Harvey Realty Co. v. Borough of Wallingford

• Decision Date: 17 April 1930
• Citation: 150 A. 60,111 Conn. 352
• Court: Connecticut Supreme Court
• Parties: HARVEY REALTY CO. v. BOROUGH OF WALLINGFORD ET AL.

150 A. 60

111 Conn. 352

HARVEY REALTY CO. v. BOROUGH OF WALLINGFORD ET AL.

Supreme Court of Errors of Connecticut.

April 17, 1930

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Action by the Harvey Realty Company against the Borough of Wallingford and others, for an injunction restraining defendants from interfering with the sale of land with bathing privileges in a stream used by the defendant borough as a source of water supply and for damages, brought to the superior court and tried to the court. Judgment for the defendants on the complaint and for the plaintiff on defendants' counterclaim, and plaintiff appeals.

No error.

The complaint named as defendants the borough of Wallingford, the water commissioners of the borough, the superintendent of waterworks, and the commissioner of the state department of health. It alleged ownership of a tract of land on which is located a brook (now known as Pine river), which land the plaintiff caused to be staked out for building lots and offered lots for sale with the privilege of bathing in the brook or in a pond therein; that the defendants water commissioners and superintendent publicly announced that bathing therein would be prohibited and that the state commissioner of health directed that the land be posted notifying the public that bathing would be prohibited; and that the sale of lots by the plaintiff was thereby interfered with.

The defendants set up that the acts complained of were done in pursuance of their duty in giving notice of their intention to protect the public water supply of the borough located on the brook, against unlawful bathing. The borough also filed a counterclaim praying an injunction against the use by the plaintiff of its premises as a pleasure resort or as a rendezvous for swimming, boating, or fishing in the pond or stream, or in any way rendering the waters unfit for water supply purposes. The judgment for the plaintiff on this counterclaim is not appealed from.

The facts found by the trial court include the following: For more than 30 years the borough has been authorized by its charter to furnish water for the inhabitants of the town of Wallingford, and has furnished and is furnishing such supply. By purchase and condemnation proceedings, and adverse use for more than fifteen years, it acquired the privilege of taking and diverting the waters of Pine or Muddy river at its pumping station on the river, on its premises, as against the other riparian proprietors on the stream, and against all upper proprietors so far as the quality and quantity of the waters are concerned. Since the acquisition of land and the establishment of the original pumping station on the river in 1892, it was found necessary to erect a new pumping station thereon and to enlarge its reservoir at that place and the borough erected, and completed, in 1926, a station of 1,000,000 gallons daily pumping capacity. In connection therewith it constructed a dam about 48 feet long and 7 to 8 feet high, which backs the water in Pine river about 600 feet, creating a reservoir averaging 45 feet in width and holding 200,000 gallons of water. Without this reservoir the pump could not be operated properly.

The Pine river station is used to augment the supply from Pistapaug Pond, when that becomes low, and is also necessary in case of large draughts of water, by fire or otherwise, to maintain pressure. Coincident with the construction of the new pumping station and appurtenances, the borough, in conjunction with the owners of property bordering on the river above the station, built new cesspools and privies for the use of such owners, in order to prevent contamination of the water supply.

On June 6, 1928, Barnett Cohen, for $500 cash and by giving back a mortgage for $3,500, acquired title to about 162 acres of land upon which was a small pond in the stream in question soon afterward he, with his wife and daughter as the other incorporators, organized the plaintiff corporation and conveyed the land to it. Thereafter the plaintiff laid out streets, cleared brush, and cleaned out and increased the size of the pond, which now covers about an acre. A part of the land, a strip about 150 feet wide all around the pond was set apart by the plaintiff as a park for public use, and none of the lots or land to be sold were, nor could they be, bounded on the pond. Between 80 and 85 acres were divided into about 1,730 lots, having a width of 20 feet, and varying in depth up to 75 feet. Plaintiff called the property " Pine Lake Park" and the pond Pine Lake. Waters from this pond flow through Pine river a distance of 3.1 miles, to defendant's reservoir and pumping station.

