Campbell v. New Haven , 101 Conn. 173 ( 1924 )

The defendant city duly proceeded under its charter authority to take by condemnation parcels 2 and 93 as numbered upon the map, exhibit A, made a part of the finding. The plaintiff appealed from the award of the Bureau of Compensation of the defendant city to the Superior Court, and that court rendered its judgment increasing these awards, and the defendant took its appeal to this court for the errors of the trial court in adopting an improper standard in its assessment of just compensation and in making certain rulings on evidence. Errors assigned as to the improper standard adopted concern parcel 2, while the errors as to rulings on evidence concern parcel 93. Parcel 2 is bounded upon the east by the street named Boulevard about seventy feet and by land of the Newhall estate about one hundred and eighty feet. The land of the Newhall estate is a triangular strip running to a point in the Boulevard where it meets the line of the plaintiff's land and being at its northern boundary about twenty feet wide. The plaintiff has no title to this triangular strip, either by record or by adverse possession. The city has not taken nor claimed to have taken any interest or estate which the plaintiff may have in the Newhall parcel. Nor has the trial court assessed any part of the just compensation awarded the plaintiff for the taking of any interest or estate in the Newhall estate. The use the court made of parcel 3 in assessing just compensation for the taking of parcel 2 was this. The court was of the opinion that a substantial amount should be added to the market price of parcel 2 because of the probability that the plaintiff would in a short time acquire the title to parcel 2 by adverse possession, thus giving to parcel 3 frontage upon the Boulevard along its entire east side. The acts upon which plaintiff bases his claim to have been in adverse possession of parcel 3 since 1913 are confined to the direction and supervision of the public dumping upon parcel 3 from 1913 on and the erection of a fence along the east boundary of parcel 3, namely, the Boulevard. The building of the fence after the proceeding in condemnation had begun could not be considered in establishing a title by adverse possession in plaintiff. The mere finding that plaintiff had directed and supervised the public dumping upon parcel 3 would fall far short of establishing a title by adverse possession even though these acts had continued for the statutory fifteen years. They do not present the essential elements from which the trial court could find a title by adverse possession as a fact. Stevens v. Smoker, 84 Conn. 569, 574,80 A. 788. And if so found, we should be compelled to hold that this conclusion was erroneous because not legally or logically consistent with the subordinate facts. Layton v. Bailey, 77 Conn. 22, 28, 58 A. 355. But let us assume, as the court does, that the subordinate facts found for the period covered would suffice to constitute the essential elements of adverse possession for this period.

In support of his main contention, plaintiff urges that by virtue of his acts of adverse possession, he had acquired an interest in parcel 3. It must be conceded that all kinds of property, and every kind of right or interest in property which has a market value cannot be taken in invitum, without making just compensation therefor. And where one enters into occupancy of land under actual or apparent authority and places improvements upon the land which is thereafter taken in condemnation proceedings, he and not the owner is entitled to be compensated for the value of such improvements. Thus, where a municipality, upon competent advice that a squatter title was valid, purchased the land and erected a schoolhouse thereon, and, being ejected, brought condemnation proceedings, it was held that the municipality was entitled to the value of these improvements and not the owner. See also Wendel v. Spokane County, 27 Wash. 121; note to Ann. Cas. 1912A, p. 245; and Perry v. Clissold, App. Cas. [1907] 73, was a case of this kind. The possessor was not a mere trespasser. Andrew v. NantasketBeach R. Co., 152 Mass. 506, 25 N.E. 966.

In the case of a mere trespasser upon land, the improvements he makes belong to the owner and on condemnation the trespasser cannot obtain compensation for their value. In Cohen v. St. Louis, F. S. W.R. Co., 34 Kan. 158, 165, 8 P. 138, the court said: "Of course it must be admitted that where a mere wrongdoer, a naked trespasser, enters upon the land of another, and makes improvements thereon of a permanent character, such improvements become the property of the landowner; and this will apply to railroad companies as well as to others." See also Nichols on Eminent Domain (2d Ed.) Vol. 1, § 120, and cases cited. Upon the facts found, the plaintiff in the acts done on parcel 3 was a mere trespasser; he had no actual or apparent authority for what he did. So that even though the facts found showed that the plaintiff had had adverse possession of parcel 3 for the period he claims and defendant had condemned parcel 3, the plaintiff, a mere trespasser upon this land, could not have obtained compensation for the improvements, if any, which he had made on the land during the time of his occupancy. The question raised by the appeal is more remote than that of the trespasser seeking compensation in condemnation proceedings for the improvements he had made. It is whether the trespasser's improvements on land occupied by him adversely enhance the value of his adjoining land because of the probability that his continued trespass will be undisturbed until his occupancy by adverse possession shall ripen into an indefeasible title. If increased compensation is given for the taking of parcel 2, upon the theory that the plaintiff will some day own the adjoining land — parcel 3 — which he now holds in adverse occupancy, and later the true owner disposses this trespasser and the defendant subsequently bring condemnation proceedings to take parcel 3, it must make the true owner just compensation for the land so taken. The result will be that the municipality will have paid more than just compensation to the plaintiff. Until the plaintiff acquires title to parcel 3, he cannot claim that parcel 2 is increased in value by parcel 3. The defendant is quite right in its contention that the question whether a purchaser of parcel 2 would pay the plaintiff more for this parcel because of the probability that plaintiff's possession of parcel 3 would ripen into a title by adverse possession, is "too speculative and too uncertain and remote a probability" to be considered by a court in assessing just compensation for the taking of parcel 2.

