138 Conn. 116 | Conn. | 1951
This action was brought by a landowner to recover damages sustained when a public road upon which its property abutted caved in and threw debris onto his land.
Pemberwick Road is a public highway within the defendant town. It adjoins the plaintiff’s property on the east. At the southerly end of the plaintiff’s property, which is at the intersection of Pemberwick Road and Comly Avenue, the elevation of the road is the same as that of plaintiff’s land, but as the road runs northerly its grade rises so that, at a point 300 feet north of Comly Avenue, it is about 10 feet above the plaintiff’s property. This condition has existed since
When originally laid out, Pemberwick Road was used for travel by pedestrians and horses and wagons. In recent years there has been a great increase in the loads placed upon it by travelers using trailer trucks, busses and other fast moving and heavy motor vehicles. The pressure of this traffic caused the breakdown of the cohesive and frictional resistance of the soil so that the remains of the wall of the old building no longer provided sufficient lateral support for the road. This fact would have appeared from a reasonably careful inspection by the agents of the town, but no such inspection was ever made. As a result of the conditions which developed, on April 13, 1950, a portion of the westerly side of the road collapsed and broke away, causing a large mass of earth and rock from the foundation of the road to break through the wall and fall on the plaintiff’s property. The defendant having refused to make any repairs, the plaintiff at its own expense removed the debris and rebuilt the wall, and in this action it seeks to recover the reasonable cost of that work.
The complaint alleges: "Said damage was caused solely through the negligence of the Town of Greenwich, its officers and agents in failing to properly main
General Statutes, § 2126, imposes liability in the nature of a penalty upon a municipal corporation bound to keep a highway in repair for permitting defects in the highway. The statute, however, is designed to protect travelers only. One of the essential elements of liability under it is that the person claiming damages has been injured in connection with his use of the highway for travel. Tirendi v. Waterbury, 128 Conn. 464, 467, 23 A. 2d 919; Frechette v. New Haven, 104 Conn. 83, 88, 132 A. 467; Seidel v. Woodbury, 81 Conn. 65, 66, 70 A. 58; Upton v. Windham, 75 Conn. 288, 291, 53 A. 660; Bartram v. Sharon, 71 Conn. 686, 694, 43 A. 143. The statute provides no right of recovery to an abutting landowner for damage from a defective highway. Salzman v. New Haven, 81 Conn. 389, 393, 71 A. 500. The plaintiff in the present case, therefore, has no right of recovery under the statute.
After the lapse of so many years it is to be presumed that, as against the plaintiffs predecessor in title, the town originally acquired the right in the original construction of tire road to establish the grade thereof at the present level. Blakeslee v. Tyler, 55 Conn. 387, 395, 11 A. 291; Munson v. MacDonald, 113 Conn. 651, 657, 155 A. 910. This is true even though by so. doing it had created a condition which endangered his property. Fellowes v. New Haven, 44 Conn. 240, 257. Moreover, it does not appear that, as the road was originally constructed, its elevation above the level of the adjacent land was dangerous. Apparently it was properly designed to carry the relatively light traffic which was reasonably to be contemplated at the time. Nor is it found that the widening and hard surfacing of the road created or increased any hazard. The condition be
There is error, the judgment is set aside and the case is remanded with direction to enter judgment for the defendant.
In this opinion the other judges concurred.