Edward Balf Co. v. Hartford Elec. Light Co.

• Decision Date: 28 June 1927
• Citation: 106 Conn. 315,138 A. 122
• Court: Connecticut Supreme Court
• Parties: EDWARD BALF CO. v. HARTFORD ELECTRIC LIGHT CO.

138 A. 122

106 Conn. 315

EDWARD BALF CO. v. HARTFORD ELECTRIC LIGHT CO.

Supreme Court of Errors of Connecticut.

June 28, 1927

Appeal from Superior Court, Hartford County; Isaac Wolfe, Judge.

Suit by the Edward Balf Company against the Hartford Electric Light Company for an injunction to restrain defendant from maintaining a nuisance in the Park river, which allegedly interferes with plaintiff's lawful use of its property brought to the superior court and tried to the court. Judgment for defendant, and both plaintiff and defendant appeal. No error.

Plaintiff is engaged in Hartford in the road building business, in which it produces, purchases, and sells large quantities of crushed stone, sand, road oils, including asphalt, and other materials used in the construction of roads, and in the conduct of its business it must, and does maintain large quantities of sand and oils for immediate uses. The plaintiff owns a plot of land approximately 350 feet in depth and 180 feet in width on the southerly bank of the Park river, which is a small stream running through the city of Hartford, and located about 1,300 feet from the confluence of the Park river with the Connecticut river. Approximately 500 feet above plaintiff's property is the Commerce street bridge crossing Park river, built by the city of Hartford, having a draw in it, and being about 1,800 feet above the confluence of these rivers.

The defendant is a public service corporation, being the sole source of supply of light and power by electricity for commercial and domestic uses in Hartford. It owns two tracts of land, one on the north side of the Park river, which is used for its power house, and the other opposite to it on the south side of this river, and used for the distribution of such light and power, and being about 500 feet from the confluence of these rivers. About 200 feet from the confluence of these rivers is a trestle extending across Park river. About 180 feet from the trestle is a railroad drawbridge extending across Park river which belongs to the New Haven Railroad, and has been there over 30 years, and has been opened upon but a few occasions to permit the passage of boats. It was last opened in 1909 or 1910 to let in a barge of stone for defendant. The elevation of the bottom of the girders of the bridge is 24.3 feet; between the buttresses of the bridge is a clearance on the water line of approximately 60 feet. The draw of the bridge must be opened to permit schooners, large tugs, and barges to pass up the Park river. About 200 feet above this bridge defendant has an overhead coal conveyor extending across the river connecting its property on each side, and built so high that it would not interfere with any navigation on the river.

