56 A. 856 | Conn. | 1904
Lead Opinion
In 1884 the city of Waterbury, with permission of the legislature, constructed a system of sewers whereby the excreta and noxious refuse accumulated by its inhabitants were collected and, together with the surface drainage, discharged into the Naugatuck River. *437
In 1891 Platt Brothers and Company, owner of land and a manufacturing plant on the river below the city of Waterbury, brought an action against the city of the Superior Court, claiming an injunction against such use of the river and damages for the special injuries resulting therefrom. The court rendered judgment, awarding damages to the plaintiff and granting an injunction. The judgment was affirmed by this court in 1900. Platt Bros. Co. v. Waterbury,
We then decided that such use of the river was an unlawful invasion of the property rights of Platt Brothers and Company, which the legislature had not authorized, and could not authorize except by providing for proceedings to appropriate the property for the public use of sewering the city of Waterbury, upon payment of just compensation for the property thus taken. The principle announced had been settled in other cases, and is not open to question. Nolan v. New Britain,
The charter of the city of Waterbury (6 Special Laws, p. 802; 9 id. p. 233) authorized the municipality to provide for the construction of drains and sewers, and for compelling its inhabitants to use such sewers for the prevention of accumulations of filth dangerous to public health, including the authority belonging to a riparian landowner to drain into the Naugatuck River in such manner as would not injure the property of other owners in the water of the river.
The right of a landowner to have the water of a stream covering his land flow in its accustomed manner, exists in connection with the rights of other landowners over whose land the stream flows, but it is not an easement or appurtenance; it is inseparably annexed to the soil. A taking of that right is to that extent a taking of his property in the land. Nolan
v. New Britain,
In 1881 amendments to the city charter authorized the city of Waterbury to construct a particular system of sewers in a particular way; to establish a fund to defray the expense of that construction and of the extension of main sewers beyond the city limits; to take property for the purposes of the Act; and provided a mode for condemning the property needed for said purposes. 9 Special Laws, pp. 233-237.
In 1903 another amendment of the charter was passed. Special Laws of 1903, pp. 179, 180. This Act plainly assumes a power in the city, conferred by its existing charter, *439 to take the property of the lower riparian owners for the public use of sewering the city, by imposing upon their land the burden or easement involved in the public right to use the water of the river for conveyance of sewage from the city, and so removes, for the future, any doubt as to the meaning of the charter that might have been entertained before the passage of this amendment. Beyond affirming that the existing power to take property for the purpose of sewering the city shall include the property of lower riparian landowners on the Naugatuck River — and possibly other landowners — the Act is confined to providing a mode for condemning such property, in lieu of the previously existing mode.
The present application, for the condemnation of Platt Brothers and Company's property, is brought in pursuance of this last amendment. The allegations of the amended application, stripped of some surplusage and briefly stated according to legal effect, are these: (1) Platt Brothers and Company own a tract of land on the Naugatuck River about two miles below the city of Waterbury, with a water privilege whereon is a manufacturing plant. (2) Since 1884 the city of Waterbury has at various times, by means of the water of the Naugatuck River, conveyed to and upon the said premises filthy and noxious substances, discharged into the river from its sewers, whereby said Platt Brothers and Company have been greatly damaged. (3) The city of Waterbury has found it necessary and desirable to discharge into the Naugatuck River the sewage accumulated by its inhabitants and collected by the sewers it has constructed or may construct in pursuance of legislative permission, and to use the waters of said river for the conveyance of said sewage to and past the above described land, and for that purpose it is found necessary and desirable to take the property of said Platt Brothers and Company as above described. (4) Said city and said Platt Brothers and Company have disagreed as to the amount of compensation to be paid for the taking of said property, and as to the amount of damages that should be paid for the wrong described in paragraph 2. The prayer *440 for relief asks the appointment of a committee to examine the premises and to determine the amount the city shall pay Platt Brothers and Company in settlement of the damages they have suffered by reason of the wrongs described in paragraph 2; and to ascertain and determine the just compensation for the property to be taken as aforesaid, and to determine that just compensation by fixing the amount of an annual payment which shall be paid by the city to Platt Brothers and Company so long as the city continues to use the property for the public purpose for which it is taken.
