ALBAHARY v. BRISTOL, 276 Conn. 426 (2005)

Nos. (SC 17265) (SC 17266).Supreme Court of Connecticut

Sullivan, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js.

Syllabus
The plaintiff’s, owners of a parcel of unimproved land that had been contaminated by leachate from an abutting landfill owned by the defendant city of Bristol, appealed to the trial court challenging a statement of compensation filed by the defendant following its taking by condemnation of a thirty-one year easement over twenty-five acres of the plaintiffs’ property. Prior to instituting this action, the plaintiff’s had brought an

Page 427

action in the United States District Court for the District of Connecticut claiming, inter alia, negligence and inverse condemnation, and seeking damages and injunctive relief as compensation for groundwater contamination. The District Court ordered the defendant to provide the plaintiff’s with an alternate potable water source and to indemnify them against future claims of environmental liability, but denied their claim of inverse condemnation and declined to award money damages. Subsequently, the trial court in the present action rendered judgment increasing the amount of damages that had been awarded to the plaintiff’s by the defendants for the taking of the property. On the basis of the federal court decision, the trial court rejected the plaintiffs’ claim that the valuation of the property interest taken by the defendant should be measured by comparing the value of the land in its uncontaminated state to the value of the land in its contaminated state. The plaintiff’s appealed to the Appellate Court claiming, inter alia, that the award was inadequate, and the Appellate Court affirmed the judgment of the trial court. On the granting of certification, the plaintiff’s and the defendant filed separate appeals with this court. Held, that the Appellate Court properly determined that, although principles of inverse condemnation permit a property owner to seek compensation in an eminent domain proceeding for pretaking damages caused by the condemnor when the damages resulted from a necessary, natural and proximate result of a public use and were not the result of negligence, the plaintiff’s here were collaterally estopped from bringing such a claim, the District Court previously having concluded that the plaintiffs’ land had been contaminated due to the defendant’s negligence and having granted relief designed to put the plaintiff’s in the position they would have been in had the contamination never occurred; an award of compensation to the plaintiff’s on the basis of the value of the land in its uncontaminated condition, in addition to the provision of a permanent source of potable drinking water and permanent indemnification of any future environmental claims against them, would have resulted in a double recovery for the plaintiff’s.

Argued September 23, 2005.

officially released December 20, 2005.

Procedural History
Appeal from a statement of compensation filed in connection with the partial taking by condemnation of certain property rights of the plaintiff’s, brought to the Superior Court in the judicial district of New Britain and tried to the court, Wiese, J.; judgment increasing the amount of compensation, from which the plaintiff’s appealed to the Appellate Court, DiPentima, McLachlan and Peters, Js., which affirmed the trial court’s

Page 428

judgment, and, on the granting of certification, the plaintiff’s and the defendant filed separate appeals to this court. Affirmed.

Michael A. Zizka, for the appellants in Docket No. SC 17265, appellees in Docket No. SC 17266 (plaintiff’s).

Ben M. Krowicki, with whom were Susan Kim and Brian R. Hole, for the appellee in Docket No. SC 17265, appellant in Docket No. SC 17266 (defendant).

Opinion
SULLIVAN, C. J.

These certified appeals arise out of an action brought by the plaintiff’s, [1] the owners of a certain property located in the town of Southington, against the defendant, the city of Bristol, challenging the statement of compensation filed by the defendant in connection with its taking by condemnation of certain interests in the plaintiffs’ property. Before they brought this action, the plaintiff’s had brought an action against the defendant in the United Stated District Court for the District of Connecticut (federal court) raising numerous statutory claims, common-law claims and a claim of inverse condemnation, all pertaining to the defendant’s maintenance of a landfill abutting their property which, the plaintiff’s alleged, had contaminated the groundwater under their property. The federal court found for the plaintiff’s on most of their statutory and common-law claims but denied the plaintiffs’ inverse condemnation claim. Subsequently, the trial court in the present case rejected the plaintiffs’ claim that the valuation of the property interests taken by the defendant should be measured by comparing the value of the land in its uncontaminated state to the value of the land in its contaminated state on the ground that the federal court previously had decided that issue in favor of the defendant.

