Nixon v. Gniazdowski

• Decision Date: 28 January 1958
• Citation: 138 A.2d 796,145 Conn. 46
• Court: Connecticut Supreme Court
• Parties: John F. NIXON, Sr., et al. v. William J. GNIAZDOWSKI. Supreme Court of Errors of Connecticut

Page 796

138 A.2d 796

145 Conn. 46

John F. NIXON, Sr., et al. v. William J. GNIAZDOWSKI.

Supreme Court of Errors of Connecticut.

Jan. 28, 1958.

J. Warren Upson, Waterbury, with whom, on the brief, were Francis G. Fitzpatrick, Waterbury, and Thomas Neary, Naugatuck, for appellant (defendant).

Michael V. Blansfield, Waterbury, with whom, on the brief, was Harry M. Albert, Waterbury, for appellees (plaintiffs).

Before BALDWIN, DALY, KING and MURPHY, JJ. ^*

DALY, Associate Justice.

The plaintiffs brought this action for the recovery of damages and an injunction to restrain the defendant from using his land as a dump, a disposal area and a piggery. The defendant has appealed from a judgment awarding nominal damages to the plaintiffs and enjoining him from using or permitting the use of a portion of his premises for the dumping of waste material and the burning or burying of it.

The defendant asks to have facts as set forth in seven paragraphs of the draft finding added to the finding. The additions cannot be made. Some of the suggested facts are not material. Others are not admitted or undisputed. A fact is not an admitted or undisputed fact because the witness who testified to it has not been contradicted. The acceptance or rejection of testimony is a matter for the trial court. Starkel v. Edward Balf Co., 142 Conn. 336, 337, 114 A.2d 199; Quiet Automatic Burner Corporation v. Wetstone, 143 Conn. 276, 278, 121 A.2d 635; Practice Book, § 397; Maltbie, Conn.App.Proc. § 158. Furthermore, the fact that a witness testifies as an expert does not compel the acceptance of his testimony as true. Taylor v. Corkey, 142 Conn. 150, 154, 111 A.2d 925; Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358, 54 A.L.R.2d 655. The defendant's claim that the facts contained in six paragraphs of the finding were found without evidence is futile. These challenged facts are amply justified by the evidence.

The court found the following facts: On June 8, 1949, the defendant and his wife became the owners of a tract of land on the top of Andrew Mountain, one of the range of hills on the southerly side of the borough of Naugatuck. Their land is south of and adjacent to the Andrew Mountain Road. It consists of seventy acres, more or less, and is hereinafter referred to as the defendant's property. The defendant fenced in about thirty acres of the tract and used it for a piggery. At the time he had a contract with the borough of Naugatuck for disposal of its garbage. From June, 1949, up to the present, he has continued to collect garbage in the borough of Naugatuck and has disposed of it by feeding it to pigs kept on his tract. The garbage is dumped in the open fields, where it is eaten by the pigs. In addition to conducting a piggery on the tract, the defendant has, since June, 1949, collected trash from certain parts of the borough of Naugatuck and dumped it on a portion of his property. He has burned some of it from time to time. This dumping area is adjacent to the fenced-in portion of the farm used as a piggery. Between June, 1949, and June, 1956, some of the plaintiffs acquired land on Andrew Mountain and, during this period, constructed houses facing Andrew Mountain Road. These houses are westerly of, and at approximately the same level as, the defendant's property.

In May, 1956, George Clark, either individually or on behalf of the W. F. Clark Fuel and Trucking Company, Inc., entered into a contract with the footwear division of the United States Rubber Company for the disposal of the paper, rubber, fabrics, chemicals and other waste from its plant in the borough of Naugatuck. Thereafter, Clark contracted with the defendant for the disposal of this material on the portion of the defendant's property which is just south of the piggery. This disposal area is adjacent to one of the areas on which the defendant puts trash and rubbish. On June 11, 1956, Clark commenced dumping waste materials such as rubber trimmings, defective rubbers, rubber boots, rubber-coated canvas, rubberized gas cells for jet planes and cafeteria waste on the disposal area, and since the date he has deposited such material there at the rate of approximately one and a half million pounds per month. For at least four years prior thereto, a substantial part of the waste material from the plant had been taken to two dumping areas on the top of Hunter's Mountain, one of the hills on the southerly side of the town. The material had been burned there. This had caused large columns of black smoke and the smell of burning rubber.

Between June 11, 1956, and July 1, 1956, Clark caused the dumped material, together with methyl ethyl ketone, to be burned. The area immediately adjacent to the dump was contiguous with large areas covered by brush and trees and was subject to winds and drafts in all directions. The defendant did not maintain a full-time guard or watchman to safeguard the property from intruders, though persons were known to go on the premises without his consent. The fires caused large volumes of flames extending some distance into the sky and topped by black, foul-smelling smoke. The smoke was permeated with a strong odor of burning rubber, mixed with a foul-smelling odor from the methyl ethyl ketone which was burned at the same time. The flames were plainly visible at night. The glare was visible day and night and caused the plaintiffs to be fearful that the burning would get out of hand. The black smoke spread along the face of the slope. It covered the dwelling houses of many of the plaintiffs and required them to close their windows during the day and at night. The flames, smoke and odor rendered the...