New Haven Water Co. v. Borough of Wallingford

• Decision Date: 05 October 1899
• Citation: New Haven Water Co. v. Borough of Wallingford, 72 Conn. 293, 44 A. 235 (Conn. 1899)
• Court: Connecticut Supreme Court
• Parties: NEW HAVEN WATER CO. v. BOROUGH OF WALLINGFORD.

44 A. 235

72 Conn. 293

NEW HAVEN WATER CO.

v. BOROUGH OF WALLINGFORD.

Supreme Court of Errors of Connecticut.

Oct. 5, 1899.

Appeal from superior court, New Haven county; Alberto T. Roraback, Judge.

Bill by the New Haven Water Company against the borough of Wallingford for injunction. There was judgment for defendant, and plaintiff appeals. Affirmed.

The questions in the case arise principally upon the finding, the material parts of which are, in substance, as follows:

The plaintiff is a private corporation chartered by the legislature of this state in 1849, and since 1862 it has been, and now is, engaged in supplying the city and town of New Haven with water for public and domestic use, and is now the only corporation so engaged. The defendant is a municipal corporation of this state. The Pair Haven Water Company was a private corporation chartered by the legislature of this state in 1861 to supply the village of Fair Haven with water. In July, 1876, the plaintiff purchased the stock, property, and franchise of the Fair Haven Water Company, and since that date has used the same as its own. In 1895 these two corporations, under legislative authority, were consolidated. The plaintiff is now using for the purpose of supplying New Haven three lakes or ponds in the town of Orange, distant from said city between 3 and 4 miles; one storage reservoir in the town of Woodbridge, distant from the center of said city about 5 miles; two storage reservoirs in the town of Bethany, one upon Sargent's river, about 9 miles from New Haven, and another upon West river, distant about 10 miles from New Haven; the water of Mill river, subject to an equal right of user for purposes of the Whitney Arms Factory, now leased to the Winchester Repeating Arms Company, at a point in the town of Hamden, in connection with a distributing reservoir partly in the town of Hamden and partly in the city of New Haven, on Prospect street; and Saltonstall lake, lying partly In Branford and partly in East Haven, and distant between 4 and 5 miles from New Haven. The present average daily consumption of water supply by the plaintiff company is about 15,786,000 gallons. It is reasonably necessary, in order that the city of New Haven and its inhabitants and the defendant and its inhabitants may be amply supplied with water, and that a sufficient reserve may be maintained to guard against the dangers of accident, breaking of dams or machinery, and excessive droughts, that further provision should in the near future be made for supplying the wants of said city and said borough, in view of the rapid growth and increase in population and demand for water in each. The ratio of increase of population in the borough of Wallingford has been in the past about the same as the increase in ratio of the population of the city and town of New Haven. The approximate daily use of water supplied by the defendant corporation through its water system is about 700,000 gallons. A very large portion of the water supplied by the plaintiff corporation is used by manufacturing industries.

In April, 1876, the Fair Haven Water Company purchased a lot of land upon Pine or Muddy river, so called, in Wallingford, and distant between 10 and 11 miles from the city of New Haven. Said land was a mere strip situated southerly of the highway between said land and the Tyler Mill property, so called, and extending on either side of Pine river, about 15 feet along the thread of the stream, and about 12 feet from the stream on each bank thereof. Pine river at said place is a mere stream or brook. Said land includes the bed and banks of said river. Said tract of land is of nominal value only, and worth not more than $5. It has no commercial or agricultural value, and is so located that no dam or reservoir can be built upon it, and the stream running through said land has very little fall. Neither the Fair Haven Water Company nor the plaintiff has ever in any wise improved or used said tract of land. In June, 1876, the Fair Haven Water Company deeded said strip of land to the plaintiff, and the plaintiff is, and ever since has been, the owner of said property. In October, 1892, the defendant purchased and received a deed of a piece of land upon Pine river, above the Tyler Mill property, and above the piece of land deeded to said Fair Haven Water Company, for the purpose of locating thereon and operating a pump and pumping station to take the waters of Pine river, and to appropriate the same to the' public and private uses of the defendant corporation, pursuant to its charter; and defendant did as early as April 3, 1893, erect and commence to operate said pump and pumping station, and to pump the water from Pine river into its pipe lines, and has continued from time to time since to operate said pump, and to pump water from said stream into its mains, until it was stopped as hereinafter stated. The defendant since taking said water in 1892 has acquired and paid for the privilege of taking and diverting said waters at said pumping station from several, but not all, of the persons who owned and held water rights, mill rights, and privileges upon said stream below said pumping station, and the amount paid for the same was about $2,200. Said taking of said water, and the acquirement and purchase by the defendant of water rights, and the construction of said pump and pumping station, were all acquired, made, and purchased before the time when the plaintiff purchased or obtained any right or privilege upon or in or to the waters of said river, except the deed of the small piece of land to the Fair Haven Water Company in 1876.

