Southern New England Ice Co. v. Town of West Hartford

• Decision Date: 15 March 1932
• Citation: 159 A. 470,114 Conn. 496
• Court: Connecticut Supreme Court
• Parties: SOUTHERN NEW ENGLAND ICE CO. v. TOWN OF WEST HARTFORD.

159 A. 470

114 Conn. 496

SOUTHERN NEW ENGLAND ICE CO. v. TOWN OF WEST HARTFORD.

Supreme Court of Errors of Connecticut.

March 15, 1932

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Francis W. Cole and Richard H. Deming, both of Hartford, for appellant.

Hugh M. Alcorn, David R. Woodhouse, and Harold E. Mitchell, all of Hartford, for appellee.

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

Action by the Southern New England Ice Company against the town of West Hartford, to recover damages for the alleged destruction for ice-harvesting purposes of the plaintiff's ice pond brought to the superior court in Hartford county and tried to the court. Judgment for plaintiff, and defendant appeals.

Error only in amount of interest allowed in judgment, which is set aside, with direction.

MALTBIE, C.J.

The complaint alleges that, by reason of pollution occasioned by an overflow sewer which formed a part of the defendant's sewer system, the plaintiff has been deprived of the use of a natural ice pond, the ice upon which it claimed the right to harvest for sale in its business as an ice dealer. The trial was long and the trial court has made a lengthy and careful finding of facts. This finding the defendant seeks to have corrected in many respects. Any attempt to rehearse the facts found or to deal with the claims for correction in detail would unduly prolong this opinion. We shall only refer to such facts as are necessary to present the questions of law involved. As concerns the claims for corrections in the finding, they have all been examined and we find no material respect in which they can be granted. Many of the essential facts were matters of inference to be drawn from a consideration and weighing of numerous circumstances, and the conclusions reached by the trial court must stand unless it could not reasonably draw them, which does not appear.

In 1913 or 1914 the defendant constructed a sewer system which included two sewers, one running easterly and the other westerly in Asylum avenue and both connecting with a trunk line sewer at a point in that avenue just westerly of a bridge over a small stream which, after joining with another flowed into the pond in question. At the same time an overflow sanitary sewer was constructed which led from the point where the three sewers joined to a concrete box or basin located at the edge of the stream. This box or basin contained a check valve and discharge which was some twelve inches below the surface of the water in normal weather and through which raw sanitary sewage from the overflow sewer would discharge directly into the stream. This box was less than a mile and a half above the dam at the southerly end of the plaintiff's pond. The load upon the sewer system steadily increased, and the overflow sewer began to function and to discharge raw sanitary sewage, including fecal matter, into the streams and thence into the pond. Prior to January, 1928, the overflow sewer had been in operation, but there was no direct evidence as to the time when or the extent to which it operated. In that month, by reason of its operation, large quantities of raw sewage, including fecal matter, were discharged into the stream and carried thence onto ice which had already formed, though not to a sufficient thickness to cut, upon the plaintiff's pond, with the result that the ice was rendered unfit for human consumption and it was cut and floated over the dam of the pond. On subsequent occasions, the overflow operated and discharged sewage into the stream, and in January, 1929, ice on the pond was again rendered unfit for use and was floated over the dam.

Any functioning of the overflow sewer previous to 1928, if it existed, was without the knowledge of the plaintiff or its predecessors in title. Nor does it appear that it was so open and notorious as to fairly apprise the plaintiff of the use being made of the stream and give it an opportunity to assert its rights; and the plaintiff was under no duty to seek out possible sources of pollution of such a nature. Exley v. Gallivan, 96 Conn. 676, 679, 115 A. 482; Ricci v. Naples, 108 Conn. 19, 25, 142 A. 452. Knowledge by the plaintiff's predecessor in title of the construction of the main line of sewer along the stream and pond and consent to that construction could not charge it with knowledge of the existence of the overflow sewer and the use of the stream for the disposal of sewage coming through it. The facts are not such that prior to 1928 the plaintiff had or is chargeable with such notice of the pollution of the pond or its source as would have afforded a basis for action to secure legal redress against the defendant, and hence no adverse user could have originated before that time. American Brass Co. v. Serra, 104 Conn. 139, 151, 132 A. 565. Even if in any event the defendant could have acquired by prescription the right to use the stream and pond for carrying away sewage, the facts we have stated afford no basis for such a claim.

