Watson v. New Milford , 72 Conn. 561 ( 1900 )

Towns may build townhouses and any necessary outbuildings. General Statutes, § 130; White v.Stamford, 37 Conn. 578, 586. If by connecting with a sewer they can save the expense of outbuildings or better accomplish the purposes these might otherwise serve, a reasonable construction of the statute gives them the right so to do.

School districts have similar powers, and in case of consolidation the town succeeds to the possession of their property and the responsibilities attaching to such possession. General Statutes, Title 35, Chapters 135, 136; Public Acts of 1893, p. 410, Chap. 265.

A building owned by a municipal corporation could not be relieved of the rain water falling upon the roof, by precipitating it through a spout upon the lands of adjoining proprietors. Their rights may be equally invaded by the discharge of sewage from it upon their premises. In these respects a municipality has no greater immunities than any private landowner.

A nuisance was created upon the plaintiffs' land by the deposit of sewage and sediment from sewage, offensive from its appearance or its smell. The use of the sewers which receive the surface drainage from highways, and of that built by the village improvement association, by the defendant, to carry off the sewage from its public buildings, contributed to this injury. That others also contributed to it, and perhaps more largely, did not relieve the town from liability. Morgan v. Danbury, 67 Conn. 484, 496.

That the plaintiffs suffered no personal inconvenience from the nuisance, because they did not reside in the vicinity, is immaterial. They were entitled to nominal damages at least, for the offensive condition of things upon their land, even if they never visited it, and although its rental and selling value remained unimpaired. Watson v. New Milford Water Co.,71 Conn. 442. If those assessed can be regarded as substantial, they are still so small in amount that no new trial should be granted for their reduction. Buddington v. Knowles, 30 Conn. 26;Holbrook v. Bentley, 32 id. 502, 508.

The action was well brought against the defendant as a town, and not as a consolidated school district. It is a single corporation, and the consolidation simply threw upon it additional powers and duties. It maintained as a town a nuisance previously created by a district.

That the plaintiffs in prior years had discharged sewage and dyes from a hat shop on their premises into the brook, did not bar their right of recovery. If they had thus fouled the brook to the injury of landowners below them, it did not operate as a license to landowners above them to use it in a similar way.

That the water remained potable by cattle and inhabitable by fish was unimportant except in mitigation of damages.

The plaintiffs claimed title from the estate of Samuel R. Hill, deceased, under a distribution in the Court of Probate, which described the premises as "mill and privileges in dam, also lot bounded north on highway, east on James A. Andrews' land, south on Adeline Bostwick's heirs' land, and west on land set to May R. Hill and widow Eliza Hill, as dower, valued at $3,000." On the trial the administrator was allowed to testify as to what he turned over to the plaintiffs as the mill privilege, and that it was north of the highway. This was proper. The description in the distribution was a general one, stating no particular location, and to make it certain, it was legitimate to show by parol what it was of which he delivered possession as part of the estate of the intestate. This laid a proper foundation for the subsequent proof offered by the plaintiffs, that they had held absolute and undisputed possession of all that they thus received from him, for twenty years.

It was within the discretion of the trial court to admit evidence as to the nuisance on the land and the sewers by which it was occasioned, before it had been shown that the town had any share in creating or maintaining it.

Proof of what it would cost to clean up the premises by removing the offensive deposits was relevant to the question of damages.

The town vote of 1881, authorizing the construction of sewers, provided a certain amount were raised by voluntary donations, and making an appropriation for that purpose, by virtue of which sewers were afterwards built, into which houses were drained, was admissible, whether the action thus taken was or was not within the lawful powers of the municipality. In either case, the use of such sewers for its own buildings, to the direct damage of the plaintiffs in the manner found, was an actionable wrong. Nolan v. New Britain,69 Conn. 668, 678; Platt Bros. Co. v. Waterbury, ante, p. 531.

The annual reports of the selectmen to the town, showing what expenditures had been made for sewers, were legitimate evidence for the plaintiffs, notwithstanding these officers might have been called as witnesses, and the original books of town accounts could have been had. Such reports, if accepted by the defendant, became its declarations, and as such admissible against it. If there were no proof of acceptance, they would be equally admissible as statements of acts done in its behalf made to it by its executive officers at a time when, if in fact unauthorized, there was a full and fitting opportunity to disavow and repudiate them.

The plaintiffs were also properly allowed to introduce the contract between the town and Moses S. Austin, under which he constructed the sewers in question, upon a certain plan and for a certain price, although he was the only signer of the document. That informality was immaterial after the contract had been fulfilled.

A bill of exceptions has been allowed, which was tendered by the plaintiffs on account of the denial of their claim for an injunction. It was not filed during the term, but within five days after the allowance of the appeal. We are of opinion that it was seasonably filed, under Public Acts of 1897, p. 892, § 16. That it was not presented before the rising of the court, was excused by the delay in making up the finding and the consequent postponement of the date of taking the appeal. The statute must be construed according to its spirit.

The plaintiffs, in argument, have asked for such a modification of the judgment as to add an injunction to the award of damages. Their bill of exceptions, in the absence of a cross-appeal, affords no foundation for such relief; nor is it necessary under the statute to pass for any purpose upon the point which it presents, since it in no manner affects their right to damages, and no new trial is granted.

There is no error.

In this opinion the other judges concurred.