Page 429

The plaintiff’s appealed to the Appellate Court, which concluded that although the plaintiff’s had a right, in principle, to be compensated in this condemnation proceeding for the pretaking contamination of their property, the trial court properly had concluded that, under the circumstances of this case, the plaintiff’s were barred by principles of collateral estoppel from making such a claim. Albahary v. Bristol, 84 Conn. App. 329, 337-41, 853 A.2d 577 (2004). We subsequently granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that in the measurement of the plaintiffs’ just compensation, the plaintiff’s had a right to be compensated for the totality of the damage caused to their property by the defendant’s contamination of the plaintiffs’ groundwater?”Albahary v. Bristol, 271 Conn. 924, 859 A.2d 576 (2004). We also granted the plaintiffs’ petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the doctrine of collateral estoppel, or issue preclusion, precluded the plaintiff’s from obtaining compensation from the defendant for damages arising out of the defendant’s pretaking contamination of the plaintiffs’ groundwater?” Albahary v. Bristol, 271 Conn. 925, 859 A.2d 576 (2004). We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. “The plaintiff’s are joint owners of 87.6 acres of unimproved property in Southington. The property, which is almost entirely in a residential zone, is taxed as open space land. Its northerly part, which abuts [a landfill operated by the defendant], consists of approximately forty-six acres that, since 1992, have been used for the mining of good quality sand and gravel. Its southerly part, approximately forty-two acres, consists of unimproved land.

Page 430

“The defendant’s abutting landfill was operational from 1946 to 1997, when it was closed down by the state department of environmental protection (department) because of contaminating leachate generated at the site. The leachate polluted the groundwater on the plaintiffs’ property so that it is not potable.

“On October 24, 1995, the department and the defendant entered into a consent order in which the defendant conceded that `[t]he operation of a solid waste disposal area at the [landfill resulted] in a discharge of water, substance or materials, including but not limited to leachate, into the waters of the State.’ The consent order required the defendant to undertake certain investigations and studies with regard to the landfill and to propose plans in order to remediate the leachate contamination that the landfill had caused. The consent order did not require the defendant to clean up the contamination. Instead, it gave the defendant the option to acquire control over all of the polluted groundwater rights or interests therein that were located within a certain `zone of influence’ that included the property of the plaintiff’s.

“In 1996, the legislature enacted No. 96-12 of the 1996 Special Acts, to permit the defendant to acquire or to condemn property outside of its borders. This special act was intended to enable the defendant to comply with the consent order.

“On July 30, 1997, relying on the special act, the defendant began condemnation proceedings to take an easement over twenty-five acres of the plaintiffs’ property. For a thirty-one year period, the easement permits the defendant to access the property to withdraw groundwater, to collect environmental data and to pump and treat groundwater so as to remediate the

Page 431

existing contamination.[2] The defendant filed a certificate of taking with the clerk of the Superior Court and recorded the certificate in the Southington land records on September 17, 1997. In accordance with a statement of compensation, the defendant made a deposit of $50,000.

“On January 26, 1998, the plaintiff’s filed an appeal in the trial court to challenge the adequacy of the proffered compensation award. They made two claims. Their first claim was that, as a matter of law, their damages should be measured by a valuation formula compensating them for the pollution of their groundwater both before and after the taking of their property rights through eminent domain. Their second claim was that, as a matter of fact, the valuation of their property should take into account possible future uses of their property for purposes other than its present use for mining. The defendant disputed both of these claims.

“The trial court rendered a judgment deciding the plaintiffs’ claim of law in favor of the defendant.[3] It agreed with the defendant that the damages suffered by the plaintiff’s as a result of the condemnation of their property were to be measured by comparing the value of their property at the time of the taking, in its polluted condition, with its value after the condemnation. It also agreed with the defendant that monetary compensation awarded to the plaintiff’s for the easement that the

Page 432

defendant has taken should be based on the likelihood that the plaintiff’s would continue to use their property for mining.” Albahary v Bristol, supra, 84 Conn. App. 332-34.

“Before the present state court condemnation proceedings had begun, the plaintiff’s filed an action against the defendant in [federal court]. They sought damages and injunctive relief for the injury that they had suffered as a result of the landfill’s contamination of the groundwater on their property prior to the condemnation.

