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ture has caused the filling up of a small portion of the cove outside the railroad location, the plaintiff cannot recover damages therefor.

Burrows v. Pixley, 1 Root, 363, 1 Am. Dec. 56; Frink v. Lawrence, 20 Conn. 120, 50 Am. Dec. 274; Hubbard v. Deming, 21 Conn. 360; Wheeler v. Bedford, 54 Conn. 248, 7 Atl, 22; Cooley, Torts, pp. 732-737.

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 or imply that the railroad company could take and destroy the plaintiff's rights before or without first making compensation, any more than such a layout over upland accomplishes such a result.

Bradley v. New York & N. H. R. Co. 21 Conn. 306; Hooker v. New Haven & N. Co. 15 Conn. 326; Gilpin v. Ansonia, 68 Conn. 79, 35 Atl. 777; 10 Am. & Eng. Enc. Law. 2d ed. p. 1137.

But even though the state itself authorized a railroad company to cross navigable waters, it could not do so and thereby take and destroy the property rights of a landowner abutting on the water, until it had first made compensation for the damage; for the state itself cannot take private property for public use without making compensation.

Farist Steel Co. v. Bridgeport, 60 Conn. 283, 13 L. R. A. 590, 22 Atl. 561; Hooker v. New Haven & N. Co. 14 Conn. 152, 36 Am. Dec. 477; Bradley v. New York & N. H. R. Co. 21 Conn. 294.

Wesson v. Washburn Iron Co. 13 Allen, 101, 90 Am. Dec. 181; Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123; Hatch v. Vermont C. R. Co. 28 Vt. 142.

The owner of land abutting on a navigable stream has the right of access to and from his land on the water, and a right to fill in flats and wharf out to deep water; and these rights are privileges or franchises attached to the land, and constitute a valuable property right.

East Haven v. Hemingway, 7 Conn. 202; New Haven S. B. Co. v. Sargent, 50 Conn. 206, 47 Am. Rep. 632; Ladies' Seaman's Friend Soc. v. Halstead, 58 Conn. 150, 19 Atl. 658; Prior v. Swartz, 62 Conn. 132, 18 L. R. A. 668, 36 Am. St. Rep. 333, 25 Atl. 398; Lane v. New Haven Harbor, 70 Conn. 695, 40 Atl. 1058; Ockerhausen v. Tyson, 71 Conn. 31, 40 Atl. 1041; New York, N. H. & H. R. Co. v. Long, 72 Conn. 21, 43 Atl. 559; French v. Connecticut River Lumber Co. 145 Mass. 261, 14 N. E. 113; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Sullivan Timber Co. v. Mobile, 110 Fed. 193; Carli v. Stillwater Street R. & Transfer Co. 28 Minn. 373, 41 Am. Rep. 290, 10 N. W. 205; Chicago & P. R. Co. v. Stein, 75 111. 45; Rock Island & E. 1. R. Co. v. Gordon, 184 Ill. 456, 56 N. E. 810; Baltimore & O. R. Co. v. Chase, 43 Md. 23; Clark v. Peckham, 10 R. I. 35, 14 Am. Rep. 654; Providence Steam Engine Co. v. Providence & S. S. S. Co. 12 R. I. 356, 34 Am. Rep. 652; Rumsey v. New York & N. E. R. Co. 133 N. Y. 79, 15 L. R. A. 618, 28 Am. St. Rep. 600, 30 N. E. 654; Williams v. New York, 105 N. Y. 419, 11 N. E. 829; Re New York, 168 N. Y. 135, 56 L. R. A. 500, 61 N. E. 158; Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; Lyon v. Fishmongers' Co. L. R. 1 App. Cas. 682.

The right to wharf out is usually on a line at right angles with the channel, and the right exists and may be exercised no matter whether deep water is near or far.

fers a particular injury from a public nuisance can maintain an action therefor.

New Haven S. B. Co. v. Sargent, 50 Conn. 206, 47 Am. Rep. 632; Morris v. Beardsley, 54 Conn. 341, 8 Atl. 139; Lowndes v. Wicks, 69 Conn. 30, 36 Atl. 1072.

The indentation of the shore of the river at plaintiff's land is just as much a part of the river as a point where the shore is straight.

