Bill in equity by Patrick Nolan against the city of New Britain for an injunction to restrain the defendant from polluting a certain stream of water by sewage, and for damages. After several special defenses had been pro forma adjudged insufficient upon demurrer, the case was tried to a jury, and there were verdict and judgment for the plaintiff for $2,000 damages, and appeal by the defendant for alleged errors of the court in sustaining the demurrers of the plaintiff. No error.
The complaint was as follows: "(1) The plaintiff is now, and for many years last past has been, the owner of a farm in said Newington. with dwelling houses and other buildings
thereon, through which there has during all said time flowed a brook or stream of water known as 'Piper's Brook,' the use of which has been very valuable to the plaintiff, and the plaintiff is entitled to the natural flow of said stream in a pure condition, and incontaminated by any injurious substances. (2) The said city of New Britain has since the 1st day of October, A. D. 1887, and during all the time to the present, caused to flow into the waters of said brook, above the said property of the plaintiff, large quantities of acids, impure matter, sewage, and other noxious and impure substances, so as to render the waters of said brook filthy, noxious, and unclean, and still continues daily so to do, and threatens and intends to continue so to do. (3) By said action of the defendant, the plaintiff has been deprived of all use of the waters of said brook for watering his stock, and for all domestic purposes, and has been put to large expense thereby, has been injured in the use of said lands for agricultural and pasturing purposes, has been injuriously affected in his business of selling milk, has been exposed to noxious and unhealthy odors arising from said impure condition of said brook, has been deprived of the use of the waters of said brook for ice. (4) The plaintiff has often, and especially on the ——day of——, 189-, notified the defendant of this injury, and requested it to desist from such defilement of said stream, but the defendant has, notwithstanding, continued said nuisance to the present time."
The answer consisted of several defenses.
The first was the general issue.
The second was as follows: "(1) In 1872 it became necessary for the city of New Britain to provide a system of public sewerage for the inhabitants thereof, and, in addition to the powers conferred upon it by its original charter, the legislature of this state, in said year, authorized the common council of said city, whenever in its opinion the public health or sewerage should require such action, to take, occupy, and appropriate, in such manner as it should from time to time deem expedient, any stream or part of a stream, natural or artificial, running in or through said city, and to straighten, deepen, or lower the same, or remove or lower any or all walls, dams, or other obstructions to the free and healthy flow of such stream, or part of a stream, and, having complied with the provisions of said act, to go on to complete said public improvement, and to do all acts necessary or convenient for that purpose, without further liability in the premises, all of which more fully appears by the provisions of said act. [The said act of 1872 is set out at length in the case of Kellogg v. New Britain, 62 Conn. 236, 24 Atl. 996, or it may be found in 7 Sp. Laws, p. 336.] (2) In 1874 the common council of said city decided that the public health and sewerage of said city required that said stream, called in the complaint 'Piper's Brook,' should be taken, occupied, and appropriated by said city for sewer purposes. and, pursuant to the provision of said act, said city, through its common council, took proceedings in 1874 and 1875 to occupy, straighten, and appropriate said stream for said purposes, and to remove and lower dams and other obstructions therein; that is to say, said common council, on the—— day of 1874, appointed a committee to prepare a descriptive survey of the improvement contemplated, to wit, the taking, occupying, and appropriating said stream for sewer purposes, with a careful estimate of the cost of completing the same, and to agree with parties interested as to damages and special benefits on account of such improvement; and said committee made a report to said council of such survey, and of the estimated cost of completing said improvement, which was accepted and recorded. And, inasmuch as said common council was unable to agree (though it undertook so to do through its said committee) with the parties interested as to the damages or benefits to be assessed on account of such improvement, Dwight W. Pardee, one of the judges of the supreme court of errors, on the application of said city, after causing such notice of the pendency of such application as he deemed just and reasonable, appointed three judicious and disinterested freeholders of the county of Hartford, to wit, Nathaniel Shipman, Charles J. Cole, and Charles Bosworth, to estimate the damages and benefits resulting from said improvement; and said committee having been duly sworn, and having given notice of the time and place of their meeting for the purpose, by publishing the same not less than twice in a newspaper published in said city, met at the time and place designated, to wit, on the 11th day of January, 18 75, and on succeeding days by adjournment, in the city court room, in said city, and, having heard all the parties in interest who appeared before them, determined what parties were damaged by said improvement in excess of special benefits, and the amount thereof, also what parties owning or interested in lauds, easements, or franchises, within a reasonable distance of said improvement, received special benefits over all damages, and the amount thereof, and also what parties received an equal amount of damage and benefit. And thereafter said committee reported in writing to said Dwight TV. Pardee, the judge who appointed them, and he confirmed their report. [Here are set out the notices of the pendency of said application before Judge Pardee, the orders of notice issued by said judge, and the notice of the committee of the time and place, when and where, they would attend to the duties of their appointment. The said notice was directed to nearly 100 persons by name, 'and to all persons interested in the appropriation of said stream.' The name of the plaintiff was not included in either of said notices.] At said hearing, before said committee, who appraised the damages and assessed the benefits
from the taking and appropriation of said stream, the plaintiff in this case, although he was duly notified of all said proceedings, made no claim for damages, and said committee appraised no damages to him; and this defendant avers that, by reason of the proceedings aforesaid, said stream was lawfully taken and appropriated by said city under the authority aforesaid, and this plaintiff is barred from making any claim for damages for such taking and appropriation. (3) The defendant has not otherwise defiled, polluted, or injured said stream, except by taking, occupying, and appropriating the same, as aforesaid. (4) Said action on the part of said city was taken in the utmost good faith, in a proper manner, and in the exercise of proper and reasonable care, under the lawful authority of this state, for a public purpose, and under the necessities of the public health and sewerage of said city, doing no unnecessary damage to the plaintiff, and without protest or objection from him, and at the cost to said city of upward of one hundred thousand dollars."
Third defense: "(1) Piper's brook has its source just outside the city of New Britain, and has always flowed through the central portion thereof. The city of New Britain is a manufacturing center, and for more than fifty years the manufactories thereof have used said brook for manufacturing purposes. Said brook was so located that it naturally received the drainage of said city; and, long before said city did any of the acts complained of in the complaint, said stream, as the population and manufacturing industries of said city had increased, had become the natural receptacle of the drainage and wash of the streets, and the wash, drainage, and sewerage of numerous factories, public buildings, and private residences. By reason of said use, the waters of said stream, long prior to 1874, had become foul, corrupt, and unfit for any domestic use whatever. In 1874 the condition of said stream as it flowed through the city of New Britain, by reason of the said uses which for a period of years had been made thereof, and by reason of the fact that certain dams and obstructions on said stream set back and obstructed the flow of its waters, was a menace to the public health; and to remove said stream from its old channel, and to promote the more rapid flow of its waters, and to promote better sewer facilities for said city and the inhabitants thereof, said city, in the year 1875, constructed a large brick sewer from Main street, in said city, near the railroad crossing, down to what was then known as 'Shepard Dam,' and into said sewer it diverted and directed said stream. Said city also removed dams and other obstructions to the healthy flow of said stream. Since the construction of said main sewer, which contains said stream, the city has built and connected therewith lateral sewers from the northern and western sections of said city, whose drainage would naturally flow into said stream, and said lateral sewers find their outlet through said main sewer into said stream. Said city was using said stream in the manner above described when this suit was brought. Said stream flows through a...