“The federal case was decided after the filing of the complaint in this present condemnation case. The federal court held that the plaintiff’s had proven most of their statutory and common-law claims, but not their claim of inverse condemnation.[4] With respect to that claim, the court found that the plaintiffs’ receipt of $2.65 million from their mineral extraction contracts demonstrated that the contamination caused by the defendant had not deprived the plaintiff’s of the reasonable use of their property. The court denied the plaintiff’s any damages even for the claims that they had proven because `the legal remedy of money damages to compensate the current landowners for diminished value of their property is inadequate and highly speculative. . . .’ Instead, the court ordered the defendant to provide the plaintiff’s with an alternate potable water

Page 433

source and to indemnify the plaintiff’s against claims of environmental liability that might be raised by third persons. No appeal was taken from this judgment.” Id., 337-38.

In the present case, the trial court determined that the damages suffered by the plaintiff’s from the condemnation of their property were to be measured by comparing the value of their property at the time of the taking, in its polluted condition, with its value after the condemnation. The trial court stated, in support of its conclusion, that “[t]he record before this court demonstrates that the plaintiff’s [in their federal court action] have sought and obtained damages for the [past] contamination to their property caused by the city’s landfill. They are therefore barred from litigating the same issues in this proceeding.”

The plaintiff’s appealed to the Appellate Court claiming, inter alia, that the trial court “improperly [had] confined its analysis of the damages they had suffered to a comparison between the value of their property in its polluted condition and its value after the taking of the easement.” Albahary v. Bristol, supra, 84 Conn. App. 334. The Appellate Court rejected the defendant’s argument that the valuation in the present case was governed by this court’s holding in Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 832-34, 776 A.2d 1068
(2001) (ATC), that the market value of a condemned property must be determined on the basis of the condition of the property on the date of the taking. Albahary v. Bristol, supra, 336. The Appellate Court reasoned that “[e]xtension of the valuation formula of ATC to a case such as this one [in which the condemnor itself has caused the contamination] would be difficult to reconcile with the law of inverse condemnation.” Id. The court concluded that, as a general matter, the amount of compensation for a taking is not “always limited to a comparison between the

Page 434

value of the property at the time of the taking and its value after the taking”; id., 335; but that “a condemnation award may . . . take account of pretaking contamination caused by the condemnor.” Id., 337. The court also concluded, however, that “[t]he plaintiffs’ inverse condemnation claim [related to pretaking contamination of their property] indisputably was `actually litigated and necessarily determined’ by the federal court”; id., 339; and, therefore, was barred by principles of collateral estoppel. Id., 339-41. These appeals followed.

Because our resolution of the issue raised in the defendant’s appeal guides our resolution of the plaintiffs’ appeal, we first address that issue.[5] The defendant claims that the Appellate Court improperly concluded that, in determining the amount of the plaintiffs’ just compensation, the plaintiff’s had a right, in principle, to be compensated for the totality of the damage caused to their property by the defendant’s contamination of the plaintiffs’ groundwater. In support of this claim, the defendant cites our decision in ATC and a number of other cases for the proposition that personal liability for damages incurred before the taking cannot be litigated

Page 435

in a condemnation proceeding, but must be litigated in an independent suit for damages.[6] The plaintiff’s counter that ATC is inapplicable here because it did not involve damages caused by the condemnor. They further argue that, because the defendant, by depositing contaminants on their property, physically took possession of it before filing its notice of condemnation, the property should be valued as of the date that the defendant took possession. See Slavitt v. Ives, 163 Conn. 198, 207, 303 A.2d 13 (1972);[7] Carl Roessler, Inc. v. Ives, 156 Conn. 131, 143, 239 A.2d 538 (1968).[8] In turn, the

Page 436

defendant responds that the plaintiff’s waived this claim, which implicitly relies on principles of inverse condemnation, by not raising it before the trial court or the Appellate Court. We conclude that the Appellate Court properly determined that, generally, under principles of inverse condemnation, a property owner may seek compensation in an eminent domain proceeding for pretaking damages caused by the condemnor.

At the outset, we set forth the standard of review. Whether a claim for compensation for the pretaking contamination of a property by the condemning entity may be raised in an eminent domain proceeding is a question of law over which our review is plenary. See Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005).

