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private nuisance described in the complaint, | lease or grant the water to a lower riparian namely, offensive stenches unhealthy to the proprietor, and may use the water for any plaintiff and other inmates of her house, purpose, provided he does not thereby interand injuriously affecting the value of her fere with the rights of other proprietors, land. This uncovered condition of the pond either above or below him. Such a dam is caused by the defendant's act in drawing and water privilege, with its incidental off the water stored by his dam, and the de- rights, constitutes property favored by the fendant is therefore liable, whether owner of law since earliest times. Holyoke Waterthe dam or not, to the plaintiff, for the in- Power Co. v. Lyman, 15 Wall. 500, 21 L. jury caused by this nuisance. The ultimate ed. 133; Smith v. Agawam Canal Co. 2 Alconclusion of the court is this: The defend- len, 356; Whittier v. Cocheco Mfg. Co. 9 ant drew off the water of Long pond, as N. H. 454, 458, 32 Am. Dec. 382; Nuttall v. alleged, and such acts constituted and cre Bracewell, L. R. 2 Exch. 1; Miner v. Gil. ated a nuisance, and entitled the plaintiff mour, 33 L. T. 98. Not only has such propto damages on account of the appreciable erty been always favored by the public polinjury thereby caused her property. Upon icy of this state, but in later years the powthe trial the defendant claimed and asked er of eminent domain has been pushed to its the court to rule that the law is so that limits in authorizing the acquirement of where, in the natural and necessary use of a such property through proceedings for conmill pond, it is necessary in the summer demnation. Assuming, for the moment, months so to draw down the water as to that such property may become, by the mere expose some portions of the bottom of the fact of its existence, the occasion of a pripond, persons who purchase property and vate nuisance injurious to the property of live ncar the pond after it has been estab- neighboring landowners, so as to make its lished and used cannot object to such use owner liable in damages to such landowners, on the ground that bad odors arise from especially when he is chargeable with malisuch use.

The court unqualifiedly overruled cious or wanton disregard of their interests, this claim, and in doing so plainly erred. it is evident that in determining the quesBierce v. Sharon Electric Light Co. 73 tion of such liability all the facts and cirConn. 300, 47 Atl. 324; State v. Sunapee cumstances must be weighed in their relaDam Co. 70 N. H. 458, 59 L. R. A. 55, 50 tion to the law which establishes a dam and Atl. 108. We think this error was mate water privilege as property, and defines its rial, and seriously injured the defendant. incidents. In the present case it is appar.

The conclusion of the court subjects the ent from the action of the court in overruldefendant's property to diminution or de ing the defendant's claim of law, as well struction, because its continued existence is as from the whole finding, that the law relinconsistent with the full enjoyment by the ative to this peculiar property in a dam plaintiff of her property, and because, when and water privilege was not duly regarded such inconsistency exists between property in drawing the inferences from evidence and such as the defendant's (i, e., a dam and from the facts found as well as in reachwater privilege) and property such as the ing the ultimate conclusion. The error plaintiff's (that is, land in the neighbor- complained of indicates that the material hood of a mill and water privilege), the for. conclusions of the court may have been, and mer property 'must be held and enjoyed in probably were, influenced to the detriment subordination to the latter. It is evident of the defendant by an erroneous view of the that in reaching such a conclusion the law law, and must therefore be treated determining the character and incidents of vitiating the whole judgment. the defendant's property should be accurate It was suggested in argument that the ly understood and correctly applied. The paragraph in the finding which states that owner of land on both sides and bed of a in the year 1900, with his own hands, the natural stream of water not navigable may defendant opened the gate of the dam, and erect a dam to create power to operate mills permitted the water stored to flow out to and machinery. He cannot do this so as the same extent and with similar effect upto interfere with the right of proprietors of on the plaintiff's property, as in the former lands below to the natural flow of the wa years mentioned, for no apparent purpose ter, nor so as to throw back the water up: / unless to assert his legal right to draw off on the lands of those above without their the water as against any legal right in the consent; but, subject to these limitations, he plaintiff to have the water stored to the may detain the water by a dam so as to height of the dam, is sufficient to support create an artificial pond or enlarge a natur- at least that part of the judgment which al one, and use the water thus stored for gives the plaintiff damages. It may be his own purposes. He may open his gates doubtful whether, upon the pleadings, the and use the water a few miles below as defendant having established his ownership well as at the outlet of the dam. He may l of the dam and water privilege, and that

