47 Conn. 260 | Conn. | 1879
The principles of law which govern this case are simple, and easy of application.
The defendant, through whose premises Franklin Street Brook ran, had a perfect right within his own boundaries to make such a channel for the water as he pleased, so long as no other person was injured by reason of it. The law did
If the defendant had constructed a covered channel that was insufficient in capacity to allow this natural flow of the water, and which from its incapacity in this respect obstructed the stream, causing it to overflow its banks and to run outside of its channel upon the land of the plaintiff, then the defendant, unless relieved by certain other facts in the case, would clearly be liable for whatever damage was done thereby to the property of the plaintiff. And it makes no difference that the covered channel was constructed by the defendant before the plaintiff purchased his premises, nor that the plaintiff purchased his premises of the defendant. The insufficient channel was a nuisance in its first construction, and its maintenance afterwards was the maintenance of a nuisance, which is equivalent in law to the creation of one; while the plaintiff, of whomsoever he purchased, and whensoever, stands as a property owner whose property the law protects from the nuisance.
But the defendant claimed in the court below, and offered evidence in support of his claim, first, that the city of Norwich had, by proceedings under its charter, taken this channel as a city sewer, and that he had ceased to have any right in or control over it at the time the injury complained of was done; and secondly, that the flow of water in the brook for which the channel was found inadequate, was not the ordinary flow, nor even the volume of water increased by natural causes, but was in large part the flow of water and sewage brought into the brook since the covered channel was made, much of which would not otherwise have found its way there, by public sewers and drains constructed by the city, and over
To the first point made by the defendant, that the city had taken his channel as a public sewer, the plaintiff replies that the proceedings of the city authorities were not regular and complete, so that the channel had never become a legal public sewer. But the question whether the city had taken possession and control of the channel in question is rather one of fact than of law. If the defendant had surrendered the possession and control of it to the city in the belief that the proceedings of the city were regular and complete, and the city had taken such possession and control in that belief, the defendant would clearly no longer be liable for its insufficiency; in other words he would no longer be maintaining a nuisance. The city alone would bo responsible for any future damage. In the same way the defendant might have voluntarily surrendered the possession and control to the city, without any compulsory proceedings whatever, or with full knowledge of the irregularity and incompleteness of the legal proceedings. It makes no difference how the possession came into the hands of the city, so long as it was actual and legal. On the other hand, if the legal proceedings had been regular and complete so as to vest in the city a perfect legal right at its own pleasure to take possession of the channel for a public sewer, and it had not in fact taken such possession, then, unless in very peculiar circumstances, the liability for injuries thereafter resulting fro"m the insufficiency of the channel would not have passed from the defendant to the city. It is not like the case of a conveyance of the fee of land by deed. There the possession presumptively follows the title. Here the title that was obtained by the city, if any, was a right to a mere easement, involving no presumptive possession. Suppose it had been an easement of a different kind that the city had taken, as for instance, by laying out a public street across the defendant’s premises, taking in the whole of his covered channel. The city would have a perfect right at any time to
As to the second point made by the defendant, it seemed to be admitted that the volume of water, at the time of overflow, was considerably increased by the inflow of water and sewage from city drains and sewers above the premises of the defendant, such drains and sewers having been constructed by the city after the defendant had made his covered channel; but the plaintiff - claimed that, independently of this increased flow, the defendant’s channel was of insufficient capacity for the natural demands of the brook. This question was of course one of fact for the jury, and evidence was introduced by both parties in support of their respective claims with regard to it. Upon the argument the counsel for the defendant requested the court to charge the jury that the defendant could not be subjected to damages “on account of the channel becoming insufficient by reason of such increase of water and sewage.”
The jury can hardly have failed to understand from this that the defendant might be liable for the whole damage, even though a great part of it was caused by the increase of water from the city’s drains and sewers; and they may have understood that he was so liable even if his covered channel was entirely adequate to the needs of .the natural flow of water and was insufficient merely for this artificial increase over which he had no control.
And the court was clearly wrong in the principle laid down that the defendant and the city might be regarded as joint tort-feasors. Even supposing the defendant to be liable for so much damage as was caused by the inadequacy of his channel for the accommodation of the natural flow of the brook, and the city to be liable for that part of the damage
It may be very difficult for a jury to determine just how much damage the defendant is liable for and how much should be left for the city to answer for; but this is no more difficult of ascertainment than many questions which juries are called upon to decide. They must use their best judgment, and make their result, if not an absolutely accurate one, an approximation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages to which he is not legally liable, simply because the exact ascertainment of the proper amount is á matter of practical difficulty.
as if this count had never existed. This view is sustained by the authorities. 1 Chitty PL, 229; Kightly v. Birch, 2 Maule & Selw., 533; Eddowes v. Hopkins, 1 Doug., 376; Williams v. Breedon, 1 Bos. & Pul., 330; Hancock v. Haywood, 3 T. R., 433; Tate v. Whiting, 11 Mod., 196; Brill v. Neale, 1 Chitty R., 619; Harris v. Davis, id., 626, note; Lusk v. Hastings, 19 Wend., 629.
A new trial must be granted for the errors in the charge of the court.
n this opinion the other judges concurred.