The respondents demurred to the application and prayer for relief, and the trial judge sustained the demurrer; and no further pleadings being filed, rendered judgment dismissing the application. The rulings of the judge upon the demurrer are the only reasons of appeal assigned.
Perhaps the principal ground of demurrer is that which affirms the insufficiency of the application and prayer for relief, in that it asks the compensation to be awarded for taking the respondent's property to be fixed at a sum to be paid annually so long as the property taken shall be used for the public use specified. The applicant claims that this mode of making compensation is authorized by the Act of 1903. If so, the Act to that extent must be held invalid.
The necessity of taking property for a particular public use is a legislative question, and ordinarily the decision of the legislature upon that question is final. What is the just compensation necessary to be made in order to complete the taking of property, is a judicial question, which the legislature cannot determine. New York, N. H. H.R. Co. v.Long,
"Just compensation" means a fair equivalent in money, which must be paid at least within a reasonable time after the *441
taking, and it is not within the power of the legislature to substitute for such present payment future obligations, bonds, or other valuable security. Butler v. Sewer Commissioners,
The Act of 1903, in authorizing a finding of the amount of compensation for the damage which any person shall suffer by reason of the future acts of the city in disposing of its sewage, authorized the finding of the amount of just compensation for the property taken for the public use of sewering the city, and does not control the duty of the court nor limit its power in settling what is just compensation. In authorizing the compensation for all future damages to any person, to be fixed at a gross sum to be paid at a time named, the Act authorizes the amount of just compensation, as judicially determined, to be paid on a day certain within a reasonable time. In authorizing the alternative course — of fixing the compensation at a sum to be paid annually during a stated number of years, or during the continuance of the use — the Act exceeds the legislative power, unless the alternative course is authorized only in pursuance of an agreement between the parties.
Reading the Act in connection with the existing charter, we think this construction of the Act is a reasonable one, and that if a different construction could be regarded as reasonable it would involve the invalidity of the Act; and therefore the reasonable construction consistent with the validity of the Act must be adopted.
Another ground of demurrer questions the right of the applicant to ask the appointment of a committee to assess damages for the wrongs mentioned in paragraph 2 of the application. In charters authorizing municipal or private corporations to condemn property for the public use of providing a supply of pure water, language of doubtful import has not infrequently been used. In these cases the property to be taken is mainly the water of a natural stream, which belongs to owners of land through which the stream flows. *442
The corporation having acquired some land on the stream, has a right to take so much of the water as belongs to the owner of that land. If it takes more, it invades the rights of other landowners on the stream, and every day's continuance of such wrongful diversion of water renders it liable for a suit for injury so caused. New Milford Water Co. v.Watson,
The question now before us may differ in certain ways from any likely to arise in the application of charter provisions like those mentioned. The applicant alleges that it has committed clearly tortious acts in respect to the property of the respondent, from which the respondent has suffered substantial, actual damage, and asks the appointment of a committee to assess the amount of that damage and direct its payment in full discharge of the existing liability to the respondent; claiming that the Act of 1903 authorizes such a proceeding. There may be several aspects to a legislative *443
Act of this kind. It is sufficient for present purposes to consider one. The respondent has a valid cause of action against the applicant; the only process known to the law for trying that cause of action and settling the amount due to the respondent is a civil action in which the facts in issue must be tried by a jury unless the right to a jury trial is waived. The Act, if compulsory, deprived the respondent of a trial by jury. Does it deprive him of the right of trial by jury within the meaning of the constitutional guaranty, "the right of trial by jury shall remain inviolate?" Const. of Conn. Art.
If the authority given by the Act of 1903 for the determination of the amount due for such injuries as are described in paragraph 2 of the application, by a committee of the court appointed to fix the compensation for the property taken, is permissive, the provision is unobjectionable and may serve the interest and convenience of the parties; otherwise it is invalid. We think it may properly be treated as permissive; but in either case the applicant is not entitled to have the committee assess the amount of its liability to the respondent for its past wrongs, against the objection of the respondent, whether taken by demurrer or otherwise.
If the application and prayer for relief shall be amended, as it may be, so as to remove the defects which we have already indicated, it will not be open to the objections raised in the remaining ground of demurrer.
