67 A. 508 | Conn. | 1907
The discharge by the defendant from its sewers into the Naugatuck River, of foul and noxious substances in such manner that the same are carried by *182
the river over the land of the plaintiff and there deposited, producing noxious and unhealthy gases, is an actionable wrong, and the nuisance thus produced is a public nuisance.Nolan v. New Britain,
The fact that the defendant's charter authorizes it to construct the sewers in question and to acquire by right of eminent domain so much of the plaintiff's property as may be necessary for the public use of sewering the city of Waterbury, is no defense to the plaintiff's right to recover specific damage caused by nuisance upon the plaintiff's land, when no property of the plaintiff has been condemned for such public use. A judgment for all damage thus caused must cover all damage from the unlawful acts done prior to the commencement of the action in which it is rendered; but additional damage caused by like subsequent unlawful acts may be recovered in another action, and the right to have the amount of such additional damage determined in an action of law cannot, without the plaintiff's consent, be taken away by instituting subsequent proceedings for the condemnation of the plaintiff's property.Waterbury v. Platt Brothers Co.,
These well-settled propositions were applied by the Superior Court in the former action between the plaintiff and defendant, commenced April 23rd, 1891, and controlled the judgment therein rendered for the plaintiff on December 18th, 1898. That judgment was affirmed by this court in January, 1900.
In 1734 it was enacted that "no action of trespass, or of the case for slander and defamation, shall be brought but within three years after the matter of fact was committed or transacted." 7 Col. Rec. 499. In 1821 it was enacted that "no action of trespass on the case shall be brought but within six years next after the right of action shall accrue." Rev. 1821, p. 310, § 4. These two provisions for testing the right to maintain an action as against the statute of limitations, by the particular form of action the pleader must use, remained substantially unchanged until the common-law forms of action were abolished by the Practice Act; and that Act, in thus destroying this test for the application of the statute of limitations, provided that the defense of the statute of limitations "available in any form of action or suit, shall be available in like manner and to the same extent against the complaint founded on the proper subject-matter of such an action." Public Acts of 1879, p. 439. The plaintiff's cause of action is one for which the form of trespass vi et armis as originally framed was not intended. It called for a new form framed to meet the circumstances of the plaintiff's case. In so far as the plaintiff's action seeks to recover damages for a nuisance, case and not trespass was the proper form; in so far as it seeks to recover for an invasion of the plaintiff's ownership in land, it is plainly distinguishable from the forcible entry upon land for which the remedy of trespass *185
was appropriate. We think the plaintiff's complaint is founded on the proper subject-matter for the common-law action of case rather than of trespass; and that his action is rather one founded upon a tort unaccompanied with force and where the injury is consequential, within the meaning of § 1111 of the General Statutes, and which, by the terms of that section, may be brought within six years, than one founded upon a trespass to property, which by § 1115 must be brought within three years next after right of action shall accrue. Newton v. New York N.E. R.Co.,
The trial court did not err in rendering judgment for all injuries the plaintiff had suffered within six years prior to the date of the complaint.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.