Edward Balf Co. v. Hartford Electric Light Co.

Wheeler, C. J. The plaintiff seeks in this action a permanent injunction restraining the defendant from maintaining a concrete conduit across the Park River and thereby interfering with plaintiff’s access by water to its property located upon the south bank of the river. The trial court reached the conclusion that the Park River is a navigable river and that the conduit main *322 tained over the river obstructs its navigation and is a public nuisance, but that the injunction prayed for could not issue for the reason that it had not been established that the plaintiff suffers an injury distinct from that which it suffers in common with the rest of the public. Both parties have appealed; the defendant, primarily, because of the court’s conclusion that the Park River is navigable and that defendant’s maintenance of the conduit is a public nuisance and unlawful; the plaintiff, because of the court’s rulings that it did not suffer an injury distinct from that which it suffers in common with the rest of the public, and because the financial loss caused the plaintiff was not an injury distinct from that suffered by the public generally. We will consider the defendant’s appeal first. Manifestly it must fail unless one or more of the rulings on evidence are held erroneous and harmful, or the finding is corrected to such an extent as to make erroneous the conclusion of the court as to the navigability of the Park River. The maintenance of this conduit without lawful permission is a public nuisance if the river is navigable, so that the ultimate question to be decided upon defendant’s appeal is whether the conclusion of the court that the Park River is a navigable river is supported by the subordinate facts. Over defendant’s objection, the court admitted evidence showing defendant had, between December, 1918, and August, 1924, petitioned the War Department for authority to change the course and improve the Park River through its properties situated on this river, and had been granted a permit to make this improvement, which at its request was renewed in 1921 for an additional period of three years; that it petitioned the War Department in 1919 for a permit to erect the coal conveyor, and the Department granted the permit to erect it so high that it would not interfere with navi *323 gation; that in May, 1919, the Department issued to defendant, upon its petition, a permit to construct and maintain the conduit across the river, and upon its petition for additional time to maintain the conduit in August, 1924, the Department denied the petition; and that thereafter its maintenance was without official authority, national, state or municipal. All of these petitions described and referred to the Park River as a navigable stream. All of this evidence was plainly admissible as tending to prove from the acts of authority of the National government over this river, which could only be exercised lawfully over a navigable river, that it was navigable. Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845; Harrison v. Fite, 148 Fed. 781. The evidence was also admissible as admissions made by the defendant of the navigability of the river and of the jurisdiction of the National government over it. While not conclusive, the evidence was certainly persuasive of the fact of navigability and of the defendant’s recognition of this fact. That plaintiff petitioned for and secured in April, 1926, a permit from the War Department to dredge a channel in the Park River seventy feet wide and to a depth of not less than seven feet at mean low water, from its property to the confluence of these rivers, was also admissible as tending to show that the National government exercised jurisdiction over this river, a fact evidencing that the river was in fact navigable. None of the rulings excepted to were erroneous. Reasons of appeal which seek corrections of the finding may be disposed of briefly. Reasons twenty, twenty-one, twenty-two, twenty-five and twenty-six request the incorporation in the finding of evidential facts; these have no place in the finding under the Rules. Reason twenty-three would add to the finding “that the. Park River neither has nor had any channel.” This *324 reason is based upon a misunderstanding of the evidence. Defendant’s cross-examination of the witness Dorsey twice assumed as a fact that all the people along the Park River filled in up to the channel of the river. Reasons thirty and fourteen cover immaterial subordinate facts, and fourteen cannot be held to be an undisputed fact. Reason sixteen is denied. The finding does sufficiently portray the situation as to the use of the docks on the Connecticut and Park rivers and the especial reason why the docks on the Connecticut River ceased to be used and those on the Park River used. In paragraph thirty-seven of the finding, “in 1885” should be inserted after “formerly.” Reason nineteen is granted to the extent of inserting “about 20” in place of “some” and before “years” in paragraph thirty-nine of the finding. Reason fifteen is granted in part by adding to paragraph thirty-five of the finding that the city of Hartford and the riparian owners along this river, including the plaintiff, participated in the filling-in-process as a result of which the south bank and the filled-in property forms a plateau several feet above mean low water, and that either before or just after its purchase of this property in 1902 and 1904, plaintiff filled in along its property to a depth of about seventy-five feet and at present is about twenty-five feet beyond the line of the river. Reasons twenty-seven and twenty-eight are granted in substance with the qualifications stated, viz.: Immediately prior to the time defendant constructed the conduit over the Park River it was not being used in its natural and ordinary condition as a highway of commerce over which trade and travel were conducted in the customary modes of trade and travel on water, and that if the conduit were removed the river cannot be so used without being cleared of debris and refuse, and somewhat dredged where it had been filled in, and without provision being *325 made for a greater width of the river at some point west of plaintiff’s land and east of the Commerce Street bridge for boats to turn in. The most important correction of the finding desired is covered by reasons twenty-four and twenty-nine, that the first sentence of paragraph forty-one be stricken out, viz.: “For at least nine months in the year there is a minimum depth of five feet of water in Park River, and during such periods it is navigable.” Our examination of the evidence does not enable us to hold that this finding was made without evidence; accordingly this reason of appeal must be denied. A river is navigable when it is being used, “or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” Oklahoma v. Texas, 258 U. S. 574, 586, 42 Sup. Ct. 406; Nies v. Connecticut River Bridge & Highway District, 104 Conn. 382, 132 Atl. 873. The court’s conclusion in the application of this test to the facts found is one of fact which cannot be disturbed unless the subordinate