City of Waterbury v. Platt Bros. & Co.

• Decision Date: 26 January 1904
• Court: Connecticut Supreme Court
• Parties: CITY OF WATERBURY v. PLATT BROS. & CO.

56 A. 856

76 Conn. 486

CITY OF WATERBURY

v. PLATT BROS. & CO.

Supreme Court of Errors of Connecticut.

Jan. 26, 1904.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Application by the city of Waterbury to condemn for public use the property of riparian landowners. From a judgment sustaining the demurrer of Platt Bros. & Co. to the application, the city appeals. Affirmed.

Lucien F. Burpee, for appellant.

John W. Bristol, for appellee.

HAMERSLEY, J. In 1884 the city of Waterbury, with permission of the Legislature, constructed a system of sewers, whereby the excreta and noxious refuse accumulated by its inhabitants were collected, and, together with the surface drainage, discharged into the Naugatuck river. In 1891 Piatt Bros. & Co., owner of land and a manufacturing plant on the river below the city of Waterbury, brought an action against the city to the superior court, claiming an injunction against such use of the river, and damages for the special injuries resulting therefrom. The court rendered judgment awarding damages to the plaintiff and granting an injunction. The judgment was affirmed by this court in 1900. Piatt Bros. & Co. v. Waterbury, 72 Conn. 531, 45 Atl. 154, 48 L. R. A. 691, 77 Am. St. Rep. 335. We then decided that such use of the river was an unlawful invasion of the property rights of Piatt Bros. & Co., which the Legislature had not authorized, and could not authorize, except by providing for proceedings to appropriate the property for the public use of sewering the city of Waterbury upon payment of just compensation for the property thus taken. The principle announced had been settled in other cases, and is not open to question. Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Morgan v. Danbury, 67 Conn. 484, 35 Atl. 499. We expressed the opinion that the charter of the city of Waterbury authorized the city to institute proceedings for condemning the property of Platt Bros. & Co. for the public use specified; stating, however, that a decision on that point was not material to the disposition of the case. Subsequently the city brought an application to a judge of the superior court, asking the condemnation of the Platt Bros. & Co. property for a period of five years. The application admitted that the use of the Naugatuck river for conveying the accumulated filth of the city to the premises of Platt Bros. & Co. was not necessary to the public use of sewering the city, and alleged that the city intended to, and would, provide a different method for disposing of said sewage within a period of five years: that it would be compelled to use the river for that purpose during such period; and therefore asked that the property of Platt Bros. & Co. be taken for this temporary use, and compensation be awarded for such temporary taking. The application was dismissed because the city's charter did not authorize it to condemn property for such a temporary use, and the judgment of dismissal was affirmed by this court. Waterbury v. Piatt Bros. & Co., 75 Conn. 387, 53 Atl. 958. In this particular the statute remains unchanged. The charter of the city of Waterbury (6 Sp. Laws, p. 802, 9 Sp. Laws, p. 233) authorized the municipality to provide for the construction of drains and sewers, and for compelling its inhabitants to use such sewers for the prevention of accumulations of filth dangerous to public health, including the authority belonging to a riparian landowner to drain into the Naugatuck river in such manner as would not injure the property of other owners in the water of the river. The right of a landowner to have the water of a stream covering his land flow in its accustomed manner exists in connection with the rights of other landowners over whose land the stream flows, but it is not an easement or appurtenance. It is inseparably annexed to the soil. A taking of that right is to that extent a taking of his property in the land. Nolan v. New Britain, 69 Conn. 681, 38 Atl. 703; Wadsworth v. Tillotson, 15 Conn. 365, 373, 39 Am. Dec. 391. When such property is taken for the public use of sewerage, the public acquires the right to use the water of the stream for the conveyance of its sewage, subject to the rules governing the use of property held for a public use. The property thus taken is carved out of the owner's estate, and is in the nature of an easement imposed upon his land through this compulsory sale of his property. Like all property taken for public use, it reverts to the owner upon the abandonment of that use.

