Peterson v. Town of Oxford

• Decision Date: 26 April 1983
• Citation: 189 Conn. 740,459 A.2d 100
• Court: Connecticut Supreme Court
• Parties: Russell F. PETERSON et al. v. TOWN OF OXFORD et al.

Page 100

459 A.2d 100

189 Conn. 740

Russell F. PETERSON et al. v. TOWN OF OXFORD et al.

Supreme Court of Connecticut.

Argued Jan. 10, 1983.

Decided April 26, 1983.

Robert C. Flanagan, New Haven, with whom was Eugene A. Skowronski, Derby, for appellant (named defendant).

Richard A. Volo, Ansonia, for appellees (plaintiffs).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

PARSKEY, Associate Justice.

The plaintiffs, Russell and Diane Peterson, brought suit against the town of Oxford and Patrick Blomberg, Inc., for damages resulting from the drainage of water over their property. After a trial to the court, judgment was rendered in favor of the plaintiffs against both defendants. Only the defendant town of Oxford has appealed.

The plaintiffs purchased lot 68 in section two of Quaker Hill subdivision in Oxford, Connecticut, from Pat Blomberg, Inc. on March 21, 1969. This lot abutted a public street in the town of Oxford known as Carriage Drive.

The lot was at the northerly end of the subdivision and was the lowest point thereon. The brook which was the subject of the suit flows south to north from the lands above the plaintiffs, then under Carriage Drive and onto the plaintiffs' property. The brook is escorted under Carriage Drive by a thirty inch diameter pipe maintained by the town.

The brook enters the plaintiffs' lot on the east side and runs easterly for about ninety feet and, then in a gradual curve, circles the rear of the plaintiffs' home in a northwesterly direction, leaving the property on the northwest side. The location of the defendant's home and garage on lot 68 was selected by Blomberg. He constructed the foundation and shell of the plaintiffs' house. Blomberg also designed the plaintiffs' driveway, originally installing a single eighteen inch diameter pipe to guide the brook under said driveway.

When the plaintiffs purchased the lot the brook was about two feet wide and two inches deep. At the time of trial, however, the brook had grown into a watercourse that varied in depth from six inches to two feet and that was up to eight feet wide in places. This growth was representative of a forty percent increase in flow.

The deed that the plaintiffs received from Pat Blomberg, Inc., reserved certain drainage rights in the plaintiffs' property. ¹ In 1969, when the plaintiffs purchased their lot, there were only four or five homes in the subdivision. The subdivision map, however, contemplated seventy-seven lots and the construction of three additional roads known as Old Farm Road, Surrey Lane, and Red Barn Road.

Carriage Drive had been accepted as a public street in September 1967. Surrey Lane and Old Farm Road were accepted by the town in November, 1972. The major portion of Red Barn Road was accepted by the town in August, 1972, with the final portion being accepted in 1978. The town, by accepting these roads as public streets, accepted the appurtenant storm drainage system. Most of the water from these public streets drains into the brook which runs through the plaintiffs' property.

In 1973, after the completion of the subdivision roads, the brook began to cause flooding and erosion on the plaintiffs' property. As a result of the plaintiffs' complaints, Blomberg installed a second eighteen inch diameter pipe under the plaintiffs' driveway. The depth and speed of the brook would increase greatly during a rainfall depending upon the severity of the rain. ² The pipes were not sufficient to carry the water flow. On at least one occasion the brook flooded the plaintiffs' garage. The sides and banks of the brook eroded badly.

The court found that the erosion problem suffered by the plaintiffs was caused by the increased flow of water in the brook and that this should have been foreseen by the town when the subdivision roads were accepted. The court further found that the town could easily have prevented the erosion problem by insisting upon precautionary measures such as riprapping prior to accepting the subdivision roads.

