Richards v. New York, N. H. & H. R. Co.

• Decision Date: 04 January 1905
• Citation: 60 A. 295,77 Conn. 501
• Court: Connecticut Supreme Court
• Parties: RICHARDS v. NEW YORK, N. H. & H. R. CO.

60 A. 295

77 Conn. 501

RICHARDS

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

Jan. 4, 1905.

Appeal from Superior Court, New London County; George W. Wheeler, Judge.

Action by H. R. Richards against the New York, New Haven & Hartford Railroad Company to recover damages for injuries to plaintiff's littoral or riparian rights in a river. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Walter C. Noyes, for appellant Donald G. Perkins, for appellee.

TORRANCE, C. J. The complaint alleges, in substance, that the plaintiff is the owner of land having a frontage of several hundred feet on the Thames river, a navigable stream in this state; that the defendant, "wrongfully and against the will and consent of the plaintiff," has built and maintains a permanent embankment in front of said land and between it and said river; and that "the defendant has thereby separated and cut off the plaintiff's said land from said river, and diverted said river so that it no longer flows by plaintiff's said land in its natural course, and has obstructed and destroyed the plaintiff's use of said river as a way of access to her said land, and has obstructed and destroyed the right, which the plaintiff owned as attached to her said land, to wharf out from her said land into deep water in said river for use of the same as a navigable stream, and has obstructed and destroyed the view and prospect of and over said river from the plaintiff's said land." The complaint also alleged damages caused by the upheaval of the mud of the river bottom outside of the location of said embankment in consequence of the building of said embankment. The defendant demurred to the complaint, and, after this was overruled, suffered a default, and was heard in damages upon notice, which gave the defendant the right to contest all the allegations of the complaint. The action of the trial court in overruling the demurrer is assigned for error in one of the reasons of appeal.

After a voluntary default and hearing in damages thereon, this reason of appeal is no longer open to the defendant, unless the complaint is bad in substance; and, as this is not the case, the assignment above referred to cannot avail the defendant upon this appeal. Hourigan v. City of Norwich, 77 Conn. —, 50 Atl. 487.

The other errors assigned relate to the action of the court in overruling certain claims of law, and in rendering judgment for more than nominal damages. The controlling facts in the case are, in substance, the following: The Thames river, a navigable stream, flows in a southerly direction to Long Island Sound. Upon its eastern margin, at a point just above Gale's Ferry, there is a small pouch-shaped indentation known as "Clark's Cove." This cove is about 1,600 feet in length north and south, and near its northerly end it has an opening or mouth into the river about 450 feet in width. There is no channel in the cove, and it has a mud bottom, with from 1 1/2 to 2 1/2 feet of water thereon at mean low tide. The mean rise and fall of the tide there is 2 feet and 10 inches. The channel of the river is about 800 feet westerly from the mouth of the cove. The land surrounding the cove is owned by divers owners in severalty. The land described in the complaint lies within the cove, and has a frontage of between 450 to 500 feet upon the waters of the cove. Its front line lies opposite the mouth of the cove, and about 200 feet distant easterly therefrom. Two lines drawn at right angles to the channel of the river, one at the north and one at the south side of the cove mouth, would embrace the frontage above mentioned. There are three dwelling houses on said land. Prior to the doing of the acts complained of there was no obstruction on the waters of the cove or the river between the plaintiff's said land and the channel of the river. The defendant is the lessee of the Norwich & Worcester Railroad Company, and in doing the acts complained of it acted as such lessee and as the agent of said lessor; but it was agreed by the parties upon the trial below that judgment, if in favor of the plaintiff, should properly run against the defendant, and that the defendant should be treated as if it were the owner of said railroad, invested, with reference thereto, with all the power and authority conferred by the Legislature upon said lessor. In this view of the case the defendant owns the land fronting on the river immediately north and south of the cove mouth. It has made, and laid its railroad thereon, a solid embankment, 20 feet wide and 10 feet high, across the mouth of said cove, save at the northerly end thereof, where it has left an opening 16 feet wide, but permanently closed at the top with its railroad, between the cove and the river. All this was done by legislative authority and sanction under laws which made no provision for compensation to parties who might be injured by acta done by virtue of such authority. Through the opening aforesaid left at the north end of said roadbed "boats with masts set cannot enter, and it is difficult for small...