Brennan v. Town of West Haven
| Decision Date | 23 June 1964 |
| Court | Connecticut Supreme Court |
| Parties | William F. BRENNAN et al. v. TOWN OF WEST HAVEN. Supreme Court of Errors of Connecticut |
Charles H. Fischer, Jr., West Haven, with whom, on the brief, was Eugene J. Dorsi, West Haven, for appellant (defendant).
Charles G. Albom, New Haven, with whom, on the brief, was Howard F. Zoarski, New Haven, for appellees (plaintiffs).
Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.
The plaintiffs brought this action to recover for damage to property alleged to have been caused by a nuisance resulting from the unlawful discharge of water from a drainage pipe on property owned or controlled by the defendant. The jury returned a verdict for the plaintiffs, and from the judgment rendered thereon the defendant town has appealed, claiming that the court erred in refusing to instruct the jury as requested.
The plaintiffs offered evidence to prove, and claimed to have proved, the following facts: Since 1945, the plaintiffs have owned a three-family dwelling house on a lot which is bounded northerly by land formerly of Garland Court, Inc., hereinafter called Garland, and westerly by Savin Avenue. The plaintiffs' land originally was four or five feet higher than the land north of it. A brook about eight feet in width and five feet deep ran from east to west through the Garland property parallel to and about eight feet from the plaintiffs' house. North of the Garland property, a low, swampy piece of land owned by the town was used by it as a drainage basin. A brook draining this area ran through the Garland property and joined with the brook which ran from east to west. In 1953, Garland built apartment houses on its land. At that time, both of the brooks were enclosed by pipes, and the surrounding land was filled so that it was then four feet higher than the plaintiffs' land and level with Savin Avenue on the west. An abutting wall was erected along the southern boundary of the Garland property parallel to the northerly line of the plaintiffs' land. A road called Savin Court was built parallel to the northerly line of the plaintiffs' property and over the brook which formerly ran from east to west. This road has been used as a public highway since 1954. After the drainage pipes were laid, water began to seep onto the plaintiffs' property and into their cellar. Water to the depth of three feet has frequently accumulated in the plaintiffs' back yard, and at times it has reached the same depth in the cellar. This condition has continued and grown progressively worse since 1954. The foundation of the plaintiffs' house and the furnace in it have been damaged, and the market value of the property has been decreased. The pipe which was used to enclose the brook running from east to west was not large enough to carry the water fed into it, and the pipe was otherwise negligently installed. The abutting wall erected on the plaintiffs' northern boundary collapsed as a result of the percolation of water from the pipe. The town repaired the wall. The plaintiffs complained frequently to the town about the condition, and at various times the town helped them to pump the water from their property. All of the foregoing work was done pursuant to a plan between Garland and the town so that a road could be built and accepted as a public highway. The drainage problem had been discussed with the town's first selectman, who furnished the pipe necessary to enclose the brooks. The town engineer supervised the work, gave the grades for the pipe and gave instructions for the building of Savin Court. Plans for laying the pipe and building the road were submitted to the town officials and approved by them.
The town offered evidence to prove, and claimed to have proved, the following: The president of Garland operated a construction company as an individual, and all of the work described above was done with his equipment and employees. The plans and specifications for development of the Garland property, including the piping of the brooks and the size of the pipe, were prepared by an outside designer, and the town did not furnish or pay for any of the pipe used in the work.
The town requested the court to charge the jury that '[i]n order to hold the Town of West Haven on the theory of nuisance you must find that the Town created the condition termed a nuisance by positive act.' The court refused to charge as requested and told the jury that 'the main question for you to decide in this case * * * is first whether there is a nuisance here * * * and whether that nuisance is maintained by the Town.'
The town's request to charge should have been granted. Where a municipal corporation creates and maintains a nuisance, it is liable for damages to...
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Starr v. Commissioner of Environmental Protection
...a nuisance only if, in fact, the municipality both created and maintained the nuisance by some positive act. See Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964). The plaintiff reasons that because § 22a-428 does not require that a municipality have taken an affirmative step t......
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Keeney v. Town of Old Saybrook
...event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964); Starr v. Commissioner of Environmental Protection, supra, 226 Conn. at 388, 627 A.2d 1296; Lukas v. New Haven, 184......
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