Ricci v. Naples

• Decision Date: 18 June 1928
• Citation: 108 Conn. 19,142 A. 452
• Court: Connecticut Supreme Court
• Parties: RICCI v. NAPLES.

142 A. 452

108 Conn. 19

RICCI v. NAPLES.

Supreme Court of Errors of Connecticut.

June 18, 1928

Appeal from City Court of Meriden; Thomas P. Dunne, Judge.

Action by Patrick Ricci against Dominick Naples for a mandatory injunction to require defendant's removal of certain underground sewer pipes located on plaintiff's land through which defendant was discharging sewage from his property and from the property of others in the vicinity tried to the court as to the equitable issues. Judgment for plaintiff requiring defendant's removal of connections to plaintiff's underground sewer pipe located on the plaintiff's land, and defendant appeals. No error.

On September 11, 1894, John Salisbury was the owner in fee simple of a tract of land in Meriden, bounded southerly by West Main street and easterly by a private way called Quinlan avenue, on which were three houses fronting upon Quinlan avenue. At this time Salisbury, under a license and permit from the city of Meriden, installed an underground sewer pipe near the edge of Quinlan avenue connecting with the public sewer pipe on West Main street to serve the three dwellings on his property. On April 5, 1900, Salisbury transferred the entire tract to George and Maria Angla Montemurro, husband and wife, at which time the three houses fronting on Quinlan avenue were on the tract. Mr. and Mrs Montemurro continued to be the owners of the entire tract of land from April 5, 1900, to December 27, 1921, when they sold that portion, having upon it the house furthest north from West Main street, to Dominick Naples. On March 5, 1925, they sold the tract of land between the property bought by Naples and West Main street, with the two houses thereon, to Giovanni Ricci. The deeds from the Montemurros to Naples and Ricci were warranty deeds containing the usual covenants of warranty, and without any express words granting an easement. In February, 1926, Giovanni Ricci transferred to the plaintiff by warranty deed containing the usual covenants of warranty, and without any express words showing any easement, the property purchased by him from George and Maria Angla Montemurro. Neither Giovanni Ricci nor Patrick Ricci, the plaintiff, had any knowledge or notice express or implied, that sewage from the premises of Naples or Cassidy or any other parties was passing through the underground sewer pipe on the Ricci land until the early part of March, 1926, when they were informed by an attorney that three properties were sewering through an underground pipe on the land. At no time has there been an open, visible, or exclusive possession by Naples of this underground sewer pipe, and at no time has Giovanni Ricci or Patrick Ricci been ousted of possession of the land now standing in the plaintiff's name. The use of this underground sewer pipe is very convenient to Naples, but he has not made any attempt to arrange for the disposal of the sewage from his land and buildings either by way of Quinlan avenue or over the properties adjoining. The buildings on both tracts were on the land when it was bought by John Salisbury from his predecessor in title; but there was no evidence as to the reason why Salisbury constructed the pipe line on his land nor was there any evidence offered as to any regulations or ordinances of the city of Meriden.

Morris M. Wilder, of Meriden, for appellant.

Daniel J. Danaher, of Meriden, for appellee.

Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

AVERY J. (after stating the facts as above).

In this court, the appellee filed a motion to erase the case from the docket for lack of jurisdiction on the ground that the judgment of the city court of Meriden, upon the equitable issues, was not a final judgment, and that no final judgment could be rendered in the case until the damages had been assessed by a jury.

As far as appears from the record, no objection was made to the action of the city court of Meriden in proceeding to the trial of the equitable issues before the question of damages claimed for trial to the jury was tried. In the trial to the court, all the issues were determined, except the amount of damages, and the court rendered a judgment after fully hearing the parties. This judgment, by its terms, disposes finally of all the issues in the case, except the amount of damages and was a final judgment, as to the issues adjudicated, from which an appeal lay immediately to this court. " A ‘ final judgment,’ within the meaning of our statute of appeal, may include any judgment in its nature final and separable from any other judgment that may be rendered in the action, although not finally disposing of the action." Bunnell v. Berlin Iron Bridge Co. et al., 66 Conn. 24, 37, 33 A. 533, 536. " In the course of an action on the equity side of the court in which a receiver is appointed, it is often necessary for the court to make an order which constitutes an adjudication by a judicial finding, separable from the main action, affecting in some instances persons who are parties to the action only for the purposes of that proceeding, and which cannot be reviewed, unless by an appeal from that order. Orders of such a character which are in fact a final adjudication of the rights involved may generally be reviewed by an appellate court." Guarantee Trust & Safe Deposit Co. v. Phila. R. & N. R. R. Co., 69 Conn. 709, 714, 38 A. 792, 793 (38 L.R.A. 804); " A final judgment may be followed, in cases of certain kinds,...