Platt v. Town of Milford

34 A. 82, 66 Conn. 320, 1895 Conn. LEXIS 66

• Court: Supreme Court of Connecticut
• Decided: June 22, 1895
• Status: Published

Opinion

Hamersley, J.

The main question presented by this appeal will be disposed of by ascertaining the meaning of the words “special damage” as used in § 2703 of the General Statutes. The section says that when an adjoining landowner shall sustain “ special damage or receive special benefits ” to his property by reason of any change in the grade of a public highway, the municipality making the change shall be liable to pay such person the amount of such special damage, and be entitled to receive from hirn the amount dr value of such special benefits; the same to be ascertained in the manner provided for ascertaining the damages and benefits occasioned by a layout of such highway.

Section 2706 says that “if the selectmen of any town, and any person interested in the layout, opening, grading, or alteration of any highway * * * therein, cannot agree as to the damages sustained by, or the benefits accruing to, such person thereby, the selectmen shall apply ” for the appointment of a committee “to estimate and assess to each person injured or benefited the damages sustained by or the benefits accruing to him by such layout, opening, or alteration,” and such committee shall “ make such estimate and assessment.”

Section 2720 says: “The benefits assessed for any particular layout or alteration, except in a city or borough, shall in no case exceed the damages assessed therefor ”; together with one half the estimated cost of construction.

This legislation changed the common law rule based on the arbitrary presumption growing out of a supposed public policy, but not justified by facts, that the original appraisal of damages for taking land for a highway included all damages that might be caused by any alteration of the established grade of the highway; and recognized an absolute liability for damages caused by such alteration on the part of the municipality ordering the same; so that when such municipality failed to follow the mode prescribed for it by law in ascertaining such damages, the party injured might bring an ordinary action at law, based on such absolute liability, to recover his damages. Healey v. City of New Haven, 49 ; Shelton Co. v. Birmingham, 62 id., 459; Mallory v. Town of Huntington, 64 id., 98.

An inspection of the sections above quoted, and of the language used in kindred legislation, indicates that “ special damage ” and “ damages,” as well as “ special benefit ” and “benefits,” are used interchangeably, and for a similar reason, viz: there are no benefits that can be assessed for a public improvement (unless in the ordinary way of taxation) that are not special benefits ; and any tenable definition of “ special damage,” as descriptive of the injury caused to the property of an adjoining landowner by the alteration of a highway as a public improvement, must include every element of any damage that can be appraised for such alteration.

It should be remembered that in this State the owners of land adjoining a highway almost invariably own the highway by the same title that they own the adjoining land, subject only to the easement acquired and paid for by the public; and therefore when their land in the highway is so used as to cause a damage to their adjoining land, which under existing law has not been paid for, such damage of necessity is similar in kind to the damage caused to such adjoining land by the original taking for public use of their land in the highway.

It is not clear why § 2703 speaks of this damage as special. The language of the Act includes in its range the streets of large cities, where a slight alteration might involve most serious injury, as well as the roads of sparsely settled towns, where the most extensive cutting and filling could not appreciably affect the value of adjoining land; it is possible “ special ” was used with its common meaning of more than ordinary, ex ahundanti cautela, so as to exclude the possibility of mistaking mere road mending for a public improvement in the alteration of an established grade, or of owners of adjoining land recovering in any case the merely nominal damages that might be claimed as resulting from every change. It is also possible that “ special ” was used simply in recognition of the fact that the damage resulting from such alteration of a highway differs from the damage result ing from the original taking of the land in the highway, in that the latter included also the value of the land taken, while the former is confined to the damage caused to the adjoining land not so taken. But whatever may have been the reason for using the word, it is certain that “special damage ” is not here used with a strictly technical meaning. Dawn v. Woodruff, 51 Conn., 206; Ferguson v. Stamford, 60 id., 447.

