Rudnyai v. Town of Harwinton

• Decision Date: 04 June 1906
• Citation: 79 Conn. 91,63 A. 948
• Court: Connecticut Supreme Court
• Parties: RUDNYAI et ux v. TOWN OF HARWINTON.

63 A. 948

79 Conn. 91

RUDNYAI et ux

v. TOWN OF HARWINTON.

Supreme Court of Errors of Connecticut.

June 4, 1906.

Appeal from Superior Court, Litchfield County; Alberto T. Roraback, Judge.

Action by Stephen Rudnyai and another against the town of Harwinton, to restrain the town from turning surface water on plaintiffs' land and for damages. Judgment for plaintiffs, granting an injunction and awarding damages, and defendant appeals. Affirmed.

Walter Holcomb, for appellant Homer R. Scoville, for appellees.

HALL, J. The plaintiffs are owners of a tract of land containing about one acre with a dwelling house and other buildings thereon, in the town of Harwinton, and about half a mile from center of the borough of Torrington, bounded northerly and easterly by a highway called "Weaver Hill Road," and westerly by a highway called "Perkins Mill Road." The plaintiffs' land and buildings are lower than the highway upon the north and east, and than the land beyond said highway upon the north and east. The highway descends from the south and southeast toward the plaintiffs' land, and the natural grade of the laud beyond the highway upon the north and east of the highway is toward the plaintiffs' house. There are no sidewalks, curbs, or sewers upon either side of said road. The plaintiffs' house and barn were built in 1887 by one Weaver, who then owned the land now belonging to the plaintiffs, and said Weaver and others at about that time built the road which is now the highway called "Weaver Hill Road." The road was originally constructed in "a rough and cheap manner; no pains being taken to make it a permanent roadway." When it was so constructed, for the reason that a boulder rendered it difficult to construct a ditch along the sides of the road back of where the plaintiffs' dwelling house now stands, a sluice was constructed at this place for the purpose of conducting, and which did conduct, across the road and upon the land then owned by said Weaver, the surface water which was collected by a ditch above on the northerly and easterly side of said road. Since said road was accepted as a public highway in 1889, the defendant town has maintained said sluice, which is not now in working order, and a breakwater on the top of said sluice in such a way as to continue to conduct upon the land now belonging to the plaintiffs whatever surface water is collected by said road, and the ditch on the north and east of it, from the slope lying easterly of it. Since said road was accepted as a highway, the land lying easterly and higher than said sluice and breaker has been cleared, a new road extending up easterly from Weaver Hill Road has been opened, and new buildings have been erected, thereby greatly increasing the flow and drainage of water from this section down to and over said breaker and in and through the land owned by the plaintiffs. In times of heavy rain, the water so conducted upon the plaintiffs' land runs into their well and cellar and overflows their yard and flows from the back part of their lot around into their front door yard. The water has been so turned upon the plaintiffs' premises by the town for several years, without the permission of the plaintiffs and against their protest. Upon these facts the trial court rendered judgment for the plaintiffs for $75 damages, and enjoined the defendant from continuing to so conduct said water upon the plaintiffs' premises.

The dedication and acceptance of the old road as a public highway, under the circumstances described, gave to the town the right to dispose of the surface water coming upon it, only in the manner required in properly maintaining and repairing a public highway. The fact that the plaintiffs' predecessor in title had permitted the surface water to be conducted upon his own land from the old road, under the conditions then existing, and before it became a public highway, did not justify the defendant in thereafter continuing to conduct such water upon the plaintiffs' land against their objection and under materially changed conditions, if such acts were not authorized by the law imposing upon the defendant the duty of maintaining and repairing its highways. In maintaining and repairing the highways within their limits, municipalities act as agents of the state in the performance of a public duty, a duty imposed upon them by the state for the benefit of the general public. They are for that reason, in the absence of any statute creating such liability, not responsible in damages for the consequential injuries to private property abutting upon the highway, which flow from or are incident to the performance of such duty. Judd v. Hartford, 72 Conn. 350-353, 44 Atl. 510, 50 L. R. A. 641, 77 Am. St. Rep. 312; Bartram et ux. v. Sharon, 71 Conn. 686-092, 43 Atl. 143, 46 L. R. A. 144, 71 Am. St. Rep. 225; Healey v. New Haven, 47 Conn. 305-313. And in the performance of such duty they are necessarily the final judges of the needs of the public and of the manner in which such highways should be maintained and repaired, unless by statute their action may be reviewed by the courts or some other tribunal. Healey v. New Haven, supra. We have...