Platt v. City of Waterbury

• Decision Date: 04 January 1900
• Citation: 72 Conn. 631,45 A. 154
• Parties: PLATT et al. v. CITY OF WATERBURY.
• Court: Connecticut Supreme Court

45 A. 154

72 Conn. 631

PLATT et al.

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

Jan. 4, 1900.

Appeal from superior court, New Haven county; George W. Wheeler and Milton A. Shumway, Judges.

Suit by Piatt Bros. & Co. and others against the city of Waterbury to restrain the defendant from polluting with its sewage the Naugatuck river above the plaintiffs' mill privilege, and also for damages, brought the first Tuesday in May, 1891, to the superior court in New Haven county, where a demurrer to certain defenses of the answer was sustained, and the cause was afterwards tried to the court, facts found, and judgment rendered for the plaintiffs for $500 damages, and also for an injunction; and appeal by the defendant for alleged errors in the rulings and findings of the court. Affirmed.

The amended complaint alleges that the plaintiffs are owners of land situate two miles southerly from the city of Waterbury, with manufacturing establishments, dwelling houses, and other buildings thereon, through which land the Naugatuck river flows, upon which and on the plaintiffs' land is a water privilege, from which water is conducted in a canal to the manufacturing establishments of the plaintiffs for the purpose of supplying power; that the plaintiffs are entitled to a natural flow of said river in a pure condition; that from about July 12, 1884, to the present time, the defendant has discharged into the waters of said river, above the property of the plaintiffs, large quantities of sewage and other noxious substances, which contaminated the waters in the river, and rendered the same noxious and filthy, producing noxious and unhealthy gases, permeating the plaintiffs' said buildings; that, by said action of the defendant, the plaintiffs have been deprived of all use of the water in said river, except for the purpose of furnishing power, and their manufacturing establishments have been injuriously affected by reason of said noxious and unhealthy gases, and the value of their said land, buildings, and water privilege has been largely diminished; that the plaintiffs have duly notified the defendant, and requested it to desist from such defilement of the river, but the defendant has, notwithstanding, continued the nuisance to the present time; that the plaintiffs have already been damaged to the extent of $25,000, and the continuance of said nuisance will still more injure and damage their property. The plaintiffs claim (1) $25,000 damages; (2) an injunction against the continuance of said nuisance. The answer of the defendant admits the plaintiffs' ownership of the property as alleged, and denies all other allegations. It contained, also, a special defense, setting up certain statutes, and action in pursuance of the same, and alleging that the action complained of is the action of the board of sewer commissioners of the city of Waterbury, and not of the defendant. The plaintiffs demurred to this special defense. The court (G. W. Wheeler, Judge) sustained the demurrer, because the statutes referred to show that the board of sewer commissioners was created to act for the city, and had no power except to act for the city, and because the statement of the defense was too inadequate and indefinite to present any other claims The defendant then by leave of court filed three special defenses, setting up substantially the claims appearing below in the statement of the defendant's claims in the finding of the court. Upon demurrer the court (G. W. Wheeler, Judge) held the defenses insufficient on the ground that the facts which could not be proved under the denials of the answer did not constitute a defense. The case was then tried on the issues formed by the denials of the plaintiffs' allegations, and judgment rendered that the plaintiffs recover $500 damages, and that the defendant be enjoined against discharging the sewage from its sewers into the Naugatuck river above the premises of the plaintiffs, whereby such sewage shall be carried down the river to said premises, during the months of June, July, August, September, and October in each year, from and after the 1st day of December, 1902. The defendant asked that this injunction be modified so as not to prejudice its rights under possible future legislation in respect to a state sewerage commission, and also to include a provision that the injunction should become inoperative whenever the defendant might acquire the plaintiffs' property by condemnation. The modification was denied, as unnecessary.

