Gager v. Carlson

• Decision Date: 31 March 1959
• Citation: 146 Conn. 288,150 A.2d 302
• Parties: Faith N. GAGER v. Arthur CARLSON. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 302

150 A.2d 302

146 Conn. 288

Faith N. GAGER v.Arthur CARLSON.

Supreme Court of Errors of Connecticut.

March 31, 1959.

Charles V. James, Norwich, for appellant(plaintiff).

Paul J. Driscoll, Norwich, for appellee(defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Associate Justice.

An essential of a complaint under our statute for quieting title (Rev.1958, § 47-31) is a statement of the plaintiff's ownership of the land described or of an interest in it, and of his title thereto.Gaul v. Baker, 105 Conn. 80, 84, 134 A. 250;Foote v. Brown, 78 Conn. 369, 377, 62 A. 667.In addition, the plaintiff must allege and prove that his title or interest is in controversy, that is, that it is so affected by claims of the defendant as to justify the litigation.Foote v. Brown, supra;Roberts v. Merwin, 80 Conn. 347, 350, 68 A. 377.The present controversy, as far as the complaint is concerned, involves the defendant's rights to the use of the waters of a pond in the town of Franklin for boating, swimming and fishing.The finding of the court that the plaintiff failed to prove what, if any, particular area or areas of the pond lie over land in which she owns any interest cannot be changed.There was no error in the entry of judgment for the defendant on the complaint.

In a counterclaim, the defendant sought injunctive relief, under the rule of cases such as Waterbury Trust Co. v. G. L. D. Realty Co., 121 Conn. 50, 53, 182 A. 466, andCatania v. Vanacore, 136 Conn. 244, 248, 70 A.2d 136, against interference by the plaintiff with his use and enjoyment of the pond for boating, swimming or fishing, and also against interference with his entering on property of the plaintiff to repair a break in the bank of the pond which had allowed the level of the water so to fall as to render the pond nearly useless.The court found that the defendant failed to prove that he was entitled to money damages; it did, however, grant injunctive relief.Of course, under the counterclaim the burden of proof rested on the defendant as to each essential element of his cause of action.

For convenience, the two basic claims of the defendant will be considered in inverse order.He is the successor in ownership of a sawmill which, on and before December 17, 1897, was owned by Frank A. Rockwood.The sawmill was then operated by water power from a pond which is included in what is now known as Carlson's pond.The boundaries and area of the original pond are not established.Nor does it clearly appear whether any of the land flooded by the original pond was owned by Rockwood, or any part of it was subject to a flowage easement in his favor, or if that was the case, what the scope and nature of the easement was.On December 17, 1897, Maranda R. Gager, the plaintiff's predecessor in title, for herself and her heirs, by quitclaim deed, conveyed to Rockwood, his heirs and assigns forever, the right to raise the existing dam, which in part at least was on land owned by him, an additional five feet and to flow the grantor's property to that extent.¹A similar grant of flowage rights was afterwards acquired by Rockwood from Clayton H. and Estella J. Lathrop, also owners of land which was flooded by the pond, at least as it was enlarged by the increase in the height of the dam.Whatever may have been the case with the original pond, after its enlargement by raising the height of the dam, some of the land overflowed was not owned outright by Rockwood, and land other than that of the plaintiff's predecessor in title was overflowed in Rockwood's exercise of flowage rights.It is a basic claim of the plaintiff that the words 'said premises,' as used in connection with the right of entry granted by Maranda R. Gager in her quitclaim deed to Rockwood, refer only to the portion of her premises over which the easement of flowage was given and that the defendant has no other right of entry, express or implied.We are not concerned, under the counterclaim, with the defendant's right to enter on the plaintiff's premises 'to repair or in any way fix or work on said dam.'It is not the dam itself, but some portion of the embankment of the pond, as enlarged by the increase in the height of the dam, which has given way and which the defendant wishes to repair.The defendant's right, if any, to enter upon the plaintiff's land for this purpose does not stem from any express language in the quitclaim deed, since there is no such language, but arises by implication from the grant of the flowage right.SeeMyers v. Dunn, 49 Conn. 71, 76.

