Imagens das páginas

ture has caused the filling up of a small por-, fers a particular injury from a public nuition of the cove outside the railroad loca sance can maintain an action therefor. tion, the plaintiff cannot recover damages Burrows V. Pixley, 1 Root, 363, 1 Am. therefor.

Dec. 56; Frink v. Lawrence, 20 Conn. 120, Wesson v. Washburn Iron Co. 13 Allen, 50 Am. Dec. 274; Hubbard v. Deming, 21 101, 90 Am. Dec. 181; Stetson v. Faxon, 19 Conn. 360; Wheeler v. Bedford, 54 Conn. Pick. 117, 31 Am. Dec. 123; Hatch v. Ver- | 248, 7 Atl. 22; Cooley, Torts, pp. 732-737. mont C. R. Co. 28 Vt. 142.

The mere layout of the railroad, and the Messrs. Franklin H. Brown and Don- approval of the layout over the water in ald G. Perkins, for appellee:

front of plaintiff's land, did not authorize The owner of land abutting on a navigable or imply that the railroad company could stream lias the right of access to and from take and destroy the plaintiff's rights behis land on the water, and a right to fill in fore or without first making compensation, flats and wharf out to deep water; and these any more than such a layout over upland rights are privileges or franchises attached accomplishes such a result. to the land, and constitute a valuable prop Bradley v. New York & N. H. R. Co. 21 erty right.

Conn. 306; Hooker v. New Haven & N. Co. Hast llaven v. Hemingway, 7 Conn. 202; 15 Conn. 326; Gilpin v. Ansonia, 68 Conn. New Haven 8. B. Co. v. Sargent, 50 Conn. 79, 35 Atl. 777; 10 Am. & Eng. Enc. Law, 206, 47 Am. Rep. 632; Ladies' Seaman's 2d ed. p. 1137. Friend Soc. v. Halstead, 58 Conn. 150, 19 But even though the state itself authorAtl. 658; Prior v. Swartz, 62 Conn, 132, 18 ized a railroad company to cross navigable L. R. A. 603, 36 Am. St. Rep. 333, 25 Atl. waters, it could not do so and thereby take 398; Lane v. New Haven Harbor, 70 Conn. and destroy the property rights of a land695, 40 Atl. 1058; Ockerhausen v. Tyson, owner abutting on the water, until it had 71 Conn. 31, 40 Atl. 1041; New York, N. H. first made compensation for the damage; for & H. R. Co. v. Long, 72 Conn. 21, 43 Atl. the state itself cannot take private prop559; French v. Connecticut River Lumber erty for public use without making comCo. 145 Mass. 261, 14 N. E. 113; Yates v. pensation. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Sul. Farist Steel Co. v. Bridgeport, 60 Conn. livan Timber Co. v. Mobile, 110 Fed. 193; 283, 13 L. R. A. 590, 22 Atl. 561; Hooker Carli v. Stillicater Street R. c Transfer Co. v. New llaven & N. Co. 14 Conn. 152, 36 28 Minn. 373, 41 Am. Rep. 290, 10 N. W. Am. Dec. 477 ; Bradley v. New York & N. 205; Chicago E P. R. Co. v. Stein, 75 111. 45; | H. R. Co. 21 Conn. 294. Rock Island & E. 1. R. Co. v. Gordon, 184 The rights are analogous to those of a III. 456, 56 N. E. 810; Baltimore & O. R. Co. property holder abutting on a highway. v. Chase, 43 Md. 23; Clark v. Peckham, 10 Shively v. Bowlby, 152 U. $. 14, 38 L. R. I. 35, 14 Am. Rep. 654; Providence Steam ed. 337, 14 Sup. Ct. Rep. 548; Kane v. New Engine Co. v. Providence & s. 8. 8. Co. 12 York Elev. R. Co. 125 N. Y. 164, 11 L. R. A. R. I. 356, 34 Am. Rep. 652; Rumsey v. New 640, 26 N. E. 278. York & N. E. R. Co. 133 N. Y. 79, 15 L. R. Even though a statute authorizing the A. 618, 28 Am. St. Rep. 600, 30 N. E. 654; taking of property makes no provision for Williams v. New York, 105 N. Y. 419, 11 N. compensation, this will not relieve from liaE. 829; Re New York, 168 N. Y. 135, 56 bility, for the Constitution requires compenL. R. A. 500, 61 N. E. 158; Buccleuch v.

