White Oak Excavators, Inc. v. Burns

374 A.2d 1097, 172 Conn. 478, 1977 Conn. LEXIS 917
CourtSupreme Court of Connecticut
DecidedMarch 1, 1977
StatusPublished
Cited by8 cases

This text of 374 A.2d 1097 (White Oak Excavators, Inc. 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
White Oak Excavators, Inc. v. Burns, 374 A.2d 1097, 172 Conn. 478, 1977 Conn. LEXIS 917 (Colo. 1977).

Opinion

Bogdanski, J.

The commissioner of transportation condemned a portion of the plaintiff’s land and filed a statement of compensation in the amount of $11,800. Claiming that the compensation was inadequate, the plaintiff applied to the Superior Court for a review of damages, where the matter was referred to a state referee, who, exercising the powers of the Superior Court, reassessed damages at $19,400. From that judgment the plaintiff has appealed, assigning error in the court’s finding of facts, in its refusal to find material facts claimed to be admitted or undisputed, and in the conclusions reached.

On October 2,1973, the plaintiff owned 27.39 acres of undeveloped land in the town of Plainville. On that date, the commissioner took 9.21 acres, in two parcels, leaving 18.18 acres. Bruce Avenue and a thirty-two-foot right-of-way, 1300 feet in length, provided access to the property before the taking. After the taking, the plaintiff was denied access to *480 its property from Bruce Avenue and route 72, as relocated. The commissioner also took an easement to drain and to place riprap on the plaintiff’s remaining property. The property abutting Bruce Avenue was twenty-five feet below the grade of Bruce Avenue, had several streams running through it, and was zoned flood plain. As flood plain, it could legally be used for open storage of industrial and commercial raw materials. The plaintiff is engaged in the highway and heavy construction business.

We first address ourselves to the numerous assignments of error directed at the finding. The plaintiff seeks to have the following fact added to the finding: “Materials can be stored on the subject property without filling the land,” claiming that there was testimony to that effect. Facts can be added to the finding only when they are admitted or undisputed. National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact is not admitted or undisputed merely because it has not been contradicted. The question of credibility is for the trier. “To secure an addition to the finding, an appellant must point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed.” Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274; see Practice Book § 628 (a); Maltbie, Conn. App. Proc. § 128. The plaintiff has failed to show that the fact claimed was either admitted or undisputed. Moreover, the finding reveals that the trial court viewed the property. Under those circumstances the addition cannot be made.

Another fact sought to be added was that “[a] 11 of the plaintiff’s land could be filled to elevation *481 180 without any cost to the plaintiff.” That proposed addition was properly excluded since it was immaterial in view of the applicable law that market value is not to be ascertained by the cost or absence of development costs to the owner, but by the reasonable cost of development in the open market at the time of the taking.

The plaintiff has also attacked the finding that “[a] plan for development of [open] storage use would require the approval of a site plan by Town of Plainville authorities and could involve state statutes relating to environmental control,” as a conclusion unsupported by the subordinate facts found. Conclusions of a trial court are tested by the finding; Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58; and the validity of a finding of fact is tested by the evidence printed in the appendices to the briefs. Practice Book § 628Q; Grodzicki v. Grodzicki, 154 Conn. 456, 459, 226 A.2d 656. While the above tests are clear, “troublesome questions . . . sometimes arise as to the facts to be included, the part of the finding in which they should appear and the manner in which they should be stated. The difficulties so presented are not made easier by the lack of any accepted terminology by which various types of facts are referred to in the opinions of the court.” Maltbie, Conn. App. Proc. § 136.

Whether the trial court’s above finding is a conclusion or a finding of fact is not free from doubt. The difficulty is one of terminology and is discussed at length in Maltbie, Conn. App. Proc. §§ 136-141. The import of those sections is that the appellant must have a practical means of testing the validity of findings made in a finding by whatever names called. See Bridgeport Hydraulic Co. v. Stratford, 139 Conn. 388, 390-91, 94 A.2d 1.

*482 The challenged finding sets ont two particular facts which the court viewed as being material to the issue of damages. The court reached those facts from the direct testimony of witnesses. That finding, therefore, will be treated as a finding of fact, the validity of which will be tested by the printed appendix to the briefs. 1

The plaintiff also argues that the above finding is speculative. The short answer is that the trial court’s use of the word “could” is not indicative of speculation or surmise. Charles Motes, an inland wetlands enforcement official, testified that on the date of taking there was a public law in effect that applied to the subject property, and that the law required that a permit be obtained from a state body before the subject property could be filled.

The plaintiff further claims that the following facts were found without evidence: (1) that to utilize the land properly for the purpose for which it was zoned, before the taking, it would have been necessary to bring in earth material fill; (2) that the fill required for utilization of the portion of land taken for permitted activities would be 102,150 cubic yards; 2 and (3) that the only comparable sale used by the defendant’s appraiser was a sale of landlocked land where the purchaser had obtained access thereto as part of the transaction. The *483 validity of such claims is tested by the evidence printed in the appendices to the briefs. Practice Book § 628M; see, e.g., Morningside Assn. v. Morningside Development, Inc., 172 Conn. 60, 63, 372 A.2d 141.

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Bluebook (online)
374 A.2d 1097, 172 Conn. 478, 1977 Conn. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-oak-excavators-inc-v-burns-conn-1977.