The defendant has raised six claims of error in this appeal. It argues that the trial court erred: (1) in finding that the town violated General Statutes § 13a-138; (2) in finding that the defendant created and maintained a nuisance by draining water in a "natural" watercourse through the plaintiffs' land; (3) by not applying the doctrine of comparative negligence against the plaintiffs based on their constructing and maintaining an inadequate drainage system beneath their driveway; (4) by not finding that the defendant had an absolute right to drain water in the watercourse flowing through the plaintiffs' property by virtue of the grant, reservation or easement contained in the plaintiffs' deed; (5) in not finding the defendant to be acting in the performance of a governmental function and therefore immune from liability; and (6) in finding that the defendant was liable for erosion damage without making a finding of what portion of the erosion was due to natural forces and what portion was proximately caused by the defendant's conduct.

Because the defendant's easement and nuisance claims are related and because we believe that the easement accorded the defendant the broadest drainage rights we will consider these issues first.

The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. Center Drive-in Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974). The owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more. Id., 464, 352 A.2d 304; Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396 (1940). The right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited each by the other, that there may be a reasonable enjoyment of both. 2 Thompson, Real Property (1980 Replacement) § 427. The interests of the owner of the easement often conflict with the interests of the owner of the burdened estate. By law, however, each of the parties owes certain duties to the other. Center Drive-In Theatre, Inc., supra, 166 Conn. at 464, 352 A.2d 304.

The court below found that there was no evidence which indicated that the brook was intended to be enlarged in any manner by the use of the easement. The court found, however, that the defendant had increased the volume of water in the brook and that the defendant's use and maintenance of the easement constituted a nuisance. We find no error.

In Page Motor Co. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980), this court adopted the reasonableness of use rule with respect to surface waters. The reasonable use rule was considered preferable because of its flexibility. The issue of reasonableness is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting. Id., 490, 438 A.2d 739; id., 494, 438 A.2d 739 (Bogdanski, J., dissenting); see Ferri v. Pyramid Construction Co., 186 Conn. 682, 685-87, 443 A.2d 478 (1982). We see no reason why such a weighing analysis should not be used in the instant case.

An easement must be used reasonably. Rights must be exercised with reference to the rights of others. Page Motor Co. v. Baker, supra, 182 Conn. at 489, 438 A.2d 739. "Current social policy dictates that a person no longer have unfettered control of his land. In an urbanized state such as Connecticut it would be unjust for [an easement owner] to ignore the harmful consequences of his actions. The reasonable use rule permits the costs of land development to be allocated to the developer rather than the adjoining landowners." Id., 496, 438 A.2d 739 (Bogdanski, J., dissenting).

Here, the trial court found that the defendant's use of the easement exceeded its intended scope; that the plaintiffs must fear a flooding problem with each rain; that the increased flow was causing erosion to the plaintiffs' land; that this increased flow was foreseeable; and that the defendant could easily have prevented the erosion to the plaintiffs' property by taking preventive measures prior to accepting the roads in the subdivision. Further, the court found that the brook was not in its natural location, that the town approved the subdivision plan which erroneously represented the position of the brook on the plaintiffs' lot, and that this error in the map should have been discovered by the town and a correction made prior to acceptance of the map.

The court, weighing the conflicting interests of the parties, could justifiably have concluded that, although the drainage through the plaintiffs' property was necessary and pursuant to an easement, the defendant had not taken reasonable care to prevent unnecessary and foreseeable erosion damage to the plaintiffs' property caused by its use and maintenance of the artificial drainage system.

In finding that the defendant had created and maintained a nuisance the trial court necessarily had to find that the town's use of the easement was unreasonable. This is so because to constitute a nuisance in the use of land, it must appear not only that a certain use by its very nature is likely to cause injury but also that it is unreasonable or unlawful. Laspino v. New Haven, 135 Conn. 603, 605, 67 A.2d 557 (1949).

The determination of reasonableness is for the trier of fact; see Kostyal v. Cass, 163 Conn. 92, 100, 302 A.2d 121 (1972). On these facts we cannot find that his determination was clearly erroneous; Pandolphe's Auto Parts v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendant next asserts as error the trial court's finding that the town was in violation of General Statutes § 13a-138. ³ By pressing this...