Potter v. City of Putnam

The city of Putnam laid out and altered a highway in pursuance of the authority contained in its charter.

Upon a hearing, duly had in accordance with the provisions of the charter, it was found and determined that all the adjoining proprietors whose land was included within the lines of said layout and alteration, suffered no damage by reason of such taking of their lands. This appellant, one of the adjoining proprietors, claiming to be aggrieved by the action of the city in failing to award him any damages, took an appeal to a judge of the Superior Court, alleging this grievance, and asking a reappraisal in pursuance of the city charter.

Such appeal is, in effect, an action whereby the Superior Court, through a judge sitting in chambers, may determine the legality of the municipal action complained of, and grant appropriate relief. Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576,602. The judge may find the facts involved, whether they relate to the preliminary question of the alleged grievance, or to a reassessment of damages, either by himself or through a committee appointed by him for that purpose. In this case, by agreement of parties the court appointed a committee to find the facts, and the findings of that committee when accepted by the court became the findings of the court.

The report of the committee in this case finds that "no benefits or damages resulted or accrued to Alfred H. Potter, or his said property, by reason of said layout or relay; and we find no error to exist in such assessment." A remonstrance to this report was filed and overruled, and the judge accepted the report and adjudged as follows: "I reappraise and reassess the damages accruing to the petitioner from the doings of said city described in the petition, at nothing, and I reappraise and reassess the benefits accruing to the petitioner, at nothing, and I award the costs of said reappraisal and reassessment to the appellee."

The main claim urged by the appellant is that the committee erred in finding that the appellant suffered no damage by the taking of his land, and the court erred in appraising such damage at nothing, because it appears in the finding that at the hearing before the committee evidence was introduced by the appellee, without objection, showing that the land of the appellant within the line of the layout was then subject to the easement of a public highway, and that no additional servitude was imposed upon the appellant's land by the layout as made by the city.

The admission of that evidence was not a valid ground of remonstrance. It was plainly relevant to the question of damage. Nor was it error to appraise the damage at nothing.

The appellant claims that he was entitled to recover at least nominal damages and his costs. We do not think the reasons on which this claim is based are sound. The appellant urges, first, that the complaint alleges that the city did take his land for a highway, and that this allegation could not be disproved because the parties went to trial without pleadings other than the complaint. The proceedings certainly were informal. There is no settled practice in actions of this kind, and possibly some elasticity in form is not undesirable. In this case the parties agreed to a reference of the complaint, without other pleadings, to the committee to reassess benefits and reappraise damages. We think this should be treated as equivalent to a stipulation that the parties might introduce before the committee any proper evidence in support or denial of the material allegations of the complaint. If, however, we were to assume that land owned by the appellant is included within the lines of the layout, it does not follow of necessity that he is entitled to some damage. The concession cannot be extended so as to exclude proof that the land thus included in the layout is already subject to the easement of the public, and that no additional servitude is imposed upon it; and if such burden is established by proof, the owner is not necessarily entitled to some compensation, as he would be if the land were not already burdened by the public easement.

But it is said, secondly, that the city appraised the damage to the appellant's land, and assessed the benefits by reason of the layout, as equal, and thereby admitted that the plaintiff was entitled to some damage; that the city is now estopped by this admission, and that the Superior Court, although it may find no actual damage, is nevertheless bound to appraise the damage at a nominal sum.

In this action the Superior Court must determine the existence of damage, as well as the amount, if any damage is found. Assuming that the action of the city in finding the damages and betterments to be equal, involved a finding that some damage existed, the Superior Court is bound by this finding no more than it would be by a finding of the amount of damage.

The trial judge correctly decided that the action of the committee in using for their report a form which had been prepared by one of the counsel, as set forth in the finding, was not conclusive proof of partiality or of such misconduct as would invalidate the finding of the committee.

There is no error.

In this opinion the other judges concurred.