Sisters of St. Joseph Corp. v. Atlas Sand, Gravel & Stone Co.

• Citation: 120 Conn. 168,180 A. 303
• Parties: SISTERS OF ST. JOSEPH CORPORATION v. ATLAS SAND, GRAVEL & STONE CO. et al.
• Decision Date: 27 June 1935
• Court: Supreme Court of Connecticut

180 A. 303

120 Conn. 168

SISTERS OF ST. JOSEPH CORPORATION v. ATLAS SAND, GRAVEL & STONE CO. et al.

Supreme Court of Errors of Connecticut.

June 27, 1935

Appeal from Superior Court, Hartford County; Frederick M. Peasley Judge.

Action by Sisters of St. Joseph Corporation against the Atlas Sand Gravel & Stone Company and others for an injunction against obstruction of a stream alleged to result in flooding land of plaintiff. From a judgment for plaintiff, defendants appeal.

No error.

Argued before MALTBIE, C.J., and HAINES, HINMAN, AVERY, and FOSTER JJ.

Louis Y. Gaberman and Glen W. Fox, both of Hartford, for appellants.

Millard Bartels and A. E. Brosmith, both of Hartford (Warren Maxwell, of Hartford, on the brief), for appellee.

HINMAN, Judge.

The essential facts as alleged in the complaint amplified by the finding may be summarized as follows: The plaintiff owns real property located in West Hartford west of Prospect avenue and the defendants own parcels located east of that avenue. A brook runs in an easterly direction across the land of the plaintiff in an open channel, under Prospect avenue through a culvert erected by the town, and formerly ran thence across the land of the defendant, the Chapel Company, and then across the land of the named defendant. The Atlas Company acquired its land in 1913 or 1914, commenced to fill it in, raising the elevation three to six feet, and eventually filled in to the edge of the brook bed. Refuse and foreign matter dumped into the brook from Prospect avenue created a nuisance, and in 1922 the Atlas Company laid about 200 feet of 30-inch corrugated pipe in the brook bed in its land, near its office building, in order to obviate this nuisance and the brook bed adjacent to this pipe was filled in. The Chapel Company acquired its land in 1923 and gradually filled it in up to within a few feet of the edge of the brook, raising the elevation several feet. In 1926 the Atlas Company laid another 200 feet of 30-inch pipe in the brook bed and in 1929 the Chapel Company laid a further section of pipe about 200 feet long in the brook bed on its land and connected it with the easterly end of the culvert under Prospect avenue.

This culvert is arched at the top, with vertical sides one foot nine inches high from the bottom of the culvert to the spring of the arch and the width at its bottom is 68 inches. It was large enough to allow the passage of the water in the stream. The 30-inch pipe was inserted into the east end of the culvert and sealed by concrete in approximately the middle thereof so that no water could leave the culvert except through the pipe. When the three sections of pipe had been laid they constituted one continuous line from the sealed end of the culvert through the defendants' land at a fall of three and six-tenths inches per hundred feet, and to obtain this fall the end of the pipe at the culvert was raised one foot nine inches above the bed of the brook, thereby causing an obstruction of that height before any water enters the pipe. Previous to the laying of these pipes on the lands of the defendants, the property of the plaintiff was flooded only occasionally in the spring when the ice broke up along the stream and caused a jam in the culvert, but since the laying of the pipes and connection thereof with the culvert it has been flooded from 15 to 18 times a year, the principal cause being the insufficient capacity of the pipe combined with its elevation above the bottom of the culvert and insufficient slope of the pipe line. The grass in the area of the plaintiff's property now subjected to flooding was of good quality in 1929, but since then, because of repeated flooding, its present condition is swampy and unusable for any purpose, it is covered with rushes and wild grass, and has been rendered unsightly from the plaintiff's convent located on a nearby hill.

The Atlas Company has built several buildings on its land over the pipe which are substantial structures of concrete and brick on concrete foundations which go down below the pipe. From 1922 to the time of trial, the town of West Hartford constructed several sewers in the watershed feeding the brook, all of which empty into the brook on the plaintiff's property through one 42-inch and two 24-inch drains, also has laid considerable new pavement and widened old pavements in the watershed, and numerous new buildings were erected therein during that period. This increase in pavements and the laying of the storm sewers and the erection of buildings has resulted in a larger and quicker run-off of water from the watershed into the brook.

From the facts found, the trial court reached the conclusions that the pipe as installed by the defendants was at no time adequate to carry the water of the brook, and that its installation has thrown upon the plaintiff the whole burden of the water surplus to its damage and inconvenience, and rendered judgment ordering the Chapel Company to open up to its full size the easterly end of the culvert and both defendants to remove any obstruction to, or in the alternative to provide for, the free flow of the natural stream to the extent that it is discharged through the culvert From this judgment the defendants appealed to this court.

Few of the numerous paragraphs of the draft-finding sought to be added to the finding state facts which are admitted or undisputed, and most of the findings of fact which are attacked are not without support from evidence or legitimate inference therefrom. In applying the facts of the case to the assignments of error, we have given the appellants the benefit of such corrections of the finding as they are entitled to.

The main contention of the appellants is that the facts found do not establish such results and damage from their acts in substituting the 30-inch pipe line for the channel of the brook, as it formerly existed as to entitle the plaintiff to injunctive relief. It is the undoubted rule that in order to lay a foundation for this remedy there must be shown an invasion of the plaintiff's rights resulting in injury which is not merely technical or inconsequential, but one which is or will be attended with actual and substantial damage. Bigelow v. Hartford Bridge Co., 14 Conn. 565, 579, 36 Am. Dec. 502; Taylor v. Cooke, 113 Conn. 162, 165, 154 A. 349; Balf Co. v. Hartford Electric Light Co., 106 Conn. 315, 327, 138 A. 122; 5 Pomeroy, Equity Jurisprudence, § 1940; 14 R.C.L. 354; 21 C.J. 157. The rule is more liberal, however, in cases of permanent or continuing nuisances where a legal right is invaded, as the interference with water rights, or the right of lateral support, or overflowing of land. 5 Pomeroy, Equity Jurisprudence, p. 4404; Trowbridge v. True, 52 Conn. 190, 199, 52 Am. Rep. 579. It does not seem to be questioned, or open to question, that the present plaintiff established actual damage substantial enough to bring the case even within the general rule, but the defendants claim that the plaintiff has not established what part of this damage was caused by them as distinguished from that resulting from the increase and acceleration of the flow of surface water into the brook by the paving of streets and laying of drains by the town of West Hartford, and therefore has not proven that it has been and is being caused substantial damage by acts of these defendants.

It is true that the extent of the results of these changes in condition in increasing the quantity of water coming into the brook in times of heavy rainfall does not appear, but this is immaterial if no wrongful act of the town invading the plaintiff's rights is involved therein, and this sufficiently appears. The unquestioned finding is that " no act of the town *** or of any other person upstream from the plaintiff has resulted in water reaching the brook from sources other than the natural watershed that the brook has always drained." A municipality commits no wrong through the increased quantity and discharge of surface water which is the result of the grading of streets, the erection of buildings, or the paving of streets or the...