Brainard v. Town of West Hartford

• Decision Date: 09 February 1954
• Citation: 140 Conn. 631,103 A.2d 135
• Court: Connecticut Supreme Court
• Parties: BRAINARD et al. v. TOWN OF WEST HARTFORD. Supreme Court of Errors of Connecticut

Page 135

103 A.2d 135

140 Conn. 631

BRAINARD et al. v. TOWN OF WEST HARTFORD.

Supreme Court of Errors of Connecticut.

Feb. 9, 1954.

Albert S. Bill, Hartford, Harrison D. Schofield, Hartford, on the brief, for appellant (defendant).

Bruce W. Manternach, Hartford, Lee C. Fielden, Hartford, on the brief, for appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, QUINLAN and WYNNE, JJ.

QUINLAN, Associate Justice.

The plaintiffs brought this action asking an injunction to restrain the defendant from establishing a dump on premises acquired by it. From a judgment rendered for the plaintiffs the defendant has appealed.

The court found the following unchallenged facts: The defendant burns its rubbish, including some garbage, in an open dump in the town's only industrial zone. The dump produces smoke and disagreeable odors; it causes fires and necessitated, from 1948 to 1952, between twenty-eight and thirty-five fire department calls a year; it is a breeding place for rats, flies and other insects. The defendant will require a new dump or disposal plant within three to five years. On August 28, 1951, the town council appropriated $20,815 to purchase approximately 30.6 acres on Talcott Mountain in the defendant town for use as a town dump. The defendant has no other plan for rubbish disposal and is making no attempt to solve the problem in any other manner. While an incinerator would eliminate problems of smoke and odors and reduce the evils of an open dump, a dump for ashes would still be required. Furthermore, an incinerator would not remove the psychological factor which is associated with a refuse disposal plant and which adversely affects the value of property in the neighborhood.

The plaintiffs' properties comprise 279 to 379 acres situated on a high elevation in the neighborhood of the proposed dump. This land, as well as the land for a substantial distance on all sides, including the land of the defendant, is in an AAA residence zone, the highest residential classification of seven in the town. The best use of the area is for residential development in plots of three to six acres. For this purpose the land is reasonably worth $1000 to $1200 an acre.

The establishment of the dump as planned would greatly depreciate the value of the plaintiffs' land because the dump would create noxious smoke, litter, offensive and unhealthy odors, and vermin. As a result of the officially declared plan to use the defendant's land for a dump, property of the plaintiffs located within a radius of 1000 feet of that land has a present market value of only $500 an acre. The area is heavily wooded and a fire hazard would be created by an open dump. The proposed dump would occupy an abandoned stone quarry sixty feet deep. It abuts land of the plaintiff Gibbons. The damage to the plaintiffs' land will continue as long as the threat of the dump remains. The dump, if established, would constitute a nuisance to residential use within a 1000-foot radius. The plaintiffs have no adequate legal remedy and will be irreparably damaged if injunctive relief is denied.

The defendant argues (1) that the action is premature because it is founded only on mere fears or apprehensions and (2) that the plaintiffs are not entitled to injunctive relief because they have an adequate remedy at law and have not proved irreparable injury. The first of these contentions obviously stems from our previously expressed words of caution for guidance of the court in the issuance of an injunction. 'No court of equity should ever grant an injunction merely because of the fears or apprehensions of the party applying for it. Those fears or apprehensions may exist without any substantial reason. Indeed they may be absolutely groundless. Restraining the action of an individual or a corporation by injunction is an extraordinary power, always to be exercised with caution, never without the most satisfactory reasons. Not the applicant only, but the court, must be satisfied that a wrong is about to be done, or an injury is about to be sustained, which, practically, will be irreparable, before resort should be had to this extreme power.' Goodwin v. New York, N. H. & H. R. Co., 43 Conn. 494, 500. The finding of the trial court in the present case makes it clear that the apprehensions of the plaintiffs were amply justified. It was found not only that the establishment of the threatened open dump would create a nuisance in the future but also that the threat of such a dump had already caused a diminution in the market value of the plaintiffs' properties. Such findings rebut the defendant's claim that the issuance of the injunction was predicated on nothing but fears.

The gist of the defendant's claim that the plaintiffs have an adequate remedy at law is that they are protected by the zoning ordinance of the town because it provides that no dump may be established on land purchased by the town except by action of the board of appeals, from which action an appeal will lie to the court. Long before zoning ordinances were conceived or thought of, a similar defense was made in this state to an application for an injunction against an encroachment on a town common. It was urged that the...