Windsor v. Whitney , 95 Conn. 357 ( 1920 )

The majority opinion holds, in part, that the establishment of a reasonable building line is not "a taking of property in violation of constitutional right for which compensation must be made." From this I dissent. The argument seems to be that such a restriction is an exercise of the police power and not of the power of eminent domain. The adoption of the term "police power" as a substitute for "eminent domain," appears to be an attempt to change the character of the act by adopting a hitherto unused designation for what is at all times the same act, to wit: a taking of private property for public use within the meaning of the constitutional provision generally, and of § 11 of our Declaration of Rights. That such designation of a building line comes under the eminent domain power has hitherto been assumed by the legislature of this State to be unquestioned law, and all its legislation has been based on that assumption. Indeed, in the opinion in this case it is admitted that such is the law generally, and that as a rule municipal charters have provided for compensation. In 1 Lewis on Eminent Domain (3d Ed.) § 227, citing St. Louis v. Hill, 116 Mo. 527,22 S.W. 861, and other cases, it is stated as the rule that a law or ordinance establishing a building line "deprives the owner of the lawful use of his property, and amounts to a taking thereof within the meaning of the Constitution, and . . . can only be carried out by making provision for the compensation of the owner. In commenting upon such an ordinance, the Supreme Court of Missouri, in the case cited, says: `The day before the ordinance went into operation defendant had the unquestionable right to build at will on his lot. The day afterwards he was as effectually prevented from building on the forty foot strip, except under the peril of punishment, as if the city had built a wall around it, and this, too, without any form of notice, any species of judicial inquiry, or any tender of compensation. If this is not a "taking" by mere arbitrary edict, it is difficult to express in words the meaning which should characterize the act of the city.'" I had supposed that, both in reason and upon authority, this was thoroughly well-settled law, not only in Connecticut but throughout the United States. As an economic fact the proposition does not seem to me open to discussion.Northrop v. Waterbury, 81 Conn. 305-309,70 A. 1024, regards the establishment of a building line as a taking of property. Benedict v. Pettes, 85 Conn. 537,84 A. 332, clearly states that the establishment of a building line creates an incumbrance. The argument which attempts to show that establishing a building line is not within the constitutional meaning of the taking of private property is opposed to our own decisions and legislative assumptions. "Reasonableness," so much dwelt upon by the court, does not determine whether there is a taking. The Constitution does not limit its protection to an unreasonable taking. On the contrary, it assumes a reasonable taking. Any other is wholly unjustifiable. Moreover, the "reasonableness" talked about in the opinion is not a reasonableness as to a single owner, but a reasonableness of the entire line with reference to the needs of the municipality as a whole. Otherwise, uniformity in the line could seldom result. In Pumpelly v. GreenBay Co., 80 U.S. (13 Wall.) 166, 177, the Supreme Court of the United States said: "It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."

I do not at all question the desirability of suitable building lines. Nor do I question the power of the State constitutionally to establish them under the eminent domain doctrine. The repeated argument in the opinion as to the desirability of building lines may all be admitted. It by no means follows that the establishment of such a line is not a taking of property. The question in the case is not at all the desirability of such a line, but its effect, when established, upon property rights. Upon this point the United States Supreme Court said, in Chicago, B. Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561, 592,26 Sup. Ct. 341: "The validity of a police regulation, whether established directly by the state or by some public body acting under its sanction, must depend upon the circumstances of each case and the character of the regulation, whether arbitrary or reasonable and whether really designed to accomplish a legitimate public purpose. Private property cannot be taken for public use under a police regulation relating strictly to the public health, the public morals or the public safety, any more than under a police regulation having no relation to such matters, but only to the general welfare. . . . The constitutional requirement of due process of law, which embraces compensation for private property taken for public use, applies in every case of the exertion of governmental power. If in the execution of any power, no matter what it is, the Government, Federal or State, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner." What I do insist upon is, that if the establishing of such a line does, in the judgment of a properly-constituted tribunal, in fact damage an owner by a taking of his property, to the extent of that damage he is entitled to compensation.

