Lipson v. Bennett
| Decision Date | 04 May 1961 |
| Citation | 171 A.2d 83,148 Conn. 385 |
| Court | Connecticut Supreme Court |
| Parties | Edward N. LIPSON et al. v. George BENNETT et al. Supreme Court of Errors of Connecticut |
Cleaveland J. Rice, Jr., New Haven, with whom, on the brief, was Charles M. Lyman, New Haven, for the appellants (plaintiffs Lipson).
Charles Henchel, New Haven, with whom was Morris W. Mendlesohn, New Haven, for the appellees (defendants Bennett).
Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.
In this action, the plaintiffs sought a judgment declaring the nature and extent of the rights of the parties with respect to a pond located on their properties. A trial of the case previously resulted in a judgment of nonsuit, which was set aside on motion of the plaintiffs Edward N. Lipson and Ida L. Lipson. Thereafter, the Lipsons filed an amendment to the complaint. The parties then appeared and were heard by the court on the pleadings. It appeared to the court that there was not an actual bona fide and substantial question or issue in dispute, that there was no substantial uncertainty of legal relations which required settlement between the parties, and that they should be left to seek redress by some other form of procedure. See Practice Book § 277(b). The court continued the case for two weeks, to give the plaintiffs an opportunity to amend the complaint so as to set out a cause of action for damages. At the expiration of this continuance, the court again continued the case for an additional ten days to allow the plaintiffs further time within which to amend the complaint if they desired to do so. On their failure to amend or plead further, the court found that the plaintiffs were not entitled to the relief prayed for and rendered judgment for the defendants. The plaintiffs Lipson have appealed.
In the complaint as amended, the following material facts are alleged. The defendants George Bennett and Rose Bennett were the owners of property in North Haven to the east of, and adjoining, in part, the Lipsons' land. In 1950, a natural stream of water flowed northerly across the property owned by the predecessors in title of the defendants Edward Goldner and Edna Goldner and thence continued northerly across the Bennett property. At that time, the Lipson property was owned by Lewis D. Christie, Jr., and Catherine B. Christie, who co-operated with the Bennetts in erecting a dam on the stream at or near the northwest corner of the Bennett property, thereby forming a pond which flowed over swamp land now owned by all the original parties to this action. In 1954, the Lipsons bought the Christie property. The pond made the properties surrounding it more attractive, and the abutting owners used it for skating in the winter. In 1956, George Bennett opened the dam, drained off the pond, and erected a wall of cinder blocks near the west line of the Bennett property. The wall reached a height just short of the high-water mark of the previous pond. The plaintiffs alleged, on information and belief, that George Bennett intends to raise this wall to about six inches above the high-water mark. They also alleged that in the process of erecting the wall he caused mud and silt to be thrown on some of the land of the plaintiffs and that the condition caused by the drainage of the pond was not conducive to health and constituted an eyesore. The plaintiffs asked for a declaratory judgment determining (1) whether the Bennetts had the right to erect and maintain the wall; (2) whether the Bennetts had the right to control the pond and keep it drained at their pleasure; (3) whether the plaintiffs, and the defendants Goldner, had the right to demand that the pond be maintained in substantially the condition in which it was at the time it was constructed; and (4) the nature and extent of the rights of all the parties. The defendants, in their answers, admitted the construction of the dam creating the pond, the draining of the pond in 1956, and the erection of the wall on the Bennett land. They denied the remaining allegations of the complaint. The plaintiffs claim that the court erred in deciding the case on an issue not presented by the pleadings, in hearing the parties on the pleadings without proceeding to trial, in reaching the conclusions it did, and in rendering judgment for the defendants.
An action for a declaratory judgment is a special statutory proceeding implemented by the rules of court. General Statutes § 52-29; Practice Book §§ 276, 277. The object of the action is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations which requires settlement between the parties. Practice Book § 277(b); Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388. The complaint should allege such a dispute or uncertainty and set forth the facts necessary for the determination of the question. Bania v....
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