Torrence, Ch. J., delivered the opinion of the court:

The complaint alleges, in substance, that the plaintiff is the owner of land having a frontage of several hundred feet on the Thames river, a navigable stream in this state; that the defendant, "wrongfully and against the will and consent of the plaintiff," has built and maintains a permanent embankment in front of said land and be tween it and said river; and that "the defendant has thereby separated and cut off

Gallup v. Tracy, 25 Conn. 16.

An obstruction in a navigable stream is

a public nuisance, and any person who suf- | the plaintiff's said land from said river, and

The rights are analogous to those of a property holder abutting on a highway.

Shively v. Bowlby, 152 U. S. 14, 38 L. ed. 337, 14 Sup. Ct. Rep. 548; Kane v. New York Elev. R. Co. 125 N. Y. 164, 11 L. R. A. 640, 26 N. E. 278.

Even though a statute authorizing the taking of property makes no provision for compensation, this will not relieve from liability, for the Constitution requires compensation for taking property for a public use.

McKeon v. New Haven, N. H. & H. R. Co. 75 Conn. 343, 61 L. R. A. 730, 53 Atl. 656: Knapp & C. Mfg. Co. v. New York, N. H. & H. R. Co. 76 Conn. 314, 100 Am. St. Rep. 994, 56 Atl. 512.

fault, and was heard in damages upon notice, which gave the defendant the right to contest all the allegations of the complaint. The action of the trial court in overruling the demurrer is assigned for error in one of the reasons of appeal.

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 Comriver for use of the same as a navigable pany, 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 com- parties upon the 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 said lessor. In this view of the case the defendant owns the land fronting on the river immediately north and south of the cove mouth. It has made, and laid its railroad thereon, a solid embankment, 20 feet wide and 10 feet high, across the mouth of said cove, save at the northerly end thereof, where it has left an opening 16 feet wide, but permanently closed at the top with its railroad, between the cove and the river. All this was done by legislative authority and sanction under laws which made no provision for compensation to parties who might be injured by acts done by virtue of such authority. Through the opening aforesaid left at the north end of said roadbed "boats with masts set cannot enter, and it is difficult for small boats to enter, except at low water, on account of the flow of water caused by the tide." The building of said roadbed has forced parts of the bottom of the cove upwards, in places outside of the defendant's location, and these parts are not flowed at low water. It was agreed that the damages to be awarded, if any, should be for the permanent depreciation of the plaintiff's property by reason of the building of the railroad across the mouth of the cove, to be assessed once for all. "It did not appear in evidence that the plaintiff personally ever used said cove, or intended to use it in any way for any purpose." Upon these facts the defendant based certain claims of law made in the court below, which were there overruled. In the view we take of this case, it will be unnecessary to state or consider separately these claims of law with the rulings thereon. With reference to said claims it is enough to say that, except as hereinafter indicated, the court committed no error in overruling them.

After a voluntary default and hearing in damages thereon, this reason of appeal is no longer open to the defendant, unless the complaint is bad in substance; and, as this is not the case, the assignment above referred to cannot avail the defendant upon this appeal. Hourigan v. Norwich, 77 Conn. 358, 59 Atl. 487.

The other errors assigned relate to the action of the court in overruling certain claims of law, and in rendering judgment for more than nominal damages. The controlling facts in the case are, in substance, the following: The Thames river, a navigable stream, flows in a southerly direction to Long Island sound. Upon its eastern margin, at a point just above Gale's ferry, there is a small pouch shaped indentation known as "Clark's cove." This cove is about 1,600 feet in length north and south, and, near its northerly end, it has an opening or mouth into the river about 450 feet in width. There is no channel in the cove, and it has a mud bottom, with from 1% to 22 feet of water thereon at mean low tide. The mean rise and fall of the tide there is 2 feet and 10 inches. The channel of the river is about 800 feet westerly from the mouth of the cove. The land surrounding the cove is owned by divers owners in severalty. The land described in the complaint lies within the cove, and has a frontage of between 450 to 500 feet upon the waters of the cove. Its front line lies opposite the mouth of the cove, and about 200 feet distant easterly therefrom. Two lines drawn at right angles to the channel of the river, one at the north and one at the south side of the cove mouth,

The plaintiff's case, as stated in her complaint, proceeds upon the theory that her land fronts upon the Thames river, and not