as

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during the years 1897, 1898, and 1899 he 3. The master is bound to make reasonhad, in pursuance of his legal right, used the i able inspection of appliances used to

aid his servants in their work, and he cannot water drawn from the dam for operating

relieve himself from the consequences of his inills located at a point 2 miles below its

failure to do so by delegating the duty to outlet and owned by the Sharon Electric competent employees. Light Company, which paid him for the 4. The admission of evidence of the power, the court could properly render judy. age, at the time of death, of the parents ment only for the damage that might have

of one killed by accident, for the purpose of been caused by this single act; but, if it

showing his expectation of life, although er

roneous because of remoteness, is not ground had the power, it has not rendered such a

for new trial. judgment. The judgment for damages covers the injury to the plaintiff's property

(March 9, 1905.) caused by the defendant's drawing off the water from his dam from 1897 to 1900, and PPEAL by defendant from a judgment it is evident that the erroneous view of the of the Superior Court for Fairfield law which intluenced the court in drawing County in favor of plaintiff in an action inferences from testimony and in reaching brought to recover damages for the alleged the conclusion that the property of the negligent killing of her husband. Affirmed. plaintiff was injured and the defendant was liable for this injury affected its conclusion Statement by Prentice, J.: in respect to damage, including any that The defendant was engaged in building a may have been suffered in the year 1900. stone retaining wall along the Naugatuck

There is error. The judgment of the Su- river, in Ansonia. One Toole was the superior Court is reversed, and the cause re- perintendent of the work, and had charge manded for further proceedings according thereof and of the men employed upon it. to law.

The plaintiff's intestate was a mason SO

employed, and foreman of the masons. For All concur.

the prosecution of the work the defendant used a heavy stea m-hoisting derrick, having

a mast 50 feet in height and a boom 58 Bianca RINCICOTTI, Admrx., etc.,

feet long, operated by what is known as a

"bull wheel.” By its use the defendant JOHN J. O'BRIEN CONTRACTING was enabled to lift the heavy blocks of COMPANY, Appt.

stone, of which the wall was constructed.

from the cars, and swing them into position (77 Conn. 617.)

upon the wall. The derrick rested upon a 1. There is no distinction between the foundation prepared for it, and was sup

constrnction of the appliances fur- ported in its upright position by twisted nished for the use of a servant and

wire cables which radiated in various ditheir maintenance, so far as the right rections from the top of the mast to secure of the master is concerned to absolve him. self from liability for injuries by furnishing points, where they were fastened. As the suitable materials to a competent person, to

construction of the wall progressed so far be used for that purpose.

that the boom would no longer serve at the 2. The proximate cause of the injory of point where stones were desired to be

a servant by the fall of a derrick placed, the derrick was moved and relobecause of the breaking of a spliced rope

cated. Work upon the wall had been in is not the failure to insert thimbles into the loops of the splice, but the failure to inspect process for some time when the intestate rethe rope for the purpose of determining its

ceived his injuries, and two such relocacondition, and to repair it after has tions had been made. Toole was an expert become chafed and worn by use, where there derrick rigger, and it was a part of his is nothing to show that the splice is not suf

duty, and his duty alone, to take care and ficiently strong, without the wimbles, to do

charge of the derrick, including its locathe work required of it, but fails because of the wear due to continued use.

tions, removals, and preparation for use.