facts do not support it, or it is found contrary to the rules of law or reason. The subordinate fact§ as found by the court show that the Park River was formerly used in the customary modes of trade and commerce by water; that the United States government assumed to have and exercise jurisdiction over it as a navigable stream; that the city of Hartford recognized the fact of navigability by its erection of a drawbridge over Commerce Street; that the New Haven Railroad recognized this fact by placing a draw in its bridge over this river; that the defendant had repeatedly recognized this fact and the jurisdiction of the United States government over the river, by its various petitions for permits, and, so *326 far as appears of record, it had at no time during its ownership of property along this river disputed the fact of navigability, or the jurisdiction of the United States government; that the plaintiff had likewise recognized the fact of navigability and the jurisdiction of the Government, and that the depth of water in the river for nine months of the year was capable of being used for trade and commerce in the usual mode, and of serving the usual purposes of navigation. . The conclusion of the court that the Park River is a navigable stream from its confluence with the Connecticut River to the Commerce Street bridge is justified upon the subordinate facts as found, and as corrected. We also agree.with the opinion of the trial court in the conclusion that, “The fact that it [this river] has not been recently used for the passage of boats and that as a result thereof the channel has filled in, so that it will require some dredging to make it generally available for use for boats of a light draught, does not, in my opinion, make the river lose its character as a navigable stream.” The plaintiff’s appeal assigns two errors: “(1) The court erred in ruling that the plaintiff did not suffer an injury distinct from that which it suffers in common with the rest of the public. (2) The court erred in ruling that the financial loss caused to the plaintiff by its inability to transport by water to its property on the Park River sand and other materials used in the construction of roads and highways, in which business it is engaged, was not an injury peculiar to itself and distinct from that suffered by the public generally.” The only facts found by the court pertinent to the damages suffered by the plaintiff from the defendant’s alleged interference with the navigation of the Park River, are that it owns two tracts of land on this river which have been and still are used for the storage of *327 materials and for other purposes in connection with its business of road building; its purpose is to use its land for the storage of sand and other materials used by it in its business, and also to bring sand from Hog Island, an entirely practical method of transportation, and oil and other materials to its Park River plant by water, and use it as a point of distribution. The court further found that on April 22d, 1926, the War Department, acting by its proper officers and engineers, issued a permit to plaintiff, upon its application, authorizing plaintiff “to dredge a channel . . . from its confluence with the Connecticut River to a point opposite the applicant’s property, about 1300 feet upstream, and to construct a wharf approximately 190 feet long, in front of its property according to plans hereto attached” ; which work had not been begun by plaintiff at the time of trial. There is no finding that defendant’s acts have caused plaintiff any damage, much less special damage. There is nothing in the record to indicate that the court made the ruling which the second assignment of error in the appeal attributes to it. The finding as it stands fully supports the court’s first conclusion. A private person cannot maintain an injunction against a public nuisance in navigable waters unless he establishes that he has sustained a special or peculiar damage distinct from that which he suffers in common with the rest of the public. Moreover, the violation of the complainant’s rights must be such as is, or will be, attended with substantial or serious damage. Bigelow v. Hartford Bridge Co., 14 Conn. 565, 579; Frink v. Lawrence, 20 Conn. 117, 120; Falls Village Water Power Co. v. Tibbetts, 31 Conn. 165; Wheeler v. Bedford, 54 Conn. 244, 7 Atl. 22. The finding does not present a case of substantial or serious damage. It does not state even a case of *328 actual damage. All that can be definitely known from its allegations is that plaintiff purposed moving by water materials used in its business to its premises upon this river, but whether the deprivation of this right would be an injury to its business, or cause it loss or damage, and if so, to what extent, is not stated. Whether it purposes to exercise its rights under the Government permit or not, is not stated. The court’s conclusion that plaintiff had not made out the special damage without which the injunction prayed for could not be issued, is supported by the finding. The plaintiff, in its pleadings and in its conduct of the trial and in the argument before this court, also recognized the necessity of its establishing substantial loss or damage accruing to it specially, as distinguished from that suffered by interference with the right of navigation of the Park River common to each member of the public. Our consideration of defendant’s appeal has required us to examine the evidence with care; it is impossible for us to avoid the conclusion that the plaintiff did present a very considerable body of evidence tending to prove the special damage upon which alone the injunction it prayed for could issue. Plaintiff’s appeal is argued upon the theory that this evidence, especially that tending to prove an economy in the transportation of material by water over other methods, can be examined by us for the purpose of testing this conclusion of the court. Since a request for a correction of the finding has not been made a part of this appeal, we cannot correct it. There is no other purpose for which we could consider the evidence in a trial to the court. The plaintiff’s case as stated in the finding is entirely lacking as to the elements of substantial damage peculiar to the plaintiff which is an essential requisite in an action by a private person for damage suffered through a public nuisance, Burrows v, Pixly, 1 Root, *329 362; O’Brien v. Norwich & W. R. Co., 17 Conn. 372; Frink v. Lawrence, and Wheeler v. Bedford, supra. The rulings made by the trial court and those made by us must be confined to those appearing in the finding, and the rulings of the trial court must be determined by the facts appearing in the finding. That is the primary purpose of the finding upon an appeal. In a situation such as that in the present case, we must decide the plaintiff’s appeal upon the record as it is made up; upon this record the trial court did not err. There is no error upon either plaintiff’s or defendant’s appeal. In this opinion the other judges concurred, except Haines, J., who concurred in the result, but dissented in part from the reasoning.