Dargie v. City of Hartford

• Decision Date: 15 January 1963
• Citation: 150 Conn. 261,188 A.2d 491
• Court: Connecticut Supreme Court
• Parties: Ernest J. DARGIE et al. v. CITY OF HARTFORD et al. Supreme Court of Errors of Connecticut

Page 491

188 A.2d 491

150 Conn. 261

Ernest J. DARGIE et al. v. CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

Jan. 15, 1963.

Frank A. Francis, Hartford, for appellants (plaintiffs).

William W. Sprague, Hartford, with whom, on the brief, was John R. Fitz-Gerald, Hartford, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA, and ALCORN, JJ.

MURPHY, Associate Justice.

The plaintiffs seek to recover from the defendants for damage to their building and land claimed to have resulted from the containment of the waters of Cemetery Brook as part of the flood control program in Hartford. The court rendered judgment for the plaintiffs to recover damages of $1476, and they have appealed. The complaint is in three counts, alleging breach of contract, negligence and trespass. The defendants are the city of Hartford and two D'Addario construction firms which had contracted with the flood control commission of the city to do this particular work. The court allowed recovery for breach of contract and trespass under the first and third counts but found for the defendants on the second, or negligence, count.

The plaintiffs purchased their property on White Street in Hartford on March 21, 1957. Two months before, their predecessor in title had granted an easement to the flood control commission to enter on the land to relocate and enclose Cemetery Brook, part of which flowed through the property, to prevent flooding. A food market and a drugstore occupied the one-story brick building on the property. On April 3, 1957, the plaintiffs executed an agreement with the commission which, it successfully persuaded the court, limited its liability for damages to the cost of restoring specific portions of the property.

The plaintiffs are not entitled to any corrections in the finding of facts. They assign error in certain findings on the ground that they were not reasonably supported by the evidence. This assignment implies that there was some evidence to sustain the findings. As the assignment makes no claim that the findings were found without evidence, it does not conform to our requirements. Practice Book § 392; Aetna Casualty & Surety Co. v. Poppel & Sons Service Station, Inc., 142 Conn. 598, 599, 115 A.2d 655; Maltbie, Conn.App.Proc. § 173. Likewise, none of the paragraphs of the draft finding can be added to the finding, as the plaintiffs have requested. There is no claim made that any of these paragraphs are either admitted or undisputed. Practice Books § 392; Bridge-Mile Shoe Corporation v. Liggett Drug Co., 142 Conn. 313, 317, 113 A.2d 863. Error is also assigned in two rulings on evidence. Neither of them is stated in the finding in compliance with § 405 of the Practice Book and Form No. 560. It is not possible, therefore, to consider them. Nickerson v. Griffing, 139 Conn. 720, 727, 97 A.2d 559.

The easement which the flood control commission obtained from the prior owner of the plaintiffs' property constituted a perpetual right of entry to go on all of the land described in the easement deed and to do all the things necessary not only to construct the conduit through which the brook was to flow but to maintain and operate the project thereafter. The commission in return covenanted either to pay just damages to the owner for injury to the buildings or other properties on the land caused by the exercise of the easement or reasonably to restore the premises to the condition in which they existed before any entry took place, in which case the restoration was to be made pursuant to a written agreement to be executed thereafter. The agreement of April 3, 1957, recited that it was executed pursuant to the easement deed, and in the agreement the plaintiffs granted the commission and its representatives the right to enter on and to work in an area of the plaintiffs' property which was outlined on a sketch attached to the agreement. The work area did not include the portion of the plaintiffs'...