Krulikowski v. Polycast Corp.

• Decision Date: 25 May 1966
• Citation: Krulikowski v. Polycast Corp., 220 A.2d 444, 153 Conn. 661 (Conn. 1966)
• Court: Connecticut Supreme Court
• Parties: John KRULIKOWSKI et al. v. The POLYCAST CORPORATION.

Page 444

220 A.2d 444

153 Conn. 661

John KRULIKOWSKI et al. v.The POLYCAST CORPORATION.

Supreme Court of Connecticut.

May 25, 1966.

P. Hurley Bogardus, Jr., Stamford, with whom, on the brief, was George F. Lowman, Stamford, for appellant(defendant).

Emanuel Margolis, Stamford, for appellees(plaintiffs).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

The several plaintiffs own and occupy residences in an industrial zone in Stamford.The defendant, under a lease, has, since 1955, occupied two industrial-type, one-story buildings in that industrial zone, adjacent to and immediately north of the residences owned and occupied by the plaintiffs.The defendant has been engaged in manufacturing a product called 'Polycast,' a clear, transparent substance whose characteristics and functions are comparable to the more commonly known product called plexiglass.The product is manufactured by means of polymerization of an acrylic ester called methyl methacrylate, which, in combination with certain catalytic agents, including ethyl acrylate, is cast into sheets of transparent plastic material.Methyl methacrylate is a monomer which emits pungent, penterating and disagreeable fumes and odors, which have a tendency to cling to various materials with which they come into contact, including such articles as food, clothing and bed linen.The monomer, depending on the intensity and duration of exposure to the fumes which are given off by it, produces a variety of deleterious effects, such as discomfort, nausea and vomiting.At certain concentrations, it causes actual health hazards, such as eye and bronchial irritation and dermatitis.

The plaintiffs have joined in this action, alleging that, by reason of the noise, vibration and fumes arising from the defendant's manufacturing process, they cannot occupy their residences with comfort or sleep at night, that their health has been affected and that the value of their premises has been impaired.It is alleged that the acts of the defendant constitute a muisance and cause irreparable injury to the plaintiffs and that they have no adequate remedy at law.By way of relief, the plaintiffs seek an injunction, 'an order under the statute for the discontinuance or abatement of such nuisance or for regulating the manner of conducting (the)defendant's business, as the court may deem proper,' and, as to each plaintiff, $5000 damages.

At the outset we must consider a jurisdictional question.On this appeal the defendant has, for the first time, raised a question as to the jurisdiction of the Court of Common Pleas to adjudicate the issues raised by the complaint.Despite the tardiness with which the issue is raised, once raised, it must be determined.Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711;Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592;In re Application of Smith, 133 Conn. 6, 8, 47 A.2d 521.

It is the claim of the defendant that exclusive jurisdiction of an action such as this one to abate a manufacturer's nuisance is vested in the Superior Court under General Statutes § 52-481.It notes that the plaintiffs' claims for relief are copied verbatim from FormNo. 354 of the Practice Book, which is the form suggested for use in an action brought pursuant to General Statutes § 52-481 for relief against a factory nuisance.There is nothing, however, in this essentially permissive statute which indicates that it affords an exclusive remedy or is in derogation of the general powers of a court exercising equitable jurisdiction in the manner provided by General Statutes §§ 52-471and52-473.At the time that this action was brought, the Court of Common Pleas had, by statute, been allocated exclusive jurisdiction over 'all actions for both equitable and legal relief, wherein the equitable and legal relief, severally and distinctly demanded, does not exceed five thousand dollars.'General Statutes § 52-6(later amended byPublic Acts 1959, No. 28, § 102, andPublic Acts 1965, No. 331, § 30).