Defendant was, on December 18, 1918, granted a permit by the War Department to change the course of and improve Park river through its properties which lie between the property of the plaintiff and the confluence of these rivers. On May 8, 1919, another permit was granted defendant by the war Department authorizing the construction of a temporary duct line across Park River between defendant's two properties. This conduit was constructed by the defendant under its permit about 50 feet above the coal conveyor, with concrete columns or uprights supporting the same. It is a necessary part of defendant's plant, and completely bars the navigation of the river. In December, 1921, defendant's permit to change the course of Park river having expired, another permit was granted, it extending the time of completion for three years, and carrying with it an extension of the temporary permit to maintain the concrete conduit for a like period. In the latter part of 1924 defendant abandoned its plan to improve and change the course of Park river, which work has never been done. On August 20, 1924, defendant again petitioned the War Department, reciting therein its intention to some time develop " the navigable features" of the Park river at its own expense, but not within three years from January 1, 1925, and requesting an indefinite extension of time for the removal of the conduit until such time as the public authorities or abutting owners have actually made plans and provided the funds necessary for the work of " making the bed of this river navigable." In aid of such petition defendant sought to have the owners of land on Park river approve of its petition to the War Department, and in the instrument which at its instance all the owners of property on this river but the plaintiff signed, the Park river is referred to as a navigable stream. All of its various petitions to the War Department made similar reference. At one time there was a shipyard located near the mouth of Park river. Formerly there were a number of docks on Park river below Commerce street which were used for the unloading of boats until later the docks on the Connecticut river were raised so that boats could be unloaded in the freshet seasons. There was also formerly an extensive basin formed by the overflow of the Connecticut river in freshet seasons from Commerce street to the confluence of these rivers. A number of years ago the low flat ground on either side of the Park river within these bounds was filled in, and as a consequence the basin largely filled. Due to the raising of the docks on the Connecticut river and the filling of the basin, navigation on Park river gradually ceased. For some years the properties on both banks of Park river from Commerce street to its mouth have been exclusively devoted to commercial uses other than loading and unloading boats. Park river is in the main narrow, with steep banks, sharp turns, and an irregular bottom. Its width varies with the amount of water in it; at the northern boundary line of plaintiff's property it is 46 feet wide, at the trestle 52, and at the railroad bridge 48. There are between plaintiff's property and the mouth of the river three sharp bends. It is subject to violent fluctuations in water depths on account of the rapid rise of the Connecticut river in freshet seasons and its rapid fall when the floods abate. For at least nine months in the year there is a minimum depth of five feet of water in Park river, and during such periods it is navigable. For two or three months in the summer time there is, as a rule, not enough water in the river to enable it to be used as a navigable stream. It can be dredged, however, to make it navigable during the summer months. Plaintiff's property on Park river has been, and still is, used for the storage of materials and for other purposes in connection with its road building business. Plaintiff also owns a tract of land on the east bank of the Connecticut river just above the bridge connecting Hartford and East Hartford. It uses this tract in connection with its digging of sand from the Connecticut river, adjacent thereto, under government permit, for road construction purposes. It is the purpose of plaintiff to use its land situated on Park river for the storage of sand and other materials used by it in its business, and also to bring oil and other materials to such land by water, and use the same as a point of distribution in the execution of its various works. It is entirely practical to convey sand from Hog Island, where the plaintiff operates its plant, to plaintiff's property on Park river by motor boats and barges in four feet of water, and there are powerful motor boats drawing 3 or 4 feet of water capable of towing barges carrying ten or twelve tons.

The court reached the conclusions that: (1) Park river is of sufficient capacity to be capable of being used for trade and commerce in the usual modes and serving the useful purpose of navigation, and is navigable; (2) the conduit of defendant over the river obstructs the navigation of the river, and is a public nuisance, but that plaintiff does not suffer an injury distinct from that which it suffers in common with the rest of the public, and therefore it is for the government to abate it.

Haines, J., dissenting in part.

Allan E. Brosmith and Warren Maxwell, both of Hartford, for plaintiff.

James W. Carpenter and Austin D. Barney, both of Hartford, for defendant.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J. (after stating the facts as above).

The plaintiff seeks in this action a permanent injunction restraining the defendant from maintaining a concrete conduit across the Park river, and thereby interfering with plaintiff's access by water to its property located upon the south bank of the river.

The trial court reached the conclusion that the Park river is a navigable river, and that the conduit it maintains over the river obstructs its navigation, and is a public nuisance, but that the injunction prayed for could not issue for the reason that it had not been established that the plaintiff suffers an injury distinct from that which it suffers in common with the rest of the public. Both parties have appealed; the defendant, primarily because of the court's conclusion that the Park river is navigable, and that defendant's maintenance of the conduit is a public nuisance and unlawful; the plaintiff, because of the court's rulings that it did not suffer an injury distinct from that which it suffers in common with the rest of the public, and that the financial loss caused the plaintiff was not an injury distinct from that suffered by the public generally. We will consider the defendant's appeal first. Manifestly it must fail, unless one or more of the rulings on evidence are held erroneous and harmful, or the finding is corrected to such an extent as to make erroneous the conclusion of the court as to the navigability of the...