Lake Williams Beach Ass'n v. Gilman Bros. Co.

• Decision Date: 06 August 1985
• Court: Connecticut Supreme Court
• Parties: LAKE WILLIAMS BEACH ASSOCIATION et al. v. GILMAN BROTHERS COMPANY et al.

Page 182

496 A.2d 182

197 Conn. 134

LAKE WILLIAMS BEACH ASSOCIATION et al. v. GILMAN BROTHERS COMPANY et al.

Supreme Court of Connecticut.

Argued June 11, 1985.

Decided Aug. 6, 1985.

Peter B. Cooper, New Haven, with whom were Frank B. Cochran, New Haven, and, on the brief, Linda Francois, Hartford, for appellants (plaintiffs).

Edmund W. O'Brien, New London, with whom, was George Gilman, Norwich, for appellees (defendants).

Before PETERS, C.J., and DANNEHY, CALLAHAN, MENT and M. HENNESSEY, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether lowering the level of an artificial lake to compensate for the inadequate design of a dam constitutes a reasonable use of water rights. The plaintiffs, owners of real property fronting on the shore of Lake Williams in Lebanon, brought suit to enjoin the defendants, a dam owner and its lessee, from unreasonably drawing down the lake. The trial court held for the defendants and the plaintiffs appealed. We find no error.

The facts underlying this appeal are largely undisputed. The dam that created Lake Williams was erected in the mid-nineteenth century to supply water power for downstream industrial use. The dam consists of a 280 foot-long earthen embankment, into which is set a 39 foot-long stone masonry spillway. The distance between the top of the spillway and the top of the dam (the freeboard) is 1.8 feet. The level of the water in Lake Williams is controlled by opening and closing a 30 inch diameter steel pipe that runs through the spillway wall. The mechanism that operates this "gate" is located in a gatehouse atop the spillway. The named defendant, the Gilman Brothers Company (the defendant), is the successor in title to the dam site, the dam, and the right to impound and flow the waters of Lake Williams. ¹ Gilman Brothers uses this water at its downstream plastics factory for cooling and fire protection. When surplus water is available, the defendant Bozrah Light & Power Company uses it to generate electricity pursuant to a lease agreement with the defendant Gilman Brothers.

Lake Williams is very shallow. It has a surface area of approximately 272 acres when full, yet it has a maximum depth of ten feet and an average depth of four and one-half feet. The lake was completely surrounded by undeveloped woodland until 1950, when construction of houses on lots adjacent to the lake began. The individual plaintiffs are owners of lakefront properties in this residential development. The named plaintiff is an association of development residents and holds title in its own right to two lakefront beach lots. The plaintiffs use the lake for fishing, boating, swimming and ice skating.

Before 1979, the defendant kept the lake as full as possible in the summer to ensure an adequate reserve of water for its factory, and the parties' uses of the lake were compatible. The level of the lake was relatively stable from March through Labor Day, after which it was normal for the water to be drawn down approximately one foot.

In 1976, as part of the United States army corps of engineers national dam inspection program, the engineering firm of C.E. Maguire, Inc., inspected the dam at Lake Williams. In its October 1978 report, Maguire stated that the dam could not withstand the prescribed flood test because its spillway capacity was seriously inadequate. The report concluded that a test flood would overtop the dam by 2.31 feet, and recommended that Gilman Brothers engage an engineer experienced in the design of earth dams to make a detailed study of the dam and institute corrective measures. In the interim, the defendant was told that the lake "should be lowered and maintained at a level below the spillway crest to provide flood storage for storm events." An accompanying table showed that 4.11 feet of freeboard would be necessary to pass the test flood. The department of environmental protection (DEP), which has jurisdiction over dams pursuant to General Statutes §§ 22a-401 through 22a-410, requested the defendant to implement these recommendations by January 1, 1980.

