Diamond Match Co. v. Town of New Haven

• Decision Date: 21 October 1887
• Court: Connecticut Supreme Court
• Parties: DIAMOND MATCH CO. v. TOWN OF NEW HAVEN.

13 A. 409

55 Conn. 510

DIAMOND MATCH CO.

v. TOWN OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

October 21, 1887.

Appeal from superior court, New Haven county; STODDARD, Judge.

Action by the Diamond Match Company against the town of New Haven for obstructing the flow of a stream, by means of which the water was set back upon and injured plaintiff's property. Defendant appeals from a judgment for plaintiff.

C. R. Ingersoll, for appellants.

Negligence, in law, is a failure to perform an act or duty required by law. Nolan v. Railway Co., 53 Conn. 471, 4 Atl. Rep. 106. Authority of law justifies an interference, in a reasonable manner, with a water-course. Bellinger v. Railway Co., 23 N. Y. 42; Hull v. Westfield, 133 Mass. 433. The officers and agents of a town are required to exercise reasonable care and skill in doing a lawful act, but neither the town nor its officers are insurers against the consequences of their work. Burroughs v. Railway Co., 15 Conn. 131; Bronson v. Wallingford, 54 Conn. 513, 9 Atl. Rep. 393; Sutton v. Clarice, 6 Taunt. 29. Such skill and care was exercised in this case, as expressly found by the court. The injury was caused by an extraordinary freshet, for which the town was not bound to provide. State v. Water Co., 51 Conn. 137; Sprague v. City of Worcester, 13 Gray, 193; Smith v. Canal Co., 2 Allen, 355.

A municipal corporation is not liable for the consequences resulting from a purely public or governmental neglect of duty by its officers. Jones v. City of New Haven, 34 Conn. 1; Hewison v. Same, 37 Conn. 475; Jewett v. Same, 38 Conn. 368; Mead v. Same, 40 Conn. 72; Mootry v. Town of Danbury, 45 Conn. 550; Perry v. City of Worcester, 6 Gray, 544; Sprague v. Same, 13 Gray, 193; Tindley v. City of Salem, 137 Mass. 171; Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. Rep. 321.

Neither the corporation nor its officers are liable for errors committed in adopting plans for a public improvement, such acts being of a judicial nature. For negligence in not constructing an improvement according to the plans adopted, or in not keeping it in repair, a ministerial duty, the corporation is liable. Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. Rep. 923. The court found that the damage was caused "by the bulk-head across the old channel and the banks created by the placing of the excavated material upon the side of the new channel," and that the "work was faithfully performed by the contractors, in accordance with the amended specifications, and to the acceptance of the engineer," and this is the work which the selectmen "accepted and paid for."

J. S. Beach and F. G. Beach, for appellee.

A municipal corporation, in the honest discharge of a corporate public duty, is liable for a failure to exercise reasonable care in avoiding any act which will result in unnecessary injury to an individual citizen. Railroad Co. v. Town of Norwalk, 37 Conn. 119; Mootry v. Town of Danbury, 45 Conn. 556; 2 Dill. Mun. Corp. § 1050. The material was placed and allowed to remain on the banks of the river as the cheapest and easiest mode of disposing of it; and, if it had been removed, the improvement would have been "equally adequate and adapted to the proper execution of the original plan;" and, "if the material excavated had not been placed in the form of an embankment, the damage in question would not have been done."

A duty imposed by the state upon all its municipal corporations, for the welfare of all its citizens, is a governmental one. The rule that a municipal corporation, in executing a governmental duty, is not liable to an individual for resulting damage, unless such damage is provided for by the state, is subject to limitations which cannot be defined with exactness, but must be determined by the facts and circumstances of each case. Jones v. City of New Haven, 34 Conn. 1; Hewison v. Same, Id. 136, 37 Conn. 475; Railroad Co. v. Town of Norwalk, Id. 109; Judge v. City of Meriden, 38 Conn. 90; Torbush v. City of Norwich, Id. 225; Jewett v. City of New Haven, Id. 368; Ayer v. City of Norwich, 39 Conn. 376; Young v. City of New Haven, Id. 435; Mead v. Same, 40 Conn. 72; Burritt v. Same, 42 Conn. 174; Weed v. Borough of Greenwich, 45 Conn. 170; Mootry v. Town of Danbury, Id. 550; Healey v. City of New Haven, 47 Conn. 305; Bronson v. Borough of Wallingford, 54 Conn. 513, 9 Atl. Rep. 393. The duty which defendant was attempting to discharge was not a governmental one. It was acting under a special act of the legislature. It was not a duty which could be enforced upon its failure to act. If the duty had been a governmental one, plaintiff's damage was the result of a departure from the original plan in the ministerial execution of the work.

PARK, C. J. In the year 1881 the selectmen of the town of New Haven straightened and deepened the channel of West river, which flowed through the western part of the town and emptied into the harbor. The course of the river was winding, and its width varied from 500 feet, in some places, to 1,500 in others. It ran through low meadow lands, covering them to a considerable extent, and became thus a source of malarial disease. Complaint was made of its injury to the public health, and the purpose of the selectmen in straightening and deepening the channel of the river was to confine it to narrow limits, and thus put a stop to its deleterious influence. It was the abatement of a nuisance. It was a sanitary measure, and a necessary one. Two avenues crossed the river, which were public highways of the city and town. One, Whalley avenue, was on the north, and the other, Derby avenue, was on the south, of the meadow through which the river flowed. The alterations of the channel extended from one avenue to the other. The town employed the best engineering skill for the preparation of the plans for the work, and everything was done in accordance with the plans thus prepared. In the opinion of the engineers, as ample provision was made for the passage of the water below Whalley avenue as existed before. The selectmen intended to secure this, and believed they had done so. Before the change in the channel of the river, the water, in times of freshet, overflowed the banks, and became ponded on the low meadow lands; and it was thought that the change in the channel would make no difference in this respect. But the earth thrown out in excavating the new channel was placed on the sides of the channel in such a manner as to prevent this overflow; and this, with the stopping up of the old channel, caused the water to set back in times of flood, and the water thus set back did the damage complained of by the plaintiffs. With regard to the character of the flood, and the circumstances attending it, the court finds as follows: "It occurred at the time of an exceptionally heavy rainfall in the winter season of 1885, which, with the smooth and hard surface of the ground cooperating, occasioned severe freshets, not only in West river, but throughout a wide extent of country. It was an extraordinary freshet as compared with the ordinary annual overflows or freshets common to the river. * * * The freshet was unusual and extraordinary, but not unprecedented; and, had the rise in the river been only the ordinary annual freshet, the damage to the plaintiffs would not have resulted. * * * In addition to the annual freshets, the river was subject, in occasional years, to extraordinary freshets or floods, which should be expected occasionally to occur. * * * The water-way span of Whalley avenue bridge is one hundred feet, and is ample to take and discharge all water coming in such extraordinary freshets or floods occasionally occurring, and the waters of such freshets could easily and readily be disposed of by permitting the same to spread over the low meadow lands without the obstruction of the banks of the new channel."

These are the principal facts of the case. It is expressly found that the work was done under authority conferred upon the town by a private act passed by the legislature in 1881, and which may be found among the acts of that year, (page 230.) That act authorized "the town of New Haven, acting by and through...