The masons had no duty in that regard. At YOTE.--As to master's duty to inspect ap- the time of the last location of the derrick, pliances and places of work, including right to

which, like the others, was made under delegate sich duty, see also note to Walkowski

Toole's direction, and about one month prior v. Penokee & G. ('onsol. Mines, 41 L. R. A. 74. 109, and the later cases, in this series, of Me.

to the accident, it was supported in position Guire v. Bell Telephı. Co. 52 L. R. A. 437: by six cables, varying from 186 to 413 feet Smith v. Erie R. Co. 59 L. R. A. 302; and in length. One of them was 360 feet in Twombly v. Consolidated Electric Light Co. 64

length, and extended from the mastheid L. R. A. 1.1.

across the river, where it was made fast to As lo dư!y to inspect material to be lised in bridge, see Lafayette Bridge Co. v. Olsen,

a tree. Owing to the distance which this 54 L. R. A. 33.

cable had in the former locations of the

v.

derrick been required to span, Toole had C. R. Co. 49 N. Y. 521, 10 Am. Rep. 417; spliced it. The new conditions necessitated Hough v. Texas & P. R. Co. 100 U. S. 218, the same extension, and the spliced cable 25 L. ed. 615; Davis v. Central Vermont was used, the point of splicing being about R. Co. 55 Vt. 84, 45 Am. Rep. 590; Ford v. 15 or 20 feet from the tree and across the Fitchburg R. Co. 110 Mass. 260, 14 Am. river. The splice was made by doubling | Rep. 598; Brodeur v. Valley Falls Co. 16 R. back the end of each piece of the cable, in. I. 450, 17 Atl. 54; Wood, Mast. & S. p. 871. serting one of the loops thus formed into The servant is not bound to inspect apthe other, and fastening each, and thus pliances before using them, but assumes the doubled back to the cable by iron clamps of risk only of such defects as are in fact approved design. Interlocked loops were known to him, or are patent and olvious. thus made. As the result of the use of the Darrigan v. New York & N. E. R. Co. 52 derrick after the splicing, and the constant Conn. 299, 52 Am. Rep. 590; Gerrish v. New strain and friction at the points of contact Haven Ice Co. 63 Conn. 16, 27 Atl. 235; within the loops, these parts of the cable | Kelly v. New Haven S. B. Co. 74 Conn. 347, had, before the accident, become chafed 57 L. R. A. 494, 92 Am. St. Rep. 220, 50 and worn, and some of the strands had Atl. 871. parted. At the time of the accident the The duty of maintaining sound instrumenderrick was being used to carry a stone into talities while in use by the servant, which position. When the stone was in mid air, involves the duty of reasonable inspection, said cable parted at the worn and weakened is obligatory on the part of the master. part within one of the loops. As the result, Moore v. Wabash, St. L. & P. R. Co. 85 the derrick fell, striking the intestate. Mo. 588; Bailey v. Rome, W. &0. R. Co. Toole never at any time inspected the cable 139 N. Y. 302, 34 N. E. 918. to ascertain its condition. In making cable The duty of inspection is affirmative, and splicings such as have been described, it is must be continuously fulfilled and positively customary and prudent to place a device performed. called a “thimble” in each of the loops Brann v. Chicago, R. 1. & P. R. Co. 53 in such manner as to furnish the bearing Towa, 595, 36 Am. Rep. 243, 6 N. W. 5; in both directions. By the use of the thim- Chesson v. John L. Roper Lumber Co. 118 bles the cables are prevented from bending N. C. 59, 23 S. E. 925; Ocean S. S. Co v. as sharply as they otherwise would, the Matthews, 86 Ga. 418. 12 S. E. 632; Artension is distributed, and the friction and mour v. Brazeau, 191 Ill. 117, 60 N. E. 904 ; chafing obviated. Added strength and dur-Comben v. Belleville Stone Co. 59 N. J. L. ability are thus obtained. There were suit- 226, 36 Atl. 473. able thimbles furnished by the defendant in This is a nonassignable duty, and cannot a chest upon or near the premises, which be delegated so as to release the master fact was known to Toole.

from responsibility.

Louisville, E. & St. L. Consol. R. Co. v. Messrs. Seymour C. Loomis and Earn-| Utz, 133 Ind. 265, 32 N. E. 881; Babcock v. est C. Simpson for appellant.

