O'Connor v. Dory Corp.
| Decision Date | 20 December 1977 |
| Citation | 381 A.2d 559,174 Conn. 65 |
| Parties | Gary O'CONNOR et al. v. DORY CORPORATION et al. |
| Court | Connecticut Supreme Court |
Sidney Vogel, New Milford, for appellants (defendants).
John A. Mettling, Torrington, for appellees (plaintiffs).
Before HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.
The plaintiffs, owners of a two-acre tract of land in New Milford, brought suit to recover damages to their property allegedly caused by a change in the volume and course of surface waters which naturally flow onto their land from the property of the defendants. The following facts are not in dispute. A pond or pool approximately sixty feet long and thirty feet wide which was lined with a concrete liner was located on the northern section of the plaintiffs' property. It was used for swimming in the summer and as a skating rink in the winter. Water in the pool flowed from two springs on neighboring property, and one of the springs was on the defendants' property, adjoining that of the plaintiffs. On land adjacent to the defendants' property, there was an old concrete cistern which was filled with water from two springs. Since those properties were located on a higher level than the plaintiffs' property, water from the cistern ran through a culvert under a wood road on the defendants' property and traveled downgrade through a swale or swamp to the property of the plaintiffs and down to their pool.
Intending to develop his property, the defendant, Charles A. Antonelli, organized the defendant corporation, The Dory Corporation, to which he quit-claimed his 25.25 acres of land in August of 1969. The defendant Antonelli was advised of possible problems in building on his lots unless some method of controlling ground or surface waters was found; as a result, on December 4, 1969, to determine whether there were additional springs in those lots, diversion ditches were constructed to carry water off the property. Although the plaintiffs' pool had been adequately filled with water and free of any silt prior to this time, in December of 1969 the flow of water to the pool was cut off by the digging of the interceptor ditch on the defendants' land which caused the water in the plaintiffs' pool to become stagnant. Additionally, in the following spring, "excessive silting took place in the plaintiffs' pool from excessive runoff of water from the defendants' land after the spring thaw." Since the summer of 1970, the plaintiffs have been unable to use their pool because it has been filled with silt.
The plaintiffs allege in the first count of their complaint that the defendants illegally interfered with their property rights by changing the course and volume of the water which naturally flowed onto their property and in the remaining counts allege causes of action based on a private nuisance, trespass and negligence. From the evidence presented, the trial referee concluded that the diversion ditches which were constructed by the defendants caused a change in the volume and course of the water which naturally flowed to the plaintiffs' property and resulted in the plaintiffs' pool being filled with silt and vegetation; the court rendered judgment for the plaintiffs in the amount of $8000 on the first count of their complaint, from which the defendants have appealed.
In their assignment of errors, the defendants attack the judgment claiming that it was erroneously based upon facts found but not raised by the pleadings. The gravamen of this claim is the defendants' assertion that the basic allegations in the first count of the complaint indicated that the damage was caused by the increased flow of waters onto the plaintiffs' land, while the memorandum of decision refers to "both a change of course and a decrease in volume." In further support of their claim of inconsistency, the defendants also refer to a finding of the trial court which states: "In December of 1969, the flow of water to the pond was cut off . . .." From the foregoing, the defendants challenge the judgment claiming that the plaintiffs are limited to the allegations in their complaint and cannot allege one cause of action and recover upon another. We find no material variation in the pleadings and proof as to the basic cause of action alleged in the first count upon which the plaintiffs prevailed. Schaller v. Roadside Inn, Inc., 154 Conn. 61, 64-67, 221 A.2d 263. The allegations in that count construed in a manner most favorable to the pleaders sufficiently state a cause of action which would establish that in the development of their adjacent land the defendants had altered the natural flow of water in such a manner as to change the volume of water flowing from their land and to discharge it in a manner different in volume or course upon, and to the detriment of, the plaintiffs' land. Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 188, 158 A. 229; 78 Am.Jur.2d, Waters §§ 10, 11.
Although the trial court found that in December of 1969 the flow of water to the plaintiffs' land was cut off, it also found that in the spring of 1970 silting occurred in the plaintiffs' pond as a result of the excessive runoff of water from the defendants' land after the spring thaw. The complaint specifically alleged that the plaintiffs' pool was damaged from, inter alia, the excessive accumulation of silt. Any ambiguity in the trial court's memorandum of decision is clarified by the finding which explicitly describes the cause of the silting as the increased water flow. "As between a memorandum of decision and a finding, the latter must always prevail." Banks v. Adelman, 144 Conn. 176, 180, 128 A.2d 534, 536; Silver v. Silver, 170 Conn. 305, 307, 365 A.2d 1188. The judgment was based upon essential issues which were reasonably within the scope of the pleadings. Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213; Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616; Maltbie, Conn.App.Proc. § 64.
Although the defendants attack a number of the trial court's findings as being made without evidence, they only brief the claim that the court erred in refusing to find facts contained in their draft finding. Assignments of error which are not briefed are presumed to be abandoned. Johnson v. Flammia,169 Conn. 491, 498, 363 A.2d 1048. The facts which the defendants seek to have added to the finding are neither admitted nor undisputed material facts which would require such a correction. Practice Book § 628. Facts are not admitted or undisputed merely because they are uncontradicted. Walker v. Jankura, 162 Conn. 482, 484, 294 A.2d 536.
The defendants also assign error in the ruling of the court admitting the testimony of the witness, Grant Herman, as to the value of the plaintiffs' property. It is admitted that Herman was a part-time real estate broker in the New...
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