Frank J. MONGILLO, Jr.
COMMISSIONER OF TRANSPORTATION.
Argued Dec. 13, 1989.
Michael P. Kamp, New Haven, with whom, on the brief, was William D. Hart III, for appellant (plaintiff).
Lawrence G. Widem, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellee (defendant).
Before PETERS, C.J., and SHEA, COVELLO, HULL and SANTANIELLO, JJ.
[214 Conn. 226] SANTANIELLO, Associate Justice.
In this action the defendant, Commissioner of Transportation (commissioner) filed an assessment of damages pursuant to General Statutes 13a-73 in taking two and four-tenths acres of property owned by the plaintiff, Frank J. Mongillo, by eminent domain. The property was needed to create artificial wetlands that would replace natural wetlands destroyed during the construction of a highway. The parties had previously agreed, in a prior inverse condemnation action; Mongillo v. Burns, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-82-0274966S (May 24, 1983); to a stipulated judgment that set the price for future acquisitions of the plaintiff's property under special circumstances. Thereafter, the defendant instituted a new condemnation proceeding with a subsequent assessment of damages based on the alleged acquisition price specified in the stipulated judgment.
The plaintiff appealed the assessment to the Superior Court pursuant to General Statutes § 13a-76. The appeal was referred to Hon. Louis Shapiro, state trial referee, and was dismissed on the ground that the prior stipulated judgment gave the defendant the right to acquire the plaintiff's property at $14,537 per acre if the state needed additional land because of a change in the design of the highway. From that judgment the plaintiff appeal to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023. The issue Before this court is whether the trial referee erred in
concluding that the stipulated judgment is applicable to this transaction.
The underlying facts are as follows. In 1976, the plaintiff inherited fifty-six acres of land in central Connecticut. [214 Conn. 227] A highway construction map filed by the state under General Statutes § 13a-57 had indicated that a portion of the plaintiff's property was intended to be acquired for use in constructing a proposed highway known as the Central Connecticut Expressway. The plaintiff, who was obliged to pay a substantial estate tax on the inherited property, sought an advance acquisition by the state. He brought an inverse condemnation action against the state, alleging that the proposed highway constituted a taking without just compensation. The Superior Court, Hale, J., rendered judgment dismissing the action on April 13, 1982. The plaintiff subsequently brought an inverse condemnation action in federal court. After dismissal of the federal court action, the plaintiff brought a second inverse condemnation action in the Superior Court. While this action was pending, negotiations were conducted between the plaintiff and Donald Leavitt, director of rights of way for the department of transportation. An agreement was reached between the parties and a stipulated judgment was rendered by the Superior Court on May 24, 1983. The stipulated judgment provided for the acquisition of approximately twenty acres of the plaintiff's property by the defendant at the appraised value of $14,537 an acre for use in the construction of a highway. The following clause was contained in the stipulated judgment: "In the event it become [sic] necessary due to a shift in the highway to take additional land the plaintiff agrees to allow the Department of Transportation to take said additional land at the price of $14,537.00 per acre." (Emphasis added.)
Pursuant to the stipulated judgment, the plaintiff executed a deed dated October 12, 1983, that conveyed twenty-one and one-half acres of land at the agreed price to the state and also contained the following: "together with the right of the State of Connecticut to acquire additional land from the grantor herein, his [214 Conn. 228] heirs and assigns, due to a change in the design of the Central Connecticut Expressway, this right to terminate upon completion of said expressway." (Emphasis added.) This clause was inserted at the request of Leavitt. The deed was properly executed and signed by the plaintiff.
The department of transportation subsequently sought a wetlands permit from the United States army corps of engineers. The corps required the department in designing the highway to create wetlands in replacement of the wetlands that would be destroyed during construction. The commissioner then instituted a new condemnation proceeding on October 9, 1987, for an additional two and four-tenths acres of the plaintiff's property, assessing damages at $14,537 per acre in accordance with the value stated in the stipulated judgment. The plaintiff appealed the assessment, and the commissioner raised two special defenses, asserting that the plaintiff was bound by the stipulated judgment and that the commissioner had not waived any contractual rights in bringing the condemnation action.
At the hearing Before the trial referee, Leavitt testified that during the negotiations prior to the stipulated judgment, the plaintiff's concern had been that no additional land be taken by the state for a service station, restaurant, or other commercial use. He further testified that the plaintiff had been aware that the highway design was subject to change and that an advance acquisition by the state is unusual because highway construction projects often require significant design changes. According to Leavitt, the agreement expressed in the stipulated judgment was an attempt to accommodate the plaintiff because of his federal tax obligations.
The plaintiff testified that during the negotiations on further acquisition of land Leavitt had referred to a
[214 Conn. 229] shift in the "center line" of the highway. Under the plaintiff's interpretation, the phrase "shift in the highway" that was used in the stipulated judgment required conveyance of additional land at $14,537 per acre only when there was a shift in the center of the path
of the highway. Leavitt denied making any reference to the "center line."
In his memorandum of decision, the trial referee found that the concept of a shift in the "center line" had no foundation in the case. After considering the language of the deed and the testimony, the trial referee concluded that the acquisition of land in the ...