Wheaton v. City of Putnam

• Decision Date: 07 February 1940
• Citation: 126 Conn. 330,11 A.2d 358
• Court: Connecticut Supreme Court
• Parties: WHEATON v. CITY OF PUTNAM.

11 A.2d 358

126 Conn. 330

WHEATON v. CITY OF PUTNAM.

Supreme Court of Errors of Connecticut.

February 7, 1940

Appeal from Superior Court, Windham County; Edward J. Daly, Judge.

Action by Raymond T. Wheaton against the City of Putnam for an injunction against and damages incident to defendant's maintenance of a public dumping ground alleged to constitute a nuisance. From a judgment for defendant on the issue of damages and granting in part injunctive relief prayed plaintiff appeals.

No error.

Reinhart L. Gideon, of Hartford, for appellant (plaintiff).

John A. Danaher, of Hartford, and Jean Bachand, of Putnam, for appellee (defendant).

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

By this action the plaintiff, as owner of land in the town of Putnam seeks injunctive relief and damages against the defendant incident to its maintenance of a public dumping ground easterly of the plaintiff's land, which is alleged to constitute a nuisance and to have damaged the plaintiff by polluting his well and causing noxious smoke and gases to envelop his land. The court restricted its judgment for the plaintiff to an injunction against the defendant's damaging the plaintiff by noxious smoke or gas from the burning of dump material caused by it or its agents. From this judgment the plaintiff has appealed, claiming corrections in the finding, and that the court erred in its conclusions, in over-ruling the plaintiff's claims of law, and in failing to award damages to the plaintiff for injury by smoke.

The following summary outline of the undisputed facts found is sufficient for the purposes of this opinion. The plaintiff owns ninety-five acres of land in the town of Putnam bounded westerly by the Quinnebaug River and easterly by the New York, New Haven and Hartford Railroad right of way. He resides in a large house just west of Parke Street, which extends through his property from north to south, and a tenant house owned by him is diagonally opposite on the east side of the street. The land in the vicinity of the houses is level and somewhat above the river, but from just east of the tenant house runs to a peak at the west edge of a ravine along the west side of the railroad embankment, which is twelve feet high and fifty feet wide. The natural slope of the land and the surface flow east of the peak is from west to east to Culver Brook which empties into the river a considerable distance to the northwest. The surface flow on the west side of the peak is from east to west, and a small ravine extends northwesterly to a point east of the tenant house.

Sometime prior to 1920 the defendant established a public city dump just east of the railroad on land considerably higher than the plaintiff's tenant house lot, which is about two thousand feet due west therefrom. A well eighty-five feet deep in the cellar of the tenant house, by means of an electric pump, serves that house, the plaintiff's and another with water, which until June, 1934, was palatable and of excellent quality. Ever since then it has had a gassy odor and been unpalatable, particularly after heavy rains. There is a large cesspool one hundred and twenty feet northeast of the well. The tenant house has tar roofing with no eaves troughs. The highway a few feet west of the house has a tar oil surface. In it is a high pressure gas main of the Connecticut Light & Power Company, from which service pipes lead to both of the plaintiff's houses. Gas borne water accumulated at intervals in the pipe serving the plaintiff's residence. Such water in gas pipes, that percolating from tar road oil, the dripping from tar roofing, and the cesspool liquid all contain phenol. Chemical analysis disclosed phenol in the well water subsequent to June, 1934. In 1931 the Power Company dumped a large quantity of oil on the dump and in December, 1933, deposited at different places thereon several thousand bushels of shavings which had been used in cleaning a gas tank. Water from wells dug in the dump contained neither phenol nor the gassy flavor found in the plaintiff's well water.

At times noxious smoke from fires on the dump, drifting with the contour of the land, has enveloped the plaintiff's houses and adjoining land. This smoke came from the burning of rubbish and garbage in fires started by people who brought it there to get rid of it. This smoke resulted from this burning by persons who were not the servants, agents or employees of the defendant, and who were not permitted to do so by it. It caused discomfort and inconvenience to the plaintiff and to members of his family. From time to time the plaintiff complained to the defendant concerning the smoke. The caretakers employed by the defendant have also set fires upon the dump. The tenant house has been continuously occupied for years under a month to month lease at the same rental paid of twenty-five dollars per month. The smoke did not affect the antiques belonging to plaintiff, who is...