On the 9th day of November, 1897, Charles J. Anderson, acting for the plaintiff, purchased and received deeds of Henry W. Tyler and George Tyler of the Tyler Mill, so called; the property being described in said deeds as follows: "A certain piece of land, containing one acre, more or less, with the sawmill and other buildings thereon and the water privileges belonging thereto, situated in the town of Wallingford, in said state, on Muddy or Pine river, and upon the highway running northerly from Northford to the East Wallingford post office, and known as 'Tyler's Mills.'" And on the 29th day of November the said Anderson conveyed said property to the plaintiff. Said Anderson in like manner, acting for the plaintiff, in December, 1897, purchased and received from divers persons deeds of land on either side of said river between said Tyler Mill and the land owned by the defendant, and occupied by the pumping station of the defendant. Said property was deeded by Anderson to the plaintiff on January 4, 1898. Said purchases were made in behalf of the plaintiff company, with the knowledge of those making them that the defendant corporation had erected and operated said pumping station, and claimed the right to take said waters; and, if the persons so making said purchases had made reasonable inquiry, they could easily have ascertained the fact that the defendant corporation had purchased said mill and water privileges, and had paid therefor considerable sums of money in establishing said pumping station, and that the defendant intended to use and appropriate the waters of Pine river to public and private uses of the defendant corporation and its inhabitants. The total cost of said pumping station and of the expenses incidental thereto was about $10,000.

In 1882 the defendant corporation acquired the right to use the waters of Pistapaugh pond, hereinafter referred to, situated at the intersection of the towns of Wallingford, North Branford, Guilford, and Durham, and took the waters thereof, and appropriated the same to the public and private uses of the defendant corporation and its inhabitants. The supply of water from said pond is insufficient for the present needs of the defendant and its inhabitants, and it is probable that it will be greatly insufficient for the future necessities of the defendant, and it is necessary for the defendant to continue to use and appropriate the waters of Pine river.

No actual notice was at any time given by said defendant to the Fair Haven Water Company or the plaintiff that the defendant contemplated the taking of said water of Pine river, or the construction of said pumping plant. Neither has the defendant corporation tendered to the plaintiff any compensation for the taking of said water, nor taken steps towards having damages, if any, that have been suffered, assessed, and paid to the plaintiff.

On the 2d day of January, 1894, the court of burgesses of the defendant borough passed the vote, a copy of which is annexed, marked "Exhibit J," and on said date the defendant's board of water commissioners passed a vote in the same language; and on the 4th day of January, 1898, the court of burgesses of said borough passed a vote, a copy of which is annexed, marked "Exhibit K," and on the 5th day of January, 1898, a vote was passed in the same language by the defendant's board of water commissioners.

It is necessary for the defendant to use and appropriate the waters from Pine river, and it has been at all times the intent of the defendant to continue such use and appropriation as soon as arrangements could be made to attain that end. The defendant has always intended, and still intends, to make compensation to any and all persona who have any claim for damages growing out of the taking of said waters, and is now both able and willing to make said compensation. Subsequent to the erection of said pumping station the defendant offered to pay Henry W. Tyler (he then being the owner of the Tyler Mill, subsequently purchased by the plaintiff) the damages which might accrue to him from the taking of said water, but no sum was ever paid or accepted by the said Tyler before the same was purchased by the plaintiff. The nature of the stream and the...