Adams v. Greenwich Water Co.

• Decision Date: 07 August 1951
• Citation: 138 Conn. 205,83 A.2d 177
• Court: Connecticut Supreme Court
• Parties: ADAMS et al. v. GREENWICH WATER CO. Supreme Court of Errors of Connecticut

Page 177

83 A.2d 177

138 Conn. 205

ADAMS et al. v. GREENWICH WATER CO.

Supreme Court of Errors of Connecticut.

Aug. 7, 1951.

W. Arthur Countryman, Jr., Hartford, and John N. Cole, Stamford, Walter N. Maguire, Stamford, for appellants-plaintiffs.

William C. Strong, Greenwich (Alfred T. Chabot, of the New York bar, on the brief), for appellee-defendant.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Judge.

The plaintiffs, who are riparian owners along the Mianus River in Greenwich, instituted this action to enjoin the defendant from divering, and from attempting to take by condemnation, any of the waters of that stream. The defendant filed a cross complaint claiming a declaratory judgment determining whether it has the right to condemn the water rights although part of the benefits may accrue to inhabitants of Port Chester, New York.

The finding, with minor additions which must be made, establishes the following facts: The properties of the plaintiffs are estates with elaborate private residences, representing an investment of many thousands of dollars. Some of the owners have created artificial ponds and islands in the Mianus River. They all use the river for swimming, fishing and skating and draw water from it for their lawns, gardens and livestock and, on occasion, for fire protection. There is no public water supply system serving the neighborhood. In many instances the owners purchased and improved their properties because of the river frontage thereof, and, to some extent, the river enhances the value of the real estate. The river originates in New York state and about 50 per cent of its watershed is in that state. It crosses the Connecticut line in Stamford, then flows south and east through Stamford and Greenwich and empties into Long Island Sound at Cos Cob. It is a flash stream, and at and below the point of the proposed reservoir, hereinafter referred to, its flow varies from 1.5 million to 200 million gallons a day.

The defendant is a corporation specially chartered by the Connecticut General Assembly in 1880. 8 Spec.Laws 406. By virtue of its charter and amendments thereof, it has the franchise to furnish water for public and domestic use in the town of Greenwich, in a small portion of the town of Stamford adjacent to the Mianus River, in the town of Rye, New York, including Port Chester, and in Westchester County, New York, whenever that use in Westchester County will not curtail the supply adequate for the inhabitants of Connecticut. In the summer of 1929 the defendant, in order to supplement its water supply, started to pump water from the Mianus River at Farms Road, which is upstream from the plaintiffs' properties. The riparian owners instituted suits, and as a result of their action the defendant entered into a contract in 1933 with the Stamford Water Company for a supplemental supply of water and ceased the taking of water from the Mianus.

A period of extreme drought occurred in the summer of 1949. The defendant's water supply diminished rapidly. By August 1 its reservoirs were only about 60 per cent full. Notice was received that the Stamford Water Company would have to reduce the amount of water to be furnished by it below the four million gallons daily called for by the contract. Thereupon, on August 9, 1949, the defendant began pumping water, at the rate of about a million gallons daily, from the Mianus River at Farms Road into a pipe line which led into one of its reservoirs. When this came to the attention of the plaintiff Altschul, inquiries were made of the defendant on her behalf and a series of conferences and letters between the parties ensued. The defendant acknowledged that it had no legal right to divert the water as it was doing without purchasing or condemning the water rights but took the position that conditions required it to do so. It was finally agreed that the defendant would dismantle its pumping station after the termination of the emergency and in any event not later than December 31, 1949. However, the continuance of the drought, the state of the defendant's water supply and the public need necessitated the continuance of the pumping after December 31. In the meantime, the defendant obtained an additional supply of water amounting to 61 million gallons by arrangement with the owners of a lake known as Converse Lake. On January 1, 1950, the defendant had less than forty days' supply of water on hand, and on February 4 the Stamford Water Company cut off its supply completely. This necessitated the installation of an additional pump and the pumping of a greater quantity of water from the Mianus. Between August 9, 1949, and June 1, 1950, the approximate date of the trial of this case, the defendant diverted from the river an average of 1.56 million gallons daily. During that same period the average flow of the river was 16.2 million gallons daily. At no time did the defendant cut off the flow in the river completely, although during the driest period of the diversion the defendant was taking more than half of the flow. During most of the period the flow of the river was in such quantity that the diversion resulted in no inconvenience or detriment to the plaintiffs. Even during the driest periods the plaintiffs suffered no actual or substantial damage.