What is now § 52-481 has remained substantially unchanged since its original enactment.Public Acts 1870, c. 23;Rev. 1875, p. 477 § 5.Significantly, this was before the adoption of the Practice Act of 1879;Public Acts 1879, c. 83; with its liberal provisions for the permissible joinder of parties;Public Acts 1879, c. 83, § 11;Merwin v. Richardson, 52 Conn. 223, 235; and provision that legal and equitable rights of parties could be enforced and protected in one action.Public Acts 1879, c. 83, §§ 6, 7;Welles v. Rhodes, 59 Conn. 498, 503, 22 A. 286.Also, in 1870 there were Courts of Common Pleas only in the counties of Hartford, New Haven and Fairfield.Public Acts 1869, c. 93;Public Acts 1870, c. 22.Their jurisdiction, both legal and equitable, was limited to $500.Previous to the time when Public Acts 1941, c. 286 (Sup.1941, c. 283) took effect, making the court a circuit rather than a county court, there were Courts of Common Pleas in but five of the eight counties and in the judicial district of Waterbury, and their exclusive jurisdiction was limited to actions where the matter in demand did not exceed $500.Walkinshaw v. O'Brien, 130 Conn. 122, 125, 32 A.2d 547.No question has been raised in these proceedings as to the constitutionality of the successive statutory extensions of the jurisdiction of the Courts of Common Pleas since the decision in the Walkinshaw case.SeeId., 140, 144, 32 A.2d 547.

Section 52-481 of the General Statutes provides that any number of aggrieved persons may unite in a single complaint to the Superior Court for abatement of a manufacturer's nuisance, that service on the person in charge of the factory shall be sufficient notice to any defendant living outside the state and that such an action shall be privileged in assignment for hearing.Otherwise, the act appears to be nothing more than a codification of general equitable principles which are well rooted in the common law.SeeHeppenstall Co. v. Berkshire Chemical Co., 130 Conn. 485, 488, 35 A.2d 845.Blackstone noted that 'if a person keep his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house.A like injury is, if one's neighbour sets up and exercises an offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places * * * this is therefor an actionable nuisance.'2 Blackstone, Commentaries, p. 217.The remedy in those days was by means of an 'assise of nuisance' writ 'to have the nuisance abated and to recover damages.'Id., 221.For over one hundred years in this state, we have recognized the general power of equity to afford relief by injunction and damages for injury caused by a nuisance created by the unreasonable conduct on one's own property of an otherwise lawful activity.Whitney v. Bartholomew, 21 Conn. 213;Bishop v. Banks, 33 Conn. 118;Hurlbut v. McKone, 55 Conn. 31, 10 A. 164;Heppenstall Co. v. Berkshire Chemical Co., supra;Cyr v. Brookfield, 153 Conn. 261, 216 A.2d 198.In the present case, the plaintiffs seek equitable relief and damages which are within the jurisdiction of the Court of Common Pleas and do not seek any advantage which General Statutes § 52-481 affords beyond such demands.'(A)statute which creates a new remedy for a right already existing under the common law is generally directory only, and does not preclude the use of existing common law remedies.'3 Sutherland, Statutory Construction (3d. Ed.) § 5812, p. 95.We conclude that General Statutes § 52-481 does not afford an exclusive remedy in the Superior Court for one damaged by the maintenance of a manufacturer's nuisance and that the present action was within the jurisdiction of the Court of Common Pleas.

On a stipulation for reference, this case was referred for trial before a referee, who, with counsel, visited the defendant's premises and toured the defendant's plant.His 120-paragraph erport is based on this inspection and on over 1300 pages of testimony.The trial court accepted the referee's report, overruling the defendant's objections and exceptions to it.The court rendered judgment for the plaintiffs for damages in the respective amounts found by the referee, and it found that the plaintiffs were entitled to an injunction restraining the defendant from conducting its business activities in such a fashion as to permit offensive fumes and odors to invade the plaintiffs' premises.Adapting the injunction to the equities of the situation, the judgment in effect gave the defendant a stay of execution on the injunction, not to exceed four...