The appointment of a committee to appraise property to be taken for a public use is a judgment from which an appeal lies to this court. Judicial action may not be called for upon a subject not within the judicial function; but the fact that either party may refuse to accept the report of appraisers in a condemnation proceeding does not make their appointment a nonjudicial act, especially when the right of each will be affected by whatever action they take. Ordinarily the applicant in a condemnation proceeding may, in the absence of statutory prohibition, withdraw at any time prior to final judgment, provided the defendant would not be injured thereby. The General Assembly may compel an applicant to pursue his condemnation proceeding to an end or may regulate his right of withdrawal; in the absence of statutory regulation he may withdraw. The right of withdrawal in any event ceases when title has vested or possession been taken. The risk of loss to the individual, involved in the right of the public to withdraw from a condemnation proceeding, is a community obligation resting upon each member owning real estate. A community ought to be given the opportunity to ascertain the probable cost, before purchasing a public utility, and to withdraw if it finds the expense too great. A single appraisal, made in a direct condemnation proceeding, with an opportunity for withdrawal by the applicant within a reasonable time after the appraisal, accomplishes a sufficient protection of the public interest. The procedure of two appraisals is unnecessarily expensive, cumbersome and wasteful of the judge's time, but is not unusual; it is analogous to that under the highway and flowage statutes, which have never been attacked as unconstitutional because involving court or jury in a nonjudicial act. The privilege of withdrawal applies to every action, when the rights of the defendant are not jeopardized, and the several acts done in the course of the action are not thereby rendered nonjudicial, since they are done in the settlement of rights which are proper subjects of judicial action, even though rendered nugatory by the subsequent withdrawal. A Special Act empowered the city of Bristol to take over the plant of the local water company, according to the following procedure: The mayor to bring his petition to a judge of the Superior Court and the judge to appoint three appraisers; after the filing of the appraisal the question of purchase to be laid before the voters; in the event of a negative vote, the city's rights under the Act to be suspended for one year; in the event of an affirmative vote but a refusal by the company to sell, the mayor to bring his petition for another appraisal, and the city to acquire title by condemnation. Held: — 1. That if either party refused to accept the first appraisal, its right would be adversely affected by such action, for after its refusal the city could take no further steps for one year, and the company would not be subjected to condemnation within that period; and the company, after its refusal to accept the appraisal, could not prevent subsequent condemnation proceedings from which neither it nor the city could withdraw; the status of both would be changed, both would be bound to a recognized judicial procedure, and the judge's act would not be rendered nugatory. 2. That this proceeding involved a subject within the judicial function and did not concern a purely administrative act. 3. That the first appraisal was a part of the condemnation proceeding and incident to the exercise of judicial power. The case of Bradley v. New Haven, 73 Conn. 646, distinguished.
WHEELER, J.
The plea to the jurisdiction was sustained upon the ground that the first appraisal provided for in this Act (Special Acts of 1911, p. 338, No. 352) had no necessarily binding effect upon either party, settled no rights, and redressed no wrongs; and hence the judge was called upon to exercise a function clearly nonjudicial.
An analysis of the Act will disclose the insecurity of this position. The Act provides for: (1) A petition by the mayor to a judge of the Superior Court, in the form of petition adopted in this action. (2) The appointment of a committee to appraise, as prayed for. (3) The making and filing of said appraisal with the clerk of the Superior Court. (4) If the parties accept the appraisal, payment of the appraised value follows, and the title vests in the city. (5) If the city refuses to accept the appraisal, its right under its charter to acquire the Water Company plant is suspended for one year. (6) If the Water Company refuses or neglects to accept the appraisal agreed to, the city must proceed to condemn the plant in the manner prescribed in the charter.
The petition prays for the appointment of a committee to appraise the property to be taken for a public use. The appointment of the committee is a judgment from which an appeal lies to this court. New York, N. H. H.R. Co. v. Long, 69 Conn. 424, 37 A. 1070; New Milford Water Co. v. Watson, 75 Conn. 237, 53 A. 57; Norwich Gas Electric Co. v. Norwich, 76 Conn. 565, 57 A. 746.
The controversy is not that the appointment of such a committee would not ordinarily be a judicial act, but that, since its report, when filed, may be disregarded by either party, the judge's act in the premises is wholly nugatory. While either party may refuse to accept the appraisal, the rights of each will be affected by their act. The first appraisal may end the action: in case the parties agree on the appraisal, payment is made and title passes. In case the city refuses to purchase at the appraisal, it can take no further step toward acquiring this plant for one year. Its action materially curtails its own right of condemnation and enlarges those of the company by forbidding condemnation of its plant for the stated period.
After the city files with the company its resolution authorizing the purchase of the plant at the appraisal, if the company refuses or neglects to accept the same within a specified period, the city shall proceed to acquire by condemnation in the manner pointed out by the Act. Thereafter the city can no longer withdraw; nor can the company prevent the condemnation of its plant to the municipal use. The rights of each are thus affected by the act of the company. The city is greatly prejudiced when it loses the right to withdraw from its condemnation proceeding.
