This is the second appeal by the defendant commissioner of transportation from the judgment of a state referee who, exercising the powers of the Superior Court, in accordance with General Statutes § 13a-76, reassessed the damages resulting from the condemnation of a portion of the property of the plaintiff, F. Francis D'Addario.
The underlying facts are not in serious dispute and do not differ from those reported in D'Addario I: Prior to May 25, 1973, the plaintiff owned approximately 3.6 acres of undeveloped land in Fairfield. On that date, the defendant took from the plaintiff by way of eminent domain two drainage rights-of-way, amounting in all to O.13 acres, and an easement to install a chain link fence in connection with a project to drain and relocate Turney's Creek so as to improve drainage in the surrounding area. The project involved the construction of three box culverts and considerable sanitary sewer work over an area about a mile in length, with most of the work involved lying outside of the area of the plaintiff's property. The construction of the entire project was to be performed in 780 days.
The plaintiff's property has legal access only to the King's Highway Cut-off, U.S. 1A, being otherwise effectively landlocked because of the elevation of surrounding property. Its legal access consisted of a driveway approximately sixty-five feet wide. The reconstruction of Turney's Creek involved the construction of a box culvert across this accessway to the plaintiff's land. During the period of construction, which was originally projected to take two years, and in fact took slightly longer, there was
The defendant in its original notice of taking assessed the plaintiff's damages at $3600. At the trial in 1974, the trial court reassessed the damages, finding the plaintiff entitled to $18,700 for the property actually taken, and to $34,500 for a two-year constructive easement for the deprivation of access to and use of his property. In the first appeal, the state did not contest the reassessment from $3600 to $18,700, but challenged the award for the constructive easement as inappropriate as a matter of law and unproven as a matter of fact. D'Addario I, supra, 184. Upholding the position of the state in part, this court held, D'Addario I, supra, 186, that "[b]ecause the court failed to find that the constructive easement was the foreseeable, necessary, natural and proximate result of the taking, and because the finding fails to support the damage award reached, the judgment cannot stand," and ordered a new trial. The order for a new trial necessarily implied that the plaintiff's claim to a constructive easement had been rejected as a matter of fact but not as a matter of law.
Before reaching the merits of the substantive issues raised by the new appeal, we will consider first the various evidentiary and procedural rulings that have been assigned as error by the defendant. The defendant argues that the trial court should have: (1) permitted introduction of evidence that the town of Fairfield was responsible for construction delays that contributed to the denial of access to the plaintiff's property and (2) permitted the
Since these various claims were assigned as error in the appeal in D'Addario I, it is arguable that this court's failure to address these claims in that opinion is tantamount to a conclusion that the rulings were correct, and have become part of the law of the case. Laurel, Inc. v. Commissioner of Transportation (Laurel II), 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917). Because the first judgment in the plaintiff's favor was set aside in D'Addario I; cf. Laurel, Inc. v. Commissioner of Transportation (Laurel III), 180 Conn. 11, 23, 428 A.2d 789 (1980); and because the opinion in D'Addario I does not expressly consider the claims on their merits, it is preferable to deal with them directly on this appeal. We find all three claims to be groundless.
In essence, these evidentiary and procedural motions are all founded on the same proposition, that if there was interference with the plaintiff's access to his property, that interference was due, at least in part, to the conduct of third parties and hence was not the responsibility of the defendant. The trial court found, however, that all of the construction delays were attributable to contract specifications required by, and approved by, the state of Connecticut. Under these circumstances, neither the town of Fairfield, nor the contractor Brunalli,
The defendant also renews the argument, first raised in its appeal in D'Addario I, that the court had no jurisdiction to award damages for the constructive easement, because the taking certificate did not encompass such an easement and the amended appeal did not, in timely fashion, raise the issue, the amendment having been filed on August 6, 1974, more than six months after the taking date of May 25, 1973, in violation of the provisions of General Statutes § 13a-76.
