Taylor v. ContiTaylor v. Conti
- Reporters:
- , ,
- Before:
- Baldwin
The plaintiffs, Walter R. and Alyce P. Taylor, recovered a judgment for injunctive relief against the defendant Nicholas Conti
The plaintiffs own land, with a dwelling and barn thereon, on the east side of Long Hill Avenue in Shelton. In 1956, they completed the construction of a dam to form a pond for swimming and fishing in the waters of a brook crossing their property. On July 10, 1957, Conti purchased seventy-three acres of land for the purpose of subdividing it into building lots. This land was on the westerly side of Long Hill Avenue, 2500 feet north of, and at a higher elevation than, the plaintiffs’ property. It was hilly pasture land, with grass, trees and a deep topsoil of loam. On July 23, Conti and DeFelice made an agreement whereby DeFelice was to cut down the hilly areas on Conti’s land, remove large quantities of topsoil and fill, and grade, re-loam and reseed the land. DeFelice was to use the loam and fill in the construction of the Connecticut turnpike. The contractor began operations in July. Trucks carting the loam and fill along Long Hill Avenue spilled large quantities of both on the avenue. The court found that this spillage was washed by successive rainfalls into the brook and carried into the plaintiffs’ pond. The Conti land, denuded of topsoil and with its grade changed to slope toward, instead of away from, Long Hill Avenue, eroded rapidly, and holes and gullies were left. Silt and gravel were washed across Long Hill Avenue into the brook and were carried to the plaintiffs’ pond. They were also washed onto the floor of the plaintiffs’ barn. The court concluded
Both Conti and DeFelice claim that the court erred in finding certain facts and, particularly, in concluding that as a result of the acts of the defendants, surface waters flowed off Conti’s land, across Long Hill Avenue and into the brook in a manner different in volume and course from their original flow. The finding is not subject to correction as to any material fact. Errors claimed in the finding require no further discussion.
Conti claims that the plaintiffs’ complaint was predicated upon digging and hauling operations performed by DeFelice as an independent contractor and that the court erred in rendering judgment against Conti on the ground of his use and improvement of his own land. The complaint alleges, and the court found, that the work done by DeFelice was performed pursuant to a contract with Conti. Conti’s desire to use and improve his land was a motivating factor in the entire operation. DeFelice, in turn, obtained fill and loam for its purposes. A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different eourse from their natural flow, if by so doing he causes substantial damage.
Tide Water Oil Sales Corporation
v.
Shi
DePelice may well have been an independent contractor, but that fact does not relieve Conti, because the court fouhd that the damage to the plaintiffs’ property arose from the performance by DePelice of its contract with Conti. Where a party contracts for work to be done of such a character that, even if the work is duly performed, it would naturally, if not necessarily, expose others to probable injury unless preventive measures are taken by him, he is liable for that injury if, while chargeable with knowledge that the work is of such a character, he negligently fails to take preventive measures.
Bonczkiewicz
v.
Merberg Wrecking Corporation,
148 Conn. 573, 579, 172 A.2d 917, and cases cited, including
Lawrence
v.
Shipman,
39 Conn. 586, 589. See Restatement, 4 Torts § 835. The court found that both Conti and DePelice had knowledge of the change in the course and the volume of the water coming off the Conti land and the damage it was causing the plaintiffs. It does not appear that Conti or DePelice did anything to prevent that damage. Conti instigated, and DePelice carried out, for purposes of their own, the operations which
Both defendants claim that the court erred in the method it used to determine the damages and in the amount it awarded. They argue that material other than that which originated from the operations on the Conti land would normally be deposited in the plaintiffs’ pond because the pond was the first stilling basin below a fairly rapid fall of the brook. This, no doubt, is true. The court found, however, that as a result of the grading of the Conti property and the removal of topsoil from it, surface waters carrying dirt and gravel flowed off the land, across the road and into the brook and formed a delta where the brook entered the pond, so that mud and silt were deposited in the pond to a depth of ten feet. The court found further that 3666 cubic yards of this material accumulated in the pond. This finding was apparently based on a determination made by an engineer. The court also found that the estimates of the cost of removing the mud and silt from the pond varied from $1 to $6 a cubic yard; that estimates of the cost of dredging the pond and removing the soil from the plaintiffs’ barn floor varied from $10,998 to $21,996; that the fair cost of such removal would be $3 a cubic yard;
Conti claims that the court erred in granting injunctive relief. The court viewed the locale, including the plaintiffs’ and Conti’s properties. It found that surface waters were still being discharged from the Conti property in increased volume and in a manner different from their natural flow. The injury was continuing in its nature. Injunctive relief was proper under the circumstances.
Sisters of St. Joseph Corporation
v.
Atlas Sand, Gravel & Stone Co.,
120 Conn. 168, 173, 180 A. 303;
Trowbridge
v.
There is no error.
In this opinion the other judges concurred.