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; was error. 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 (Gallup v. Tracy, 25 Conn. 10); but it in the note, 40 L. R. A. 593. Each ripadoes not follow from this that for all pur-rian proprietor in the cove had then at least

poses the cove is to be regarded as a part of the river. It does not follow, for instance, that the riparian owner at the south end of the cove has rights of wharfage, or reclamation, or alluvian in the main river. The situation of his land precludes the existence of any such rights, and this is equally true of other owners of land fronting upon the waters of the cove. They have undoubtedly certain exclusive, yet qualified, rights and privileges in the waters and submerged land adjoining their upland; but they must take their riparian rights as they find them, and they are entitled only to such as the condition of the cove and the situation of their land with respect to the cove will afford. New Haven S. B. Co. v. Sargent, 50 Conn. 199-208, 47 Am. Rep. 632. Among the most important of these rights and privileges in the cove and its waters are (1) the right of access by water to and from their upland, (2) the right to wharf out in front, and (3) the right of reclamation or accretion. Mather v. Chapman, 40 Conn. 382-395, 16 Am. Rep. 46; Ockerhausen v. Tyson, 71 Conn. 31-36, 40 Atl. 1041. Riparian proprietors in the cove have the right to wharf out and to reclaim, but they are rights confined to the cove, and to be exercised therein, 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 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. R. 1 App. Cas. 662; Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386; Brisbine v. St. Paul & S. City R. Co. 23 Minn. 114; Backus v. Detroit, 49 Mich. 69 L. R. A.

three important rights, but they all relat ed to the waters of the cove and to the land submerged by said waters, and not to the river proper. It may be said that the situation of the plaintiff's land was such, with reference to the mouth of the cove and the channel of the river, as to give her the right to wharf out to the channel, and also to reclaim submerged land in that part of the river lying westerly of and opposite to her land; but we do not think so. Her rights of wharfing out and of reclamation, like those of her neighbors, were confined to the cove. The existence in her of a right to wharf out and reclaim in the river is entirely inconsistent with, and its exercise might be destructive of, the rights of access belonging to her neighbors. It would give the plaintiff the right, as against her neighbors, to fill up wholly or partially the waters of the cove and its mouth, so as practically to impair or destroy the riparian rights of those neighbors, and especially their right of access. It follows from the fact that her rights of wharfing out and of reclamation were confined to the cove, that these rights were not invaded by the acts of the defendant, and that the court erred in holding that they had been.

There is error. The judgment is set aside, and the cause remanded, in order that nominal damages may be assessed.

All concur.

Amelia P. DE WITT et al.


William L. BISSELL, Appt.
(77 Conn. 530.)

The owner of property bordering on a mill pond cannot enjoin the owner of the dam and water privilege from drawing the water down to its natural level when it becomes necessary for the utili zation of the power, although a portion of the bottom of the pond is thereby uncovered and exposed to the sun, rendering it unhealthful and injurious to the abutting owner.

(March 9, 1905.)

PPEAL by defendant from a judgment A of the Superior Court for Litchfield County enjoining him from drawing the water from a mill pond.. Reversed.

Statement by Hamersley, J.: The complaint alleges the following facts: On July 15, 1897, the plaintiff was, and ever since has been, the owner of a piece of land adjoining and bordering upon the east shore of Long pond, on which piece of land is a dwelling house used by the plaintiff as a summer residence. At the outlet of said pond there is a dam, claimed to be owned by the defendant, which maintains the water of said pond at a higher level than its natural level. From July 15th to October 1st in each of the years 1897, 1898, and 1899, and from July 15th to the commencement of this suit on September 18th in the year

1900, the defendant drew off the water of said pond by raising the gate in said dam until a large area of the land which is covered by water when said pond is full was exposed, which exposed condition continued until October 1st in the years 1897, 1898, and 1899, when the defendant permitted said pond to fill up to its usual level as maintained by said dam, and continued in the year 1900 until the commencement of this suit. When the water was thus drawn off. the land thus exposed to the sun produce offensive stenches, unhealthy to the plaintiff and other inmates of said house, rendering said house uninhabitable, and constituting a nuisance. The defendant formerly oper ated a gristmill, machine shop, and foundry with the water flowing from said pond,


NOTE. AS to rights in artificial condition of body of water generally, see note to Pewau kee v. Savoy. 50 L. R. A. 836.

As to right of owner of mill to draw off the water and lower the water in the pond so as to destroy the ice privileges of the owner of land bordering on the pond, see, in this series. Eidemiller Ice Co. v. Guthrie, 28 L. R. A. 581.

