Lawton v. Derrick

• Decision Date: 12 July 1910
• Court: Connecticut Supreme Court
• Parties: LAWTON v. DERRICK.

76 A. 986

83 Conn. 417

LAWTON

v. DERRICK.

Supreme Court of Errors of Connecticut.

July 12, 1910.

Appeal from Superior Court, Windham County; Silas A. Robinson, Judge.

Action by Clark G. Lawton against Frank A. Hejtick. From a judgment for plaintiff, defendant appeals. Affirmed.

Donald G. Perkins and Allyn L. Brown, for appellant.

Charles E. Searls and Harry E. Back, for appellee.

BURPEE, J. The plaintiff in this action is the owner of a millpond and sawmill, and about half a mile above, on the same brook, the defendant owns another pond and sawmill in which he makes cider in the fall of the year. In his original complaint the plaintiff alleged that the defendant has been throwing into the brook scantlings, sawdust, pomace, and other refuse, which has floated down into the plaintiff's pond and partially filled it up, clogged and damaged his mill, and made the water so foul and unwholesome that the plaintiff has not been able to find and harvest ice fit for domestic use in sufficient quantity to satisfy the demands of the customers whom he has obtained and has hitherto supplied; that he has notified the defendant of these injuries and requested him to desist from such use of the brook, but without effect. The plaintiff claims that he has already been seriously damaged, and that he will be irreparably damaged and his mill privilege and ice business ruined if the alleged nuisance be continued permanently. Therefore he asked for damages for the injuries already caused and an injunction to restrain the defendant from continuing such nuisance in the future. In answer the defendant admitted that he had thrown the refuse into the brook substantially as alleged, and denied the remaining allegations of the complaint. Then he set up that he and his predecessors in title had acquired a prescriptive right to throw into the brook at his mill "the things and matter described in the complaint." This the plaintiff denied. With issues thus made, the matters calling for legal relief were tried to the jury, and the claims for equitable relief, by agreement of counsel, were tried to the court at the same time. After both the plaintiff and the defendant had finished their evidence and were about to begin their arguments, the plaintiff moved to amend his complaint by inserting two paragraphs. He wished set up that his water wheel had twice been broken by scantling thrown into the brook by the defendant, causing damage to the amount of $56; and that in the winter of 1909, he had determined to add 125 tons to his supply of ice, but could not because of the acts of the defendant, and thereby he had lost the sale of so much ice. The defendant objected to this amendment, but the court allowed it, and offered to grant an adjournment to allow the defendant to bring in any further evidence he might desire to introduce. The defendant filed a denial of the allegations in the amendment, but declined the offer of adjournment and to present any more evidence.

This action of the court is the first reason of appeal specified. The allowance of an amendment of the pleadings at any time before judgment is a matter resting in the discretion of the trial court, and its action will not be reviewed on appeal unless the record shows clearly an abuse of such discretion. Sherman's Sons Company v. Industrial & Mfg. Co., 82 Conn. 479, 482, 74 Atl. 773. Nothing is found in the record in this case to suggest such abuse. The facts upon which the plaintiff relied to prove the statements made in the amendment had already been put in evidence, and the trial court offered the defendant ample opportunity to present any further evidence he might obtain and desire to offer. If the defendant suffered any injury, it was not due to the allowance of the amendment, but to his refusal to avail himself of this opportunity to support his defense. La Barre v. Waterbury, 69 Conn. 554, 37 Atl. 1068.

The defendant asked the court to instruct the jury, as he states the substance in his brief, that he was liable in this action only "for the damage specifically alleged to have been done by the articles named and thrown by him into the brook" between the dates mentioned in the complaint, and that the burden of proof was on the plaintiff to show that the damage claimed was "caused by such articles actually thrown or allowed by the defendant to be thrown into the brook." The court complied with these requests. The jury were instructed that they should hold the defendant liable for any damage caused by the refuse described in the complaint, which they should find "was truly charged to have been thrown or caused to be thrown into the stream by the defendant"; that the plaintiff "must be limited to what he sets up in his complaint"; and that the burden of proof was on him to show that the damage which he claimed was actually caused by the articles named in the complaint, and that "the article or articles causing the damage were actually thrown or allowed by the defendant to be thrown into the brook." Such a charge was quite as favorable to the defendant as he asked for, or had any reason to expect.

