Taylor v. Conti

• Decision Date: 16 January 1962
• Citation: 149 Conn. 174,177 A.2d 670
• Court: Connecticut Supreme Court
• Parties: Walter R. TAYLOR et al. v. Nicholas CONTI et al. Supreme Court of Errors of Connecticut

Page 670

177 A.2d 670

149 Conn. 174

Walter R. TAYLOR et al. v. Nicholas CONTI et al.

Supreme Court of Errors of Connecticut.

Jan. 16, 1962.

Gregory C. Willis, Bridgeport, with whom, on the brief, was Allan R. Johnson, Bridgeport, for appellant (defendant L. G. DeFelice and Son, Inc.).

A. Michael Basile, Shelton, for appellant (named defendant).

David B. Cohen, Derby, with whom was George J. Finn, Shelton, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

The plaintiffs, Walter R. and Alyce P. Taylor, recovered a judgment for injunctive relief against the defendant Nicholas Conti and for damages against both defendants. The action arose out of grading and soil removal operations conducted by the defendant L. G. DeFelice and Son, Inc., a contractor, hereinafter referred to as DeFelice, on land owned by Conti. Both defendants have appealed.

The plaintiffs own land, with a dwelling and barn thereon, on the east side of Long Hill Avenue in Shelton. In 1956, they completed the construction of a dam to form a pond for swimming and fishing in the waters of a brook crossing their property. On July 10, 1957, Conti purchased seventy-three acres of land for the purpose of subdividing it into building lots. This land was on the westerly side of Long Hill Avenue, 2500 feet north of, and at a higher elevation than, the plaintiffs' property. It was hilly pasture land, with grass, trees and a deep topsoil of loam. On July 23, Conti and DeFelice made an agreement whereby DeFelice was to cut down the hilly areas on Conti's land, remove large quantities of topsoil and fill, and grade, reloam and reseed the land. DeFelice was to use the loam and fill in the construction of the Connecticut turnpike. The contractor began operations in July. Trucks carting the loam and fill along Long Hill Avenue spilled large quantities of both on the avenue. The court found that this spillage was washed by successive rainfalls into the brook and carried into the plaintiffs' pond. The Conti land, denuded of topsoil and with its grade changed to slope toward, instead of away from, Long Hill Avenue, eroded rapidly, and holes and gullies were left. Silt and gravel were washed across Long Hill Avenue into the brook and were carried to the plaintiffs' pond. They were also washed onto the floor of the plaintiffs' barn. The court concluded that the operations conducted by DeFelice, under its agreement with Conti, had greatly increased the accumulation of surface waters on Conti's land and their discharge into the plaintiffs' pond, accompanied by large quantities of mud and silt. The court awarded the plaintiffs $11,000 damages and enjoined Conti from diverting and increasing the flow of surface waters from his land onto the land of the plaintiffs.

Both Conti and DeFelice claim that the court erred in finding certain facts and, particularly, in concluding that as a result of the acts of the defendants, surface waters flowed off Conti's land, across Long Hill Avenue and into the brook in a manner different in volume and course from their original flow. The finding is not subject to correction as to any material fact. Errors claimed in the finding require no further discussion.

Conti claims that the plaintiffs' complaint was predicated upon digging and hauling operations performed by DeFelice as an independent contractor and that the court erred in rendering judgment against Conti on the ground of his use and improvement of his own land. The complaint alleges, and the court found, that the work done by DeFelice was performed pursuant to a contract with Conti. Conti's desire to use and improve his land was a motivating factor in the entire operation. DeFelice, in turn, obtained fill and loam for its purposes. A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different course from their natural flow, if by so doing he causes substantial damage. Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 188, 158 A. 229, 81 A.L.R. 256, and cases cited; Rutka v. Rzegocki, 132 Conn. 319, 321, 43 A.2d 658; Somers v. Hill, 143 Conn. 476, 481, 123 A.2d 468; note, 59 A.L.R.2d 421, 442; Restatement, 4 Torts § 822; id., c. 40, topic 3, p. 265; id. § 833. Surface waters are 'those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth, or found their way into a stream or lake. The term does not comprehend waters impounded in artificial ponds, tanks or water mains.' Id. § 846, comment b; see Thompson v. New Haven Water Co., 86 Conn. 597, 604, 86 A. 585, 45 L.R.A.,N.S., 457; 93 C.J.S. Waters § 112, p. 799.

DeFelice may well have been an independent contractor but that fact does not relieve Conti, because the court found that the damage to the plaintiffs' property arose from the performance by DeFelice of its contract with Conti. Where a party contracts for work to be done of such a character that, even if the work is duly performed, it would naturally, if not necessarily, expose others to probable injury unless preventive measures are taken by him, he is liable for that injury if, while chargeable with knowledge that the work is of such a character, he negligently fails to take preventive measures. Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 579, 172 A.2d 917, and cases cited, including Lawrence v. Shipman, 39 Conn. 586, 589. See Restatement, 4 Torts § 835. The court found that both Conti and DeFelice had knowledge of the change in the course and the volume of the water coming off the Conti land and the damage it was causing the plaintiffs. It does not appear that Conti or DeFelice did anything to prevent that damage. Conti instigated, and DeFelice carried out, for purposes of their own, the operations which ...