Shea v. Gavitt

• Decision Date: 10 June 1915
• Citation: Shea v. Gavitt, 89 Conn. 359, 94 A. 360 (Conn. 1915)
• Court: Connecticut Supreme Court
• Parties: SHEA v. GAVITT.

94 A. 360

89 Conn. 359

SHEA

v. GAVITT.

Supreme Court of Errors of Connecticut.

June 10, 1915.

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Action by James P. Shea against Frederick H. Gavitt to recover damages for injury to plaintiff's building from rainwater cast against the wall of the building by defendant's roof and for an injunction. Judgment for damages in favor of plaintiff, and defendant appeals. Affirmed.

The complaint alleges that the defendant has for several years maintained a certain building whose roof is so constructed as to cast rainwater against the wall of a building owned by the plaintiff, and claims dam ages for the injury caused thereby and an injunction against the continuance of the nuisance. The answer, as amended, denies all the allegations of the complaint, thus putting in issue the plaintiff's title, and for a second defense alleges that the defendant has acquired by prescription a right to allow the flow of rainwater from the roof of his building against the wall of the plaintiff's building. It appears from the finding of facts that the plaintiff and defendant were the owners of adjoining lots fronting upon Bank street, in the city of New London. Before this controversy arose the front portion only of the plaintiff's lot was built upon, and the defendant's lot was occupied in part by a building extending back from Bank street whose side walls and eaves seem to have projected slightly over the unused portion of the plaintiff's lot for a linear distance of 12 feet, and whose eaves were within 5 or 6 inches of plaintiff's claimed line for a further distance of 38 feet. About 1903 plaintiff built a brick addition in the rear and on the rear of his former building, and extended the side wall of the building along his claimed line and higher than the defendant's eaves. In so doing the plaintiff did not attempt to remove that part of the defendant's side wall and eaves which encroached over the plaintiff's claimed line, but recessed his brick side wall to receive the same, so that for a linear distance of 12 feet plaintiff's side wall inclosed the side wall of defendant's building to the extent of 2 inches, and the eaves of the defendant's building to the extent of 3 inches, and for a further linear distance of 38 feet the plaintiff's wall is within 5 to 6 inches of the defendant's eaves. Up to the time when the plaintiff built this addition the roof of the defendant's building on the side next to the plaintiff's lot had been for more than 30 years maintained, as it existed at the time of trial, without any gutter or spouts or other means, except the slope of the roof, for collecting, directing, or obstructing the flow of rainwater falling thereon. There is no express finding that it was so maintained adversely or under a claim of right. When the plaintiff built his addition he placed a trough or gutter along the defendant's roof at the place where the defendant's eaves came in contact with his side wall to protect the latter from injury by rainwater, but the defendant at some time before this suit was brought removed the same. The cost of erecting and maintaining such a gutter or a trough on the defendant's building would be small compared with the damage to the plaintiff's wall caused by water cast thereon by the roof of defendant's building, if continued without interruption for a long time. The trial court found that the casting of rainwater from defendant's roof against the plaintiff's wall constituted a continuing nuisance, and awarded the plaintiff $200 as damages sustained since the removal of the gutter above mentioned, but refused to enjoin the defendant from continuing the nuisance.

Defendant assigns as reasons of appeal that the court erred in ruling: (1) That the defendant had no right to allow the natural flow of water from the roof of his building against the wall of the plaintiff's building; (2) that the defendant had no right by prescription and adverse possession to allow the natural flow of water from the roof of his building against the wall of the plaintiff's building. The third reason of appeal is in form a general assignment of error, and is not entitled to consideration under the statute.

Tracy Waller, of New London, for appellant. Hadlai A. Hull and C. Hadlai Hull both of New London, for appellee.

BEACH, J. (after stating the facts as above). The judgment for the plaintiff necessarily involves an adjudication in plaintiff's favor on the issue of title, and that he was within his rights in building the side wall of the addition to his building in the manner described in the finding. It was claimed on argument that certain findings of subordinate facts were inconsistent with this adjudication. This question is not properly brought before us by a specific assignment of error, but we are satisfied that the findings are consistent with the judgment. The court finds that the boundary line between the plaintiff's and defendant's lands, according to the plaintiff's deed, was by and along a certain fence; that the plaintiff built his side wall on and along the line forming the boundary line; and that a fence, evidently the same fence referred to in the plaintiff's deed, had been maintained for 25 years as the defendant's boundary line, which fence was taken down when the plaintiff's wall was built. This fence is described in the finding as extending "from the corner of the wider part of the defendant's building" and running in a direction away from Bank street "about one foot distant from the defendant's building"; and the description of the location of the fence as it existed before the plaintiff's side wall was built is supposed to be inconsistent with the conclusion that the plaintiff's wall is on the boundary line because the wall is two inches inside of the extreme outer corner of the wider part of the defendant's building and because it is from eight to nine inches, instead of about one foot, distant from the defendant's building. We think, however, that the words "from the corner" and "about one foot" were intended merely as approximate...