The fifth and sixth reasons of appeal were not referred to by the defendant's counsel in argument or in his brief. We regard them as dropped.

Reasons 7, 14, and 16 of appeal relate to the defendant's request to charge on the subject of damages for injury to the ice on the plaintiff's pond. This request was framed apparently before the amendment of the complaint was allowed, which took away any basis for the claim that no damages to the ice were specifically alleged. As to the remainder of the request, it is not true that the plaintiff could not recover damages for the loss of the ice he intended to harvest and of which he was deprived by the wrongful acts of the defendant, or that such damages "are too remote and speculative." The court instructed the jury that the plaintiff claimed that the ice was lying on the pond, covering space and having thickness enough to yield about 125 tons, in every respect suitable to be cut and used, except for its polluted condition for which the defendant was responsible. They were cautioned to estimate the loss to the plaintiff from the evidence before them relating to the quantity of ice, the cost of harvesting, the waste in storage, and the market value of the remainder at the time when it could be sold. The right to take and use or dispose of the ice on his pond, in its natural condition, was the property of the plaintiff. If the defendant destroyed or injured that property by putting sawdust or pomace into the pond, he was responsible for any resulting damage. To compute such damages, the court correctly stated the necessary and proper factors. It should be borne in mind that this is not an action for a breach of contract, but one of tort, asking for damages for wrongful injuries willfully inflicted. In such a case, the wrongdoer is held to a stricter rule of liability. Properly limited, evidence of the profits of a business before and after an injury complained of in such an action is admissible, and may be considered in estimating compensation for the loss inflicted. They are not too remote or speculative, nor was the plaintiff bound to look elsewhere to make good the loss to his property which the defendant had caused by willful torts. Cornstock v. Conn. Ry. & Lt. Co., 77 Conn. 65, 58 Atl. 465.

The court was asked to charge that the plaintiff "had no title or ownership in the ice frozen on his pond" before he had removed it. But it was conceded that he is the owner of the pond and of the soil under and around it. It follows that he has the right to take and make any use of the ice formed on his pond if he does not unlawfully interfere with the rights of a proprietor lower down the stream. Subject to such restriction, the ice belongs to the plaintiff. Geer v. Rockwell, 65 Conn. 316, 323, 32 Atl. 924; Howe v. Andrews, 62 Conn. 398, 400, 26 Atl. 394. As to the defendant, an upper proprietor, the plaintiff has an exclusive right to the ice on his pond. Stevens v. Kelley, 78 Me. 445, 450, 6 Atl. 808, 57 Am. St. Rep. 813; Richards v. Gauffret, 145 Mass. 480, 14 N. E. 535. Hence the court properly declined to charge as requested, and its statement that the plaintiff had a "property right in the ice" was correct as to the law and appropriate to the facts. In regard to his right to use the stream for the purpose of carrying off pomace and other refuse, which is the subject of the ninth reason of appeal, there is no error in the charge. It was sufficient to instruct the jury that the defendant had a right to maintain and operate his mill on the stream above the plaintiff, and to make a reasonable use of the stream for such purposes; that he had no right by unreasonable use seriously to impair the rights of the plaintiff below; and that whether the defendant's use was reasonable or unreasonable was for the jury to determine from a consideration of all the circumstances of the case. This law applies also to plaintiff's rights in his use of the stream, and covers well the defendant's request to charge that the plaintiff was bound to exercise reasonable care to protect himself from any damage that he had cause to anticipate. He was not bound to expect that the defendant would inflict wrongful injuries upon him in the use of the brook, and it was not his duty to take steps to protect himself from unexpected, unlawful acts. Moreover, the record shows that he had taken the precautions usually taken by men in such circumstances.

The eleventh and thirteenth errors assigned relate to the defendant's defense of a prescriptive right to use the brook to carry off the refuse resulting from the operation of his mill. He asked the court to charge that an upper riparian proprietor might acquire a right so to dispose of refuse if "continuously, under a claim of right, for a period of more than fifteen years," he had deposited it in the stream and so had it carried...