The substantive issue relating to the constructive easement that remained for retrial after D'Addario I can conveniently be divided into three sub-parts: (1) Did the taking by the defendant deprive the plaintiff of access to his property during the period of construction at Turney's Creek? (2) Was the interference with the plaintiff's access a foreseeable, necessary, natural and proximate result of the taking? (3) What are the damages that result from the taking? The trial court answered the first two questions in the affirmative, and reassessed damages in the amount of $65,700, of which $16,000 was attributed to the difference in the value of the property itself before and after the taking, and $49,700 was attributed to the deprivation of access. As in D'Addario I, the defendant does not contest the
On the question of denial of access, the parties are in agreement, as the trial court found, that box culvert 201, one of the three box culverts involved in the Turney's Creek project, was constructed directly across the entire entranceway to the plaintiff's property. The defendant argues that access was nonetheless not denied the plaintiff because temporary access was maintained throughout the period of construction by means of temporary fill, as evidenced by the fact that the plaintiff's land was used, with the plaintiff's permission, by the contractor Brunalli as a place for storage of trucks and materials. The defendant also argues that the contractor had a legal obligation to provide continual legal access and was never asked by the plaintiff to do anything further to facilitate ingress and egress to and from the plaintiff's property. The court found, however, that the temporary access that the contractor was obligated to provide was only limited access and not equivalent to the full, complete, and unrestricted access necessary for the full development of the property for its highest and best use. The plaintiff, having been deprived of his rights
Whether denial of access was a foreseeable, necessary, natural and proximate result of the taking is a question resolved in part by D'Addario I. Clearly, if denial of access during the period of construction after a taking could never be deemed to flow proximately from a taking, there would have been no point to a remand to determine damages under such a claim, when the state had already conceded the correctness of the remainder of the reassessment. In any case, the opinion states expressly that: "When only a part of a tract of land is taken for the public use, `just compensation' includes recovery for the part taken and recovery for any damages visited upon the remainder which result from the taking.... The use to be made of the land taken is to be considered with regard to its effect on the remaining land, and the fact that injuries are caused by the construction activities of the contractor is not a bar to recovery so long as the damages foreseeably follow such construction activities and are a necessary, natural and proximate result of the taking." D'Addario I, supra, 184-85. See Bowen v. Ives, 171 Conn. 231, 238, 368 A.2d 82 (1976); Meriden v. Highway Commissioner, 169 Conn. 655, 659, 363 A.2d 1094 (1975); Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482 (1968); Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1942); Andrews v. Cox, 127 Conn. 455, 458-59, 17 A.2d 507 (1941); all cited in D'Addario I; Wakeman v. Commissioner of Transportation, 177 Conn. 432, 435, 418 A.2d 78 (1979); 4A Nichols, Eminent Domain (3d Ed.) §§ 14.24, 14.243 and 14.2431.
The final question, dispositive of this appeal, is whether the trial court erred in its award of damages relating to the denial of access to the constructive easement as it was denominated in D'Addario I. The principles that relate to a reassessment of
In determining fair market value, the trial court is free to select the method of valuation most appropriate to the case before it. Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 37-38;
The trial court's reassessment of damages found that the value of the property taken from the plaintiff was $396,000 before the taking and $380,000 thereafter, for a diminution in value in the amount of $16,000. These figures have not been contested by the defendant upon this appeal. The court found
The trial court noted that the land that was partially taken and affected by the lack of access was, although undeveloped, zoned for industrial use. There was uncontroverted evidence that industrial zoning permitted use of the property for commercial purposes, and that the plaintiff had been negotiating, in 1969, for the development of the property for a shopping center. These activities were suspended when the plaintiff received notice from the defendant, early in 1970, that the property would be affected by the Turney's Creek drainage project. The court could reasonably conclude that a buyer considering purchase of the plaintiff's land would have to take into account, in setting a purchase price, that the defendant's actions would effectively deprive the owner of the use and occupancy of the land during the period of construction. The only evidence as to the amount of the damages attributable to this temporary interference with beneficial use of the plaintiff's property was evidence offered by the plaintiff's appraiser, since the defendant consistently maintained that there had been no cognizable deprivation of access. The plaintiff's appraiser testified, and the trial court agreed, that the diminution in the value of the property because of the denial of access should be measured by the rental value of the property during the two years
The defendant does not dispute the arithmetic that led to the calculation of additional damages in the amount of $49,700, but contests the appraiser's testimony that diminution in value can be measured by loss of rental value and also his recommendation that the rental value of undeveloped real property should be found by taking 10 percent of its value. The state thus assigns error as a matter of law and of fact to the court's finding that $38,000 was a reasonable rental value reasonably measuring the plaintiff's loss. Considering all of the facts and circumstances contained in the evidence and the record, we do not agree that the trial court was clearly erroneous either in the methodology it adopted to measure temporary appropriation of a constructive easement or in its fact-finding in measuring the value of the plaintiff's deprivation of access. The court's conclusion that the property taken could have been profitably used for commercial purposes, and that this reasonable use of the land was impaired by a period of deprivation of access, did not involve inadmissible speculation about future profits, as in Tandet v. Urban Redevelopment Commission, supra, or in Eljay Realty Co. v. Argraves, 149 Conn. 203, 207, 177 A.2d 677 (1962). See Keystone
There is no error.
In this opinion the other judges concurred.