Nolan v. City of New Britain

38 A. 703, 69 Conn. 668, 1897 Conn. LEXIS 97

• Court: Supreme Court of Connecticut
• Decided: November 3, 1897
• Status: Published

Opinion

Andrews, G. J.

The use of Piper’s Brook which the complaint charges that the defendant has made, unless there is a lawful warrant therefor, causes a public nuisance. Anything not warranted by law, which annoys and disturbs one in the use of his property, rendering its ordinary use or occupation physically uncomfortable to him, is a nuisance. Baltimore, etc., R. R. v. Fifth Baptist Church, 108 U. S. 317. If the annoyance is such as to materially interfere with the ordinary comfort of human existence, it is a nuisance. Lord Romilly, in Crump v. Lambert, L. R. 3 Eq. 409-413. And if the annoyance is one that is common to the public generally, then it is a public nuisance. Stephen’s Dig., Cr. Law, 120. The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. Westcott v. Middleton, 43 N. J. Eq. 478; Wood on Nuisances, 76. That it would be a public nuisance to render the water of a stream so impure that it could not be used for domestic purposes, or for the watering of cattle, and so that it gave off noxious and unhealthy odors, is hardly open to question; Chapman v. Rochester, 110 N. Y. 273; for the reason that these causes would injuriously affect every riparian owner along the whole length of the stream and every person who lived near it. If a municipal corporation, in the absence of a legal right so to do, causes sewage to pollute a watercourse, to the use of which a lower owner through whose premises the watercourse flows is entitled, it is guilty of a nuisance for which damages maybe recovered. Inman v. Tripp, 11 R. I. 520; N. Y. Central, etc., R. R. v. Rochester, 127 N. Y. 591; Attorney-General v. Leeds Corporation, L. R. 5 Ch. App. 583; Gould on Waters, § 545; Dillon on Mun. Corp. (4th ed.) § 1047; Byrnes v. Cohoes, 67 N. Y. 204; Seifert v. Brooklyn, 101 id. 136; Franklin Wharf Co. v. Portland, 67 Me. 48; Morse v. Worcester, 139 Mass. 389.

The ground of the plaintiff’s claim is that he has received a special injury from a public nuisance which the defendant has caused. A private action is maintainable for a public nuisanee, by one who suffers therefrom some particular loss or damage beyond that suffered by him in common with all others affected by the nuisance. Atwood v. Partree, 56 Conn. 80; Wheeler v. Bedford, 54 id. 244; 16 Amer. & Eng. Ency. of Law, 971.

This appeal brings up the six defenses (two to seven inclusive) pleaded by the defendant. Each of these admits— by not denying—the use of the stream as charged in the complaint; and each purports to be an answer to the whole complaint, by setting forth a lawful warrant for using the stream as is charged. To each of these defenses a demurrer was interposed, and the demurrer to each was sustained. The second defense depends on the Act of the legislature of 1872, mentioned in the statement of the ease. It counts on that Act, and then sets forth with some particularity the proceedings of the common council of the city of New Britain taken in pursuance of its provisions; and then avers “that by reason of the proceedings aforesaid, said stream was lawfully taken and appropriated by said city under the authority aforesaid, and this plaintiff is barred from making any claim for damages for such taking and appropriation.”