By the opinion in this case, if the owner sustains such damage as matter of fact, he is yet compelled to contribute that as a private owner and not as a member of the public at large. He is not even allowed to raise the question of damage. But this is a taking of property without compensation. Calling what in fact is an exercise of the right of eminent domain, an exercise of the police power, does not avoid the constitutional question. Building lines are ancillary to highways and in effect extend the width of highways for the purposes, not indeed of literal travel, but of light, air, and freedom of view. A somewhat similar case is that of Matter of Clinton Avenue, 57 N.Y. App. Div. 166,68 N.Y.S. 196; the court says (p. 172): "Conceding that the legislature has the power to increase the width of Clinton Avenue, that it would be justified in taking possession of private property for this purpose upon the payment of just compensation, we are of opinion that it has a right to take a lesser estate in the property than would be necessary for a complete dedication to the use of the public, and that the use is none the less public to the extent to which the property is taken because it is left in the partial control of the present owners. The right that is proposed to be taken is not the right to walk or ride over these particular additions to the width of the avenue, but to afford `ample space for the access of light and air and also to beautify and adorn.' Matter of Curran, 38 A.D. 82,55 N.Y.S. 1018. `A street may,' to quote the same case, `in part unite the two purposes, one to furnish a way for travel and the other as a park or public place.' It may hardly be questioned that the legislature may authorize the taking of any part of this right which it may deem advantageous to the public, on the payment of just compensation. 10 Amer. Eng. Ency. of Law (2d Ed.) 1088, and authorities there cited. This is in harmony with the opinion of the court in Matter of Bushwick Avenue, 48 Barb. 9, which is very similar to the case at bar, where the court below held (p. 12) that `the taking of twenty feet on each side of the avenue and the appropriation of the same as court yards only, is such a taking as will justify an appraisement of damages therefor. A dominion is asserted over this land by the public to the extent of depriving the owner of his right to use and enjoy the same for any other purpose than a court yard. It is so far taken for public use and is a subject for compensation. See Sage v. Brooklyn, 89 N.Y. 189, 198." I will admit that in a majority of cases, as stated in the opinion, benefits and damages may fairly be assessed as equal. This is not because there is not a taking between the building line and the street line, but because the owner has left a lot of such depth that what is left is still available for building purposes and may be increased in value by the improvement to the street as a whole. But the constitutional provision relates to the land within the restricted area alone. Its application does not depend upon what other land the owner may have. A lot may be so shallow that what is left is not benefited, but becomes practically worthless. That is a question of fact. The constitutional principle must apply as if the lot within the restricted area were the entire lot. It needs no argument to show that a restriction against building at all on a given lot is a serious invasion of property right. Regarding the establishment of such a line as an exercise of the right of eminent domain, neither the owner nor the public can ever be harmed. Treating it as a mere exercise of the police power, may cause serious harm to the owner. Whether there is benefit or damage is, as to a given lot, a question of fact to be determined by a proper tribunal in which the property owner is given a chance to be heard; it is not a question of law to be determined according as to whether you call the act, which is at all times one and the same, an exercise of the police power or of the right of eminent domain.

The Act in question (Special Laws of 1917, p. 827) appears to be the only Act ever passed by our legislature, with the possible exception of the Bloomfield Act passed at the same session, which attempts to confer upon any municipality or board the power to establish building lines without provision for compensation. The Seymour Town Plan Commission Act, passed at the same session, provides for compensation. At the same session was passed the General Act, Chapter 349 of the Public Acts of 1917, subsequently incorporated in the General Statutes as Chapter 26, entitled Town Plan Commission, authorizing any town to establish a town plan, and this statute provides a method for ascertainment of benefits and damages in case of the adoption of building and veranda lines. The general act was approved May 16th, 1917, more than a month after the approval of the Windsor Act, and seems quite oblivious of the terms of the Windsor Act. So far as I know, municipal charters which authorize the establishment of building lines uniformly provide for the assessment of benefits and damages, and treat the establishment of a building line as a taking of land. For instance, the charters of Stamford, Meriden and Shelton, all revised in 1915, provide for compensation in case of the establishment of building lines. The charter of the city of Bridgeport, revised in 1907, so provides, and so do the charters of New Haven, Hartford, and other cities. We have not been referred to any legislative provision, except the Windsor and possibly the Bloomfield Act, which authorizes the establishment of building lines without providing for compensation. In view of the Seymour Act and the general statute authorizing town plan commissions, passed at the same session as the Windsor Act, both providing for compensation, the inference is strong that in some way the Windsor Act slipped by without the legislature having adverted to the fact that it failed to so provide. For it can hardly be supposed that the legislature, at the same session, advisedly intended to say that in Windsor and Bloomfield the establishment of a building line was a pure police measure not entitling an owner to compensation, while for all other towns and municipalities it was an exercise of the right of eminent domain entitling the owner to compensation under the Constitution. The Town Plan Acts are beneficial in character and should be given a liberal construction, but every purpose of the Acts can be fully accomplished in the methods hitherto provided by our municipal charters and provided in the general statute authorizing building lines and Town Plan Commissions, without extending the scope of the police power to the radical impairment of a fundamental constitutional right, hitherto universally recognized.

For these reasons, briefly stated, I think the majority opinion is wrong in principle and is quite unnecessary for the accomplishment of the results urged as the ground of the decision, and therefore dissent.