State v. Suffield & Thompsonville Bridge Co.

74 A. 775, 82 Conn. 460, 1909 Conn. LEXIS 76

• Court: Supreme Court of Connecticut
• Decided: December 17, 1909
• Status: Published

Opinion

Thayer, J.

The report which was accepted by the court was signed by only two of the members of the committee, the remaining member refusing to sign it, and filing a separate report wherein he assigns, as the cause of his disagreeing action, the refusal of the other members to admit the evidence which was offered by the State, referred to in the portion of the majority report which is quoted in the statement of the case. The whole contention between the parties centers around the action of the committee (now treating, as we must, the action of the majority as the action of the committee) regarding this evidence. Each of the grounds of remonstrance except the last is based upon the same alleged improper action of the committee, and the point raised, differently stated in each, is as well presented by the second as by any of them.

The defendant claims that the allegations therein contained, namely, that the amount assessed by the committee, apart from the sums found to have been paid to the ferry and bridge companies, was determined solely by ascertaining the original cost of construction of the property, and what it would cost to replace it, and that the committee excluded and gave no weight to the evidence in question,— are untrue. The court has not only so found, but has also found that the committee did receive and did consider all the evidence with reference to the amount of compensation to be awarded for taking the property. Assuming that this finding means that the evidence was considered for all the purposes for which it was claimed and was admissible, the report, if supported by evidence, was properly accepted and the judgment in pursuance of it must be sustained. This court will not correct a finding of the trial court which has evidence to support it, and that court could not properly set aside the report of a committee which was supported by evidence properly received and considered, simply upon the ground that proper weight had not been given to the evidence. The weight of the evidence was for the committee. Colgrove v. Rockwell, 24 Conn. 584, 585 ; Ashmead v. Colby, 26 id. 287, 312 ; Sheppard v. Atwater Mfg. Co., 43 id. 448, 452.

A committee, or other trier, is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed. Not to do so is an error of law no less than it would be to exclude the evidence when offered. Rowell v. Stamford Street R. Co., 64 Conn. 376, 380, 30 Atl. 131. Where a trial court held that a danger sign placed upon the westerly side of a street and near to a railway track which extended through the middle of the street, was evidence of a notice to travelers of danger upon that side of the street, but was no warning at all to travelers upon the easterly side, this was practically an exclusion of the evidence for the purpose for which it was offered and was held to be error. Mulligan v. New Britain, 69 Conn. 96, 103, 36 Atl. 1005. It is not enough, therefore, that the committee considered the evidence in question in the present case with reference to the amount of compensation to be awarded to the defendant for taking its bridge, if it considered it only in certain aspects of the case and failed to consider and weigh it with respect to others for which it was claimed and was admissible.

The committee’s report shows that the evidence in question, when offered, was objected to on the part of the defendant, and that the committee received and heard it, “reserving the right ... to exclude it or not to give it the consideration that the State claimed for it.” The undisputed evidence before the trial court, upon the hearing of the remonstrance, shows that when this evidence was offered by counsel for the State he claimed that it was competent evidence upon the question of determining the sum which would compensate the defendant, that it was to be considered in connection with the evidence as to the original cost of the bridge and the cost of replacing it, that all were to be considered together; and that later he claimed that this evidence should be controlling. The language of the chairman of the committee, who was an able lawyer, in ruling upon the admission of this evidence, shows the state of mind with which the committee approached the question when they came to the final consideration of the case. He said: “We do not altogether agree to the interpretation which has been put upon the opinion which has been handed down by the Supreme Court, and, excepting for the fact that we are inclined on this occasion, perhaps more so than we were before, to give a pretty liberal scope to the testimony ... we should exclude this testimony. ... I cannot myself, speaking for myself, see any probability that anything would be developed that would materially change the valuation that we have already made. . I . But, pos sibly, th&re might be something that would come out, that would make the case different than it is now, and a majority of the committee are inclined to hear the testimony, reserving, however, the right ... to exclude it,” etc.

It appears from the evidence that the valuation referred to as “already made” was that made at the former hearing of the case, which was based solely upon evidence of the cost of the bridge and the cost of replacing it; and the opinion of this court to which reference is made is that which was given when this case was before us at a former term (81 Conn. 56, 70 Atl. 55), when we advised the Superior Court to set aside the former report of the committee and recommit the case to them for a hearing de novo as to the compensation to be awarded, with instructions to assess the sum which would justly compensate the defendant for its property proposed to be taken, and include in the sum the amounts found to have been paid to the ferry and bridge companies by the defendant, as provided in its charter. The cause having been so recommitted, it was the committee’s duty to proceed to hear the case de novo. They were not to treat the rehearing as merely an opportunity afforded the State to reduce, if it could, a valuation already fixed by the former hearing. The rule for the assessment was fixed for them by the decision referred to and by the instructions contained in the order of recommittal. They were to determine the sum which would be just compensation for the taking of the bridge. They were bound to receive and weigh all the evidence which was offered on either side which was admissible for that purpose.