Three rulings on evidence remain for review. 1. The plaintiff offered a map of parcel 93 to show that from an engineering point of view it was practicable to locate the structures depicted upon the map upon this parcel. The map was thereupon marked, over defendant's objection, exhibit 3 for identification. Subsequently, plaintiff offered to prove that he contemplated the use of parcel 93 by building thereon the structures depicted upon exhibit 3 for identification and in that connection offered this exhibit in evidence. Upon objection by defendant the court ruled that the plaintiff could not testify as to the plans he had made for the development of this parcel as affecting its market value, but that he was entitled to testify as to its adaptability for development in a certain way and in the way indicated by these plans, and that the plan might be admitted for the limited purpose of showing that the parcel was adapted for development along the lines indicated on the plan. Counsel for the defendant excepted to this ruling. Defendant's counsel argue the ruling as though permitting the plaintiff to show the particular uses of the property which he intended to make at some future time. The trial court expressly limited the scope of this evidence and excluded it for the very purpose for which defendant claims the evidence was received, and consequently we do not consider the ruling from this standpoint. As made, the ruling was correct and finds ample support in our own decisions. In New York, N. H. H.R. Co. v. NewHaven, 81 Conn. 581, 585, 71 A. 780, the court, by BALDWIN, C.J., says: "It is true that the company may never build the retaining wall, and may, to-morrow, abandon the further use of the side tracks for the support of which that wall would be necessary. But possibilities of such a nature cannot be contemplated by those charged with the duty of assessing damages for property taken under the right of eminent domain. They must estimate them by the standard of its value for the purposes to which it is being applied, or of its value for the purposes to which it could, under the existing circumstances, be most advantageously applied, if this be a greater sum." See also Milford WaterCo. v. Kannia, 92 Conn. 31, 34, 101 A. 475; Smith v. Commonwealth, 210 Mass. 259, 261, 96 N.E. 666; 2 Nichols on Eminent Domain (2d Ed.) § 447; 3 Sedgwick on Damages (9th Ed.) § 1164.

2. There is upon parcel 93 a one-story frame building with an ell used as a store and a garage and well adapted to the uses to which it is now devoted. The court permitted two witnesses to testify to the replacement value of this building "not as a measure of damages, because the measure of damages is the value of the owner's land as enhanced by the value of the buildings, but it seems to me, as one of the elements in that value, or at least one of the ways of getting at it, is to find out how much it [the building] would cost."

When the land and buildings taken have a market value, that must serve as the measure of damages; if there be no market value, "its value . . . must be ascertained in some other rational way . . . from such elements as are attainable." Southern Express Co. v.Owens, 146 Ala. 412, 426, 41 So. 752. Where there is a market value the elements which go to make up or affect that value are admissible by direct evidence, or may be elicited in cross-examination. Sedgwick on Damages (9th Ed.) Vol. 3, § 1163, says: "Hence it has become the practice to take evidence not only directly as to the market value, but as to every element which enters into value, and tends to diminish it." And he cites in support of this our own cases. Platt v. Milford, 66 Conn. 320, 34 A. 82; Holley v. Torrington, 63 Conn. 426,28 A. 613; and Shelton Co. v. Birmingham,62 Conn. 456, 26 A. 348. The trial court admitted evidence of one of the elements of damage for the purpose of enabling the court to apply the rule, as stated in Sedgwick,supra, in § 1163. In an assessment of damages caused by the location of a railway it is said: "There is nothing to show that the sum paid was not paid in good faith and under normal conditions and it cannot be said, we think, as matter of law that the cost could not have assisted the jury in arriving at the market value of the petitioner's estate as of the date when the damages were to be assessed." Levenson v. Boston ElevatedRy. Co., 191 Mass. 75, 78, 77 N.E. 635. The authorities upon this point are at variance. Thus, Lewis on Eminent Domain (3d Ed.) Vol. 2, § 664, says: "Where property is improved with buildings or other structures the general rule is that the evidence must be confined to the value of the property as a whole and that evidence of the cost of the improvements, or of their structural value or of the cost of reproducing them is not competent," and cites to this, MifflinBridge Co. v. Juniata County, 144 Pa. 365,22 A. 896, and Devou v. Cincinnati, 162 F. 633. See also 22 Corpus Juris, p. 187, § 148.

