71 Conn. 442 | Conn. | 1899
The rulings of the trial court upon the pleadings have been assigned as error. These rulings did not injure the plaintiffs, and need not be considered.
The assignments of error, in finding from the evidence certain of the facts on which the judgment was founded, cannot be considered; facts so adjudicated by the Superior Court
The only material assignment of error is that the facts found do not support the judgment rendered. Error on this ground is claimed because the court reached the conclusions that an injunction ought not to issue; that the plaintiffs have suffered no actual specific damage by reason of the wrongful diversion of the water; and that judgment should be rendered for the defendant,—when, as claimed by the plaintiffs, the legal conclusions from the subordinate facts found are precisely the contrary.
First. The special ground for injunction alleged in the complaint, that the defendant threatened to build other and larger dams and divert from the premises of the plaintiffs the remaining waters of the brook, is negatived by the finding. The mere fact of a partial wrongful diversion does not entitle the plaintiffs to an injunction as of right. Granting an injunction must rest in the sound discretion of the court, governed by the nature of the case. Hawley v. Beardsley, 47 Conn. 571, 573; Fisk v. Hartford, 70 id. 720, 732. That discretion was lawfully exercised by the trial court.
Second. The question of actual specific damage by reason of the diversion, was one of pure fact, and the damages recoverable were such as already had been suffered by reason of the wrongful acts complained of. Damages necessarily resulted from the legal injury found. Parker v. Griswold, 17 Conn. *288, *302; Nicholson v. New York & N. H. R. Co., 22 id. *74, *84. This necessary damage is actual as distinguished from the mere nominal damage involved in a purely technical and harmless breach of contract, or in some casual and inoffensive tort; Stanton v. New York & E. R. Co., 59 Conn. 272, 282; Michael v. Curtis, 60 id. 363, 369; Allen v. Woodruff, 63 id. 369, 374; but it is nominal as distinguished from any specific damage suffered and proved. In a case like this some damage results from the mere invasion of the plaintiff’s rights, and its amount, not being determinable by proof, must be comparatively small and in that sense nominal; whereas specific damage results from loss by reason of the
It is found by the court that from a time antedating the diversion of water by the defendant, the plaintiffs did not apply the flow of water to any beneficial use, and could not have done so without incurring expense for the adaptation of their premises to that purpose. This, in the absence of qualifying facts, supports the conclusion of no specific damage, and there is no other fact found which, as a matter of law, requires a different conclusion. The fact that at sometime in the past the flow of-water had been profitably applied to running a grist-mill, does not necessarily prove specific damage, and did not require the court to estimate the injury that might have been done by the diversion if, during its continuance, the plaintiffs had built a dam and a mill and, under the Flowage Act, had condemned land for the necessary ponding of the water, and to assess damage as if such injury had really been inflicted. Even in proceedings for condemnation of a water light, such contingent sources of future profit are considered only in connection with all the testimony establishing a pure question of fact; and there is no principal of law requiring the assessment of damages at the amount of such possible profit. New Britain v. Sargent, 42 Conn. 137, 139.
Third. Judgment for the plaintiffs for damage resulting from the injury to their legal right, is the only legal conclusion from the facts found. The existence of the right in the plaintiffs and-an invasion of that right by the defendant, nec- ' essarily imply damage, and, these facts being found, judgment must be rendered for that damage.
The fact of Mr. Watson’s testimony, as recited in the finding, is immaterial; the court was not justified in treating it as a stipulation by the parties that judgment should be rendered for the defendant unless specific damage was found.
The error in the judgment is confined to the failure to assess
The statement in the finding of what would have been assessed if an assessment had been made, is not an adjudication of the amount. The cause must be remanded in order that such damage may be assessed. The court may also inquire as to the value of the plaintiffs’ right, if such inquiry becomes necessary as incidental to the taxation of costs under § 1117 of the General Statutes.
There is error, the judgment of the Superior Court is reversed and the cause is remanded in order that damages may be assessed according to law.
In this opinion the other judges concurred.