sation for taking property for a public use. Metropolitan Board of Works, L. R. 5 H. McKeon v. New Haven, N. I. & H. R. Co. L. 418; Lyon v. Fishmongers' Co. L. R. 175 Conn. 343, 61 L. R. A. 730, 53 Atl. 656 : App. Cas. 682.

Knapp & C. Mfg. Co. v. New York, N. H. The right to wharf out is usually on a

& H. R. Co. 76 Conn. 314, 100 Am. St. Rep. line at right angles with the channel, and 994, 56 Atl. 512. the right exists and may be exercised no

Torrence, Ch. J., delivered the opinion matter whether deep water is near or far.

of the court: New Haven S. B. Co. v. Sargent, 50 Conn.

The complaint alleges, in substance, that 206, 47 Am. Rep. 632; Morris v. Beardsley, the plaintiff is the owner of land having a 54 Conn. 341, 8 Atl. 139; Lowndes v. Wicks, frontage of several hundred feet on the 69 Conn. 30, 36 Atl. 1072.

Thames river, a navigable stream in this The indentation of the shore of the river state; that the defendant, "wrongfully and at plaintiff's land is just as much a part against the will and consent of the plainof the river as a point where the shore is tiff,” has built and maintains a permanent straight.

embankment in front of said land and be Gallup v. Tracy, 25 Conn. 16.

tween it and said river; and that “the de An obstruction in a navigable stream is fendant has thereby separated and cut off a public nuisance, and any person who suf- the plaintiff's said land from said river, and

diverted said river so that it no longer flows, would embrace the frontage above menby plaintiff's said land in its natural course, tioned. There are three dwelling houses on and has obstructed and destroyed the plain. said land. Prior to the doing of the acts tiff's use of said river as a way of access to complained of there was no obstruction on her said land, and has obstructed and de. the waters of the cove or the river between stroyed the right, which the plaintiff owned the plaintiff's said land and the channel as attached to her said land, to wharf out of the river. The defendant is the lessee from her said land into deep water in said of the Norwich & Worcester Railroad Com. river for use of the same as a navigable nany, and in doing the acts complained of stream, and has obstructed and destroyed it acted as such lessee and as the agent the view and prospect of and over said river of said lessor; but it was agreed by the from the plaintiff's said land.” The comparties upon tre trial below that judgment, plaint also alleged damages caused by the if in favor of the plaintiff, should properly upheaval of mud of the river bottom outside run against the defendant, and that the of the location of said embankment in conse- defendant should be treated as if it were quence of the building of said embankment. the owner of said railroad, invested, with The defendant demurred to the complaint, reference thereto, with all the power and and, after this was overruled, suffered a de- authority conferred by the legislature upon fault, and was heard in damages upon. no

wid lessor. In this view of the case the tice, which gave the defendant the right to defendant owns the land fronting on the contest all the allegations of the complaint. river immediately north and south of the The action of the trial court in overruling cove mouth. It has made, and laid its railthe demurrer is assigned for error in one of road thereon, a solid embankment, 20 feet the reasons of appeal.

jile and !0 feet high, across the mouth After a voluntary default and hearing in of said cove, save at the northerly end theredamages thereon, this reason of appeal is no nf, where it has left an opening 16 feet wide, longer open to the defendant, unless the combut permanently closed at the top with its plaint is bad in substance; and, as this is railroad, between the cove and the river. not the case, the assignment above referred .111 this was done by legislative authority to cannot avail the defendant upon this ap- and sanction under laws which made no propeal. Hourigan v. Norwich, 77 Conn. 358, vision for compensation to parties who 59 Atl. 487.