The defendant claims that the plaintiff had no legal right to cut ice upon the pond. The plaintiff's title comes to it through a conveyance made in 1879 to Edwin H. Arnold of a tract of land in the defendant town abutting upon Farmington avenue upon the south, which included the buildings upon the land, a mill dam, a mill site, and right of flowage. There was upon the land a mill which had been in existence for a great many years, utilizing the dam referred to in the deed, which formed the pond involved in this action. In the same year of his purchase Arnold erected an icehouse upon the property with a capacity of about two hundred tons and began to harvest ice from the pond. Thereafter he cut ice upon it every year when sufficient ice formed. He bought additional land adjoining that owned by him and abutting upon the pond. In 1894 he conveyed a half interest in the land to his son Frederick W. Arnold and thereafter until 1900 they owned the land in common and continued to cut ice upon the pond. In that year the Arnolds conveyed the land, with all rights of flowage belonging to them and connected with the premises, to the Trout Brook Ice & Feed Company, a corporation organized and controlled by them, and this corporation owned the premises and continued to harvest ice upon the pond until 1927. In that year the land described in the complaint was conveyed by it to the plaintiff. Beginning with two hundred tons harvested in 1879, ice was continually cut by Edwin H. Arnold and his successors in title over all and any parts of the pond southerly of the northerly boundary of the land conveyed to the plaintiff; additional ice-houses were erected from time to time, and by 1927 as much as ninety-two hundred tons of ice were being harvested and stored upon the premises each year. The facts found abundantly established that by that date a prescriptive right to harvest ice upon that portion of the pond conveyed to the plaintiff had been established and was then owned by the Trout Brook Ice & Feed Company. This right was clearly one not in gross, but appurtenant to the land abutting upon the pond upon which the icehouses stood. Graham v. Walker, 78 Conn. 130, 135, 61 A. 98, 2 L.R.A. (N. S.) 983, 112 Am.St.Rep. 93, 3 Ann.Cas. 641; Whittelsey v. Porter, 82 Conn. 95, 72 A. 593.

The southern boundary of the land conveyed by the Trout Brook Ice & Feed Company to the plaintiff, upon which the ice-houses stood, was one hundred and forty feet north of and parallel to Farmington avenue, and the land was so described as to include a portion of the pond. This deed expressly included all rights of flowage the grantor had except as to a small area reserved to the grantor, all buildings on the premises with all tools, equipment, and machinery for harvesting and storing ice; it reserved to the grantor the right to take water from the pond for the use of any buildings on certain adjacent property provided the taking of the water would not interfere with the ice-harvesting rights of the grantee, and the habendum clause was in the form usual in warranty deeds, " To have and to hold the above granted and bargained premises with the appurtenances thereof." This deed did not convey the former mill site or the dam connected with it. Reading it as a whole, however, and particularly when the circumstances surrounding its execution are considered, there cannot be any question of the intent of the parties to convey to the plaintiff the right to harvest ice upon the pond; and, that being so, the language of the deed was sufficient to accomplish that purpose. Whittelsey v. Porter, 82 Conn. 95, 72 A. 593; Marshall v. Martin, 107 Conn. 32, 35, 139 A. 348. The mill had been abandoned not later than 1905, but thereafter every summer and fall the water was drawn off, the land under the pond cleaned, and then the pond was permitted to refill. For more than twenty years, therefore, prior to the conveyance to the plaintiff, the right to flow the land had been exercised not as an incident to the mill, but as a necessary means to harvest the ice upon the pond. A prescriptive right of flowage for that purpose was established as appurtenant to the land upon which the icehouses stood. This right was not dependent upon the continuance of the mill, and the fact that the conveyance to the plaintiff did not include the mill site did not work such a severance of the flowage rights appurtenant to the mill as to make the deed to the plaintiff ineffective to convey those rights as appurtenant to the land deeded. That the deed to the plaintiff did not convey all the tract which had previously been used in connection with the ice business did not make ineffectual the grant to harvest ice as appurtenant to the land actually granted. ...