Old Colony R. Co. 150 Mass. 407, 23 N. E. Messrs. John J. Cullinan and Stiles 325; 1 Labatt, Mast. & S. p. 241; Jackson Judson, Jr., for appellee:

v. Norfolk & W. R. Co. 43 W. Va. 380, 46 L. The test as to whether one acts as a vice | R. A. 337, 27 S. E. 278, 31 S. E. 258. principal or as a fellow servant is the na: Where the master assumes to furnish his ture of the duties to be performed, and not servant a complete instrument or apparatus the grade of employment.

for the performance of his work, the servant Sullivan v. New York, N. H. & H. R. Co. has nothing to do with the question of the 62 Conn. 216, 25 Atl. 711; McElligott v original sufficiency of its parts, or of their Randolph. 61 Conn. 157, 29 Am. St. Rep. subsequent preservation, unless a defect is 181, 22 Atl. 1094 ; Jackson V. Norfolk & W. obvious. R. Co. 43 W. Va. 380, 46 L. R. A. 337, 27 Shanny v. Androscoggin Mills, 66 Me. 420 ; S. E. 278, 31 S. E. 258; Baltimore a 0. R. | Hough v. Texas & P. R. Co. 100 U. S. 213, Co. v. Baugh, 149 U. S. 387, 37 L. ed. 781, 25 L. ed. 612; Lehigh Valley R. Co. v. K'is13 Sup. Ct. Rep. 914.

zel, 25 C. C. A. 566, 5l U. S. App. 265, 80 The duty of the master is not discharged Fed. 470; Eureka Co. v. Bass, 81 Ala. 200, by anything short of actual performance. 60 Am. Rep. 152, 8 So. 210: Jager v. Cali

McElligott v. Randolph, 61 Conn. 157, 29 fornia Bridge Co. 104 Cal. 542. 38 Pac. 413 ; Am. St. Rep. 181, 22 Atl. 1094.

Wells v. Coe, 9 Colo. 159, 11 Pac. 50: SnyUntil the agent in fact acts up to the lim- der v. Cleveland. C. C. & St. L. R. Co. 60 it of the duty of his master to act, the Ohio St. 487, 54 N. E. 475; 1 Labatt, Mast. master's duty is not done.

& S. p. 228; 1 Shearm. & Redf. Neg. $ 194; Wilson v. Willimantic Linen Co. 50 Conn. McVeil v. The Para, 56. Fed. 241: Dyer v. 433, 47 Am. Rep. 653; Laning v. New York | Pittsburg Bridge Co. 198 Pa. 183, 47 Atl. 979; Donnelly v. Booth Bros. & H. I. Gran- | Co. 45 Minn. 235, 47 N. W. 785; Burns v. ite Co. 90 Me. 111, 37 Atl. 874; McGuigan Sennett, 99 Cal. 363, 33 Pac. 916; Robinv. Beatty, 186 Pa. 329, 40 Atl. 490; Bier v. son v. George F. Blake Mfg. Co. 143 Mass. Standard Mfg. Co. 130 Pa. 447, 18 Atl. 637; 528, 10 N. E. 314; Richards v. Hayes, 17 Baker v. Allegheny Valley R. Co. 95 Pa. App. Div. 422, 45 N. Y. Supp. 234; Labatt, 211, 40 Am. Rep. 634; Yaw v. Whitmore, 46 Mast. & S. $ 589. It was a mechanical apApp. Div. 422, 61 N. Y. Supp. 733, Af. paratus furnished by the master to co-oper. firmed in 167 N. Y. 605, 60 N. E. 1123; ate with and facilitate the intestate and his Briody v. The Persian Monarch, 49 Fed. fellow masons in the work upon which they 669; Ashley Wire Co. v. Mercier, 61 Ill. were engaged. The duty of the defendant App. 487; Tangney v. J. B. Wilson & Co. 87 as master, under such circumstances and in Mich. 455, 49 N. W. 666; Honifus v. Cham respect to such an instrumentality, was to bersburg Engineering Co. 196 Pa. 47, 46 use reasonable care to provide one which Atl. 259; Woods v. Chicago & G. T. R. Co. should be reasonably safe for the work to 108 Mich. 397, 66 N. W. 328; Houston v. which it was to be put. McElligott v. Brush, 66 Vt. 332, 29 Atl. 380; Fuller v. Randolph, 61 Conn. 157, 29 Am. St. Rep. Jewett, 80 N. Y. 46, 36 Am. Rep. 575; 181, 22 Atl. 1094; Gerrish v. Nono Haven Brennan v. Berlin Iron Bridge Co. 74 Conn. Ice Co. 63 Conn. 16, 27 Atl. 235. This 389, 50 Atl. 1030.

