Trumbull Electric Mfg. Co. v. John Cooke Co.

• Decision Date: 26 March 1943
• Citation: 31 A.2d 393,130 Conn. 12
• Court: Connecticut Supreme Court
• Parties: TRUMBULL ELECTRIC MFG. CO. v. JOHN COOKE CO.

130 Conn. 12

31 A.2d 393

TRUMBULL ELECTRIC MFG. CO. v. JOHN COOKE CO.

Supreme Court of Errors of Connecticut.

March 26, 1943.

Appeal from Superior Court, Hartford County; Wynne, Judge.

Action by the Trumbull Electric Manufacturing Company against the John Cooke Company for a declaratory judgment concerning defendant's right to connect with a sewer owned by the plaintiff. The case was brought to the Superior Court in Hartford County and was tried to the court. From a judgment in favor of the defendant, the plaintiff appeals.

Error, judgment set aside, and case remanded with direction to enter judgment for plaintiff.

Milton M. Koskoff, of Plainville, and Joseph F. Berry, of Hartford, for appellant (plaintiff).

William N. DeRosier, of Bristol, for appellee (defendant).

Before MALTBIE, C. J., BROWN and ELLS, JJ., and Edward J. DALY, Superior Court Judge.

ELLS, Judge.

Two sewers are involved in the facts of this case. One was built in 1906 in pursuance of a written agreement made by the plaintiff, John Cooke and G. C. Woodford for the ‘proper draining’ of their lands. The parties agreed to pay the cost in certain proportionate shares and to bear equally the expense of future repairs. The plaintiff's factory and Woodford's own house were connected with the sewer. It emptied into a brook. Apparently it was used also for sanitary sewage, for in 1917 the state department of health notified the plaintiff that it would have to discontinue disposing of sanitary sewage by this method. Cooke and Woodford knew of this order. On November 10, 1917, they conveyed sewer rights of way over their lands to the plaintiff for the consideration of ‘one or more dollars.’ The deeds did not contain any provisions or reservations giving the grantors the right to use the proposed sewer. On the same day the three parties entered into a written agreement which referred to the 1906 contract and stated that that agreement was cancelled and that the new agreement was substituted therefor. It then provided that the title to ‘said sewer and sewer rights and pipes' was vested in the plaintiff, that Woodford and Cooke were ‘relieved’ from obligation to contribute to the maintenance and cost of ‘said sewer’ and that they were permitted ‘to connect with said sewer any dwelling house or dwelling houses located on their respective lands hereinafter described and to discharge into said sewer the house drainage from such houses.’ The only existing sewer was the 1906 one, the use of which was not objected to by the state department of health for purposes other than the disposal of sanitary sewage. It is still used by the plaintiff for drainage not detrimental to public health.

In 1918 and 1919 a new sewer was constructed by the plaintiff at its own expense within the limits of the rights conveyed by Cooke and Woodford. It cost more than $20,000, possibly $40,000. Sewer beds and septic tanks were constructed on lands purchased from Cooke. The sewer consisted of two lines, one for factory waste and sanitary sewage, and the other for oil and acid. The pipes were of vitrified tile and there were no Ys for connections along the line. It is difficult to cut into vitrified tile and to make connections therewith. At the time the sanitary sewer was constructed, one connection was made from Woodford's house. The only other connections were from the plaintiff's factory. The defendant is the successor in title to John Cooke and has laid out its lands into building lots. It has sold a total of nine lots facing the new sewer line. Houses have been built and have been connected, since 1935, with the sewer. The defendant claimed an absolute right to connect houses to be built in the future, and the plaintiff sought a judgment declaring that the new sewer is its own exclusive property and that the defendant has no right to connect with it. Upon the facts found, including the foregoing, the trial court decided that the new sewer was a substitute for the old one and was intended to be used by all the parties to the 1906 and the 1917 agreements, and that the defendant under the latter agreement has a right to connect with the new sewer. The plaintiff has appealed. The corrections in the finding sought by the plaintiff are not material, as we view the case.

The issue turns on the construction to be given the 1917 agreement, especially the meaning of the words ‘said sewer.’ ‘Said’ means ‘before-mentioned; already spoken of.’ Webster's New International Dictionary, 2d Ed. The only sewer to which the agreement had previously referred was the 1906 one. The first use of the words ‘said sewer’ could only have been intended to apply to the 1906 sewer. ‘Language reasonably appropriate propriate and sufficient to express an intent must be found before that intent can be given effect. The aim of interpretation is to ascertain what a writer intended by what he said, and not either to put words into his mouth or to give effect to that which it may be thought that he either intended to say or would have wished to say but didn't. Between it and reformation a wide gulf is fixed. With unexpressed intent interpretation has no concern, and it is no part of its office to add to or alter agreements made.’ Ziulkoski v. Barker, 94 Conn. 491, 494, 109 A. 185, 186; Boucher v....