De Witt v. Bissell

• Decision Date: 09 March 1905
• Citation: 77 Conn. 530,60 A. 113
• Court: Connecticut Supreme Court
• Parties: DE WITT et al. v. BISSELL.

60 A. 113

77 Conn. 530

DE WITT et al.

v. BISSELL.

Supreme Court of Errors of Connecticut.

March 9, 1905.

Appeal from Superior Court, Litchfield County; William T. Elmer, Judge.

Suit by Amelia P. De Witt and others against William L. Bissell for injunction against opening the gates of a mill-pond dam and damages alleged to have been suffered by plaintiffs. From a judgment for plaintiffs, defendant appeals. Reversed.

The complaint alleges the following facts: On July 15, 1897, the plaintiff was, and ever since has been, the owner of a piece of land adjoining and bordering upon the east shore of Long Pond, on which piece of land is a dwelling house used by the plaintiff as a summer residence. At the outlet of said pond there is a dam, claimed to be owned by the defendant, which maintains the water of said pond at a higher level than its natural level. From July 15th to October 1st in each of the years 1897, 1898, and 1899, and from July 15th to the commencement of this suit on September 18th in the year 1900, the defendant drew off the water of said pond by raising the gate in said dam until a large area of the land which is covered by water when said pond is full was exposed, which exposed condition continued until October 1st in the years 1897, 1898, and 1899, when the defendant permitted said pond to fill up to its usual level as maintained by said dam, and continued in the year 1900 until the commencement of this suit. When the water was thus drawn off, the land thus exposed to the sun produced offensive stenches, unhealthy to the plaintiff and other inmates of said house, rendering said house uninhabitable, and constituting a nuisance. The defendant formerly operated a gristmill, machine shop, and foundry with the water flowing from said pond, which gristmill, etc., stood on a tract of land owned by the defendant below the outlet of said pond; but said mill, machine shop, and foundry have been abandoned, and the defendant has put the water drawn from said pond at the times above mentioned to no beneficial use. The acts of the defendant in creating such nuisance have injuriously affected the health and comfort of the plaintiff and her family, and the value of the plaintiff's said land has been depreciated. The plaintiff has often requested the defendant to cease drawing off the water as aforesaid, but the defendant, notwithstanding such requests, has continued to so draw it off, and the plaintiff is without adequate remedy at law. The prayer for relief asks an injunction restraining the defendant from drawing off the water below the level maintained by said dam when the gate therein is closed from July 15th to October 1st in each year, and $5,000 damages. The defendant's answer, after denying certain paragraphs of the complaint, sets up as a special defense to the plaintiff's cause of action as stated in the complaint the following: "(1) The defendant, on the 15th day of July, 1897, was, and for more than twenty years prior thereto had been, and still is, the owner of the dam and water privilege at the outlet of said Long Pond, and during all of said time was, has been, and still is, the' owner and user of the water flowing therefrom; and during all of said time has been and still is entitled to the right to raise the water in said pond to the height of said dam, and to draw off and use all the water from said pond that would flow from the same. (2) Any and all acts of the defendant in raising and lowering the water of said Long Pond were done in the exercise of his legal right as owner and user, as set forth in paragraph 1 of this defense." The plaintiff, in her reply to the special defense, admitted so much of paragraph 1 as alleged that the defendant was on July 15, 1897, and for more than 20 years prior thereto had been, and still is, the owner of the dam at the outlet of Long Pond, and denied the remainder of said paragraph and paragraph 2. The judgment of the court finds for the plaintiff the issues of fact raised by the pleadings, and adjudges that the defendant be perpetually enjoined from drawing off the water of Long Pond from July 15th to October 1st in each year, and that the plaintiff recover of the defendant $100 damages.

Charles E. Perkins and J. Henry Roraback, for appellant. Donald T. Warner, Hubert Williams, and Howard F. Landon, for appellees.

HAMERSLEY, J. (after stating the facts). It is alleged by the defendant and admitted by the plaintiff that the defendant is, and for more than 20 years last past has been, the owner of the dam, which is found to have existed for nearly 100 years, and to have been used by its owners for the purpose of storing water to the full capacity of the dam and drawing off the water thus stored as occasion required. It is also found that during the years mentioned in the complaint the defendant has, from July 15th to October 1st, substantially drawn off all the water stored for use by the dam—i. e., to the depth of about four feet at its gate; that when the water is drawn off to this extent the bottom of the pond at several points is exposed to the sun and air; that one of the portions thus exposed is opposite land owned by the plaintiff, and the exposure of this portion has caused an appreciable injury to the plaintiff's said property, for which injury the defendant is liable. It is not found that drawing off the water to the...