The original charter of the defendant granted it the right to take by eminent domain any land or water in the town of Greenwich for its corporate purpose. 8 Spec.Laws 406. In 1927, after its franchise had been extended in 1925 to include the furnishing of water to Rye, 19 Spec.Laws 848, the General Assembly granted it authority, for the purpose of supplying water for public or private use, to take by eminent domain, purchase or otherwise all or any part of the waters of the Mianus River, to construct such reservoris as it might deem necessary to impound such water, and to take by eminent domain, purchase or otherwise such property as it might deem necessary for the construction of reservoirs, the protection of its watershed or any other corporate purpose. This authority, however, was made subject to the right of the New York, New Haven and Hartford Railroad Company to take water from the Mianus River for its electric power generating plant at Cos Cob, up to, after 1941, five million gallons daily. 20 Spec.Laws, 429.

At the present time the defendant has as reservoirs Rockwood Lake, Putnam Lake and Brush Dam, with a total maximum storage capacity of 1,086 million gallons. As an additional source of supply, the defendant has the contract, referred to above, with the Stamford Water Company, whereby the latter is obligated, subject to acts of God, to furnish the defendant six million gallons daily for the first six months of each year and four million gallons daily for the balance of the year. This contract expires in 1953. For various reasons this contract can no longer be counted upon to provide a reliable source of supply. The water coming from the Stamford Water Company is pumped through a twenty-inch pipe line into Rockwood Lake. Rockwood Lake and Converse Lake empty into Putnam Lake. At the lower end of Putnam Lake is a filter system through which the water passes into one main which leads to Greenwich and another which leads to Rye. All of the water supplied to Rye is sold and delivered at the state line to the Port Chester Water Works, Inc., an affiliated company. The defendant does not now serve, or plan to serve in the future, any of Westchester County outside of Rye.

A water company in the situation of the defendant should plan for a supply of water to meet conditions as they will be at least ten and preferably fifteen or twenty years in the future. The safe yield of the defendant's present water supply system, not including the water it receives under its contract with the Stamford Water Company, based on experience during the dry year June 1, 1949--June 1, 1950, is only about four million gallons daily. In 1949 Greenwich consumed about five million gallons daily and Port Chester and Rye about four million. It is estimated that in 1960 there will be required for Greenwich 6.8 million gallons a day and for Port Chester and Rye 4.3 million, while in 1970 Greenwich will take 8.75 million gallons daily and Port Chester and Rye 4.65 million. Thus it appears that the safe yield of the defendant's own system without aid from the Stamford company was not adequate in 1948-49 to take care of the needs of the defendant's Connecticut customers alone, and as time goes on this yield will become less able to do so. To meet this condition, the defendant plans to construct a reservoir by damming the Mianus River above Farms Road. This will give the defendant additional storage capacity of approximately 2,200 million gallons. From this reservoir certain quantities of water will be conducted through the present pipe line into Rockwood Lake. The defendant will be bound to allow enough water to flow down the river to meet the needs of the New York, New Haven and Hartford Railroad Company, and its plan is to release sufficient water down the stream to equalize the flow over the entire year. A portion of the proposed reservoir and a major portion of its watershed will be in New York state, and the land for that portion will be acquired by the Port Chester Water Works, Inc. The defendant has no permanent source of water storage available to it other than the Mianus River.

On the foregoing facts the trial court concluded that, because the damage suffered by the plaintiffs from the diversion of the water of the river was far outweighed by the utility of the defendant's conduct and the interests of the public therein, no injunction should issue against future diversion. It also decided, with reference to the prayer for a declaratory judgment, that the defendant may exercise its right of eminent domain in respect to lands and water rights on the Mianus River, 'including those of the...