“ Special damage ” has a technical meaning when used in respect to the rules of pleading. It then distinguishes the damage that must be specially pleaded from the damage that need not be so pleaded; but when so used it has no relation to the essential right of recovery; the damage, whether specially pleaded or not, is all damage resulting from the injury and all recoverable; there is no distinction except for the purposes of pleading. Section 2703 is not dealing with questions of pleading; it is defining an injury and providing for the recovery of the damage resulting from such injury. If the word “ special ” were intended to limit the resulting damage that may be recovered, to a defined portion of the damage that might lawfully be recovered except for such limitation, its technical meaning, if it can have any, must be sought, not in the nice distinctions drawn for purposes of pleading in actionable damages, but in the meaning given by the law to “ special damage,” when the phrase is used to distinguish from the damage. that an individual may suffer as the natural consequences of a wrongful act, such portion of that damage as he may in a particular class of wrongs be entitled to recover in an action; and this distinction is well defined. Special damage when so used includes the damage peculiar to the plaintiff, and excludes the damage which the plaintiff suffers only in common with the general public; as in case of a public nuisance, where the damage which one suffers in common with the public generally is not actionable, but the peculiar injury which he alone can suffer is actionable, and is technically called in this connection “special damage.” But such use of the word in §2703 would be inappropriate or superfluous, because no damage that is not peculiar to the individual can result to the owner of land taken for a highway. There can be in such case no damage to him which he suffers only in common with the public generally, as there may be where a public nuisance exists. A highway cannot be established unless it is legally found to be a public benefit. But the persons whose land is taken and whose adjoining land is injured, suffer a damage which may be recovered; it is immaterial whether this damage is called a “damage” ora “special damage ”; in either case the damage must be the same, and is all the damage that can be predicated.

The damage resulting in such case to the property injured, may be divided into the damage, caused by the condemnation for public use, to the land actually taken, and the damage caused to the adjoining land of the owner, by the appropriation for that use of the land so taken. It is the latter damage mainly, if not wholly, that is referred to in the Act as “ special damage ”; and possibly, as before suggested, merely for the purpose of distinguishing it from the damage to the land included in the limits of the highway.

Whether such damage is estimated and paid for at the time the land in the highway is taken, or is not estimated and paid for until subsequently, when, by a change in the use of the highway, the damage is actually caused, it is the same damage; ascertained by force of the statute in the same way, and necessarily containing the same elements.

We conclude, therefore, that the special damage to be appraised on the alteration of the grade in a highway, differs in no essential respect from the damage that would be appraised for injury to adjoining land, if the alteration were an original layout causing a similar injury; such damage includes the diminution in the market value of the land caused by the alteration, to be determined by considering everything by which that value is legitimately affected. We think the true construction of the legislation in question leads to this conclusion; but if any doubt could be enter tained as to this, we think the conclusion must logically follow from our former decisions.

In Holley v. Torrington, 63 Conn., 426, 433, the court below found the special damage to the property of the plaintiff, by a change in the grade of an adjoining highway, to be the difference in the market value of the plaintiff’s premises before and after the change was made; and in making its estimate of the amount of such damage took into account the effect on the market value of the destruction of a sidewalk built by the plaintiff, and certain ornamental shade trees standing between the sidewalk and the wrought part of the highway; and speaking by Andrews, C. J., this court says: “ The special damages to the plaintiff’s land could be determined only by considering everything by which its value would be affected. The shade trees and the sidewalks were such things.”

In Hoyt v. Southern N. E. Telephone Co., 60 Conn., 385, we held that a tree standing in a highway is appurtenant to the adjoining land; that damages to the owner of the land, based on the reduced value of the land caused by cutting down the tree, were estimated by a correct rule, and that such damages were not remote nor speculative, but a present damage, the immediate effect of the wrongful act. And in Holley v. Torrington, supra, this case is cited as applicable to trees destroyed by a change of grade. It is hardly necessary to say that when an alteration in the grade of a highway renders necessary the destruction of trees, in order to preserve the present salable value of the adjoining land, the resulting damage may be no less a “ present damage, the immediate effect ” of the alteration, than when such trees have been destroyed by the act of carrying out the alteration.

In Shelton Co. v. Birmingham, 62 Conn., 456, S. C., 61 Conn., 518, we held that the special damage caused by a change in grade, includes injury to an interest incident or appurtenant to the land itself; and that a sidewalk built by the owner of adjoining land on the highway may be such interest.

