Palmer v. Hartford Dredging Co.

• Court: Connecticut Supreme Court
• Writing for the Court: TORRANCE, J.
• Citation: Palmer v. Hartford Dredging Co., 73 Conn. 182, 47 A. 125 (Conn. 1900)
• Decision Date: 17 September 1900
• Parties: PALMER v. HARTFORD DREDGING CO.

47 A. 125

73 Conn. 182

PALMER

v. HARTFORD DREDGING CO.

Supreme Court of Errors of Connecticut.

Sept. 17, 1900.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by Benjamin F. Palmer against the Hartford Dredging Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover damages for injury to an oyster bed, brought to the court of common pleas in Fairfield county, and upon a default heard in damages before Curtis, J. Facts found, and judgment rendered for the plaintiff for substantial damages, and appeal by the defendant for alleged errors in the rulings and judgment of the court. No error.

In November, 1895, the defendant, under proper authority, was engaged in cutting a channel in Stamford Harbor, and, while towing one of its scows loaded with mud dug from said channel over the oyster bed of the plaintiff there, the scow overturned, and deposited its load of mud on the oyster bed. This suit is brought for the injury caused thereby. As originally brought, the complaint contained but one count, alleging that the defendant "did unlawfully, and without the consent or knowledge of the plaintiff, dump and deposit * * * 200 cubic yards of mud, earth, and gravel" from said scow upon said bed and the oysters growing thereon. The defendant demurred to the complaint, and the demurrer was overruled. Subsequently the plaintiff filed a second, third, and fourth count, founded upon his one cause of action. In these added counts the cause of the upsetting of the scow is alleged in divers ways, which, in substance, may be stated as follows: In the second it is alleged that it was caused by the defendant's negligence and carelessness (1) in loading the scow, and (2) in conveying it over the oyster bed; in the third it is alleged that it was caused by using a scow which was leaky, unfit, and unsafe for the purpose for which the defendant was using it; while in the third it is alleged that the scow, by reason of its leaky condition, was unfit for the purpose for which it was used; that the defendant, although it knew, or should have known, the condition of the scow, carelessly and negligently loaded it with matter dug from the channel, and towed it out to the proper dumping ground; that by reason of its leaky condition the scow had then so filled with water and careened over on one side that the defendant was unable to dump all of said load; and that while in this condition the defendant towed the scow over the plaintiff's oyster bed in such a negligent and careless manner in its then condition as to cause it to overturn, and deposit its contents upon said oyster bed. The defendant suffered a default, and gave notice (1) that it would deny all the material allegations of the complaint; and (2) would claim and offer evidence to prove that the overturning of the scow was due wholly to unavoidable accident, and not to any willful or negligent act or conduct on the part of the defendant.

The substance of the material facts found may be stated as follows: On the 18th of November, 1895, the plaintiff owned the oyster bed in question, and there was then growing thereon a crop of oysters from a set caught and planted in 1892. On that day a scow of the defendant, while being towed over this oyster bed, overturned, and deposited thereon about 60 cubic yards of harbor mud. The scow overturned under the following circumstances: The defendant, in dredging the channel, removed the dredged material in scows to the public dumping ground, about three miles from the harbor, and beyond the oyster grounds therein. The scows used were of the kind ordinarily employed for such purpose. On the day before the scow overturned the defendant loaded it with harbor mud, and left it in the cut overnight. It rested on the bottom of the cut a portion of the time while being loaded, and also during the night, as the defendant well knew. While so resting on the bottom, a hole was made in the air chamber of the scow, presumably by a rock on which it rested. Except as to this hole, the scow was in good seaworthy condition, and in every way suitable for use in defendant's business there. This method of loading is in general use, and is not of itself negligent, although it was known by the defendant to be dangerous, and to be avoided if possible. No rocks at the place where the scow rested had been noticed by the defendant, but it made no inspection to discover whether rocks were there or not. The defendant well knew that, whenever a scow thus rested on the bottom, there was danger of its being injured, and made to leak, and also knew that rocks had been found there. Next morning said scow was towed out of the cut to the dumping ground by the defendant. Prior to starting for said grounds, the defendant made no examination of the scow to see whether any injury had been done to it by resting on the bottom, nor during the passage to the dumping ground was any attention paid to see whether it leaked or not. During the passage out the scow leaked badly, and settled in the water, but the defendant did not discover this fact till the dumping ground was reached. The defendant then tried to dump the scow, using all reasonable means to do so, but, owing to its condition on account of said leak, was unable to do so, and, fearing that the scow would sink, towed it towards the shore for the purpose of beaching it. When the scow had been thus towed a mile or more, it suddenly overturned, dumped its mud, and floated upside down. The overturn was caused from the leak taking in water enough to overbalance the scow. It did not appear whether or not the defendant knew that the scow was over cultivated oyster ground when it upset, but it knew there were oyster beds all about the harbor. There was no negligence on the part of the defendant in its attempts to dump the scow at the dumping ground, nor in its management of the towboat and scow on its return towards the shore. The defendant was negligent under the circumstances, in not having examined the scow before starting for the dump, and in not having its servants keep watch of the air chamber on the passage out, to see whether or not it leaked. If such care had been taken, the leak would have been discovered sufficiently early to have avoided any damage to any one's oyster ground. The defendant was not guilty of negligence in the manner of towing the scow on its return or in the direction taken. The defendant knew that the part of the harbor over which its scows passed in this work was extensively used for the cultivation of oysters. The plaintiff, without any negligence on his part, did not discover the presence of any mud on his oyster bed till August, 1896, and did not locate the point where it had been dumped by the scow till the spring of 1897. In the spring of 1895 he had examined the ground, and found the oysters there in fine condition. In the spring of 1897 he found the oysters, upon and about one acre of his bed in the vicinity where the scow had upset, dead, and also found a large number dead upon an area of about six acres around this point, where the mud had been carried here and there by the tidal currents. In all, the mud from the scow destroyed 900 bushels of three year old seed oysters of the plaintiff, worth 60 cents per bushel on the bed, equal to $540, for which sum, with interest, judgment was rendered for the plaintiff. "The plaintiff's estimate of quantity of oysters destroyed was made in reference to oysters of the size of three year olds, as these were,...