Wells v. Bridgeport Hydraulic Co.

30 Conn. 316 | Conn. | 1862

Sanford J.

By the finding of the superior court it is shown that under the forms of law the petitioner’s property has been taken and appropriated by the respondents to their own use, to the great injury of the petitioner, and without any substantial compensation being made for such injury.

The Bridgeport Hydraulic Company was incorporated for the purpose of supplying the city of Bridgeport with water; and by the terms of its charter it was authorized to take and use the waters of any stream or streams upon making compensation therefor, the charter containing the following provision with regard to the manner of determining the amount of the compensation:—“In case any damage shall occur or be likely to occur to any person by means of taking his land or estate for the purposes of the act or in the construction of the works of the company, and said person shall not have agreed with said company in writing for such damage, then said person may apply to the superior court for Fairfield county, or to any judge of the superior court who may by law judge between the parties, giving’ ordinary legal notice, or such notice as any judge of said court may prescribe to be given to the adverse party; and thereupon said court or judge shall appoint three judicious and disinterested persons to assess just damages to the parties concerned after reasonable notice to them,” <fcc. Under this provision in the respondents’ charter application was made to the superior court, an order of notice was obtained, assessors were appointed, the petitioner’s damages were assessed, and all the proceedings in relation to-such assessment were entirely completed, and the respondents appropriated the petitioner’s property to their own use, while the petitioner was absent in Europe, when he had in fact no actual residence in this state, and no agent here authorized to act in his behalf, and was entirely ignorant of the whole proceeding.

We deem it unnecessary to decide whether, under the order made by the superior court, notice to the person in occupation of the petitioner’s property was a legal execution of that order, or was not, because we are satisfied that the finding of the superior court requires us to hold that, whether it was or not, the assessment ought to be held invalid. It was made, as the superior court finds, in the petitioner’s absence, and when he had in fact no notice, or opportunity to be heard; while Richardson, the owner of more than half of the capital stock of the company, together with one attorney of the company, and another “ attorney of certain other parties in interest,” were present, and the committee were led to an opinion that the petitioner’s, mill had been abandoned, and that there would be no damage to him from the taking of the water by the respondents. By whom the committee were so led, or by what statements, representations or appliances, the superior court does not find. But as it does not appear that an/ other than the three persons above mentioned were present with the committee, it is fair to presume that the committee were led by them or some of them. And as damages amounting, according to the finding of the superior court, to five thousand dollars, were assessed at one dollar, we can not but see that whatever the motives of the parties leading, or the means made use of by them, the committee were in fact misled. The opinion to which they were led, and on which they founded their assessment, was utterly and grossly erroneous and unfounded. It is clear that the committee proceeded upon mistaken premises, upon erroneous information, and the conclusion to which they came was clearly wrong. It matters little whether the representations upon which they based their opinion and assessment were fraudulently made or not. It is enough that they were false, and that the committee were deceived and misled thereby.

Courts of equity relieve against accidents, errors and mistakes as well as frauds. And even where a party innocently misrepresents a fact by mistake, if it operates as a surprise and imposition upon the other party, the latter is entitled to relief. These principles, says Mr. Justice Story, 1 Eq. Jurisp., § 198 ; “ are so consonant to the dictates of natural justice that, it requires no argument to enforce or support them.” The case of Carrington v. Holabird, 17 Conn., 531, is analagous to the -case before us. In that case three suits were brought by Holabird against Carrington & Lee upon promissory notes. The writs were duly returned; neither of the defendants appeared, but the plaintiff had the suits continued in court until the third term, when he took judgment by default. In the mean time Carrington, supposing that those suits had gone into judgment as they ought to have gone at the first or second term of the court, obtained his certificate of discharge under the bankrupt act of the United States, and after such discharge acquired property upon which Holabird now levied his executions, and which he advertised for sale under the levy. Carrington then brought his petition for a new trial of the actions upon the notes, to enable him to plead his certificate in bar, and for an injunction against further proceedings under the judgments so obtained; and this court held that the petitioner was entitled to the relief for which he prayed. Church, J., in giving the opinion of the court, said;—“ This jurisdiction will be exercised, when to enforce a judgment recovered is against conscience, and when the defendant had no opportunity to make defense, or was prevented by accident, or by the fraud or improper management of the opposite party, and without fault on his own part.” And again;—“ We have no reason to say that the plaintiff in those actions resorted to any means to continue them upon the docket. But the injury resulting to the present plaintiff by reason of the unwarranted delay in the rendition of the judgments is none the less real.”

The principles applied in that case we think are applicable in the case now before us. The proceedings before the committee were of a conclusive character, and the law has provided no mode of obtaining relief against them, by petition for new trial, writ of error, or otherwise, in the courts of common law jurisdiction. But in a case like this, in which manifest injustice has been done by the judgment of a tribunal before which the aggrieved party, without any fault of his own, has had no opportunity to be heard in vindication of his rights, it seems peculiarly proper for a court of equity to interpose and prevent the respondents from making use of the advantage thus unfairly obtained to defeat the plaintiff’s action. 2 Story Eq. Jur., § 885.

But several objections are taken to the bill. First, it is claimed to be insufficient, because it does not show that the respondents have not left in the stream water enough for the petitioner’s use. But the bill does state that the respondents diverted the water of the brook from the premises of the petitioner, and that the damage thereby occasioned to the petitioner was not less than five thousand dollars, while the committee was led to assess those damages at one dollar; and in our judgment that is a sufficient statement of the petitioner’s injury. Secondly, it is said that the petition does not show how notice of the respondents’ application for an assessment could have been given to the petitioner. But, as we have already intimated, our opinion that the petitioner is entitled to relief is not founded upon the idea that the order of notice was not duly obtained or not duly executed, but upon the fact stated in the bill and found by the superior court, that the assessment of nominal damages only was owing to misrepresentations made to the committee, by which they were deceived and misled.

Next, it is contended that the bill is insufficient because the charge of misrepresentation is made as upon information and belief. The allegation is that the petitioner “ is informed and verily believes and thereupon avers,” &c. The charge therefore is made in terms of direct and positive averment. And not only is it in the form very commonly adopted in bills in equity, but it is in no degree impaired by the statement that it is made upon information which the petitioner verily believes to be true. It is still a direct and positive averment.

Lastly, it is claimed that the bill is bad for multifariousness. “ By multifariousness,” says Mr. Justice Story, (Eq. PL, § 271,) “ is meant the improperly joining in one bill distinct and independent matters and thereby confounding them.” We discover no such joinder in this bill. All the allegations relate to one and the same transaction between the same parties, to one and the same subject matter, and to the same injury ; and the petitioner prays relief only against a proceeding by which that injury is sought to be consummated.

Upon the whole, we think that a new assessment of the petitioner’s damages ought to be made, by order, and under the direction and subject to the approval, of the superior court, and that in the mean time, and until such damages shall have been so assessed and paid by the respondents to the petitioner, the respondents ought to be enjoined from pleading, giving in evidence, or in any waj using, the former proceedings in the assessment of damages, as a defense to the petitioner’s action at law. And" we so advise the superior court.

In this opinion the other judges concurred; except Dutton J., who having been counsel in the case did not sit.