It follows: 1. The court below did not err in overruling the defendant’s demurrer to the plaintiff’s complaint. 2. It did not err in instructing the jury, in its general statement of the question at issue, that special damage, as used in § 2703, includes “the difference between the actual, the market value of the property before the acts of the defendant town, and such value after those acts were completed ”, and that “ in determining this question you should take into consideration everything shown by the evidence to be likely to affect the value, which, under the instructions of the court, you are permitted to consider.” In subsequent portions of the charge the court sufficiently instructed the jury what things they were permitted to consider. 3. It did not err in instructing the jury that if the town had, as the necessary result of the acts done, either destroyed any property rights such as mentioned (depriving him of his right of access or entrance to his land, injuring fences or walls, or sidewalks, or trees appurtenant to his land), or, by the change of grade had compelled or compels the owner to destroy such property; or, if the premises are in any way rendered thereby unsightly and less salable — “then these facts may be taken into consideration in determining the special damage.” It was not necessary that at the time of trial the re-grading, etc., should have actually taken place ; nor to prove that they would “ inevitably occur ”; the changes reasonably necessary to prevent or modify the reduction in the salable value of the property, are properly considered in estimating the present immediate damage. 4. The court did not err in admitting the evidence objected to by the defendant. Such evidence was relevant to the fact of diminution in the market value of the plaintiff’s land, and so admissible to prove special damage. The objection of the defendant was general, to the whole evidence, on the single ground of its inadmissibility to prove special damage; and being admissible on that ground, it is not competent for the defendant in his reasons of appeal, to assign error on other grounds. While the objections appearing in the reasons of appeal, which were not made at the trial, would probably furnish no ground for a new trial, we do not consider them, because they are not presented by the record.

The defendant also assigns as error the refusal of the court below to charge, as requested by the defendant, that “ damages to adjoining landowners should be assessed before the highway is changed and that “when a town gives notice to an adjoining landowner of a proposed change in the grade of a highway, the town is entitled to notice-of a claim of damages, if it is to be made.”

There are statutes which directly impose on some municipalities the duty of causing an appraisal of damages and assessment of betterments to be made before an order for change of grade in a highway is executed. No such statute exists in respect to towns. But we see nothing in the law to prevent a town, when a change of grade in a highway is contemplated, from making an order for such change, clearly defining its character, extent and manner of execution, and applying for an assessment of damages before the order is executed. Meriden v. Camp, 46 Conn., 289. There are many changes incident to the repair of roads which may in a certain sense be changes in grade, but which are so slight, or in a portion of the highway where the adjoining land is of so little value, that they can hardly be called a change of grade within the meaning of the statute, and can justify no prior assessment, nor any suit for damage. The prior assessment, under existing statutes, is permissible, but not compulsory, unless the damage comes within the rule of property taken for public use. While it would seem that compensation for damage caused by a change of grade is not a condition precedent to the lawful execution of an order for such change, unless required by statute; yet as the question is akin to, and might involve dealing with, some open questions of much importance relative to the right of the State to impose on land once subjected to the easement of a highway additional burdens without compensation, we deem it sufficient to say that it is immaterial to the defendant’s liability in this case, whether the appraisal of damages must precede or may follow the actual change of grade. In either case the defendant has failed to proceed according to law, and the plaintiff has a right to recover his damage in this action.

There is nothing in the defendant’s claim that a landowner when notified of a proposed change in grade is bound to notify the town of his claim for damages. No law imposes on. him such an obligation.

The remaining error assigned by the defendant is the action of the court below in sustaining the plaintiff’s demurrer to the defendant’s special defense.

This defense alleged: “ Each and every act performed by the defendant and complained of in the plaintiff’s complaint, was done with the consent and permission of the plaintiff.”' The act performed by the defendant was the change of grade-in a public highway, i. e., the performance of a public duty imposed by public law. If the interest of the public requires-the change, it should be made; otherwise not. The permission of the plaintiff could not authorize the defendant to make the change, nor could his refusal justify a neglect of the defendant’s official duty. The mere proof of such a permission could be no defense to the plaintiff’s action, and is not so claimed by the defendant. Its real claim is, that such permission implies a surrender of all claim to damage that might be caused by the change in grade. If the agreement to claim no damage is the fact the defendant intended to allege, it has not property alleged it. The demurrer specifically pointed out the insufficiency of the language used to allege such agreement, and the court sustained the demurrer because the language did not fairly allege such agreement. If in truth the permission was given under such surrounding circumstances as to furnish some evidence in connection with those circumstances of a promise to claim no damages, the defendant should have amended its answer so as property to allege such fact. This it did not see fit to do, and can now make no claim except the one property overruled by the court below, that the bald allegation of a “ consent and permission ” given by the plaintiff to the town, to execute a public work in pursuance of its legal duty, must beheld, on special demurrer, as legally equivalent to the aliegation of a promise not to claim the damage such public work may cause the plaintiff, and to which he is entitled by law.

There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.