In considering this defense in its application to the complaint, it should be kept in mind that the plaintiff is not an inhabitant of New Britain, and that his farm, through which he alleges the polluted stream flows, is not within the territorial limits of that municipality. The said Act authorizes and points out the steps to be taken in order to complete within said city a valuable public improvement, to be paid for by that species of taxation known as the assessment of damages and benefits. It empowers the common council “ whenever in their opinion the public health or sewerage shall require such action, to take, occupy, and appropriate, in such manner as they shall, from time to time, deem expedient, any stream, or part of a stream, natural or artificial, running in or through said city, and to straighten, deepen, or lower the same, or lower or remove any or all walls, dams, or other obstructions to the free and healthy flow of such stream or part of a stream, or enlarge or cause to be enlarged or lowered, any or all culverts, which at any season of the year cause the accumulation of stagnant water, or interrupt in any manner the free and healthy flow of any part of such stream.” This is all of the Act which grants power to the defendant to interfere with Piper’s Brook. And if this language does not give the defendant a lawful warrant to do the things charged in the complaint, then the defendant has no such lawful warrant. The other parts of the Act are conversant with the procedure which the common council of the city is to follow whenever they “ take action under the foregoing power.” That is to say: “ Thejr shall appoint a committee to prepare a descriptive survey of the improvement contemplated, with a careful estimate of the cost of completing the same, and to agree with the parties interested as to damages and special benefits on account of such improvement; and the report of such survey and estimate having been accepted and recorded, and such agreement having been ratified, and the sums agreed upon as damages having been paid to the parties entitled thereto, or deposited to their credit in the city treasury, said city may go on to the completion of said improvement,” etc. Then the Act mentions the steps the city is to pursue in respect to persons with whom the common council was unable to agree as to damages and benefits, to the end that the damages accruing to such persons should he ascertained,—“ and said damages being paid or deposited as before provided, said city may go on to complete said public improvement and do all acts necessary or convenient for that purpose, without further liability in the premises.”

This defense states that the common council did appoint a committee to make such descriptive survey, etc., as is provided in said Act; that said committee made a report, that it failed to agree with the parties interested in the damages and benefits, and that therefore an-application was made to a judge of the Supreme Court for the appointment of a committee “ to estimate the damages and benefits resulting from said improvement.” And the defense details with elaborate fullness the notice given by said judge and the said committee. But it nowhere sets forth the “ descriptive survey,” nor the “ careful estimate ” made by the committee appointed by the common council, nor is the report of the committee given so that it may be known whether or not said committee attempted to agree with the plaintiff; we are therefore compelled to believe that said descriptive survey and careful estimate did not include any reference to the plaintiff or to the plaintiff’s property, and that there was no attempt to agree with him as to the damages he might suffer by reason of the fouling of the water in said brook. The notices made a part of the defense show that they were not directed to or served on the plaintiff. These omissions point unerringly to one conclusion : The common council of New Britain, in 1874, understood the said Act of 1872 to be—what it in fact was— an authority to them to make a local improvement. That Act of the legislature gave the council no authority to do anything, or to affect any property, outside the city limits, or to affect any person not an inhabitant or property owner within those limits. The common council was a local board. It had no power or jurisdiction outside the city, unless such was specially given it by the legislature. The legislature had given the council no such power, and so it did not attempt any such jurisdiction. It did not attempt to affect the plaintiff’s right in Piper’s Brook.

If it had been the intent of the legislature, by the Act of 1872, to authorize the common council of the city of New Britain to take, or to affect, any lands outside of the city limits, it is certain there would have been in the Act some provision for the ascertainment of damages to be paid to the landowner. The right of the plaintiff to have the water of Piper’s Brook flow through his land as it has been accustomed to flow (i. e., pure and uneontaminated), “is not an easement or appurtenance; but it is inseparably annexed to the soil.” Wadsworth v. Tillotson, 15 Conn. 366, 373. To deprive the plaintiff of that part of his soil for the purposes named in that Act, would be the taking of private property for public use, and the plaintiff would be entitled to have just compensation. A “ taking,” under the right of eminent domain, means the exclusion of the owner from use and possession of the property taken, and the actual assumption of the possession by the party authorized to take, and there would naturally be some proceeding, in its nature judicial, for the finding of the damages therebj'- occasioned. Woodruff v. Catlin, 54 Conn. 277, 297. Such proceeding is essential to ascertain the just compensation which must be made in order to complete the taking. N. Y., N. H. & H. R. R. v. Long, 69 Conn. 424; Cooley on Const. Lim. (6th ed.) 695. So far as concerns damages for taking or injuring lands outside the city limits, it can hardly be said that there is anything in the Act of 1872 providing for any such process as this. The General Assembly had in view a local improvement to be carried out by local authorities, and paid for in large part, i.f not altogether, bjr the local assessments on the lands specially benefited. Obligations and liens created by assessments of this kind do not proceed from the right of eminent domain, but from the power of taxation. It is not to be presumed, in the absence of plain provision to that effect, that the Act of 1872 was intended to authorize any proceedings conducted by the city of New Britain for its own benefit which should include a tax laid in its behalf and payable to its treasurer, upon lands outside of its territorial limits. But there is nothing in the Act to indicate that the area over which the right to appropriate land before payment of just compensation extends, was wider than that within which benefits might be assessed to raise the funds with which to pay for the lands taken. The only taxing district suggested by the Act, is the city of New Britain. The only taxing officers are the officers of that city. For these reasons we think a person resident outside the city, as was the plaintiff, and not a property owner therein, whether he had notice or did not have notice, could not be bound by any action taken by the common council of NewBritain under the Act of 1872. That Act applied only to New Britain. Its language indicates that it was not intended to be operative on persons or property anywhere except within the territory of that municipality. Edmondson v. Moberly, 98 Mo. 523.

