Labbadia v. Bailey

• Decision Date: 30 December 1959
• Citation: 147 Conn. 82,157 A.2d 237
• Court: Connecticut Supreme Court
• Parties: Pompeo LABBADIA et al. v. Robert F. BAILEY et al. NOYES SCHOOL OF RHYTHM, INC., et al. v. Robert F. BAILEY et al. Supreme Court of Errors of Connecticut

Page 237

157 A.2d 237

147 Conn. 82

Pompeo LABBADIA et al. v. Robert F. BAILEY et al.

NOYES SCHOOL OF RHYTHM, INC., et al. v. Robert F. BAILEY et al.

Supreme Court of Errors of Connecticut.

Dec. 30, 1959.

Carlos B. Ellis, Middletown, with whom were Charles P. Bufithis and Arthur R. Moor, Middletown, for appellants (named defendant et al.) in each case.

John M. Donahue, Hartford, with whom was Colin C. Tait, Hartford, for appellees (named plaintiff er al.) in the first case.

John C. Parsons, Hartford, with whom was Colin C. Tait, Hartford, for appellees (plaintiffs) in the second case.

Before KING, MURPHY, MELLITZ, SHEA and ALCORN, ^* JJ.

KING, Associate Justice.

These two cases, which were tried together, concern rights in Great Hill Lake, an artificial body of water of about seventy-five acres located in the town of Portland. Other controversies concerning rights in this lake were before us in Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 11 A.2d 396. We restrict our present discussion to certain basic issues which are dispositive of each appeal.

The plaintiffs claim to own interests in land in part abutting, and in part under the waters of, the lake. As shown by the pleadings, the plaintiffs' basic complaint is that certain conduct of the defendants in the maintenance of a dam which impounds the waters of the lake and in the operation of a gate at the base of the dam has resulted in a partial draining of the lake and a consequent depreciation in the value of the plaintiffs' properties. This conduct of the defendants is alleged in the complaint in the Labbadia case to constitute a breach of a covenant running with the land, and in the complaint in the Noyes case to be an invasion of prescriptive rights acquired by the schools, as riparian owners, by reason of the long use of their lake-front property as a camp and of the waters of the lake for recreational and other purposes.

The plaintiffs in the first case are Pompeo and Maria Labbadia, owners of land at the south end of the lake near the dam, and Louis and Mary Labbadia, lessees of Pompeo and Maria. The defendants are River Road, Inc., the present owner of record of the dam, of contiguous land beneath the surface of the lake, and of flowage rights, and Mary H. Bailey and Robert F. Bailey, who were, in succession, former owners thereof. River Road acquired its title from Robert, who is the president and treasurer of the corporation. The trial court rendered judgment awarding nominal damages and granting injunctive relief to the plaintiff owners as against River Road and Robert. It found the issues in favor of the defendant Mary H. Bailey, and in favor of the other defendants as against the plaintiff lessees. Since neither of the plaintiff lessees appealed, nor did any of the plaintiffs appeal from the judgment in favor of the defendant Mary H. Bailey, the rights of the plaintiff lessees and the duties and liability of the defendant Mary H. Bailey are no longer in issue.

The findings are not subject to any corrections material to our disposition of these appeals. Prior to the close of World War I, the lake and the dam, which have existed for about 100 years, were used for water power by lower riparians. There is an iron pipe lying approximately at the level of the bed of the lake and running through the lower portion of the dam. By opening a gate in this pipe as necessary, water was released from the lake, especially when the spilway on top of the dam was not being overflowed, to supply the needs of the lower riparian millowners. At night, when the mills were not running, the gate was closed and the water was allowed to accumulate in the lake. After World War I, operation of the gate ceased. It remained closed until August, 1957, when Robert, who then owned the dam, some of the submerged land and certain flowage easements, removed the gate, thereby allowing the level of the lake to fall. Record title to Robert's interests passed, on September 14, 1957, to River Road. Thereafter, the level of the lake continued to fall. On October 31, 1957, debris which clogged the pipe was removed by dynamite, increasing the flow of water out of the lake, and by November, 1957, the water in the lake was some six feet below the spillway. Robert and owners of other properties on the lake, largely during September and October, 1957, took advantage of the low water and made repairs to their beaches. In November, 1957, the state water resources commission caused the dam to be inspected. On June 4, 1958, the commission declared the dam to be unsafe and ordered that on or before August 31, 1958, extensive alterations and repairs, of an estimated cost of from $7,500 to $9,500, be made, or, in the alternative, that the dam be removed. In May, 1958, the present suits were instituted, each seeking damages and a mandatory injunction compelling the defendants to repair the dam and to 'maintain the water in the lake at its normal level.' On May 26, 1958, a temporary injunction was issued enjoining the defendants from 'tampering' with the dam. This injunction has been obeyed.

The trial court found that the lowering of the water of the lake had damaged the plaintiffs' properties by leaving them far back from the water. It awarded nominal damages of $50 in each case and granted injunctive relief commanding Robert and River Road to repair the dam 'in accordance with the requirements of plaintiffs' Exhibit K' and thereafter to keep the dam in repair so as to maintain the water in the lake at its normal level. Exhibit K was a report to the water resources commission by engineers who inspected the dam.

In the interest of proper procedure, we point out that a judgment should not incorporate an exhibit, since without a special order an exhibit does not remain part of the file. Practice Book, §§ 206, 207. Upon removal of the exhibit, the judgment ceases to have precision of meaning. The rule is of particular importance in cases such as these, where injunctive relief is granted and it becomes essential that the defendant be able to determine from the judgment, with practical certainty, what conduct on his part is required or prohibited. William Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 125; Baldwin v. Miles, 58 Conn. 496, 502, 20 A. 618; Walden v. Siebert, 102 Conn. 353, 359, 128 A. 702; Palverari v. Finta, 129 Conn. 38, 40, 26 A.2d 229.

Pompeo and Maria Labbadia, husband and wife, hereinafter referred to as the Labbadias, purchased their premises from William S. Hyde and Ernest C. Halliday on September 9, 1947. Besides the land sold to the Labbadias, Hyde and Halliday owned adjoining land, on a portion of which stood the dam. An undivided one-half interest in this retained property, with easements of flowage, was subsequently conveyed to Robert in 1955 by a deed from the heirs of Hyde, and the other one-half interest was conveyed to Robert in 1957 by the heirs of Halliday.

In the deed from Hyde and Halliday to the...