The defendant's right of flowage is an easement.Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396.The easement clearly is appurtenant to the land which the defendant owns and on which the dam, in part at least, stands.It is of course true that the plaintiff is under no duty to make repairs or improvements necessary for the reasonable enjoyment by the defendant of his easement.Howard v. Wiehl, 144 Conn. 538, 540, 135 A.2d 360.But where an easement is conveyed, what is necessary for the enjoyment of the easement and without which it would be useless passes by implication.Randall v. Latham, 36 Conn. 48, 53;Great Hill Lake, Inc. v. Caswell, supra.The language in Whittlsey v. Porter, 82 Conn. 95, 101, 72 A. 593, may be paraphrased to apply to the present situation, as follows: The law will imply a grant, if within the grantor's power, of such rights and privileges connected with the flowage rights conveyed as are reasonably necessary to the enjoyment of them for the purposes for which they were conveyed.Angell, Watercourses(7th Ed.) § 158, p. 279.This is true even though in Connecticut, in order to insure safe reliance on the land records, implied grants of any interest in land are allowed to a very much more limited extent than in many other states.Whiting v. Gaylord, 66 Conn. 337, 349, 34 A. 85;Hawley v. McCabe, 117 Conn. 558, 564, 169 A. 192;Rischall v. Bauchmann, 132 Conn. 637, 642, 46 A.2d 898, 165 A.L.R. 559.The right to flood the plaintiff's land would be useless if the defendant did not have the right to make such repairs to the bank of the pond as are reasonably necessary to keep up the level of the water and thereby secure to himself the benefit and enjoyment of the rights granted by the easement.Indeed, he might be liable in damages to the plaintiff if through his negligent failure to keep the bank of the pond in repair other land of the plaintiff, not subject to the easement of flowage, was flooded or damaged.Schwab v. Charles Parker Co., 55 Conn. 370, 372, 11 A. 183.

The court found that it was necessary to repair the breach in the bank of the pond in order to maintain the level of the water at the height authorized by the grant of the easement and that the breach occurred on land of the plaintiff.If it is reasonably necessary, and not merely convenient, for the defendant to enter on land owned by the plaintiff in order to repair the break in the bank, then since such repairs are necessary for his enjoyment of his easement of flowage, he has the right so to do.He must, however, exercise reasonable care, skill and diligence in the repair of the bank and use reasonable care to work no unnecessary injury to the plaintiff's land.Miller v. Scolfield, 12 Conn. 335, 344;seeChapman v. Thames Mfg. Co., 13 Conn. 269, 273;Noyes v. Stillman, 24 Conn. 15, 27;Ognio v. Elm Farm Milk Co., 90 Conn. 393, 398, 97 A. 308.

While the injunction should have been limited in accordance with the above rule, the plaintiff does not assign this defect as error but claims that the defendant has no right of entry on any portion of her land except that which is subject to the easement and that this right of entry is only to permit the repair or maintenance of the dam itself.Apparently, the breach in the bank did not occur on land subject to the easement but on adjoining land owned by the plaintiff.The defendant, under the facts, has an implied right of entry to repair the bank, and the court was not in error in enjoining interference with it.Of course, the injunction would not authorize, nor protect the defendant in, an abuse of any right of entry, express or implied.Miller v. Scolfield, supra.

The other basic claim of the plaintiff's is directed against the part of the judgment on the counterclaim enjoining her from interfering with the defendant's use of the water of the pond for boating, swimming or fishing.In Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396, ownership of a flowage easement was held to give no exclusive right to recreational uses of the ponded water, including boating, swimming and fishing, as against the owners of the submerged land.Holyoke Co. v. Lyman, 15 Wall. 500, 82 U.S. 500, 506, 21 L.Ed. 133.In the instant case, the court held that the defendant owned at least a flowage easement with regard to the entire pond and that this gave him 'ownership' of the water, which in turn gave him a right to use the pond for boating, swimming or fishing, under the court's interpretation of the holding in Turner v. Hebron, 61 Conn. 175, 188, 22 A. 951, 14 L.R.A. 386.The facts of that case were peculiar.It did not hold that one who owns merely an easement of flowage has exclusive rights in the water as against the owners of the soil under the pond.The case is explained in Great Hill Lake, Inc. v. Caswell, supra, 126 Conn. 368, 11 A.2d 396.Even as to the water flowing over any land which the defendant owns outright, his rights are riparian and usufructuary in nature.They are protected against injury.Parker v. Griswold, 17 Conn. 288, 301;Harding v. Stamford Water Co., 41 Conn. 87, 92.But they do not constitute 'ownership' of the water in the accepted sense of the word.DeWitt v. Bissell, 77 Conn. 530, 534, 60 A. 113, 69 L.R.A. 933;Agawam Canal Co. v. Edwards, 36 Conn. 476, 497;Akron Canal & Hydraulic Co. v. Fontaine, 72 Ohio App....