Cyr v. Town of Brookfield

• Decision Date: 22 December 1965
• Citation: 216 A.2d 198,153 Conn. 261
• Court: Connecticut Supreme Court
• Parties: Gilman J. CYR v. TOWN OF BROOKFIELD. Supreme Court of Errors of Connecticut

Page 198

216 A.2d 198

153 Conn. 261

Gilman J. CYR v. TOWN OF BROOKFIELD.

Supreme Court of Errors of Connecticut.

Dec. 22, 1965.

Howard R. Matzkin, with whom was Alvin Rosenbaum, Waterbury, for appellant (plaintiff).

A. Searle Pinney, Danbury, with whom, on the brief, was Hugh A. Burrell, Danbury, for appellee (defendant).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

This suit was brought on a complaint sounding in nuisance based upon the alleged action of the defendant town in deliberately and without notice closing off a storm sewer drain as a result of which the plaintiff's property was flooded and damaged. The defendant demurred to the complaint on the ground that it did not state a cause of action since it did not set forth any duty on the part of the defendant to permit the plaintiff to maintain a connection of his private drains to the defendant's storm sewer system or to warn the plaintiff of its intention to remove the drain which connected with the storm sewer. Without complying with Practice Book § 114 and General Statutes § 52-232, the court sustained the demurrer and rendered judgment for the defendant when the plaintiff did not plead further. From this judgment the plaintiff has appealed.

The demurrer admits all wellpleaded facts. Weaver v. Ives, 152 Conn. 586, 589, 210 A.2d 661. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320; and if facts provable under the allegations would support a cause of action the demurrer must fail. Rutt v. Roche, 138 Conn. 605, 609, 87 A.2d 805. The court will not, in passing on the demurrer, consider other grounds than those specified. Turrill v. Erskine, 134 Conn. 16, 19, 54 A.2d 494.

If we thus test the complaint, the following facts are taken as admitted: The plaintiff owned premises abutting Horseshoe Drive in Brookfield. He installed several drains from the cellar and exterior of the premises leading into a common drain which in turn was connected with a storm sewer installed in Horseshoe Drive, which he also then owned. In March, 1961, he conveyed several parcels of land to the defendant town, including Horseshoe Drive, which thereupon became a public highway. The defendant is charged with the construction, maintenance and repair of drains and storm sewers on streets which it had accepted. Sometime prior to December 29, 1962, the defendant, without notice or any warning to the plaintiff, severed, sheared off, blocked or removed the drain installed by the plaintiff, 'knowing that by its conduct it would be creating an inherently dangerous condition amounting to a nuisance, which the plaintiff would be unable to detect or take steps to correct because of the hidden condition involved.' This 'deliberate' conduct on the defendant's part 'had a natural tendency to create danger and inflict injury upon the property of the plaintiff.' As a result of the defendant's 'deliberate' conduct in severing the drain without warning the plaintiff so that he might take adequate steps to protect his property, the plaintiff's premises were severely damaged by the large accumulation of water which became deposited thereon and could not flow into the drain and storm sewer.

The sole question for determination, therefore, is whether the complaint, which alleges these facts, fails to set out a cause of action because it does not also allege a duty on the part of the defendant of maintaining the drain or a duty of warning the plaintiff that the drain was to be severed.

It is well established that a municipality may be held liable for injury resulting from a nuisance created and maintained by it. Brennan v. Town of West Haven, 151 Conn. 689, 692, 202 A.2d 134; Marchitto v. Town of West Haven, 150 Conn. 432, 437, 190 A.2d 597; Hoffman v. City of Bristol, 113 Conn. 386, 389, 155 A. 499, 75 A.L.R. 1191; 2 Antieau, Municipal Corporation Law § 11.03; Joyce, Nuisances § 353; see Wilbourne, 'Municipal Nuisance Liability: A Problem in Characterization,' 38 Conn.B.J. 51. The essential element of nuisance is a continuing inherent or natural tendency to create danger and inflict injury. Chazen v. City of New Britain, 148 Conn. 349, 355, 170 A.2d 891; Carabetta v. City of Meriden, 145 Conn. 338, 339, 142 A.2d 727. If the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as a matter of fact. Nixon v. Gniazdowski, 145 Conn. 46, 52, 138 A.2d 796; Warren v. City of Bridgeport, 129 Conn. 355, 359, 28 A.2d 1; Capozzi v. Waterbury, 115 Conn. 107, 111, 160 A. 435.

As long ago as Mootry v. Town of Danbury, 45 Conn. 550, 556, we said with regard to municipal liability for a nuisance causing damage to real property: 'A principle of universal application--that every man shall transact his lawful business in such a manner as to do no unnecessary injury to another--compels them to do what they are required to do in a proper manner. In other words, towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals. And if a nuisance...