Fisk v. City of Hartford, 70 Conn. 720

Fisk v. City of Hartford

70 Conn. 720 | Conn. | 1898

Tokbahce, J.

The principal question upon this reservation is not whether, upon the facts alleged, the plaintiffs are entitled to any remedy, nor if so to what remedy, but it is whether they are entitled to the specific remedy by way of injunction claimed by them.

The defendant under its second, third and seventh causes of demurrer contends, in substance, that this court has already decided this question against the plaintiffs in the case of Fisk v. Hartford, 69 Conn. 375. In support of this contention it is claimed that the present complaint is substantially the same as the original complaint; that it sets forth no new facts, and no new grounds on which an injunction should issue; and that the prayer for relief is substantially the same as in the former case.

We think the case referred to does not decide the question raised here, and that a comparison of the original complaint and prayer for relief with the present complaint and prayer for relief, clearly shows that the defendant’s contention is not well founded. The original complaint in substance and effect prayed that the city might be restrained from disposing of its sewage through the intercepting sewer, and this court said that prayer ought not to be granted. The present complaint prays that the city may be restrained from diverting the waters of Park river and its tributaries into the reservoirs and leading pipes of the city, to the injury of the plaintiffs’ rights; and the question whether, upon the facts now stated, this prayer should be granted, was neither considered nor decided in the former ease, and is now for the first time properly before this court.

We also think that the present complaint states a valid cause of action for damages at least, and that it sets out such facts as would ordinarily entitle the plaintiffs to the equitable relief here sought, unless it also shows that they have delayed so long in applying for it as to make it inequitable now to grant it. The only question, therefore, raised by the demurrer, which we deem it necessary to consider at any length, relates to the laches or delay of the plaintiffs and their predecessors in title in seeking this remedy.

*730The city began to construct its present system of reservoirs for the storag-e of the waters of Park river and its tributaries, and to divert said waters into such reservoirs and distribute it for public use, more than thirty years ago. The first reservoir was built in 1867, the second in 1868, the third in 1875, the fourth in 1879, the fifth in 1884, and the sixth in 1895. These reservoirs have an aggregate storage capacity of nearly twenty-one hundred million gallons. As they were constructed from time to time the waters of Park river and its tributaries were diverted into them and accumulated therein, and distributed therefrom to the city and its inhabitants for their use. The city during these thirty years has expended very large sums of money in completing its present system of waterworks, including the reservoirs aforesaid, the distributing mains and pipes and its sewerage system; and the city is now and for many years past has been practically dependent upon said waterworks for its supply of water for domestic use, for protection against fire, and for all other purposes for which water is used in cities. All that the city has thus done during the past thirty years in the construction of its system of water supply, and in the use of the waters of Park river and its tributaries, was done with the knowledge of the plaintiffs and their predecessors in title, but without any agreement with them, and without objection from them until about 1895 or 1896. In the latter year the plaintiffs brought this suit; but, as before stated, it was brought originally not, as now, to prevent the city from diverting the waters of Park river into its reservoirs, but to prevent it from emptying its sewage into the intercepting sewer.

It is, however, further admitted by the pleadings, that until the intercepting sewer was built and used, the city returned to Park river, above the plaintiffs’ dam, through its sewer pipes, substantially all the water diverted into its reservoirs, and the important question in the case is whether this fact furnishes a sufficient excuse or justification for the delay of the mill owners in asserting their rights. Upon the admitted facts we think it is clear that the rights of the mill *731owners were invaded by the first substantial diversion of these waters in 1867, and they were violated by each subsequent diversion into the new reservoirs as they were built and used from time to time. The water was diverted, not with a view of returning it as water into Park river again, but in contemplation of the fact that it would be used and disposed of as the city saw fit; with the certainty that it would be converted into sewage which the city would have no right to pour into Park river to the detriment of the riparian proprietors, and which it would have the right to carry elsewhere. As against these mill owners and other riparian proprietors along this river, the city had no right either to divert or to pollute its waters to the detriment of such proprietors, without their consent and without compensation made for the injury. The fact that the city emptied its sewage into Park river above the dam, and thus lessened the damages which would otherwise have been caused to the mill owners by the diversion of its waters, did not make the diversion and pollution of its waters any the less an invasion of the rights of the mill owners. The city emptied its sewage here as a mere matter of convenience and to save expense. It could cease to do so when it chose, it could be compelled to carry it elsewhere or pay for the privilege of emptying here, and the mill owners had no right to have it emptied here.

We think it is clear that when the city first began to divert this water to the detriment of the mill owners, without their consent and without making compensation to them, it was an invasion of their rights, even though the city did return the water so diverted, in the shape of sewage, into the river above the dam; it was such an invasion of their rights as would have been enjoined against in a proper proceeding upon sufficient proof, and the fact that the water was so returned as sewage would have been no defense in such a proceeding. This invasion and violation of the rights of the mill owners has been continuous since 1867, and it has grown in extent with the growth of the city and the use of *732each, new reservoir. So far then as the right to an injunction is concerned, the mill owners have slept upon their rights during all these years with full knowledge of all the facts. The fact that they were willing to accept the sewage of the city upon sufferance and at the will of the city, in place of the water to which they were entitled as of right, furnishes we think no legal excuse for this long delay in asking for an injunction. They now ask a court of equity to cut off the entire ^vater supply of a great city until it pays them the damages to which they shall prove themselves entitled. The city is and will continue to be abundantly able to pay all such damages, and the remedy of the plaintiffs at law to recover such damages is adequate and complete. To cut off the entire water supply of this city for any considerable length of time, would cause great public inconvenience and suffering, and would greatly endanger the lives and property of its inhabitants in case of fire, or from disease. The granting or refusal of an injunction rests in each particular case in the sound discretion of the court, exercised according to the recognized principles of equity. It ought not to be granted where it would be productive of great hardship or oppression, or great public or private mischief. Hawley v. Beardsley, 47 Conn. 571; Logansport v. Uhl, 99 Ind. 531.

It is a well established rule in equity that if a party is guilty of laches or unreasonable delay in applying for an injunction, he may thereby forfeit his claim to that special form of remedy; and where in such case, by his laches, he has made it impossible or very difficult for the court to enjoin his adversary without inflicting great injury thereby, an injunction should be refused and the party left to his remedy at law. Traphagen v. Jersey City, 29 N. J. Eq. 206; State v. Paterson, 40 N. J. L. 244; Logansport v. Uhl, supra; Tash v. Adams, 10 Cush. 252; 2 Pom. Eq. § 817.

Applying these principles to the facts in this case, we think an injunction should not be granted. Great harm would or may result to the city and its inhabitants if an injunction *733should he granted, and little or none can result to the plaintiffs if it is refused.

The Superior Court is advised that the demurrer upon this point should be sustained, and that an injunction should be refused.

In this opinion the other judges concurred.