Accordingly, Gilman Brothers hired the engineering firm of Buck & Buck to study the dam. In its interim February 1980 report, Buck & Buck confirmed that the spillway capacity was inadequate. Buck & Buck issued its final report on March 5, 1982. It recommended lowering the level of the spillway by three feet, which would increase the available freeboard to 4.8 feet at an approximate cost of $25,500. Alternate remedies of lengthening the spillway or adding an emergency spillway were discussed and rejected. The defendant was also told to keep the level of the lake approximately three feet below the spillway until the spillway itself was lowered.

On May 17, 1982, the DEP determined that the dam could not be classified as safe and ordered the defendant to repair or remove it. See General Statutes § 22a-402. ² The DEP order provided in pertinent part: "The repairs or alterations to be made should include ... 1. Provide spillway capacity adequate to discharge [the test flood] without overtopping the embankments." The DEP did not specify how its order should be implemented. ³

In July, 1979, the lake was drawn down to three and one-half feet below the spillway, three feet below its normal summertime level. In order to facilitate Buck & Buck's inspection of the dam, the lake was almost completely drained in April, 1980. Between April, 1980, and March, 1982, the level of the lake fluctuated widely. Since the latter date, the lake has, with one notable exception, been maintained at approximately three feet below the top of the spillway. During a major rainstorm in June, 1982, the level of the lake rose from twenty-nine inches below the spillway to six inches above the spillway before cresting.

Since July, 1979, there has often been insufficient water in the lake for the recreational activities previously enjoyed by the plaintiffs. Large expanses of mud have been exposed, weed growth in the lake has increased and the market value of the plaintiffs' property has significantly declined.

The plaintiffs filed suit on September 8, 1981. The first count of their complaint alleged that by drawing down the lake, the defendants violated the plaintiffs' common law riparian rights. The second count claimed an impairment of the public trust in the waters of the lake. See General Statutes §§ 22a-15, 22a-16. ⁴

The trial court ruled against the plaintiffs on both counts. It found that while the plaintiffs owned land abutting the lake, they had failed to allege or prove ownership of any portion of the lake bed. ⁵ The court therefore concluded, on the first count, that the plaintiffs had no riparian rights in the waters of Lake Williams. The trial court held that recovery under the second count was barred by the necessity of maintaining the lake at the lower level. On appeal, the plaintiffs claim that the trial court erred in holding that they have no riparian rights and in finding that the lake was drawn down out of necessity.

The plaintiffs' claims are defeated by the factual findings of the trial court. Even if it is assumed, arguendo, that the plaintiffs are riparian owners, they cannot prevail on the first count of their complaint. It is settled law that "[e]ach riparian owner is limited to a reasonable use of the waters, with due regard to the rights and necessities of other such owners." Harvey Realty Co. v. Wallingford, 111 Conn. 352, 359, 150 A. 60 (1930); see Agawam Canal Co. v. Edwards, 36 Conn. 476, 497-98 (1870); Wadsworth v. Tillotson, 15 Conn. 366, 373, 39 A.D. 391 (1843); see generally 7 Clark, Waters and Water Rights (1976) § 611; 4 Restatement (Second) Torts §§ 850, 850A (1977). In balancing competing claims to the waters of an artificial lake, we have held that riparian owners may prevent only the unreasonable lowering of the lake by a dam owner. Labbadia v. Bailey, 152 Conn. 187, 190, 194, 205 A.2d 377 (1964); DeWitt v. Bissell, 77 Conn. 530, 535, 60 A. 113 (1905); see also Brown v. Ellingson, 224 So.2d 391, 393-94 (Fla.App.1969); Taft v. Bridgeton Worsted Co., 237 Mass. 385, 388-90, 130 N.E. 48 (1921); Stidham v. Algonquin Lake Community Assn., 133 Mich.App. 94, 97-99, 348 N.W.2d 46 (1984); 7 Clark, Water and Water Rights (1976) §§ 615.2, 633. Whether a competing...