In order to address the substance of the defendant’s claim on appeal, it is necessary first to clarify the nature of the plaintiffs’ underlying claim. The defendant’s principal argument is premised on its characterization of the plaintiffs’ claim for damages for the pretaking contamination of their property as an action for in personam liability. The plaintiff’s argue in their brief on their appeal that their claim is an action for just compensation for the taking of their property under well settled eminent domain principles. In their brief on the defendant’s appeal, however, the plaintiff’s argue that they are entitled to compensation based on the value of the property in its uncontaminated condition because “the taking occurred when the defendant began its physical occupation of the easement area” and “the defendant physically took possession of the `property’ it later condemned by depositing chemical contaminants in the easement area before filing its notice of condemnation.” Accordingly, we conclude that, as the Appellate Court

Page 437

suggested, the plaintiffs’ claim implicates principles of inverse condemnation.[9] See Albahary v. Bristol, supra, 84 Conn. App. 336
(concluding that denial of right to compensation for pretaking damage would be inconsistent with law of inverse condemnation).

Although this court previously has not had occasion to consider the specific issue in this case — whether pretaking property damages caused by a condemnor are recoverable in a condemnation proceeding — we have considered a related issue. In Plunske v. Wood, 171 Conn. 280, 282, 370 A.2d 920 (1976), the defendant, the commissioner of transportation, condemned a portion of the plaintiff landowner’s property in order to improve a road. The defendant also took “from the plaintiff’s remaining land . . . rights to grade, the right to construct a driveway, and a drainage easement.” Id. The defendant assessed the damages for the taking at $2400 and the plaintiff appealed to the trial court. Id. During the pendency of the appeal, the plaintiff’s remaining property was damaged by acts of the defendant’s contractor. Id. The trial court’s award to the plaintiff included the costs of repairing those damages. Id., 283. The defendant appealed to this court claiming that such damages were not recoverable in a condemnation proceeding. Id. We concluded that, in determining damages in a condemnation action, “[t]he court should consider any and all damages which will foreseeably follow from the proper construction of the project, including any damage to the remainder which is a necessary, natural and proximate result of the taking. . . . The use to be made of the land taken is to be considered with regard to its effect on the remaining

Page 438

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. . . . Expenses required to cure injuries caused to the remaining land are not recoverable as such, but are merely evidence of elements in the decrease in market value, of which they may be an accurate measure.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 284. Damages caused by the negligence of the condemnor’s contractor, however, ordinarily are not recoverable in a condemnation proceeding, but must be sought in an independent action. Id. Because the trial court in Plunske
had not made any findings as to whether the damages were a “necessary, natural and proximate result of the taking”; id.; or, instead, were caused by the contractor’s negligence, we remanded the case for a new trial. Id., 285.

Thus, in Plunske, this court concluded that a plaintiff can receive just compensation in a condemnation proceeding for damage to land that has not been formally taken if the damage is the necessary, natural and proximate result of a taking for a public use. Id., 284-85. In other words, we effectively concluded that, if damage to the untaken land is the necessary, natural and proximate result of a public use, then the land, or at least certain interests in it, have been taken by inverse condemnation and the plaintiff is therefore entitled to just compensation.[10] If the damages are caused by the condemnor’s

Page 439

negligence, however, then the plaintiff is relegated to an action sounding in tort. Accordingly, we

Page 440

agree with the Appellate Court that, if the damage to the plaintiffs’ property was the necessary, natural and proximate result of a public use, and the claim for compensation was not otherwise barred, the trial court could consider the pretaking contamination in determining the amount of the compensation award. See Albahary v. Bristol, supra, 84 Conn. App. 337.

