Gorham v. City of New Haven

• Decision Date: 25 May 1909
• Citation: 82 Conn. 153,72 A. 1012
• Court: Connecticut Supreme Court
• Parties: GORHAM v. CITY OF NEW HAVEN.

72 A. 1012

82 Conn. 153

GORHAM

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

May 25, 1909.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Charles E. Gorham against the City of New Haven. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Henry G. Newton and Ward Church, for appellant Edward H. Rogers and Edward P. O'Meara, for appellee.

RORABACK, J. It appears from the plaintiff's complaint that this action is one of four suits brought by the plaintiff against the defendant to the superior court in New Haven county in consequence of the pollution of a stream of water running across the plaintiff's farm by sewage and other noxious drainage from the Springside Home, where the poor of New Haven are kept. The first of these actions was tried in 1899, a judgment rendered for the plaintiff to recover damages, and an injunction granted restraining the defendant from continuing the nuisance. The second suit was commenced in 1904, and resulted in a verdict for the plaintiff for substantial damages. The judgment upon this verdict was sustained by this court. 79 Conn. 670, 66 Atl. 505. In the third case the plaintiff obtained a verdict for $1,357.06, which included $500 as exemplary damages. The defendant since 1899 has neglected to change the conditions existing at the time of issuing the perpetual injunction, which is still in full force and effect. The supplemental complaint alleges that since the commencement of the present action the defendant has instituted condemnation proceedings for the purpose of taking the land of the plaintiff in question, and that the object of these proceedings is to enable the defendant to continue the violation of the injunction of 1809. The plaintiff claimed: (1) A decree by the court enforcing its order of injunction and compelling compliance therewith by the defendant. (2) An injunction against any further attempt to take by condemnation proceedings the land of the plaintiff, or any part thereof. On demurrer the first prayer for relief was held insufficient upon two grounds. One was that upon the facts stated the plaintiff is not entitled to the relief sought. Under our practice act the pleading is demurrable if it does not contain facts that constitute a cause of action; and also for a mistake in the relief which is sought. Practice Book 1908, p. 252, § 167. The only ground suggested by the plaintiff for considering the remedy sought by the first prayer for relief is that it has all the essential elements of an attachment for contempt in the violation of an injunction order.

It is unnecessary to inquire whether the city has been guilty of coutempt of court, or whether, if so, the plaintiff now has a remedy against it therefor. This action is not adapted to serve such a purpose. For a court to grant an injunction against the threatened violation of an injunction which it had previously issued would be novel practice. A motion for an attachment for contempt when there is a disobedience of an injunction order is not disconnected from the decree which it seeks to enforce. Lyon v. Lyon, 21 Conn. 185, 192. Such a proceeding is but an incident to the original action. In effect, it is an application for an execution of a judgment already rendered, and should not be commenced as a separate action. Winslow v. Nayson, 113 Mass. 411. Proceedings for contempt are of two classes—criminal, which is conducted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders; and civil, instituted to protect and enforce the rights of private parties and compel obedience to the orders, judgments, etc., of courts made to enforce such parties' rights and remedies. Welch v. Barber, 52 Conn. 156, 52 Am. Rep. 567. The proper course in cases of criminal contempt not committed in the presence of the court is for some informing officer to bring it to the attention of the court. Church v. Pearne, 75 Conn. 350, 353, 53 Atl. 955. The form of instituting and...