Commencing on July 2, 1928, the plaintiff conducted an advertising campaign for the sale of lots, and invited church and fraternal organizations and large numbers of other people to come upon the premises and bathe in the pond, and numerous people did bathe therein every day, especially on Saturdays and Sundays. These advertisements also offered to purchasers of lots the privilege of bathing in Pine Lake. The plaintiff contracted for the sale of about 300 lots to 97 various purchasers for the sum of about $25,000, on the installment plan, and had collected about $15,000, which contracts included provisions for purchasers having bathing rights in Pine Lake. Twenty-eight deeds covering 92 small lots were recorded in the land records and none of them granted water rights or bathing privileges in Pine Lake.

On June 18, 1928, before the plaintiff took title to the property, Cohen, the then owner, was notified orally and by letter, by the water commissioners and superintendent, that bathing in Pine Lake would violate the statutes of Connecticut, as the waters were part of a public water supply. On July 13th the superintendent wrote another letter to Cohen, who is general manager of the plaintiff corporation, again calling his attention to these statutes. About the middle of July, the state department of health caused to be placed near Pine Lake notices informing those who read them that the lake was a part of a public water supply and that bathing therein was prohibited by statute. At about the same time the superintendent of waterworks posted a notice on a tree near but not on the plaintiff's property. Within a day or two all of these notices were torn down. On July 20th, the board of water commissioners caused to be published in a Meriden newspaper a notice to the public of the statutory prohibition against bathing in and polluting reservoirs. Subsequent to August 1, 1928, the plaintiff secured 70 contracts for the sale of lots, whereas before that date only 47 contracts had been signed, but subsequent to the posting and publishing of the notices the plaintiff permitted numbers of those who had signed contracts for the purchase of land to cancel the same.

bathing in large numbers, as proposed and advertised by the plaintiff, would pollute the public water supply, constitute a positive and serious menace to the health of the inhabitants supplied, from typhoid fever and other intestinal diseases, and would be an unreasonable use of the waters of the pond and stream.

From the facts found the trial court reached the conclusions that the pond at the pumping station constitutes a reservoir within the meaning of section 2544 of the General Statutes, which is quoted in a footnote^[1], and that bathing in Pine Lake would violate this statute; that the plaintiff's riparian ownership confers only a personal and family privilege of bathing in the pond or stream; that the proposed according of the privilege to the public and lot owners not riparian proprietors is an unreasonable use; and that, since the pond is entirely surrounded by land owned by the plaintiff, none of the lot owners are riparian proprietors having, as such, bathing rights in Pine Lake.

Benjamin Slade and Louis Weinstein, both of New Haven, for appellant.

Oswin H. D. Fowler and John E. Downey, both of Wallingford, and William B. Gumbart and Arthur L. Corbin, Jr., both of New Haven, for appellees.

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

HINMAN, J. (after stating the facts as above).

The only correction of the finding which is pursued on appeal seeks the insertion of facts tending to show nonuser of the original pumping station for the actual taking of water between 1908 and 1924. The evidence as to this was conflicting, the trial court expressed belief in the testimony to the contrary which we must accept in view of this conflict, and even were the facts found as requested they would not work an abandonment of rights previously acquired. Richardson v. Tumbridge, 111 Conn. 90, 149 A. 241; Schroeder v. Taylor, 104 Conn. 596, 605, 134 A. 63.

All of the other reasons of appeal are directed to the conclusions reached by the trial court as above summarized, and we may confine our discussion to those which relate to and determine the principal issue on which the case was tried, the scope of the riparian rights of the plaintiff, with special reference to the extension to its grantees of nonriparian land, and to invitees and the general public of the privilege of bathing in Pine Lake. A riparian proprietor is an owner of land bounded by a water course or lake or through...