Tamm v. Burns

610 A.2d 590, 222 Conn. 280, 1992 Conn. LEXIS 175
CourtSupreme Court of Connecticut
DecidedJune 2, 1992
Docket14355
StatusPublished
Cited by77 cases

This text of 610 A.2d 590 (Tamm v. Burns) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tamm v. Burns, 610 A.2d 590, 222 Conn. 280, 1992 Conn. LEXIS 175 (Colo. 1992).

Opinions

Shea, J.

The sole issue in this appeal is whether the plaintiff’s allegations, that the state’s operation of a truck inspection and weigh station on its property, which is adjacent to his, has caused additional noise, unsightliness and air pollution on his property, suffi[282]*282ciently state a claim of inverse condemnation under article first, § 11 of the Connecticut constitution, which provides: “The property of no person shall be taken for public use, without just compensation therefor.”1 The plaintiff, Rudra Tamm, brought this action for damages and injunctive relief against J. William Bums, who was commissioner of the state department of transportation when the action was commenced, and William A. O’Neill, who was governor of Connecticut at that time. The first three counts of the complaint alleged inverse condemnation, malicious erection of a structure and private nuisance, respectively, against Burns. The fourth count stated a misrepresentation claim against O’Neill. The trial court granted the defendants’ motion to dismiss the action on the ground that the court lacked subject matter jurisdiction because of the doctrine of sovereign immunity.2 The plaintiff appealed the dismissal of the first and fourth counts to the Appellate Court, which upheld the dismissal of the fourth count against O’Neill, but reversed with respect to the first count and remanded the case for [283]*283further proceedings on that inverse condemnation claim. Tamm v. Burns, 25 Conn. App. 468, 594 A.2d 1043 (1991). We granted certification, limited to the following issue: “Did the Appellate Court properly conclude that the plaintiff had adequately alleged facts amounting to a substantial claim of a violation of his constitutional right against taking of his property without just compensation, so as to avoid the bar of sovereign immunity?” Tamm v. Burns, 220 Conn. 914, 597 A.2d 340 (1991). We answer that question in the negative and, accordingly, reverse the judgment of the Appellate Court.

“We have long recognized the common-law principle that the state cannot be sued without its consent. . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant.” (Citations omitted.) Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). Nevertheless, “[i]n a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts.” Id., 343; Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). “[T]he doctrine of sovereign immunity is not available to the state as a defense to claims for just compensation arising under article first, § 11, of the Connecticut constitution.” Textron, Inc. v. Wood, 167 Conn. 334, 342, 355 A.2d 307 (1974). “When possession has been taken from the owner, he is constitutionally entitled to any damages which he may have suffered . . . .” Trumbull v. Ehrsam, 148 Conn. 47, 55-56, 166 A.2d 844 (1961); see also Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969); [284]*284Anselmo v. Cox, 135 Conn. 78, 81-82, 60 A.2d 767, cert. denied, 335 U.S. 859, 69 S. Ct. 132, 93 L. Ed. 405 (1948).

The word “taken” in article first, § 11 of our state constitution means “the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain.” Bishop v. New Haven, 82 Conn. 51, 58, 72 A. 646 (1909). Although property may be “taken” without any actual appropriation or physical intrusion; Laurel, Inc. v. State, 169 Conn. 195, 201, 362 A.2d 1383 (1975); Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346 (1939); “there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed.” (Citations omitted.) Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). A constitutionál taking occurs when there is a “substantial interference with private property which destroys or nullifies its value or by which the owner’s right to its use or enjoyment is in a substantial degree abridged or destroyed.” Textron, Inc. v. Wood, supra, 346. To survive a motion to dismiss on the ground of sovereign immunity, a complaint “must allege sufficient facts to support a finding of a taking of land in a constitutional sense.” Horak v. State, supra.

The complaint in this case alleges that the commissioner’s construction of a truck weigh station on the south side of Interstate 95 adjacent to the plaintiff’s property in Greenwich, which included the felling of over one thousand trees located on state property between the plaintiff’s parcel and the interstate, “resulted in the following damages to plaintiff’s property. a. Removed the natural and pre-existing screening between plaintiff’s property and the noise, sight, fumes and toxic emissions from 195. b. Altered the pre[285]*285existing drainage near plaintiffs property, c. Located a dangerous toxic substance holding pond immediately adjacent to plaintiffs property, d. Located a vehicle weighing station with additional noise, unsightliness and toxic substances immediately adjacent to plaintiff’s property.” The complaint further alleges that the commissioner’s actions “diminished the value of plaintiff’s property” and “made part of the property of plaintiff unable to be utilized for any reasonable and proper purpose.” We hold that the facts alleged do not demonstrate an interference with the plaintiff’s property that “in a substantial degree abridged or destroyed” the value of the property or the plaintiff’s use and enjoyment of it.3 Textron, Inc. v. Wood, supra.

In essence, the complaint alleges that the commissioner’s removal of trees from state property has exposed the plaintiff’s property to the noise, unsightliness, and fumes, as well as toxic emissions from traffic on Interstate 95, and that his operation of a weigh station has resulted in additional noise, unsightliness, and fumes, as well as the presence of a holding pond for toxic substances on property adjacent to the plaintiff’s property.4 Although such allegations could conceivably support a claim of nuisance or some other sort of tortious interference by the state with the plaintiff’s use of his property, they do not amount to a “taking” of the plaintiff’s property in the constitutional sense. [286]

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Cite This Page — Counsel Stack

Bluebook (online)
610 A.2d 590, 222 Conn. 280, 1992 Conn. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tamm-v-burns-conn-1992.