Thereafter, if the second appraisal be excessive, or, through changed conditions, it would be desirable for the city to abandon the undertaking, it cannot withdraw. Ordinarily in every condemnation the applicant may, in the absence of statutory prohibition, withdraw at any time prior to final judgment, when the rights of the defendant would not be injuriously affected by such withdrawal.
The status of the parties is changed by their action in relation to the first appraisal. And this is one step in an orderly proceeding to acquire the plant of the Water Company by condemnation.
There is nothing administrative about this proceeding. The action of the parties taken under the first appraisal settles the rights of the parties and binds them in one of the recognized actions of judicial procedure.
Bradley v. New Haven, 73 Conn. 646, 48 A. 960, on which the defendant relies, concerned a purely administrative act, which bound no one and settled no rights, and was a plain endeavor to secure judicial action upon a subject not within the judicial function. In this case the subject-matter is within the judicial function.
The obvious purpose of the first appraisal is to inform the voters of the municipality of the probable expense of taking over the Water Company by an estimate made in the course of an impartial judicial determination. The excessive cost of a projected public improvement may decide the municipal necessity. The probable cost of purchase of a public utility should be ascertained by a community before it finally decides to buy. This would be the course of ordinary prudence and common sense in the affairs of an individual; it is similarly the rational course to pursue in public affairs. The community ought to have the right to withdraw from its proposed purchase, if it finds the cost is out of proportion to the public benefit, or to its own resources. The procedure of this first appraisal accomplishes this reasonable protection of the public interest.
The procedure for the second appraisal of the condemnation is for the benefit of the Water Company, giving to it another trial of the question of value. The method adopted is cumbersome and expensive and unnecessarily wasteful of the time of the judge. A single appraisal by appointees of the judge, duly confirmed by him, would furnish all the day in court that either party should have upon the question of value. The purpose of the city could have been served by a single appraisal, made in a direct condemnation proceeding, with an opportunity for withdrawal by the applicant within a reasonable time after the filing of the appraisal. The opportunity for withdrawal by the city under this statute is in keeping with the ordinary course followed in condemnation proceedings.
The General Assembly may compel an applicant to pursue his proceeding for condemnation to an end, or it may regulate his right of withdrawal. In the absence of statutory regulation, the applicant may withdraw his action. Some authorities hold that the withdrawal must be had before confirmation of the report; others that withdrawal may come after confirmation and before payment, provided title has not passed or possession been taken. Stevens v. Danbury, 53 Conn. 9, 22 A. 1071; Carson v. Hartford, 48 Conn. 68; In Matter of Water Comrs. of Jersey City, 31 N.J.L. 72; O'Neill v. Freeholders of Hudson, 41 N.J.L. 161, 172; note 28 L.R.A. 91, 94; Corbin v. Cedar Rapids, I. F. N.W. Ry. Co., 66 Iowa 73, 74, 23 N.W. 270; People ex rel. Gas Light Co. v. Common Council, 78 N.Y. 56, 60; Lewis on Eminent Domain, §§ 954, 955. When title has vested or possession been taken, the right of withdrawal ends. Lewis on Eminent Domain, § 955.
The right of the public to withdraw subjects the property of the individual to the will of the public, and may cause him inconvenience and loss. This is a community obligation resting upon each member owning real estate. Stevens v. Danbury, 53 Conn. 9, 22 A. 1071. Were the community compelled to abide by the appraisal, it might embark on a project of vastly greater cost than it contemplated, take land it did not need, and make choice of a location, although subsequent events pointed to a better one.
The right to withdraw his action is not peculiar to the plaintiff in a condemnation proceeding. Every action may be withdrawn prior to verdict or final judgment, whenever it can be done without injuriously affecting rights of the defendant acquired by reason of the action. Weston v. Railroad Comrs., 205 Mass. 94, 97, 91 N.E. 303.
That every plaintiff may withdraw his action does not make the several acts done in the course of the action nonjudicial. The acts done are in settlement of rights which are proper subjects of judicial action, though rendered nugatory by the subsequent withdrawal.
The withdrawal of the ordinary condemnation or other action affects no rights; but the withdrawal of the application in this case does affect the right of the city to begin a similar proceeding for one year.
We think the first appraisal was a part of the condemnation proceeding, and an incident to the exercise of judicial power.
Legislation in condemnation proceedings of a character similar to the Act before us is not unusual. The highway statutes (General Statutes, § 2067) and the flowage statutes (General Statutes, § 986) furnish examples of analogous proceedings. They each provide for two appraisals at the will of a party to the proceeding. In each the report of the committee may be disregarded by a party to the action. That these statutes have long stood and often been before our courts, and never been attacked as engaging court or judge in a nonjudicial act, affords strong basis for the claim that they do not invade constitutional rights.