Dunham v. City of New Britain

• Decision Date: 31 May 1887
• Citation: 11 A. 354,55 Conn. 378
• Court: Connecticut Supreme Court
• Parties: DUNHAM v. CITY OF NEW BRITAIN.

11 A. 354

55 Conn. 378

DUNHAM

v. CITY OF NEW BRITAIN.

Supreme Court of Errors of Connecticut.

May Term, 1887.

W. C. Case, for appellant. F. L. Hungerford, for appellee.

LOOMIS, J. The material facts found by the trial court in this case are in substance as follows: In 1857 the water commissioners of the then borough of New Britain, acting under an act of the legislature passed that year, purchased of the plaintiff and of his father, Harvey Dunham, now deceased, and of some other parties, certain lands for the construction of a reservoir for supplying the borough with water for public and private purposes; and sundry absolute warranty deeds were executed and delivered to said borough of said lands, and possession was taken by the latter and a reservoir upon the lands purchased was constructed and filled with water and used by the borough until the present city of New Britain was chartered, which succeeded to all the rights, privileges, and property rights of the borough, and ever since the reservoir has constituted the sole water supply of the city and is largely used for domestic purposes. It was agreed that the borough paid a money consideration for the lands bought of the plaintiff and his father, but there was no evidence of the amount paid, except the statement of the consideration in the several deeds. It is not found that the money consideration was in fact inadequate; but it is found that the Dunhams so regarded it, and that they were induced to part with the title to the land referred to, in part because of an agreement in writing signed and delivered to them by two of the water commissioners, and in part because they thought that the establishment of the reservoir and the use of its waters for fishing and pleasure would render their adjacent lands more valuable. The agreement referred to was as follows:

"Whereas, the warden and burgesses and freemen of the borough of New Britain, are about to pond a shuttle meadow on the mountains in the east of Southington, for the purpose of supplying water to the inhabitants of New Britain under the charter granted to them by the last legislature; and a large portion of the land to be covered by the water of said pond has been sold, and conveyed to said warden, burgesses, and freemen of the borough of New Britain by Harvey Dunham and Robert C. Dunham of Southington: now, therefore, the said warden, burgesses, and freemen of the borough of New Britain, in consideration of the sale and conveyance aforesaid, do hereby give and grant unto the said Harvey Dunham and R. C. Dunham the right to sail on said pond and take fish therefrom at all times, said privilege not to be enjoyed by them exclusively, but to secure to them in common with the grantors and such other persons as said grantors shall license during their natural lives.

"In witness whereof the grantors, by the hands of their water commissioners, duly appointed according to the provisions of said charter, have hereunto affixed their name and seal this first day of of December, 1857.

"THE WARDEN, BURGESSES, AND FREEMEN OF THE BOROUGH OF NEW BRITAIN.

[L. S.]

"F. T. STANLEY,

"G. M. LANDERS,

"Water Commissioners."

Soon after this, the Dunhams established upon the shore of said reservoir, better known as "Shuttle Meadow Lake," upon land owned by them, or one of them, contiguous to the land conveyed to the borough, a pleasure resort, and the frequenters of the place have used the lake for boating, sailing, and fishing in boats hired of the plaintiff or his father, and in this way a profitable business was established, which at the commencement of this suit belonged wholly to the plaintiff. A large number of other persons have also been in the habit of using said lake for boating, sailing, and fishing. The use of the waters of the lake for boating, sailing, and fishing is not in itself injurious, nor a nuisance, and the agitation of the surface of the water is beneficial, but, as a necessary incident to or concomitant of such use, a considerable quantity of impure, and objectionable, and decayed, and decomposing matter, filth, and various excreta of the human body is, from day to day, deposited in the water of said lake. But such deposit has not been and is not at present in sufficient quantities to be appreciable in its effect upon said waters, but the knowledge on the part of the public of such deposit produces disgust and tends to prevent the use of said waters by the public for domestic purposes. If the germs of infectious or contagious diseases should be deposited at or near the entrance of the supply pipes, such diseases might be communicated to the people of said city using said waters for domestic purposes. Under these circumstances the common council of the city of New Britain, acting pursuant to power given it by the legislature in 1885 to make such...