John A. Errichetti Associates v. Boutin

Decision Date14 April 1981
Citation439 A.2d 416,183 Conn. 481
CourtConnecticut Supreme Court
PartiesJOHN A. ERRICHETTI ASSOCIATES v. Loretta G. BOUTIN.

W. Fielding Secor, Waterbury, for appellant (defendant).

Joseph P. Fasi, Hartford, with whom was Joseph Adinolfi, Jr., Hartford, for appellee (plaintiff).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

This case involves an application for an order under General Statutes § 52-410, 1 directing the defendant to proceed with arbitration under the terms of an agreement contained in a deed conveying certain property owned by Stuart Judd 2 to the defendant Loretta Boutin. The trial court granted the application and ordered the defendant to proceed with arbitration. This appeal followed.

Prior to 1968, Judd was the owner of land and buildings which constitute the Mattatuck Manufacturing Company, the pond which supplies the company with water for industrial use, the dam which creates the pond, land below the dam and pond, and a flume which conducts water from the pond to the company. By warranty deed dated January 10, 1968, Judd conveyed to the defendant the land and improvements constituting the Mattatuck Manufacturing Company. 3 Judd also conveyed by this deed all his right, title and interest in that portion of a flume "running on, over or under the real property herein conveyed." The deed further provided that there was also conveyed "for the benefit of the property herein conveyed and uses to which it may be put (1) the non-exclusive right to draw water from said flume so long as water flows therethrough and (2) the right so long as Grantor's (Judd's) pond and the dam forming same continue to exist, to draw water into the flume from the Grantor's pond, provided, however, that both such rights are expressly conditioned on (a) the proper repair and maintenance by the Grantee (Boutin) at her cost of that portion of the flume running on, over or under other land of the Grantor not being conveyed hereunder; (b) the proper repair and maintenance by the Grantee at her cost of the dam forming the pond from which water is drawn into said flume and of the gate controlling the amount of water flowing into said flume and of the gate controlling the water flow over or through the same into the Mad River ...." The deed contained a specific proviso that "Grantor, his heirs or assigns, shall be under no duty whatsoever, in connection with said rights to draw water from said pond or said flume, to maintain, repair or replace the dam or its controls or regulate the flow of water into said flume or over or through said dam or perform any act to preserve the water level of the pond or the water flowing through said flume ...."

The clause in the deed which generates this action provided the following: "In the event of any controversy between Grantor, his heirs or assigns, and Grantee, her heirs or assigns, in connection with the flow of water into or through said flume or over or through said dam or the repair or maintenance of said dam, its controls or the flume and the parties then in interest are unable to resolve their differences, Grantor, for himself, his heirs and assigns, agrees and by the acceptance of this deed Grantee, for herself, her heirs and assigns, agrees any said controversy(ies) shall be decided by arbitration in accordance with the rules and procedures of the American Arbitration Association."

In 1971, Judd conveyed a portion of the property he had retained, including the property upon which the dam is situated, to the plaintiff Green Valley Developers, Inc., which is the successor in title and interest to Judd. In February, 1972, the Department of Environmental Protection (DEP) began an investigation of the dam, pursuant to § 130 of Public Acts 1971, No. 872 (now General Statutes § 25-110), 4 because DEP found that the dam was "one which by breaking away or otherwise might endanger life or property." General Statutes § 25-111 provides that the commissioner of DEP "shall investigate and inspect or cause to be investigated and inspected all dams or other structures which, in his judgment, would, by breaking away, cause loss of life or property damage." If he "finds any such structure to be in an unsafe condition, he shall order the person, firm or corporation owning or having control thereof to place it in a safe condition or to remove it, and shall fix the time within which such order shall be carried out." Ibid.

In 1972, the engineering firm of Mozzochi Associates, which had been retained by DEP to inspect 5 and evaluate the spillway capacity of the dam, made its report and certain recommendations to DEP. The Mozzochi study concluded that if 7.5 inches of rain fell in a six hour period, no freeboard (the distance between the level of water and the top of the dam) would remain and the dam could not prevent the splashing of water over the top of the dam ("overtopping"). It also concluded that in the event of 5.1 inches of rain in a six hour period there would be two feet of freeboard. 6 This study made the following recommendations: "(1) Provide an emergency spillway to prevent possible overtopping ...; (2) Remove all trees and growth from the downstream embankment; (3) Repair wash-out of downstream embankment west of spillway and 'dress-up' entire downstream embankment; (4) Divert surface runoff from streets easterly of the structure off of embankment onto natural ground." A further recommendation proposed the placement of obstructions "to prevent automobiles from crossing the bridge across the spillway." DEP adopted the Mozzochi recommendations.

In 1977, DEP, in an order preceded by a finding that "(t)his dam ... was found to be in an unsafe condition," ordered the plaintiff to "repair said dam in accordance with engineering plans and specifications prepared by Joseph A. Adams 7 ... (s)aid work to commence by August 1, 1977 and be completed by January 1, 1978." Pursuant to the DEP order, the plaintiff undertook the work and completed it in 1977 at a cost to the plaintiff of $14,400. The plaintiff requested that the defendant proceed with arbitration concerning this work, pursuant to the agreement, but the defendant has refused to do so.

The court found that the work done included the following: The construction of reinforced parapet walls to raise spillway depth, the removal of all trees and growth from the downstream embankment, the raising of the height of the existing bridge, the repair of the walkway, and the filling in of eroded areas. 8 In addition, a new earthen embankment was built at the same elevation as the wall to prevent the water from running around and down the face of the west side. To prevent autos from using the bridge, stairs were installed, instead of the originally ordered gradual slope, with the consent of DEP. A new gate was installed in place of the old one in order to obtain entry to valves controlling the flow of the water. The gate had been shortened by the building of the wall to prevent the water from running over the dam.

The trial court disagreed with the defendant's claim that the arbitration clause of the deed did not cover the work done because the work amounted to "structural improvements" and was not "repair" or "maintenance" within the meaning of those terms as used by the parties and interpreted by our courts. On appeal, the defendant claims (1) that the dispute between the parties for the cost of the work done is not within the scope of the arbitration clause by virtue of the language in the deed obligating the parties to arbitrate "any controversy ... in connection with the flow of water into or through said flume or over or through said dam" and (2) that the work done to the dam by the plaintiff, upon the order of DEP, constituted "capital changes and improvements in the nature of structural alterations" and were neither "repairs" nor "maintenance" within the ordinary meaning of those words. We disagree.

Arbitration is a creature of contract; see, e.g., Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); and, being designed to avoid litigation and secure prompt settlement of disputes, is favored by the law. See Hartford v. American Arbitration Assn., 174 Conn. 472, 480, 391 A.2d 137 (1978); Gaer Bros., Inc. v. Mott, 144 Conn. 303, 307, 130 A.2d 804 (1957). "But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 (1967); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967) ...." Marsala v. Valve Corporation of America, 157 Conn. 362, 365, 254 A.2d 469 (1969). "Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question also. Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 198, 169 A.2d 646 (1961); College Plaza,...

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