might be injured by acts done by virtue of The other errors assigned relate to the ac- such authority. Through the opening aforetion of the court in overruling certain claims said left at the north end of said roadbed of law, and in rendering judgment for more

"boats with masts set cannot enter, and it than nominal damages. The controlling is difficult for small boats to enter, except facts in the case are, in substance, the fol. at low water, on account of the flow of water lowing: The Thames river, a navigable caused by the tide.” The building of said stream, flows in a southerly direction to roadbed has forced parts of the bottom of Long Island sound. Upon its eastern mar- the cove upwards, in places outside of the gin, at a point just above Gale's ferry, there defendant's location, and these parts are not is a small pouch shaped indentation known flowed at low water. It was agreed that the as "Clark's cove." This cove is about 1,600 dainages to be awarded, if any, should be for feet in length north and south, and, near its the permanent depreciation of the plainnortherly end, it has an opening or mouth | tiff's property by reason of the building of into the river about 450 feet in width. the railroad across the mouth of the cove, There is no channel in the cove, and it has a to be assessed once for all. “It did not ap. mud bottom, with from 192 to 21/2 feet of pear in evidence that the plaintiff personalwater thereon at mean low tide. The mean ly ever used said cove, or intended to use it rise and fall of the tide there is 2 feet and in any way for any purpose." Upon these 10 inches. The channel of the river is about facts the defendant based certain claims 800 fcet westerly from the mouth of the of law made in the court below, which were

The land surrounding the cove is there overruled. In the view we take of owned by divers owners in severalty. The this case, it will be unnecessary to state or land described in the complaint lies within consider separately these claims of law with the cove, and has a frontage of between 450 the rulings thereon. With reference to said to 500 feet upon the waters of the cove. Its claims it is enough to say that, except as front line lies opposite the mouth of the hereinafter indicated, the court committed cove, and about 200 feet distant easterly no error in overruling them. therefrom. Two lines drawn at right angles The plaintiff's case, as stated in her comto the channel of the river, one at the north plaint, proceeds upon the theory that her and one at the south side of the cove mouth, land fronts upon the Thames river, and not


was error.

upon Clark's cove, and the case was tried | 110, 43 Am. Rep. 447, 13 N. W. 380; Yates and decided upon that theory. In this there v. Milwaukee, 10 Wall. 497, 19 L. ed. 984;

