Anderson v. Argraves

• Decision Date: 07 April 1959
• Citation: 150 A.2d 295,146 Conn. 316
• Court: Connecticut Supreme Court
• Parties: George A. ANDERSON et al. v. Newman E. ARGRAVES, Highway Commissioner. Supreme Court of Errors of Connecticut

Page 295

150 A.2d 295

146 Conn. 316

George A. ANDERSON et al. v. Newman E. ARGRAVES, Highway Commissioner.

Supreme Court of Errors of Connecticut.

April 7, 1959.

Harry Cohen, New Milford, for appellants (plaintiffs).

J. Kenneth Bradley and Raymond J. Cannon, Asst. Atty. Gen., with whom were Francis A. Smith Jr., Bridgeport, and, on the brief, Albert L. Coles, Atty. Gen., and A. Reynolds Gordon, Bridgeport, for appellee (defendant).

Before DALY, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

DALY, Chief Justice.

The plaintiffs brought this action against the state highway commissioner to recover for damage alleged to have been occasioned to their respective properties. They averred in their substituted complaint as amended, hereinafter referred to as the complaint, that 'the defendant was in control of a certain culvert and embankment over the West Branch of the Shepaug River and under a part of the main State Highway, known as Route No. 25'; that the 'culvert and embankment were erected and maintained by the defendant and his predecessors, for the purpose of directing, controlling and diverting the watercourse, known as the Shepaug River, and to prevent said waters from flowing upon the highway, Route No. 25, and to drain off the water therefrom, by causing said waters to flow through said culvert under said highway and into said Shepaug River'; that the 'culvert was constructed above the lands of the plaintiffs much narrower than the bed of the stream and wholly insufficient to prevent the flow of water into and through their properties'; that 'the defendant and his agents and employees, knowingly permitted said culvert to become and remain clogged, blocked, choked and obstructed with debris, so as to form a dam'; that on August 19, 1955, the water held back by this dam 'burst through and over' the highway and upon the properties of the plaintiffs, which were situated five to seven miles south of the culvert and embankment; and that, although 'the defendant could have removed the obstructing embankment and culvert and could have erected a span type bridge across the watercourse, so as to avoid directing the waters upon the properties of the plaintiffs, and although these, or similar protective measures would have been more feasible and expedient, no real effort was made to protect the properties of the plaintiffs.' In addition, the plaintiffs alleged in their complaint that because the defendant failed to take steps to protect their properties, 'the damages and losses were unnecessarily sustained' by them, that as a result their properties 'were inundated, damaged and destroyed by a wall of water which drained from said highway' into and upon their yards and dwellings, and that a statutory duty to take steps to protect the plaintiffs' properties was imposed upon the defendant by §§ 2134 and 2194 of the 1949 Revision of the General Statutes (Rev.1958, §§ 13-18, 13-79). ¹

The defendant filed a demurrer to the complaint. ² The court sustained the demurrer upon all the grounds stated therein. The plaintiffs having failed to plead further, judgment was rendered for the defendant. The plaintiffs have appealed. They claim that the court erred in sustaining the demurrer.

The law is firmly established that the state cannot be sued except with its consent. Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468; Scranton v. L. G. Defelice & Son, Inc., 137 Conn. 580, 585, 79 A.2d 600; Anselmo v. Cox, 135 Conn. 78, 80, 60 A.2d 767. Whether a particular action is one against the state is not determined solely by referring to the parties of record. The fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent. Ordinarily, where a state official has been sued concerning some matter in which he represents the state and the state, though not a named defendant, is the real party against whom relief is sought, so that the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability, the suit is, in effect, one against the state and cannot be maintained without its consent. Somers v. Hill, supra. The office of highway commissioner is an agency of the state created for the purpose of carrying out a state function. For this reason, the commissioner is, so far as the allegations of this complaint are concerned, clothed with immunity from suit against him as the representative of the state. Somers v. Hill, supra, 143 Conn. 480, 123 A.2d 469; Munson v. MacDonald, 113 Conn. 651, 660, 155 A. 910.

The plaintiffs claim that consent for the bringing of this action as set forth in the complaint was granted by §§ 2134 and 2194. They rely on Penn v. Cox, 6 Conn.Sup. 485, 486, as authority for this claim. By the enactment of §§ 2134 and 2194, the state did not give consent to the bringing of the instant action. The plaintiffs' contention that Penn v. Cox, supra, is authority for their claim is without merit...