duty was a continuing one, and included The intestate, as a stone mason, intent that of maintenance. Hough v. Texas & only upon transferring the stones from the P. R. Co. 100 U. S. 213, 25 L. ed. 612; car to the wall and there laying them, Shanny v. Androscoggin Mills, 66 Me. 420: had nothing to do with the construction, Ford v. Fitchburg R. Co. 110 Mass. 240, 14 inspection, and repair of the appliances Am. Rep. 598; Tierney v. Minneapolis & St. that were being operated.

L. R. Co. 33 Minn. 311, 53 Am. Rep. 35, 1 Labatt, Mast. & S. p. 595; Benzing v. 23 N. W. 229; Indiana Car Co. v. Parker, Steinway & Sons, 101 N. Y. 547, 5 N. E. 100 Ind. 181; Moore v. Wabash, 8t. L. & P. 449; 1 Shearm. & Redf. Neg. s 1856; R. Co. 85 Mo. 588; Bailey v. Rome, W. & Crowley v. Cutting, 165 Mass. 436, 43 N. 0. R. Co. 139 N. Y. 302, 34 N. E. 918. The E. 197.

duty of maintenance necessarily involved The intestate had a right to assume that of reasonable inspection and repair. that Toole, as a competent and skilled der- | Union P. R. Co. v. Daniels, 152 U. S. 684, rick rigger, had properly secured the der- 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Tierrick, and that it was safe to engage in the ney v. Minneapolis & St. L. R. Co. 33 Minn. work of operating the same.

311, 53 Am. Rep. 35, 23 N. W. 229; Armour Buzzell v. Laconia Mfg. Co. 48 Me. 113, v. Brazeou, 191 Ill. 117, 60 N. E. 904; Com77 Am. Dec. 212; Texas & P. R. Co. v. Archi- ben v. Belleville Stone Co. 59 N. J. L. 226, bald, 170 U. S. 665, 42 L. ed. 1188, 18 36 Atl. 473; Munch v. Great Northern R Sup. Ct. Rep. 777; Delude v. St. Paul City Co. 75 Minn. 61, 77 N. W. 541; Louisville, R. Co. 55 Minn. 63, 56 N. W. 461; Bergin E. & St. L. Consol. R. Co. v. Utz, 133 Ind. v. Southern New England Teleph. Co. 70 265, 32 N. E. 881; Richmond & D. R. Co. v. Conn. 65, 39 L. R. A. 192, 38 Atl. 888. Burnett, 88 Va. 538, 14 S. E. 372.

The Massachusetts rule that supplying The defendant says that the cause of the loose appliances and proper supervision by accident was the failure to insert thimbles a competent representative will exempt the in the loops made in splicing the cable, and master from liability stands alone. argues therefrom that, as their absence was

1 Labatt, Mast. & S. 1639; 1 Shearm. & due to the failure of Toole, the superinRedf. Neg. 8 177; Darrigan v. New York of tendent, to insert them, and as the defendN. E. R. Co. 52 Conn. 305. 52 Am. Rep. 590.ant had provided sufficient thimbles to be

used when needed, it had not failed in its Prentice, J., delivered the opinion of the duty as master, and the intestate's injuries court:

were the consequence of the negligence of The plaintiff's intestate, while acting as Toole in respect to his service as the intesthe defendant's servant, received injuries, tate's fellow servant. This contention is from which he died, by reason of the fall of unsound in both its premise and the concluan instrumentality used in the work upon sions drawn therefrom. It is enough for which he was employed. The injuries were our present purpose to pursue at length the not occasioned by any negligence in the use first of these dual propositions. In thus of the instrumentality. The instrumental. | limiting our discussion, however, we do not ity was not one whose construction, prepa- wish our silence to imply our assent to the ration, adaptation for use, care, or inspec- legal principle which, in so far at least as tion entered into the performance of the in- maintenance and repair are concerned, is testate's work or duty, or was it an inci- vigorously urged upon us, to wit, that a dent of it. Fraser v. Red River Lumber | master upon whom rests the duty of using