It is undoubtedly true that, so Illinois C. R. Co. v. Illinois, 146 U. S. 445, far as the public rights of fishing and navi- 36 L. ed. 1039, 13 Sup. Ct. Rep. 110; Scrangation and others of like nature are con ton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, cerned, Clark's cove is a part of the Thames 21 Sup. Ct. Rep. 48. See also the cases river (Gullup v. Tracy, 25 Conn. 10); but it in the note, 40 L. R. A. 593. Each ripadoes not follow from this that for all purrian proprietor in the cove had then at least poses the cove is to be regarded as a part of three important rights, but they all relatthe river. It does not follow, for instance, ed to the waters of the cove and to the that the riparian owner at the south end of land submerged by said waters, and not to the cove has rights of wharfage, or reclama the river proper. It may be said that the tion, or alluvian in the main river. The sit. situation of the plaintiff's land was such, uation of his land precludes the existence of with reference to the mouth of the cove and any such rights, and this is equally true of the channel of the river, as to give her the other owners of land fronting upon the wa right to wharf out to the channel, and also ters of the cove. They have undoubtedly to reclaim submerged land in that part of certain exclusive, yet qualified, rights and the river lying westerly of and opposite to privileges in the waters and submerged land | her land; but we do not think so. Her adjoining their upland; but they must take rights of wharfing out and of reclamation, their riparian rights as they find them, and like those of her neighbors, were confined to they are entitled only to such as the condi- | the cove. The existence in her of a right to tion of the cove and the situation of their wharf out and reclaim in the river is entireland with respect to the cove will afford. ly inconsistent with, and its exercise might New Haven 8. B. Co. v. Sargent, 50 Conn. be destructive of, the rights of access belong. 199-208, 47 Am. Rep. 632. Among the most ing to her neighbors. It would give the important of these rights and privileges in plaintiff the right, as against her neighbors, the cove and its waters are (1) the right to fill up wholly or partially the waters of of access by water to and from their upland, the cove and its mouth, so as practically to (2) the right to wharf out in front, and impair or destroy the riparian rights of (3) the right of reclamation or accretion. those neighbors, and especially their right Wather v. Chapnian, 40 Conn. 382–395, 16 of access. It follows from the fact that Am. Rep. 46; Ockerhausen v. Tyson, 71 her rights of wharfing out and of reclamaConn. 31-36, 40 Atl. 1041. Riparian propri- tion were confined to the cove, that these etors in the cove have the right to wharf rights were not invaded by the acts of the out and to reclaim, but they are rights con defendant, and that the court erred in holdfined to the cove, and to be exercised there. ing that they had been. in, and not in the main river, and to be ex As to her right of access, it is clear, upon ercised by each subject to the riparian rights the facts found, that it has not been deof his neighbors and to the rights of the stroyed. She can still get from her land to public in the cove and its waters. They also the river, and from that to her land, through have each the important right of access; the waters of the cove. Nor does the finding that is, the right to go from their land to the show that it has been essentially impaired, river and from the river to their land. taking into account the situation and limitthrough the waters of the cove. This right ed extent of the cove and the shallowness of is distinct from the right of each as a mem. its waters. Its uses for purposes of navigaber of the public to navigate the waters | tion have always been, and, in the nature of of the cove. It is a private right, belonging things, must continue to be, quite insignifito each as the owner of land bordering upon cant; and if its availability for such purwaters forming part of a great water high poses has been lessened to some extent, that way. However much courts may differ up is a matter of which the plaintiff cannot be on the question whether such a right can be heard to complain in this action. It is a destroyed or impaired by the state without public, and not a private, detriment. We compensation to the owner, they all agree i think the facts found fail to show that the that the right of access exists. The follow. riparian rights of the plaintiff have been ining are a few of the many cases recognizing vaded or injured. its existence: Lyon v. Fishmongers' Co. L. There is error. The judgment is set R. 1 App. Cas. 662; Delaplaine v. Chicago aside, and the cause remanded, in order & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. that nominal damages may be assessed. 386; Brisbine v. St. Paul & S. City R. Co. 23 Minn. 114; Backus v. Detroit, 49 Mich. All concur. 69 L. R. A.


Amelia P. DE WITT et al.

which gristmill, etc., stood on a tract of

land owned by the defendant below the outWilliam L. BISSELL, Appt.

let of said pond; but said mill, machine

shop, and foundry have been abandoned, (77 Conn. 530.)

and the defendant has put the water drawn

from said pond at the times above menThe owner of property bordering on a

tioned to no beneficial use. The acts of the mill pond cannot enjoin the owner of the dam and water privilege from

defendant in creating such nuisance have indrawing the water down to its natural juriously affected the health and comfort level when it becomes necessary for the utili of the plaintiff and her family, and the zation of the power, although a portion of value of the plaintiff's said land has been the bottom of the pond is thereby uncovered depreciated. The plaintiff has often reand exposed to the sun, rendering it unbealth quested the defendant to cease drawing off ful and injurious to the abutting owner.

the water as aforesaid, but the defendant, (March 9, 1905.)

notwithstanding such requests, has contin

ued to so draw it off, and the plaintiff is APPEAL by defendant from a indemena

of the Superior Court for Litchfield without adequate remedy at law. The County enjoining him from drawing the prayer for relief asks an injunction restrain

ing the defendant from drawing off the wawater from a mill pond. Reversed.