The third defense states a certain use of Piper’s Brook which the defendant has made, and then avers that “ the use which the city of New Britain has made of said stream, as above set forth, is a natural, reasonable, and proper one, and is not inconsistent with the rights of the plaintiff.” It is not averred that the use of said stream so set forth is the same use of which the plaintiff complains. We suppose it is intended to be a different one. If we are right in the supposition, then the demurrer was properly sustained. It is no answer to the plaintiff’s complaint to aver that a use of the stream other than the one of which he complains, is a natural, reasonable, and proper one, and not inconsistent with the plaintiff’s rights. Whether such other use is or is not a natural, reasonable, and proper one, is entirely irrelevant.

If, on the other hand, the use set forth in this defense is intended to be the very same use complained of by the plaintiff, then the defense is insufficient because it amounts to nothing else than a general denial.

The fourth, fifth and sixth defenses, while differing as to the forms of expression, all rest on one ground: that the defendant has acquired the right to use the said stream in the manner it does, bjr prescription.

The fourth defense is insufficient because it is not a complete answer to the complaint. If the defendant had acquired, by prescription, the right to a use of the water of Piper’s Brook which was no more than substantially the same as the use of that stream of which the plaintiff complained, then it had not acquired the right to a use which barred the plaintiff a recovery in this action. He was still entitled to recover for the damage done him by the difference between the use acquired and the use actually practiced.

The fifth defense is insufficient for the same reason. It does not answer the whole complaint. The prescription alleged includes not the whole use complained of, but only the most part of it. The plaintiff is entitled to recover for the remaining part.

The sixth defense presents the question of prescription. We have already indicated our opinion that the use of Piper’s Brook of which the plaintiff complains, is a public nuisance. We suppose the law to be so that a public nuisance cannot be prescribed for. No length of time can legitimate, or enable a party to prescribe for, a public nuisance. People v. Cunningham, 1 Denio, 524; Mills v. Hall, 9 Wend. 315; Veazie v. Dwinel, 50 Me. 479, 490; Commonwealth v. Upton, 6 Gray, 471, 476; Wood on Nuisances, 722; 19 Amer. & Eng. Ency. of Law, 30. When an action is brought by a party who has suffered a special injury in consequence of a public nuisance, a prescriptive right to do the acts complained of cannot be maintained against him. Bowen v. Wendt, 103 Cal. 236; People v. Gold Run, etc., Mining Co., 66 Cal. 138; Boston Rolling Mills v. Cambridge, 117 Mass. 396; O'Brien v. St. Paul, 18 Minn. 176; Coole3r on Torts, 614. There is no occasion to discuss this defense further, because the defendant’s counsel in their brief expressly disclaim that any right can be obtained by prescription to commit such a nuisance.

The seventh defense is precisely like the third, and is defective for the same reason.

There is no error.

In this opinion the other judges concurred.