The court (Shumway, Judge) made the following findings:

"(1) At the time of the institution of the suit, and for many years before, the plaintiffs, as admitted in the answer to the first paragraph of the complaint, were the owners of the tract of land situated in the town of Waterbury, about two miles southerly from the city of Waterbury, with manufacturing establishments, dwelling houses, and other buildings thereon, through which said land flowed the Naugatuck river. On the said lands of the plaintiffs there was a valuable water privilege, from which water was conducted in an artificial canal to the several manufacturing establishments of the plaintiffs for the purpose of supplying water therein.

"(2) Under an amendment to the charter of the city of Waterbury (9 Sp. Laws, pp. 233-237), and in accordance with the provisions thereof, the city of Waterbury, by the board of sewer commissioners, began the construction of sewers in said city in 1883, according to a sewerage system by which the contents of the sewers were all discharged into the Naugatuck river at points about two miles above the manufacturing establishments of the plaintiffs.

"(3) The place where said manufacturing establishments were carried on always has been, and is now, known as 'Flatt's Mills.' At that place there has been a mill site for about a hundred years, at least; the dam across the Naugatuck river being at the same place, and substantially of the same height, as it was in 1811. It was raised one foot about twenty-five years ago. From a pond made by the dam the water has always been taken out by means of an artificial canal, the property of the plaintiffs, which carried it down to the said manufacturing establishments, a distance of about half a mile. About $150,000, in all, has been invested in the plaintiffs' manufacturing establishments at Piatt's Mills.

"(4) Prior to the construction of said sewers in accordance with the said sewerage system by the city of Waterbury, the waters of the Naugatuck river at Piatt's Mills had contained no substances in sufficient quantity to be annoying to the plaintiffs, or injurious to their business or property.

"(5) The defendant commenced to discharge into the Naugatuck river the sewage from said sewers about July, 1884, but it was several years before the plaintiffs experienced any special difficulty therefrom.

"(6) No attempt had or ever has been made by the city of Waterbury to agree with the plaintiffs as to any compensation to be paid them for any injury to any 'estate, property, right, privilege, or franchise' which might be incurred by them by said use of the Naugatuck river for the discharge therein of the contents of said sewers, nor has any such compensation been made.

"(7) For a considerable period prior to the institution of this suit the plaintiffs were very much and specially annoyed and injured, as hereafter stated, in the use and enjoyment of their property, by reason of the sewage discharged from said sewers into the Naugatuck river. It also appeared in evidence that there were other sources of pollution by which the water of the said river was also affected.

"(8) In the early part of the year 1891, and before this suit was brought, the plaintiffs requested said city, both through its board of sewer commissioners, whose authority is described in said amendment to the charter of the city of Waterbury hereinbefore referred to, and through its court of common council, to desist from continuing to discharge the contents of such sewers into the Naugatuck river; or, if the city should persist in so doing, that the city should take steps under said amendment to assess damages and compensation to the plaintiffs for any injury to their estate, property, right, privilege, or franchise which might or would be incurred by the use of Naugatuck river as an outlet for the discharge of said sewers. Said city of Waterbury neglected to comply with said request in either particular, and has taken no steps to prevent the pollution of the waters of Naugatuck river by the sewage discharged into it from said sewers, or to assess such damages.

"(9) In 1854 the population of the city of Waterbury was about 10,000. It was agreed on the trial that its present population is about 42,500. Of late years the population has rapidly increased.

"(10) There are about 32 miles of highways in said city, which it is the duty of said city to maintain in a condition safe and convenient for public travel. For this purpose these highways are drained into the sewers of said city by means of gutters and catch-basins, and thereby a quantity of filth from the streets finds its way into the Naugatuck river, and a further quantity of surface water flows over said highways into Great brook and Little brook, and this is carried into said Naugatuck river.

"(11) The contents of the discharges of said sewers have been, and are, the same as are continually discharged from city sewers containing organic matter capable of decomposition and putrefaction, and, if not further diluted or purified, will putrefy.

"(12) The sewage system of the city of Waterbury has continually been extended since 1884, and is now being extended as the growth and wants of the city require. The number of sewer connections in January, 1885, was 359; on the 1st of January, 1893, 1,748; on the 1st of January, 1898, 3,046,—extending through about 31 miles of streets. These connections are with...