Bronson v. Borough of Wallingford

54 Conn. 513 | Conn. | 1887

Carpenter J.

The complaint in this case, after alleging that the plaintiff was the owner of certain real estate, alleges that “ on the first day of July, 1884, all that part of the territory of said borough of Wallingford which is situate on Main street, Center street, and Hall avenue in said borough and adjacent to said highway, was drained, and for a period of time whereof the memory of man runneth not to the contrary had been drained, of surface waters and sewerage, through open gutters and drains along said Center street and said Hall avenue and past and away from the said land of the plaintiff. On the day and year last aforesaid the defendant, by grading and the construction of covered drains, sewers and culverts, changed the course and direction of the flow of said waters and sewerage, with the intent so to do, in such manner that the same ran, and have ever since flowed and run, and still do flow and run, along a certain other highway known as Cherry street, and under said Cherry street by a culvert, over and upon the said premises of the plaintiff, and in such manner as to constitute a nuisance. Whereby the premises of the plaintiff are at times of rain flooded with filthy waters and with sewerage, and are kept damp, unhealthy and malarious, at all times are worn into gullies and carried away by the force of said floods, and the plaintiff has been and is deprived of the enjoyment of said property, and the value of the same has been greatly diminished.”

The second count refers to another portion of the territory of the borough, and alleges a diversion of the surface water thereon, omitting the word “ sewerage”5 so as to cause it to flow on and across the land of the plaintiff; alleging the damage in the same way as in the first count.

To this complaint the defendant demurred, alleging that on the facts stated the plaintiff is not entitled to the relief therein sought.

The complaint is not entirely free from ambiguity. It speaks of surface water and sewerage. The defendant by the 32d section of its charter (Special Laws of 1881, p. 117), is authorized to construct sewers and drains, and to “provide for the outflow or disposal of any waste water, drainage or sewage from any public or private sewer or drain, &c; provided that suitable compensation shall be made for any damage to private property, the amount, if the parties cannot agree, to be determined in the manner specified in sections thirty-three and thirty-six of this act.”

This refers to ordinary sewerage from dwelling houses and other buildings supplied with running water, and to such surface waters as may be drained into sewers, but has no reference to surface water passing off upon the surface of the ground. The general supervision of its system of sewers is given to the borough, so far at least as. to enable it to provide for the outflow and disposition of waste water and sewerage from drains and sewers; a power conferred on it at its own request, not for the benefit of the public at large, but for the special benefit of the inhabitants of the borough. In exercising this power damage to individuals must be paid for, and the mode of payment is provided for.

A general statute imposes upon the borough the duty of maintaining highways within its limits. That makes it necessary for the borough to dispose of all surface water falling or coming upon the highways.

Were the acts of the defendant, of which the plaintiff complains, done in the exercise of powers conferred upon it by its charter, or in the discharge of duties imposed upon it by the general statute? We think the defendant was caring for the highways under the general statute. If the suit is for acts done under the charter, it is questionable whether, the plaintiff has any remedy except that which the charter provides. But passing that, the complaint is not adapted to a cause of action, the gist of which is an omission of the borough to provide for the appraisal of damages. On the other hand, it is apparent that surface water is the principal thing of which the plaintiff complains, and that the sewerage mentioned, in the complaint is such sewerage as may have been discharged upon the surface and mingled with water passing thereon.

We interpret the complaint therefore as alleging a cause of action resulting from the disposition by the defendant of surface water on the highways in the discharge of its duty in caring for the highways.

We come then to the main question—does the complaint disclose a good cause of action ?

The defendant is accused of no negligence resulting in an injury to the plaintiff; it is not accused of a faulty construction or repair of the highway by reason of which the plaintiff has been injured, as in Mootry v. Town of Danbury, 45 Conn., 550; it is not accused of improperly discharging the surface water on the plaintiff’s premises in such a manner as to expose her property unnecessarily to special damage, as in Danbury & Norwalk Railroad Co. v. Town of Norwalk, 37 Conn., 109; nor is it accused of a direct trespass upon the plaintiff’s land, as in Weed v. Borough of Greenwich, 45 Conn., 170. But in its general features this case is very much like that of Judge v. City of Meriden, 38 Conn., 90, in which the superintendent of streets, with a view to protecting them from damage, changed the course of the water so that it flowed on the plaintiff’s premises to his injury, and this court held that the city was not liable. The defendant so graded the streets and constructed its drains, sewers and culverts (presumptively in the best manner), as to cause the water to flow on the plaintiff’s land. The intent charged we consider as an intent simply to change the grade, and not a malicious intent to injure the plaintiff. Surface water must be turned from the road-bed into drains and gutters, and at times will flow in considerable quantity. It would be practically impossible for towns, cities and boroughs in most cases to prevent such water from flowing on to the lands of the adjoining proprietors. To hold them responsible for not doing so in all cases, would be unreasonable. It is only in special cases, where wanton or unnecessary damage is done, or where damage results from negligence, that they can be held responsible. It logically follows that the special facts which show that the act was wanton or unnecessary must appear in the complaint. Nothing of the kind appears in this complaint.

We have a statute which recognizes this distinction. Gen. Statutes, p. 288, sec. 16. It provides that “ persons authorized to repair highways may make or clear any water-course, or place for draining off the water therefrom, into or through any person’s land, so far as necessary to drain off such water.” In 1881 this statute was re-enacted, with the further provision that the work should be “ done in such way as to do the least damage to such land,” and with a proviso that such water should not be drained into any door-yard, in front of any dwelling-house, or into any inclosure used exclusively for the storage and sale of merchandise.” Session Laws of 1881, page 34, sec. 65. Clearly this statute exempts the defendant from liability unless it appears that the work was done in such a way as to do unnecessary damage, or that the water was drained into some place prohibited by the statute. Nothing of the bind appears.

The complaint is insufficient.

In this opinion the other judges concurred.