Stratford Theater, Inc. v. Town of Stratford
| Decision Date | 17 November 1953 |
| Citation | 101 A.2d 279,41 A.L.R.2d 1060,140 Conn. 422 |
| Court | Connecticut Supreme Court |
| Parties | , 41 A.L.R.2d 1060 STRATFORD THEATER, Inc. v. TOWN OF STRATFORD. Supreme Court of Errors of Connecticut |
Isadore Chaplowe, New Haven, with whom, on the brief, was James R. Greenfield, New Haven, for appellant-plaintiff.
Hugh A. Hoyt, Bridgeport, with whom, on the brief, was Hugh C. Curran, Bridgeport, for appellee-defendant.
Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, QUINLAN and WYNNE, JJ.
The plaintiff brought an action against the defendant town by a complaint sounding in negligence and nuisance and claimed damages resulting from the overflow of a sewer constructed and maintained by the town. The court found the issues for the plaintiff and ordered a judgment entered awarding nominal damages only. The plaintiff has appealed. The question is whether the plaintiff is entitled to recover more than nominal damages.
The trial court found the following facts: The plaintiff operates a theater on the east side of Main Street in Stratford center. There is a restaurant adjacent on the north which is separated from the theater by an alleyway. In the rear of the theater there is a building formerly used as a laundry. In 1920 the town installed a main sanitary sewer line in Main Street in front of the theater. A lateral line on the south side of the theater connected its sanitary system with the main sewer. The sanitary systems of the restaurant and the laundry were connected to the sewer by a lateral line which ran through the alleyway. Whenever there was a heavy rainfall, water and sewage would back up from the main line into this lateral and flood the theater. Under normal conditions, the lateral functioned properly. The town had notice that the trunk line was inadequate but neglected to repair it. Beginning June 1, 1950, the theater was flooded for two days. The plaintiff employed a contractor to dig up the lateral line to the restaurant and the laundry and discovered that it was in disrepair and that sewage leaked from it into the surrounding ground. It did not appear who had installed the lateral or who was under a duty to maintain it. Repairs were made at a cost of $1567.53, which was a reasonable charge for the work. Thereafter, water and sewage did not overflow into the theater. The flooding was due to the failure of the main line. At the trial, the plaintiff abandoned any claim for injury to the theater and its business and pressed only its demand for a recovery of the amount paid to the contractor who dug up and relaid the lateral line. The court concluded that the defendant was guilty of negligence and of maintaining a nuisance and that this negligence and nuisance were the proximate causes of the flooding of the theater, but it awarded only nominal damages of $35. The defense of governmental immunity was not raised.
Where a permanent injury is inflicted upon real estate by a nuisance, the proper measure of damages is the depreciation in value of the property. Southern New England Ice Co. v. Town of West Hartford, 114 Conn. 496, 507, 159 A. 470; 15 Am.Jur. 517. In Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 167 A. 548, the operation of the defendant's concrete mixing plant created noise and dust which invaded the plaintiff's premises. The defendant claimed in 117 Conn. at page 245, 167 A. at page 549, that the plaintiff was entitled to recover the amount of the depreciation in value of her property and that, there being no evidence of what that amount was, she could recover only nominal damages. We held in 117 Conn. at page 246, 167 A. at page 549, that the injury was temporary and that evidence of the reduction in the rentals received from rooms leased by the plaintiff furnished a sufficient basis for an award of damages for the reduction of the rental value of the premises. Diminution in value may be determined by the cost of necessary repairs if that cost does not exceed the former worth of the property and if the repairs do not enhance its value over what it was before the injury. Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591. Much depends upon the nature of the nuisance and the damage it causes. We have held that proof of what it would cost to...
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