Page 441

The defendant argues, however, that “the legal principles [precluding the litigation of personal liability issues in condemnation proceedings] that drove the outcome of ATC apply with equal force in inverse condemnation actions.” In support of this argument, the defendant relies on Shealy v. Athens-Clarke, 244 Ga. App. 853, 537 S.E.2d 105 (2000). In that case, the plaintiff’s brought a claim for inverse condemnation alleging that their property had been contaminated by hazardous substances that had escaped from a landfill operated by the defendant. Id. Before the plaintiff’s initiated the action, the defendant had initiated two separate condemnation proceedings relating to the property. Id. After the inverse condemnation action was brought, awards were entered in the two condemnation actions. Id., 854. The court in the inverse condemnation action then granted the defendant’s motion to dismiss the action as moot in light of the condemnation awards. On appeal, the Georgia Court of Appeals reversed the judgment of the trial court reasoning that “[l]osses occurring prior to the date of taking are not compensable in a condemnation proceeding. In particular, losses resulting from a previous taking, even by the same condemnor, are not recoverable in a condemnation proceeding, since [s]uch damages are not a consequence of the instant taking. Such damages must be recovered in an independent suit for damages, and may not be raised in the current condemnation proceeding.” (Internal quotation marks omitted.) Id., 855. Because pretaking damages could not be recovered in the condemnation proceeding, the court concluded that the plaintiff was entitled to seek them in the inverse condemnation proceeding. Id., 856; see also Flo-Rob, Inc. v. Colonial Pipeline Co., 170 Ga. App. 650, 651-52, 317 S.E.2d 885
(1984) (claim for damages for pretaking contamination

Page 442

could not be raised as counterclaim in condemnation proceedings because such damages were not consequence of taking; claim had to be made in independent suit for damages).

We do not agree with the court in Shealy that an inverse condemnation claim relating to a formally taken property cannot be raised in an ongoing condemnation proceeding. Requiring separate proceedings would be both unnecessarily duplicative and inconsistent with our case law. Se Plunske v. Wood, supra, 171 Conn. 284-85 (claim for damages to formally untaken property may be made in condemnation action); Slavitt v. Ives, supra, 163 Conn. 207 (in condemnation action, plaintiff is entitled to compensation based on value of property on date government entered into possession); Carl Roessler, Inc. v. Ives, supra, 156 Conn. 143 (same) Claud-Chambers v. West Haven, 79 Conn. App. 475, 478-79, 830 A.2d 385
(plaintiff’s precluded from bringing separate action for inverse condemnation after conclusion of eminent domain proceeding where plaintiff failed to challenge or appeal from compensation received), cert. denied, 266 Conn. 924, 855 A.2d 472 (2003). Accordingly, we reject this claim.

The defendant also argues that allowing the plaintiff’s to recover property damages in a condemnation proceeding would expand improperly the scope of the proceeding as defined by General Statutes § 8-132.[11] In support of this argument, the defendant cites our statement in Research Associates, Inc. v. New Haven Redevelopment

Page 443

Agency, 152 Conn. 137, 140, 204 A.2d 833 (1964), that the “state referee has authority [under § 8-132] to determine the value only at the date of taking, and this date . . . is fixed by [General Statutes] § 8-129[12]
as the date of the recording of the certificate [of taking].”[13] We also stated in Research Associates, Inc., however, that the date of the taking was fixed by § 8-129 only “in the absence of special equitable considerations”; id.; and that the condemnee was entitled to claim another date as the “true date of the taking . . . prior to entry of the order referring to a referee, for review, the defendant’s assessment of damages.” Id., 140-41.

Implicitly recognizing this exception to § 8-129, the defendant in the present case next argues that the plaintiff’s are barred from claiming a different date of taking before this court, thereby implicitly raising a claim of inverse condemnation, because they never made such a claim before the trial court.[14] We agree that the plaintiff’s are barred from bringing this claim, but for a different reason. Specifically, we conclude that the Appellate

Page 444

Court properly determined that the claim for diminution in property value in the present case, which implicates principles of inverse condemnation, was barred by principles of collateral estoppel because the federal court concluded that the contamination of the plaintiffs’ property was a result of the defendant’s negligence and granted relief designed to restore the plaintiff’s to the position that they would have been in had the contamination never occurred. See Albahary v. Bristol, supra, 84 Conn. App. 337-41.

“[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506-507, 846 A.2d 222
(2004). Whether the Appellate Court properly applied the principles of collateral estoppel in the present case is a question of law over which our review is plenary. See Corcoran v. Dept. of Social Services, 271 Conn. 679, 688, 859 A.2d 533 (2004).