As to right of owners of mill on stream flowing from great pond to lower outlet to draw down the water in the pond, see Fernald v. Knox Woolen Co. 7 L. R. A. 459.

which gristmill, etc., stood on a tract of land owned by the defendant below the outlet of said pond; but said mill, machine shop, and foundry have been abandoned, and the defendant has put the water drawn from said pond at the times above mentioned to no beneficial use. The acts of the defendant in creating such nuisance have injuriously affected the health and comfort of the plaintiff and her family, and the value of the plaintiff's said land has been depreciated. The plaintiff has often requested the defendant to cease drawing off the water as aforesaid, but the defendant, notwithstanding such requests, has continued to so draw it off, and the plaintiff is without adequate remedy at law. The

prayer for relief asks an injunction restraining the defendant from drawing off the water below the level maintained by said dam when the gate therein is closed from July 15th to October 1st in each year, and $5,000 The defendant's answer, after damages. denying certain paragraphs of the complaint, sets up as a special defense to the plaintiff's cause of action as stated in the complaint the following: "(1) The defendant on the 15th day of July, 1897, was and for more than twenty years prior thereto had been, and still is,the owner of the dam and water privilege at the outlet of said Long pond, and during all of said time was, has been, and still is the owner and user of the water flowing therefrom; and during all of said time has been and still is entitled to the right to raise the water in said pond to the height of said dam, and to draw off and use all the water from said pond that (2) Any and all acts of the defendant in raising and lowering the water of said Long pond were done in the exercise of his legal right as owner and user, as set forth in paragraph

would flow from the same.

of this defense." The plaintiff, in her reply to the special defense, admitted so much of paragraph 1 as alleged that the defendant was on July 15, 1897, and for more than twenty years prior thereto had been, and still is, the owner of the dam at the outlet of Long pond, and denied the remainder of said paragraph and paragraph 2. The judgment of the court finds for the plaintiff the issues of fact raised by the pleadings, and adjudges that the defendant be perpetually enjoined from drawing off the water of Long pond from July 15th to October 1st in each year, and, that the plaintiff recover of the defendant $100 damages.

Messrs. Charles E. Perkins and J. Henry Roraback, for appellant:

Using a mill pond for the uses for which 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. New

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 case where the injury is the natural and necessary consequence of the exercise of the legal right of the owner to develop the resources of his property, and a case where it is the consequence of his election to devote his land to the establishment of a particular sort of manufacture having no natural connection with the soil or the subja cent strata.

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Hamersley, J., delivered the opinion of the court:

It is alleged by the defendant and admitted by the plaintiff that the defendant is, and for more than twenty years last past has been, the owner of the dam, which is found to have existed for nearly one hundred years, and to have been used by its owners for the purpose of storing water to the full capacity of the dam and drawing off the water thus stored as occasion required. It is also found that during the years mentioned in the complaint the defendant has. from July 15th to October 1st, substantially drawn off all the water stored for use by the dam,-i, e., to the depth of about 4 feet at its gate; that when the water is drawn off to this extent the bottom of the pond at several points is exposed to the sun and air; that one of the portions thus exposed is opposite land owned by the plaintiff, and the exposure of this portion has caused an appreciable injury to the plaintiff's said property, for which injury the defendant is liable. It is not found that drawing off the water to the depth of 2 feet would cause this injury, and it plainly appears that drawing off the water to some extent might not harm the plaintiff. The judgment perpetually enjoins the defendant against any exercise of his admitted right to draw off the water during the periods mentioned, although some exercise of that right can work no injury to the plaintiff, and for this reason the judgment is plainly erroneous.

It appears that the defendant is the owner of a dam and water privilege at the outlet of Long pond, and this property includes the power of storing the water flowing through the land on which the dam stands to the capacity of the dam, and of letting the water flow through its open gates as the owner may desire, and includes that qualified ownership in the water stored which the law recognizes. This property is subject to the rights belonging to other ripa rian owners as owners of the land and their rights acquired by appropriation or contract, but is in other respects similar to any property held in absolute ownership. It ap pears that the plaintiff in 1894 purchased a piece of land adjoining and bounded by the shore of Long pond. On this land the plaintiff, shortly after its purchase, built a house for a summer residence. The real substance of the plaintiff's cause of action, as stated in the complaint and determined by the court, is this: The uncovered condition of Long pond in the immediate neighborhood of the plaintiff's house results in the

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