Just compensation will ordinarily be the market value of the property, where, as in this case, the property taken is the only property of its owner which is affected by the taking. But the market value is not always the true test. When a person of large means erects an expensive mansion for his personal residence, his personal tastes and idiosyncrasies are likely to be represented in the location, construe tion, and decoration of the building. The market for such a residence is very limited, because the majority of people are not able to keep it up, and those who are able may prefer a residence constructed according to their own tastes. The market value might fall far short of just compensation for the owner of such a residence, taken from him under the power of eminent domain. And in ordinary cases, where the property taken has earning capacity, and the market value is just compensation, while evidence of the net income of the property is always competent evidence, it is not necessarily controlling. A purchaser in the market for it will not only look to the present and past income from it, but will inquire as to its future prospects. In the case of a toll-bridge, the prospective increase of the population in the contiguous territory, and consequent increase of traffic across the bridge, would tend to increase the market value. The fact, if such should be a fact, that free bridges across the same stream in close proximity to such toll-bridge were about to be opened, would have a contrary effect. So, too, the cost-of replacing the bridge by a new structure, in case it should be carried away by a freshet or otherwise destroyed, would be likely to be considered by a prospective customer. Evidence of all these facts, and of others of like nature, as well as of the net income received from the property, the par value of the stock of a corporation owning it, and the dividends paid upon such stock, is admissible upon the question of just compensation for taking such a bridge, and when received can be and should be considered and weighed together in arriving at the sum which will constitute such compensation.

Such evidence was before the committee in the present case, and the question before the Superior Court was whether the committee so considered and weighed it. The State claimed that they did not, but that, in arriving at the sum which was to be awarded to the defendant, considered only that portion of the evidence which related to the orig inal cost of the property and what it would cost to replace it, and that they excluded and gave no weight or effect to that portion which tended to show the amount of income received from the use of the property and the actual market value of the capital stock of the defendant corporation.

The three members of the committee were witnesses before the court, and the only witnesses, other than the stenographer who reported the evidence at the committee hearing and was called merely to produce his notes and show what claims were made at the hearing. There was no conflict of testimony between the members of the committee, except that the minority member testified that the evidence in question was excluded by the majority members. They testified that in their view it was not excluded. It is apparent from the testimony of the three that the question of excluding the testimony was not formally put and passed upon by the committee. All are-agreed as to just what was in fact done. The dissenting member considered that this amounted to the exclusion of the testimony; in the view of the others it did not. All concede that the question of what use should be made of the testimony was fully considered, that the majority of the committee decided that it should not be controlling, as claimed by the State, and that no weight should be given to it in determining the value of the bridge or the amount of the award to be made to the defendant. The chairman of the committee testified that “after the physical value had been determined, . . . the question arose what should be done with this evidence, what effect it should have upon the value already determined. . . . Instead of allowing $5,000 or any other sum for depreciation, from the structural value, on account of the commercial value, we gave it no effect at all. . . . It is fair to say that we did not give it any effect as qualifying the structural value, because we could not match those two things at all. It had got to be either white or black, controlling or not controlling, we could not do it. . . . In de termining that it should not be controlling or set aside the structural consideration, we could not give it any effect, even to $500 or any other sum. ... We could not, as it appeared to me, take the view of the Attorney-General, when he argued as to the admissibility of this testimony, that it was simply a factor and should be considered with the rest.”

This testimony was not contradicted. It was corroborated by the other members of the committee. It thus appears that the evidence relating to the income of the property and the value of the stock was not considered, together with the other evidence, to determine what would be just compensation for the defendant; that it was only considered as bearing upon what was termed the commercial value as distinguished from the physical value of the property; that the committee held that such commercial value should not control the physical value, found by them on the first and second hearings to be $66,060.73; that to deduct from such physical value $500, or any other sum, on account of the commercial value, would be to give the latter controlling effect, and so no weight was given to it in determining what sum should be assessed in favor of the defendant. The evidence was thus excluded as a factor to be considered with the rest in arriving at the sum to be assessed to the defendant, — one of the purposes for which it was offered and for which it was admissible. There was no difficulty in considering the evidence bearing upon the income and profit derived from the property, in connection with that relating to its cost and the cost of replacing it, to determine its market value. This is what they should have done, instead of finding the physical value from a portion of the evidence, and its commercial value from another portion, and rejecting one because the two could not be matched. ’ The court should have found true the allegations of the second ground of remonstrance; and the finding is corrected accordingly. As thus corrected, the finding does not support the judgment. The judgment is erroneous for the reasons stated in the plaintiff’s third and fourth reasons of appeal.

There is error, the judgment is reversed, and the case remanded with directions that the remonstrance be sustained and the case recommitted to a committee for a hearing de novo.

In this opinion the other judges concurred.