In the federal case, the court concluded that the “plaintiff’s have proven that the [defendant] was negligent in its operation of the [l]andfill and that its negligence caused [the] plaintiffs’ property damage.” The court also determined that “the legal remedy of money damages to compensate [the plaintiff’s] for [the] diminished value of their property [was] inadequate and highly speculative,” and that the plaintiffs’ injury was “`otherwise irremediable.'” Accordingly, “in order to put [the] plaintiff’s in the same position they would have been in had the leachate contamination emanating from the [l]andfill not been permitted to pollute the groundwater

Page 445

beneath the . . . [p]roperty and render it unusable,” the court ordered injunctive relief, including an order that the defendant provide the plaintiff’s with a potable water source for the property and file on the land record documentation that the defendant will indemnify, hold harmless and defend the plaintiff’s and subsequent owners against any claims of environmental liability. The court stated that “[t]his injunctive relief . . . restores to the affected property that which it lost, removes, in part, the stigma of known contamination as it affects financing and willingness of lending institutions to finance a sale of the property, and protects future landowners from strict liability for leachate plume migration, for which they bear no responsibility.” Finally, the court held that “no monetary damages for [the] defendant’s negligent operation of the [l]andfill . . . are warranted.”

In the present case, the plaintiff’s again seek to recover monetary damages for the diminution in their property value as a result of contamination from the defendant’s operation of the landfill. As we have indicated, in order to bring this claim within the context of a condemnation proceeding, the plaintiff’s must establish that the damage to their property was the necessary, natural and proximate result of the operation of the landfill, and not the result of the defendant’s negligence. Plunske v. Wood, supra, 171 Conn. 284; cf. Sassone v Queensbury, 157 App. Div. 2d 891, 893, 550 N.Y.S.2d 161 (1990) (“[d]efendant’s entry upon plaintiff’s property was either a trespass or
a de facto appropriation” [emphasis added]). The federal court already has concluded, however, that the contamination was the result of the defendant’s negligence and has ordered a remedy to compensate the plaintiff’s fully for the property damage. Accordingly, we conclude that the plaintiffs’ claim was actually litigated and necessarily determined in the federal court and is, therefore, barred

Page 446

by principles of collateral estoppel. Cf. O’Brien v. Syracuse, 79 App. Div. 2d 874, 875, 434 N.Y.S.2d 547 (1980) (“[s]ince respondent’s present [trespass] claim arises out of the same series of events as his [previously adjudicated] de facto condemnation claim, the present claim is barred by res judicata” [emphasis in original]).[15] To compensate the plaintiff’s in the present action for the diminution in their property value in order to place them in the same position that they would have been in if the contamination never had occurred would result in a double recovery for the plaintiff’s. They would receive both a permanent source of potable drinking water and permanent indemnification of any future environmental claims against them and compensation on the basis of the value of the land in its uncontaminated condition.[16]

Page 447

The plaintiff’s claim, however, that the federal court did not hold that the plaintiff’s were not entitled to monetary compensation for the diminution in the value of their property. In support of this claim, they point out that the court explicitly stated in its memorandum of decision that “the injunctive remedy ordered is in addition to the monies ordered to be paid in the state law condemnation action, which are intended to pay for the acquisition of rights to the groundwater beneath [the] plaintiffs’ property. It is the intention of the [c]ourt that those fund not be used to offset the costs of providing water to the . . . [p]roperty. The form of injunctive relief ordered permits the state court condemnation and challenge to proceed without interference, direct or indirect, by the federal court, thus satisfying this [c]ourt’s comity concerns.” (Emphasis in original.) The court concluded that “no monetary damages for [the] defendant’s negligent operation of the [l]andfill, beyond the injunctive relief ordered and the compensation for the groundwater taking, are warranted.” (Emphasis added.)

We are not persuaded by the plaintiffs’ claim. First, the certificate of taking filed by the defendant affected property interests not at issue in the federal case. It allowed the defendant, for the duration of thirty-one years, to enter onto the plaintiffs’ property for the purpose of withdrawing groundwater, to transport machinery and materials over the plaintiffs’ land for the purpose of monitoring and treating the groundwater, to pump and treat groundwater, and to perform related activities. We interpret the federal court’s statements to mean that, because the value of the plaintiffs’ property as a result of the taking of these interests was not at issue in the federal case, its decision should not affect the state action. Second, the federal court did not conclude that the plaintiff’s were not entitled to monetary damages for diminution in property value

Page 448

because they would receive such compensation in the present case. Rather, it declined to award such damages because it believed that they would be “inadequate and highly speculative, in light of many variables such as likelihood of zoning changes for [the] plaintiffs’ property, permissible forms of access through its protected wetlands, availability of remaining sand and gravel resources on site, and real estate market interest” and because the court could restore the plaintiff’s to the position that they would have been in if the contamination had not occurred by granting injunctive relief.

