Bd. of Water Com'rs of City of Hartford v. Mancheste

• Decision Date: 17 December 1915
• Citation: 96 A. 182,89 Conn. 671
• Court: Connecticut Supreme Court
• Parties: BOARD OF WATER COM'RS OF CITY OF HARTFORD v. MANCHESTER (three cases).

96 A. 182

89 Conn. 671

BOARD OF WATER COM'RS OF CITY OF HARTFORD

v. MANCHESTER (three cases).

Supreme Court of Errors of Connecticut.

Dec. 17, 1915.

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Petition by the Board of Water Commissioners of the City of Hartford for the appointment of appraisers, in condemnation proceedings against Allison Manchester, against Allison Manchester and others, and against Emma Manchester and others. From a judgment in accordance with the prayer of the petition, defendants appeal. No error.

William Waldo Hyde and Edward M. Day, both of Hartford, for appellant. Birdsey E. Case and Andrew J. Broughel, both of Hartford, for respondent.

BEACH, J. In this cause a demurrer to the petition was originally sustained by the trial judge, and judgment rendered for the respondent. Upon appeal, this court reversed the judgment and remanded the cause to Hon. William S. Case, a judge of the superior court, to be proceeded with according to law. The respondent then answered the petition, setting up seven separate defenses. The second defense was stricken out, and portions of the third and fourth defenses were expunged on motion; the fifth, sixth, and seventh defenses were successfully demurred to, and after amendment, the fifth and sixth defenses were again demurred to, and the demurrers sustained. All the issues of fact presented by the remaining defenses were found for the petitioner, and judgment was rendered appointing three disinterested freeholders to estimate and report the compensation to be awarded the respondent. The other material facts are sufficiently stated in the former opinion. Water Commissioners v. Manchester, 87 Conn. 193, 87 Atl. 870, Ann. Cas. 1915A, 1105.

Broadly speaking, the respondent's assignments of error are based upon three claims of law: That his land has been taken for a private and not for public use; that the petitioner was bound, as a condition precedent to the filing of the petition, to have passed either a general vote accepting the provisions of the act of 1911, or a specific vote taking, or declaring the necessity for taking, the respondent's land; and that the trial judge erred in granting the motion to strike out and expunge certain parts of the answer.

Upon the issue of public or private use, the respondent makes the same claims which were made and overruled on the former appeal, namely, that the compensation reservoir for restoring and maintaining the normal flow of the Farmington river, as described in section 4 of the act of 1911 (Sp. Laws, p. 390), is in itself a private undertaking for private ends, and that its construction and maintenance are not in furtherance of the admittedly public purpose of improving the water supply of the city of Hartford. In so far as these claims rest upon the construction of the act of 1911 standing by itself, they have already been determined adversely to the respondent; but it is now insisted that a new light is thrown on the construction of section 4 of the act by the production of the contract, Exhibit 4, entered into, before the passage of the act, between the petitioner and certain owners of water powers on the Farmington river who objected to any diversion of its waters.

Before the contract was made a prior application, brought by the petitioner to the General Assembly of 1909 for authority to take the waters of Nepaug river and Phelps brook to improve the water supply of the city of Hartford, had been defeated because of the supposed irretrievable damage that such diversion would occasion to the owners of water powers on the Farmington river The contract embodies an agreement between the petitioner and the objecting owners of water powers upon a plan for satisfying their objection to the diversion of water from the west branch, by building a compensating reservoir on the east branch. After reciting that the petitioner has already applied for authority to divert from the Farmington river the waters of Nepaug river and Phelps brook, and that the owners of water powers object to such diversion, the contract states that the petitioner now proposes to obtain authority for the construction of another reservoir to store the waters of the east branch of the river, and in the event that the General Assembly should grant such authority, it is agreed that the petitioner shall, before diverting any water from Farmington river, "and for the sole purpose of securing a more uniform flow of said river," build a storage reservoir of agreed capacity on the east branch. The substance of the rest of the agreement is that the storage reservoir is to be built, maintained, and operated at the sole cost and risk of the petitioner, that the control of the flow of water therefrom shall be wholly in the hands of a corporation composed of the owners of water powers on the river, that the latter agree not to oppose the petitioner's application for authority to divert the waters of Nepaug river and Phelps brook, and that in determining the damages for such diversion, the additional water received to their use from the proposed east branch reservoir shall be treated as compensation on account of the proposed diversion from the tributaries of the east branch.

We are not able to agree with the respondent's claim that this contract demonstrates the compensation reservoir to be purely a private enterprise. The respondent claims that the contract makes it apparent that his land will be taken for the purpose of buying off the opposition of lower riparian owners to the proposed improvement of the water supply of the city of Hartford, and for the purpose of enabling the petitioner to pay damages in terms of water power instead of in cash. It is a sufficient answer to these objections to say that both the improvement of the water supply of the city of Hartford and the restoration of improvement of the flow of the Farmington river are in themselves public uses, and the fact that the lower riparian owners are opposed to the diversion of a part of the waters of Farmington river for the improvement of the water supply of the city of Hartford, unless the threatened injury to their water power can be compensated for by restoring the normal flow of the river, has nothing to do with the decisive fact that each of these projects is in itself for a public purpose.

The question whether the petitioner, or the lower riparian owners, or both, were actuated by such selfish motives in asking for and consenting to the grant of authority to construct the compensation reservoir, that the authority ought not to have been granted was a question with which the Legislature alone was competent to deal. After the Legislature has granted the power, the only questions affecting the validity of the grant which the courts can pass upon are whether the compensation reservoir is for a public use, and whether it is to be administered for the public benefit. On this latter point the respondent claims that the contract shows that the flow of water from the dam is to be controlled for the private advantage of the owners of water powers who are members of the corporation referred to in the contract; and the answer to that claim is that the corporation and its members are...