ter below the level maintained by said dam Statement by Hamersley, J.:

when the gate therein is closed from July The complaint alleges the following facts: 15th to October 1st in each year, and $5,000 On July 15, 1897, the plaintiff was, and

damages, The defendant's answer, after ever since has been, the owner of a piece of denying certain paragraphs of the comland adjoining and bordering upon the east plaint, sets up as a special defense to the shore of Long pond, on which piece of land plaintiff's cause of action as stated in the is a dwelling house used by the plaintiff as complaint the following: “(1) The defenda summer residence. At the outlet of said ant on the 15th day of July, 1897, was and pond there is a dam, claimed to be owned for more than twenty years prior thereto had by the defendant, which maintains the water been, and still is,the owner of the dam and of said pond at a higher level than its natu

water privilege at the outlet of said Long ral level. From July 15th to October 1st pond, and during all of said time was, has in each of the years 1897, 1998, and 1899, been, and still is the owner and user of the and from July 15th to the commencement of water flowing therefrom; and during all this suit on September 18th in the year of said time has been and still is entitled 1900, the defendant drew off the water of to the right to raise the water in said pond said pond by raising the gate in said dam to the height of said dam, and to draw of until a large area of the land which is and use all the water from said pond that

would low from the same. covered by water when said pond is full was

(2) Any and exposed, which exposed condition continued all acts of the defendant in raising and until October 1st in the years 1897, 1898, and lowering the water of said Long pond were 1899, when the defendant permitted said done in the exercise of his legal right as pond to till up to its usual level as main

owner and user, as set forth in paragraph tained by said dam, and continued in the 1 of this defense.” The plaintiff, in her year 1900 until the commencement of this reply to the special defense, admitted so suit. When the water was thus drawn off, much of paragraph 1 as alleged that the dethe land thus exposed to the sun produce fendant was on July 15, 1897, and for more offensive stenches, unhealthy to the plaintiff than twenty years prior thereto had been, and other inmates of said house, rendering and still is, the owner of the dam at the said house uninhabitable, and constituting outlet of Long pond, and denied the remaina nuisance. The defendant formerly oper

der of said paragraph and paragraph 2. ated a gristmill, machine shop, and foundry The judgment of the court finds for the with the water flowing from said pond, plaintiff the issues of fact raised by the

pleadings, and adjudges that the defendant NotE.-As to rights in artificial condition be perpetually enjoined from drawing off of body of water generally, see note to Pewau.

the water of Long pond from July 15th to kee v. Savoy, 50 L. R. A. 836. As to right of owner of mill to draw off

October 1st in each year, and that the the water and iower the water in the pond so as

plaintiff recover of the defendant $100 damto destroy the ice privileges of the owner of ages. land bordering on the pond, see, in this series. Eidemiller Ice Co. v. Guthrie, 28 L. R. A. 581.

Alessrs. CH es E. Perkins and J. As to right of owners of mill on stream fow. Henry Rora back, for appellant: ins from great pond to lower outlet to draw down the water in the pond. see Fernald v.

Using a mill pond for the uses for which Knox Woolen Co. 7 L. R. A. 459.

it is made, in the manner which is absolute

ly necessary for its practical use, is not an | 54 Conn. 244, 7 Atl. 22; Kaspar v. Dawson, unreasonable and unlawful use of it. 71 Conn. 410, 42 Atl. 78; Nolan v. Neu

Hurlbut v. McKone, 55 Conn. 42, 3 Am. Britain, 69 Conn. 678, 38 Atl. 703. St. Rep. 17, 10 Atl. 164.

A distinction has been made between a Hamersley, J., delivered the opinion of case where the injury is the natural and the court: necessary consequence of the exercise of the It is alleged by the defendant and adlegal right of the owner to develop the re mitted by the plaintiff that the defendant is, sources of his property, and a case where and for more than twenty years last past it is the consequence of his election to de has been, the owner of the dam, which is vote his land to the establishment of a par- found to have existed for nearly one hundred ticular sort of manufacture having no natu- years, and to have been used by its owners ral connection with the soil or the subja for the purpose of storing water to the full cent strata,

capacity of the dam and drawing off the 21 Am. & Eng. Enc. Law, 2d ed. p. 689; water thus stored as occasion required. It Pennsylvania Coal Co. v. Sanderson, 113 is also found that during the years menPa. 126, 57 Am. Rep. 445, 6 Atl. 453; Robb tioned in the complaint the defendant has. v. Carnegie Bros. 145 Pa. 324, 14 L. R. A. from July 15tń to October 1st, substantially 329, 27 Am. St. Rep. 694, 22 Atl. 649. drawn off all the water stored for use by