The plaintiff’s also argue that the issue litigated in the federal court was not the same as the issue raised in the present case because the inverse condemnation claim in the federal court case involved the value of the property as a whole, while the present action involves the value of limited interests in the property.[17] We have not concluded, however, that the claim in the present case is duplicative of the inverse condemnation claim in the federal case. Rather, we have concluded that it is duplicative of the negligence claim in that case.[18]

Page 449

Finally, the plaintiff’s argue that the Appellate Court, in determining that they were not entitled to recover the diminution in their property value, improperly ignored the fact that the defendant’s easement allows it to continue contaminating the property. Specifically, they argue that, because the easement deprived them of their right under General Statutes § 22a-452[19] to remediate the property at the defendant’s expense, and because the easement allows the defendant to continue the contamination, “clean groundwater will be legally unavailable to the plaintiff’s for [thirty-one] years more than it would have been if the easement had not been taken; and, consequently . . . the value of the easement must be measured by comparing clean land to polluted land.” (Emphasis in original.)

We are not persuaded. In support of their claim, the plaintiff’s argue that “whatever `damages’ the plaintiff’s

Page 450

might have recovered for the pollution existing prior to the date of the taking would not have prevented them, after the date of the taking, from cleaning up the groundwater at [the] defendant’s expense. . . .” (Emphasis in original.) Thus, the plaintiff’s implicitly argue that the relief ordered by the federal court was intended to compensate them only
for the pretaking contamination.[20] As we have indicated, however, the federal court granted a permanent injunction designed to “put [the] plaintiff’s in the same position they would have been in had the leachate contamination emanating from the [l]andfill not been permitted to pollute the groundwater beneath the . . . [p]roperty. . . .” Regardless of when the contamination occurred, the harm that it caused was depriving the plaintiff’s of a source of potable water on the property and exposing them to environmental claims by third parties. The relief ordered by the federal court fully compensated the plaintiff’s for these injuries.

This becomes clear if we hypothesize a situation in which the pretaking contamination was caused by a third party and was of a more ephemeral nature, such as the discharge of pollutants into a stream running through the plaintiffs’ property. If a court entered a permanent injunction requiring the third party to provide a source of potable water and to indemnify the plaintiff’s from environmental claims in order to place the plaintiff’s in the same position that they would have been in if the stream had never been polluted, the plaintiff’s would not be entitled to additional compensation from a successor polluter on the ground that the stream would have been clean in the absence of the continuing pollution. Rather, the third party would be entitled to

Page 451

claim that the permanent injunction against it should be lifted because the successor polluter should now be held responsible for the pollution.

This court’s decisions in Avery v. White, 83 Conn. 311, 76 A. 360
(1910), and Platt Bros. Co. v. Waterbury, 80 Conn. 179, 67 A. 508
(1907), are not to the contrary. Those cases involved claims of ongoing wrongful conduct in which the plaintiff’s were found to be entitled to money damages even though they previously had received damages for injuries arising from the same conduct. In both cases, this court concluded that the claims were not barred because the previous damage award had been intended to compensate the plaintiff’s for injuries that were not at issue in the case under review. See Avery v. White, supra, 313 (trial court properly rejected collateral estoppel defense when prior action involved claim for damages for trees cut during one period and present action involved claim for different trees cut during subsequent period); Platt Bros. Co. v. Waterbury, supra, 182 (“[a] judgment for all damage . . . caused [by continuing nuisance] must cover all damage from the unlawful acts done prior to the commencement of the action in which it is rendered; but additional damage caused by like subsequent unlawful acts may be recovered in another action”). In the present case, however, the federal court treated the contamination, both pretaking and posttaking, as a single permanent injury and entered an award that was intended to compensate the plaintiff’s fully for it. Accordingly, we reject the plaintiffs’ claim.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

Page 452