In 1881 amendments to the city charter authorized it to construct a particular system of sewers in a particular way; to establish a fund to defray the expense of that construction, and of the extension of main sewers beyond the city limits; to take property for the purposes of the act; and provided a mode for condemning the property needed for said purposes. 9 Sp. Laws, pp. 233, 237. In 1903 another amendment of the charter was passed. Sp. Laws 1903, pp. 179, 180. This act plainly assumes a power in the city, conferred by its existing charter, to take the property of lower riparian owners for the public use of sewering the city, by imposing upon their land the burden or easement involved in the public right to use the water of the river for conveyance of sewage from the city, and so removes, for the future, any doubt as to the meaning of the charter that might have been entertained before the passage of this amendment. Beyond affirming that the existing power to take property for the purpose of sewering the city shall include the property of lower riparian landowners on the Naugatuck river, and possibly other landowners, the act is confined to providing a mode for condemning such property, in lieu of the previously existing mode. The present application for the condemnation of Piatt Bros. & Co.'s property is brought in pursuance of this last amendment. The allegations of the amended application, stripped of some surplusage, and briefly stated according to legal effect, are these:

(1) Platt Bros. & Co. own a tract of land on the Naugatuck river about two miles below the city of Waterbury, with a water privilege, whereon is a manufacturing plant.

(2) Since 1884 the city of Waterbury has at various times, by means of the water of the Naugatuck river, conveyed to and upon the said premises filthy and noxious substances discharged into the river from its sewers, whereby said Platt Bros. & Co. have been greatly damaged. (3) The city of Waterbury has found it necessary and desirable to discharge into the Naugatuck river the sewage accumulated by its inhabitants, and collected by the sewers it has constructed or may construct in pursuance of legislative permission, and to use the waters of said river for the conveyance of said sewage to and past the above described land, and for that purpose it is found necessary and desirable to take the property of said Platt Bros. & Co., as above described.

(4) Said city and said Platt Bros. & Co. have disagreed as to the amount of compensation to be paid for the taking of said property, and they have disagreed as to the amount of damages that should be paid for the wrong described in paragraph 2.

The prayer for relief asks the appointment of a committee to examine the premises, and to determine the amount the city shall pay Piatt Bros. & Co. in settlement of the damages they have suffered by reason of the wrongs described in paragraph 2, and to ascertain and determine the just compensation for the property to be taken as aforesaid, and to determine that just compensation by fixing the amount of an annual payment which shall be paid by the city to Platt Bros. & Co. during the continuance of the use of the property for the public use for which it is taken.

The respondents demurred to the application and prayer for relief, and the trial judge sustained the demurrer, and, no further pleadings being filed, rendered judgment dismissing the application. The rulings of the judge upon the demurrer are the only reasons of appeal assigned.

Perhaps the principal ground of demurrer is that which affirms the insufficiency of the application and prayer for relief, in that it asks the compensation to be awarded for taking the respondents' property to be fixed at a sum to be paid annually so long as the property taken shall be used for the public use specified. The applicant claims that this mode of making compensation is authorized by the act of 1903. If so, the act, to that extent, must be held invalid. The necessity of taking property for particular public use is a legislative question, and ordinarily the decision of the Legislature upon that question is final. What is the just compensation necessary to be made in order to complete the taking of property is a judicial question, which the Legislature cannot determine. New York, N. H. & H. R. Co. v. Long, 69 Conn. 424, 437, 37 Atl. 1070. So when the legislative act directs the assessing tribunal to ascertain the "value of the land," or uses any pbrase tbat might imply a restriction of the judicial powers, it must be held as equivalent to a direction to judicially ascertain the just compensation for the property taken, or else the act will be void. Bigelow v. West Wisconsin Ry. Co., 27 Wis. 478, 486. "Just compensation" means a fair equivalent in money, which must be paid at least within a reason able time after the taking, and it is not within the power of the Legislature to substitute for such present payment future obligations, bonds, or other valuable advantage. Butler v. Sewer Commissioners, 39 N. J. Law, 605; Bloodgood v. M. & H. B. Co., 18 Wend. 9, 35, 31 Am. Dec. 313; Sanborn v. Beldeu, 51 Cul. 266; Burlington & C. R. Co. v. Schweikart, 10 Colo. 178, 14 Pac. 329. The act of 1903, in authorizing a finding of the amount of compensation for the damage...