In re New Haven Water Co.

• Decision Date: 19 December 1912
• Parties: In re NEW HAVEN WATER CO.
• Court: Connecticut Supreme Court

85 A. 636

86 Conn. 361

In re NEW HAVEN WATER CO.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Application by the New Haven Water Company for the appointment of a committee to assess damages for water rights to be taken. From a judgment appointing the committee, Charles S. Russell and others appeal. No error.

Application for the appointment of committee to assess damages for water rights to be taken for a water supply brought before the Honorable Edwin B. Gager, a judge of the superior court. Facts found, and judgment rendered appointing said committee to make said assessment, and appeal by the respondents for alleged errors in sustaining demurrer to plea in abatement, in overruling demurrer to application, in rulings on evidence, and for correction of finding.

Carl Foster, of Bridgeport, for appellants.

George D. Watrous and Harrison T. Sheldon, both of New Haven, for appellee.

WHEELER, J. The respondents pleaded in abatement because the application was not accompanied by a summons to the parties in interest and no service was made on the respondents other than by depositing a copy in the post office duly addressed; whereas, either personal service or service by copy at their usual places of abode was required. The applicant demurred to the plea upon the ground that the application was a special proceeding under its charter which provides for service within the discretion of the judge whose order was followed, and further that the application was not a civil action within the meaning of the statutes relating to service of process.

Section 9 of the charter of the applicant (Sp. Acts, vol. 5, p. 454) grants it power to take and use the water of any stream to such extent as may be necessary and expedient in carrying into effect the object of the act which was to furnish to certain communities a supply of water. And in section 10 the charter provides a method of assessment of damages by application to the superior court or a judge thereof for the appointment of a committee upon such tribunal "causing ordinary legal notice or such notice as any judge of said court may prescribe, to be given to the adverse party, of such application." If this application be held to have been brought under its said charter, as the applicant claims, the service must be held reasonable and adequate, and within the discretion of the judge ordering it unless a service by mail be held an unreasonable mode of service. The contrary has been held. Crane v. Camp, 12 Conn. 464, 468; Ives v. East Haven, 48 Conn. 272, 291.

Section 2600 of G. S., as amended by section 2, of chapter 192, P. A. 1903, provides: "Any city, town, borough, or corporation authorized by law to supply the inhabitants of any city, town, or borough with pure water for public or domestic use may take and use such lands, springs, streams, or ponds, or such rights or interests therein, as the superior court, or any judge thereof in vacation, may, on application, deem necessary for the purposes of such supply. For the purpose of preserving the purity of such water and preventing any contamination thereof, such city, town, borough, or corporation may take such lands or rights as the superior court, or any judge thereof in vacation, may, on application, deem necessary therefor." If it be held that section 2600, as amended, modified the applicant's charter to the extent of requiring a finding of necessity by the superior court or a judge thereof before appointment of a committee of appraisal, the order of service made is within the charter thus modified, since the notice is discretionary.

The applicant alleged in its application that the taking sought was necessary and expedient. The respondents joined issue on this allegation, and the case has, so far, been tried upon the theory that a finding of such necessity by the judge was a prerequisite to the appointment of the committee. The applicant now claims that no finding of necessity by the judge was required, since under its charter it was made the judge of the necessity and empowered to take whatever stream it deemed necessary. We have no occasion to change the character of the case at its present stage from that which the applicant gave to it, by accepting this contention, and shall treat it as the parties have heretofore done.

When the condemnation statute makes no provision for notice, the law will imply the giving of notice, and action under the statute can be had only upon giving reasonable notice. Lewis on Eminent Domain (3d Ed.) § 571; Baltimore Belt R. Co. v. Baltzell, 75 Md. 94, 23 Atl. 74.

The reasonableness of the notice is not governed by the period for service of civil process.

A condemnation proceeding is a suit at law. New Milford Water Co. v. Watson et al., 75 Conn. 237, 243, 52 Atl. 947, 53 Atl. 57; N. Y., N. H. & H. R Co. v. Long et al., 69 Conn. 424, 37 Atl. 1070. And the respondents urge that the form of summons or notice must have been in accordance with that prescribed for civil actions and civil process generally. But a "condemnation proceeding" is not a civil action, nor a civil process within the meaning of the statutes relating to civil process. It is a special proceeding to determine in a single action the damages done by the taking. Lewis on Eminent Domain, p. 930, § 512; Water District v. Waterville, 96 Me. 234, 52 Atl. 774; Hayford v. Bangor, 103 Me. 434, 69 Atl. 688. The period prescribed by statute for service in civil process was a circumstance, no doubt considered by the judge in determining the notice to be given in this case, but it was not a controlling circumstance.

The notice ordered and given was by mail. The return of the officer shows that a copy of the application reached each of the respondents from 8 to 10 days prior to the date of hearing, when they duly appeared by counsel and filed the plea in abatement we are considering. To dismiss this application under these circumstances would compel another action when no claim even is made that the respondents did not have sufficient time in which to prepare their case, and when the method of service ordered has been approved by our law, and the period of notice held more than ample in other special proceedings. In re Premier Cycle M. Co., 70 Conn. 473, 39 Atl. 800. The demurrer to the plea in abatement was properly sustained.

The applicant's charter grants it power to take the water of any stream "to such extent and in such manner as may be necessary and expedient." The General Statutes, § 2600, as amended, provide that a corporation such as the applicant may take such rights in any stream as the superior court, or a judge thereof, may deem "necessary" for the purposes of a water supply. The application alleges that it is "necessary and expedient" to take a certain water supply. The respondents demurred to the application upon the ground that the charter of the applicant had been repealed so far as it may be authorized to take the water of any stream to such extent and in such manner as may be expedient; that is to say, that the charter authorized such taking as may be necessary and expedient. But the General Statutes, § 2600, has modified this by authorizing such taking as may be necessary only. The argument is: Under the charter it must appear that the taking was necessary and expedient, while under G. S. § 2600, of the charter as modified by this section, it need only appear that it was necessary. The allegation of the application includes not only the allegation of necessity, but also that of expediency. It is in so far broader than the mere allegation of necessity, and hence broader than the applicant claims is required. The sufficiency of an application may be affected by the omission of a necessary allegation; it cannot be affected by the addition of an unnecessary allegation. The demurrer to the application was properly overruled.

The respondents insist that the amount of water to be taken by the applicant must be reasonably definite in allegation and proof. This we understand to be the law. The application alleges, and by the judgment the petitioner takes, all the water of the named streams in excess of a certain amount. The amount which can be taken will be measured by the excess above this minimun; it is a variable quantity, but it is never indefinite, since it is all above a certain quantity. Ingraham v. Water Co., 82 Me. 335, 340, 19 Atl. 861.

The rulings upon evidence require very brief discussion. The trial court, against the objection of the respondents that the evidence was irrelevant and did not tend to prove the necessity, permitted the applicant to offer evidence that it had, since 1876, been preparing by plans and purchases to take the waters of these streams and had recently constructed a tunnel having a capacity of 30,000,000 gallons a day, at an expense of over...