reasonable care to provide and maintain for its superintendent, and apparently was not, the use of his servants in their work rea as it is found that no inspection was made. sonably safe mechanical instrumentalities But that is of no legal consequence, since may perform that duty by furnishing to a it is found that it was so apparent that an fit and competent agent the materials or inspection would have revealed it. In other parts out of or means of which the in- words, the failure which was the true proxistrumentality as a working entity can be mate cause of the parting of the cable, and either created or maintained, and that for thus of the intestate's injuries, was one in the shortcomings of the agent in his utiliza- the master's duty of reasonable inspection. tion or failure to utilize this material or

The manner of the splice was known, for these parts the master assumes no respon- Toole made it; the consequences thereon of sibility. In so far as the defendant's con wear were palpable, and therefore such as tention assumes that there is a difference, as the defendant and Toole were bound to an. respects the master's duty, between con- ticipate. The duty of inspection was one to struction and maintenance, it is without be exercised in the light of these conditions. foundation. To whatever extent the con The facts, therefore, disclose a clear failure tention is carried, it also involves princi- on the part of the defendant, as master, ples which have had the repeated disap in the performance of its duty towards the proval of this court. The master's duty re intestate. quires performance. It may be performed If it be suggested that the cable was, by in person, or by one delegated to that end. the manner of the splice, inherently weak In either event, the thing required must be and thus defective, the master is not thereby done. Delegation to a fit and competent exonerated. In that event, his failure in agent is not sufficient. Wilson v. Williman. the duty of using reasonable care to provide tio Linen Co. 50 Conn. 433, 47 Am. Rep. reasonably safe instrumentalities only as653; McElligott v. Randolph, 61 Conn. 157, sumes a slightly different aspect; but it is 29 Am. St. Rep. 181, 22 Atl. 1094; Gerrish the same duty. The duty of the master is v. New Haven Ice Co. 63 Conn. 16, 27 | the same in its essence whether it, in a Atl. 235.

given case, assumes the immediate form of Let us return now to the defendant's original provision, maintenance, or inspecpremise that the proximate cause of the in- tion as an incident of maintenance. All jury complained of was the superintendent's are involved in the general duty of provision, failure to place thimbles in the loops of the which, as we have seen is a continuing one splice. It is doubtless true that, had thim- and an unchanging one. bles been inserted in making the splice, the Three rulings upon the admission of evicables would not by use have become so dence are assigned as erroneous. Only one worn and defective at the points of tension is pursued in the brief. The intestate's that they would have parted when they did. widow being upon the stand, the court perTo this extent the failure to insert the thimmitted the plaintiff to ask her the age of his bles was without doubt the cause—but the parents at their death, as bearing upon his remote one of the accident. The proxi. health and constitution. Her reply was mate cause, however, was the worn and de. seventy-eight and seventy years, respectivefective condition into which the cables had ly. Rulings of this character, where the been suffered to lapse by being used for a vice, if any, in the evidence offered, is reconsiderable period of time without such moteness, can seldom be of sufficient conrepair or replacement as was necessary, in sequence to warrant the granting of a new view of the way in which the splice was trial. Much must be left to the discretion made, to maintain the requisite condition of of the court. State v. Kelly, 77 Conn. 266, strength. The cablo as spliced was not able 58 Atl. 705. This ruling furnishes no exto stand as great a strain as one spliced ception to the general rule. with thimbles, but it does not appear that None of the corrections which the defendwithout them it was not originally suffi- ant claims should be made in the finding asciently strong to do the work required of it. sumes any importance, in view of our conIts original strength became dissipated as clusions. the consequence of wear and tear and a fail There is no error. ure in the duty of maintenance. The worn and weakened condition wich resulted may

All concur. not have been known to the defendant or 69 L. R. A.

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