The legislature has the power to authorize, and has authorized, the city to acquire for the public use of sewering, by agreement with landowners on the Naugatuck River, or by condemnation of their property, the right to utilize the *445 flowing water of said river for that purpose. It cannot be assumed that, having acquired such property, the city will so improperly or negligently use the property it has acquired as to inflict on the property of others any injury that is not incident to the lawful employment of its own property for such public use. If a condition should ever arise where it seems impossible for the State to afford that protection which it owes to the health and lives of the inhabitants of a city, without using means that must subject other portions of the public to the very dangers from which the inhabitants of the city are thus relieved, a serious problem will be presented for legislative solution, involving questions of legislative power which the courts may eventually be obliged to determine. There is at this time no occasion to consider such questions.
There is no error in the judgment appealed from.
In this opinion TORRANCE, C. J., HALL and PRENTICE, Js., concurred.
Dissenting Opinion
The legislative power of this State is vested in the General Assembly subject to fewer restrictions than those prescribed by the constitutions of most of her sister States. The Act of 1903, passed for the relief of the city of Waterbury, provides that if it cannot agree with the owner of any estate or interest which it desires to appropriate for the purpose of disposing of its sewage, as to the amount of compensation to be paid for the same, any judge of the Superior Court, on the application of either party and notice to the other, "shall appoint" a committee to examine the premises and "estimate the amount of the compensation which shall be paid to any person for any damage, injury, or loss which he has or shall suffer by reason of the past or future acts of said city in disposing of its sewage; and said committee may fix such compensation for all future damages to any person either at a gross sum to be paid within a time named, or at a sum to be paid annually *446 either during a stated number of years or so long as said city shall continue to cause such damage, injury, or loss;" their doings to be reported to the judge who appointed them, for approval.
Following this statute, the city applied to Judge RalphWheeler for the appointment of such a committee "to estimate the amount of compensation which shall be paid to the said Platt Brothers Company for any damage, injury, or loss which it has suffered by reason of the past acts of said city in disposing of its sewage in the Naugatuck River; and to fix all future damages at a sum to be paid annually to said Platt Brothers Company by said city, so long as said city shall continue to cause such damage, injury, or loss."
The city thus proposed to determine the compensation to be paid to the defendant for any estate and interest which it had already appropriated to its own use for the disposal of its sewage, and also for such as it intended to appropriate and should thereafter appropriate to the same use for a period which it left indefinite. I agree with my associates that the statutory provision for estimating the compensation to be paid for any past appropriation could only become operative by the consent of the defendant. I disagree with them as to the total invalidity of the provision for estimating the compensation to be made for a future appropriation.
It is often necessary to use or to take private property temporarily for public purposes. The common law allowed this to be done without compensation in certain cases, as where travelers over a foundrous highway were allowed to proceed over land of the abutting proprietor. The General Assembly was of opinion that it might be necessary for the plaintiff to pollute temporarily the defendant's property with its sewage, and that this necessarily might continue for an indefinite number of years. The city is an important instrument of government. It is not for the public interest that it should take permanently what it needs only temporarily. It was therefore competent for the legislature to authorize a temporary taking of the defendant's property, on making just compensation. The statute, under which such authority is *447 now claimed by the plaintiff, must be so construed, if it be reasonably possible, as to support its validity. In my opinion it can be construed as authorizing a taking for one year, if just compensation for one year's use be made at the commencement of such year. The greater includes the less. One year is none the less a stated number of years, because it is the least number. In authorizing compensation to be fixed at a sum to be paid annually during a stated number of years, the legislature seems to me to have authorized compensation for a year's appropriation of the riparian rights, to be assessed in such a proceeding as this, at a sum to be paid at the beginning of that year.
As one of the grounds specified for the demurrer was that a committee could not be appointed simply to make the estimate mate asked for in the application; as that mode of estimate is objectionable on the grounds stated in the opinion of the court; and as the plaintiff offered no amendment of its application, though ample opportunity was given for it, I concur in the judgment. I dissent from the conclusion that the Act of 1903 is wholly in excess of the legislative power, except so far as parties may consent to its provisions.