Rockville Water Aqueduct Co. v. Koelsch , 90 Conn. 171 ( 1916 )

Broadly speaking, the plaintiff's claim is that it is entitled to the injunction prayed for without paying damages. It is said that at the common law, damages are not allowable for the abatement of a nuisance, and, further, that under the Act of 1909 the defendants are not entitled to damages, because any pecuniary damage which they may have suffered in consequence of proceeding with the establishment of this nuisance after general and personal notice of the plaintiff's intention to enjoin its maintenance, is not "just damages" within the meaning of the statute, especially in view of the public obligations of the plaintiff corporation. It is also said that the plaintiff has a property right in the waters in the reservoir and in having them kept free from pollution, and that this property right is invaded by the acts of the defendants; that the defendants have no riparian proprietorship or other right in the land covered by the waters and reservoir, and that the injunction is a proper exercise of the police power of the State.

We take up first the plaintiff's claim that the defendants' pleasure-resort was a common-law nuisance, for the abatement of which no damages are recoverable.

There was no evidence of any actual contamination of the water, and therefore no finding of nuisance. It is, however, found that the waters of the reservoir will be liable to become polluted by a continued use of the defendants' premises as a public pleasure-resort; and this is claimed to be a sufficient basis for the conclusion that such use ought to be enjoined without compensation. It may be doubted whether the finding of liability to pollution establishes the existence of such a real and immediate danger as would, in the absence of statute, be required to justify an injunction against a threatened nuisance. Missouri v. Illinois ChicagoDistrict, 180 U.S. 208, 248, 21 Sup. Ct. 331.

Passing that point, it must be conceded that a public pleasure-resort and picnic-ground is not necessarily a common-law nuisance. It may become one, if improperly conducted, but there is no allegation or finding that the defendants' resort was improperly conducted. The sole basis for the claim that the defendants' resort was abatable as a nuisance is found in its proximity to the waters of Snipsic Lake.

So that the true scope and effect of the plaintiff's claim of law is that any kind of a menace to the purity of the waters of its reservoir becomes, by virtue of the danger to the public health, a nuisance, which it has a right to have abated, without the payment of damages.

We think this claim is too broad, and that § 6 of the Act of 1909 was intended to provide for the assessment of damages in cases like this, where the thing complained of as a nuisance, or as dangerous to the public health, would be unobjectionable except for its proximity to a source of water supply.

The history of this legislation shows that the General Assembly, while giving full protection to sources of water supply, has always made some provision for possible compensation to the injured landowner, and has never acceded to the plaintiff's broad claim that danger to the public health was of itself a sufficient ground for an injunction without compensation.

The original legislation on this subject was chapter 27 of the Public Acts of 1883 (p. 243), which was limited to cases of actual "injury to the water," and authorized the Superior Court to make any orders necessary to preserve its purity. The Act then provided that "where the law requires compensation to be made," the court should appoint three disinterested freeholders who should determine and award the compensation to be paid before the order was carried into effect. The General Assembly thus recognized, at the beginning of this legislation, that modern theories of sanitation might require the court to issue injunctions for which compensation was required by law, although the order was necessary to preserve the purity of a public water supply. In the Revision of 1902 the right to injunctive relief was extended to cases where "such water is liable to pollution" (§ 2599), and the recognition of a possible right to compensation takes the form of a direct grant (§ 2600) of power to "take such lands or rights" as the Superior Court might deem necessary for the purpose of preserving the purity of the water supply, coupled with the same provision for compensation (§ 2601) as in the Act of 1883.

In 1903 the Act (Public Acts of 1903, Chap. 192, p. 148), which up to that time had been restricted to reservoirs, was extended to any source of supply for such reservoirs, and the powers given to the Superior Court extended to any judge thereof in vacation. By the present Act, ice ponds are protected as well as sources of water supply, and the Superior Court is given power, when any order is made for the abatement of any nuisance to water or ice, to assess just damages. Sections 2600 and 2601 remain in force, and the result is that there are now two methods of compensating an injured landowner; one under § 2601, by the appointment and award of a committee of freeholders, and the other by the Superior Court. The former applies to cases when an application is made for the taking of lands or rights therein which are deemed necessary for the purity of the water supply, and is limited to cases where "the law requires compensation to be made." The latter extends to cases where the abatement of a "nuisance to such water or ice," damages the landowner or deprives him of any substantial right, in which case the court "may assess just damages." We think the phrase "nuisance to such water or ice," aptly describes a condition which is objectionable only, or chiefly, because of its effect, or potential effect, on such water or ice; and that § 6 authorizes the assessment of just damages to a landowner who is damaged or deprived of a substantial right by the abatement of such a nuisance.

The next question is whether the damages awarded in this case are "just damages," and the plaintiff's claim on that point is that the defendants have no right to compensation because they went into the business after full notice and with the knowledge that the plaintiff would seek an injunction. It is pointed out that one who avails himself of the proximity, of the water supply to establish a new business which would be impossible except for such proximity, and after notice that it will create a nuisance, stands in a very different equitable position from one who has long carried on a lawful business which afterward, in the light of better knowledge of sanitation, comes to be regarded as dangerous to the public health. That is quite true, and it must doubtless have had its effect on the amount of damages awarded in this case.

On the other hand, it cannot be so that the plaintiff, by maintaining a public water supply and by very properly giving notice of its intention to protect it, can acquire any legal rights in adjoining lands.

If these defendants have been lawfully deprived of the right of carrying on a public pleasure-resort and picnic-ground on their land, it must be because their property has been pro tanto taken for a public use, and for that taking they are entitled to just compensation, under the statute.

The plaintiff's property right in having its water supply kept free from pollution is merely an incident of the public use to which its property is dedicated, and must be exercised in accordance with the Constitution and the statutes. We are not called upon to determine whether the State might in the exercise of its police power have forbidden the defendants to make any use of the reservoir for boating, for it has not attempted to do so. The question whether the defendants are riparian owners affects only the amount of their just damages, and it is not assigned as error that the damages awarded are excessive, or assessed upon a wrong theory, if assessable at all.

There is no error.

In this opinion the other judges concurred.