The leading modern case in opposition to the doctrine of earlier New York cases and of Lewis, is Matterof City of New York, 198 N.Y. 84, 85, 87, 91 N.E. 278. "A single question," says the court, "is presented by this appeal, and that is whether an owner whose lands are taken in invitum may give evidence as to the structural value of buildings thereon, for the purpose of establishing his total damages. . . . In the greater number of cases, however, when the character of the structures is well adapted to the kind of land upon which they are erected, the value of the buildings does enhance the value of the land. In such cases it is true that the value of the land as enhanced by the value of the structures is the total value which must be the measure of the owner's just compensation when his property is condemned for public use. . . . But how is the enhancement of the land by the structures which it bears to be proven? . . . Buildings . . . differ . . . and we can think of no way in which they can be legally proved except by resort to testimony of structural value, which is but another name for cost of reproduction, after making proper deductions for wear and tear." See 35 Harvard Law Review, 76. Parcel 93 does not appear to have been incapable of having a market value and we assume that it had such value although the finding leaves this to inference. How shall that market value as testified to by the expert be determined? Is the court to determine this by the opinion of the expert alone? Ordinary practice subjects this opinion to rigid cross-examination touching the location, environment, uses, adaptability, sales of similarly situated properties, separate cost of land and building, and cost of reproduction less depreciation for wear and tear. These and all the other elements material to the opinion so expressed are proper subjects of cross-examination. If these elements can be brought out indirectly through cross-examination, because relevant and material, there is no good reason why they should not be equally relevant and material if presented on the direct examination. We see no escape from the logic of the opinion of the Court of Appeals of New York. In United States v. Boston, C.C. N.Y. Canal Co., 271 F. 877, 888, the Circuit Court of Appeals says: "It is in substance conceded that reproduction cost is competent evidence of market value, provided the prices existing at the time of reproduction are normal, making due allowance for the period of time necessary to reconstruct the property." The Circuit Court held that the prices in the case before it were not normal, but inflated through conditions arising from the war, and formulated a special rule applicable to such a situation. That is not the case before us. The proposition we are considering was conceded in that case, and, that too, by most eminent lawyers of the Boston bar. Every element which enters into the market value of property should be admissible in evidence when relevant and material, and at times structural or reproduction or replacement value may be both relevant and material. In the case before us, we could not hold upon the facts found that this evidence may not have been both relevant and material, provided allowance were made for depreciation. Whether this was done the finding does not disclose. Nor can we tell from the facts found whether the admission of the evidence was harmful or not. The divergence of opinion upon the admissibility of replacement value of a building taken in condemnation proceedings may have arisen from the failure to distinguish between the measure of damage and the elements of damage. This distinction the trial court made and we are of the opinion that the evidence was admissible for the purpose for which it was received.

3. The last ruling on evidence made the subject of appeal and pressed in argument before us arose out of the offer by the defendant to show that the sale of property on the corner of Boulevard and Congress Avenue opposite parcel 93 containing two and sixty-five one hundredths acres, for the price of $7,800, was in fact sold by the front foot, making up this valuation based on the two street frontages and on the rear land having no street frontage. The offer was made for the purpose of showing that there were three bargains in the one price, one for the frontage on Congress Avenue, one for the frontage on the Boulevard, and one for the land in the rear of this tract having no frontage.

The court excluded this offer upon the ground that the details of the bargain could not be gone into any further than to show what the property was sold for and how much it brought. If the total sale price of this property was as far as the evidence could be permitted to go, it would be of little or no importance in furnishing a comparison with parcel 93. But if the front foot valuations used in reaching the price for the whole were before the court, the comparison in valuation of these two corners would be available, and since this sale was made only six weeks before the condemnation proceedings by defendant were adopted, its materiality would be beyond question. Sales of land similarly located and of like character to the land in question are the most reliable tests of its market value. The bargain made was threefold and the offer attempted to present the entire bargain so far as it related to the price. The evidence should have been received. In related matters our rule has been the more liberal one, permitting the details of the use, adaptation and price of land similarly situated and of like character, in reaching the ultimate question of market value. The cases cited to the preceding point show this.

There is error and a new trial is ordered.

In this opinion the other judges concurred.