); see Delevieleuse v. Manson, 184 Conn. 434, 436-37,439 A.2d 1055 (1981); Groesbeck v. Sotire, 1 Conn. App. 66,68, 467 A.2d 1245 (1983).

In the present case, the plaintiffs sought in their prayer for relief: "(1) A Temporary and permanent injunction prohibiting and restraining the Defendant from: (a) Taking any interest from any one of the properties of the Plaintiffs as proposed by the Defendant; [and] (b) Entering upon the property of any one of the Plaintiffs for the purpose of taking any action as proposed by the Defendant for the purpose of the `Avery Brook Watershed Protection and Flood Prevention Project.'" In 1982, the taking of the plaintiffs' property was completed and the drainage system was put in place.

The Stones admit in their brief that given the present circumstances of this case, the relief originally sought can no longer be granted. They maintain, however, that the trial court still has jurisdiction to award damages in an amount beyond that sought in their condemnation appeal.¹⁰ Even if we were to remand this case, the only relief that could be granted is the injunctive relief requested since the prayer for relief does not contain a request for damages. A decision on the merits of the case would not result in any actual or practical relief to the parties, since the situation that existed at the commencement of this action no longer exists.

The appeal is dismissed as moot.

In this opinion the other judges concurred.