This distinction has sound reason and the dam,-i, e., to the depth of about 4 feet good sense to sustain it.

at its gate; that when the water is drawn Brown & Bros. v. Illius, 27 Conn. 95, 71 off to this extent the bottom of the pond at Am. Dec. 49; Isbell v. New York & N. H. R. several points is exposed to the sun and Co. 27 Conn. 412, 71 Am. Dec. 78.

air; that one of the portions thus exposed This rule is especially applicable to the is opposite land owned by the plaintiff, and case of a person coming to live near the al- the exposure of this portion has caused an leged nuisance.

appreciable injury to the plaintiff's said Fay v. Salem & D. Aqueduct Co. 111 Mass. property, for which injury the defendant is 27; State v. S'unapee Dam Co. 70 N. H. 458, liable. It is not found that drawing off 59 L. R. A. 55, 50 Atl. 108; Bierce v. Sharon the water to the depth of 2 feet would cause Electric Light Co. 73 Conn. 300, 47 Atl. this injury, and it plainly appears that 324.

drawing off the water to some extent might Where a mill has been erected upon a not harm the plaintiff. The judgment perstream for a long period of time, it gives petually enjoins the defendant against any the owner the right to have the water flow exercise of his admitted right to draw off to and from the mill in the manner in which the water during the periods mentioned, alit has been accustomed to flow all the time. though some exercise of that right can work The owner is not bound to use the water in no injury to the plaintiff, and for this reathe precise manner, or apply it

the same

son the judgment is ain mill.

It appears that the defendant is the owner Saunders V. Newman, 1 Barn. & Ald. of a dam and water privilege at the outlet 261; Gould, Waters, 3d ed. $ 234, p. 464. of Long pond, and this property includes

Messrs. Hubert Williams and War- the power of storing the water flowing ner & Landon, for appellees:

through the land on which the dam stands Defendant must so use his property as to the capacity of the dam, and of letting not to injure his neighbor.

the water flow through its open gates as the Whitney v. Bartholomew, 21 Conn. 218; owner may desire, and includes that qualiGrady v. Wolsner, 46 Ala. 381, 7 Am. Rep. tied ownership in the water stored which 593; Hurlbut v. McKone, 55 Conn. 41, 3 Am, the law recognizes. This property is subSt. Rep. 17, 10 Atl. 164; Kaspar v. Dawson, i ject to the rights belonging to other ripa71 Conn. 410, 42 Atl. 78.

rian owners as owners of the land and their The question as to whether the acts com rights acquired by appropriation or conplained of constitute a nuisance is one of tract, but is in other respects similar to any fact to be determined by the trier.

property held in absolute ownership. It apStowe v. Miles, 39 Conn. 428; Burnham pears that the plaintiff in 1894 purchased a v. Hotchkiss, 14 Conn. 318; Bierce v. Sharon piece of land 'adjoining and bounded by the Electric Light Co. 73 Conn. 301, 47 Atl. shore of Long pond. On this land the plain324.

tiff, shortly after its purchase, built a house Plaintiffs having proved a special and pe- for a summer residence. The real substance culiar injury by reason of the defendant, of the plaintiff's cause of action, as stated they were entitled to the judgment for dam- in the complaint and determined by the ages, and to the injunction granted.

court, is this: The uncovered condition Bigelow v. Hartford Bridge Co. 14 Conn. of Long pond in the immediate neighbor565, 36 Am. Dec. 502; Wheeler v. Bedford, hood of the plaintiff's house results in the


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