New Haven Water Co. v. Borough of Wallingford

*300 Tobrahce, J. The reasons of appeal are forty-one in number, twenty-five of which relate to alleged errors in refusing to correct the finding, and these will be considered first. Some of these twenty-five assignments relate to the alleged action of the court in finding certain facts without evidence, but most of them relate to the refusal of the court to find certain facts upon what is alleged to be conclusive evidence. Many of these assignments relate to facts which are of slight importance in the case and were not argued orally before this court, nor are they alluded to in the briefs of counsel. Of these assignments the only ones which deserve to be separately considered at all, are those based upon the refusal of the court to find certain facts which the plaintiff claims were proved by conclusive evidence. These facts are summarized in the plaintiff’s brief, in substance, as follows: (a) that the purchase of 1876 by the plaintiff was made for the purpose of taking the waters of Pine river; (b) that no owner of land between the defendant’s pumping station and the plaintiff’s purchase of 1876 had been compensated by the defendant; (c)that a reservoir could be constructed at the Tyler dam without flooding defendant’s land; (d) that the defendant has diverted into Paug pond, and is using, water from other sources than Pine river, to which the plaintiff is entitled; (e) that the daily flow of the river is about six million gallons at the Tyler mill; (/) that a gravity supply for Wallingford can be obtained from Wharton brook at a less annual expense than that of pumping from Pine river; (p) that the gravity supply at Paug pond can be more than doubled at a very reasonable expense. As to these facts we think (b) and (c) are substantially in the finding as made, and (d), even if it be regarded as conclusively proved, is immaterial in the present case. As to facts («), (e), (f) and (p), we think the evidence in relation to each of them is either conflicting, or of such a character that this court cannot say that the trial court erred in refusing to find them. This disposes of the assignments relating to the correction of the finding; but, in connection with this part of the case, *301 we ought not to pass in silence what appears to he a clear abuse of the statutory right, under certain circumstances, to have the evidence certified to this court. The plaintiff, as was his right, asked to have certain portions of the evidence certified up, and thereupon the defendant claimed, either that the entire evidence should be printed, or that the court should certify that the evidence called for by the plaintiff was only a part of the evidence touching the several facts to which it was applicable. The evidence in the case, oral and documentary, covers more than three hundred printed pages; a large part of it has no bearing upon the questions raised upon this appeal, and all of it having such bearing may easily be separated from the rest. Under these circumstances the claim of the defendant was an unreasonable one and should have been disallowed. Only such parts of the evidence as were material to the questions proposed to be raised should have been printed. Upon the merits of the case the general question is whether the court erred, upon the facts found, in refusing to grant an injunction. Where a corporation has legally condemned property or has acquired it by purchase, for one public use, and has appropriated or is about to appropriate- it to that use, such property cannot be taken by another for a public use inconsistent with the prior appropriation, unless such taking is authorized by the legislature either expressly or by clear implication. Evergreen Cem. Asso. v. New Haven, 43 Conn. 234 ; Bridgeport v. New York & N. H. R. Co., 36 id. 255. The plaintiff says, in effect, that it comes within this principle with respect to the waters of Pine river. It claims (1) that in 1892, when the defendant first began to appropriate these waters, they had already been appropriated by the plaintiff under its charter; (2) that if so, they could not then be taken by the defendant, because it was not expressly nor by necessary implication empowered to do so. The second of these claims may be conceded, for the defendant is only authorized by its charter, in general terms, “ to take and use the water of any stream, lake, or pond, in whole or in part,” within the limits *302 of Wallingford or any town adjacent thereto; 9 Special Laws, 131, § 58; and this general power does not authorize it to take waters already appropriated to public use under prior legislative authority. Boston Water Power Co. v. Boston W. R. Co., 23 Pick. 360; Old Colony R. Co. v. Framingham Water Co., 153 Mass. 561; Boston v. Brookline, 156 id. 172; Fvergreen Cem. Asso. v. New Haven, and Bridgeport v. New York N. H. R. Co., supra. But the claim of prior appropriation is not found by the court, and is not sustained by the facts in the case. It is based entirely upon the purchase made in 1876, and the making of the map about the same time. The purchase was that of a small strip of land, of merely nominal value, which of itself could not be made of any practical use for the purposes of the plaintiff under its charter. The map was one which indicated, in a general way, all the streams, ponds and water sheds in New Haven and neighboring towns, which might possibly be made available as future sources of water supply. After this nothing more was done by the plaintiff looking to the appropriation of the waters in question for twenty years. During all this time it passed no vote to take this water, it did not take or attempt to take any of it, and it did no act whatever manifesting any intent to appropriate it. To appropriate in this connection means to take, to take to one’s self as one’s own ; and prior appropriation means such a prior taking. To constitute an appropriation of this kind there must be an actual intent to take, presently, or in the near future, and that intent must be manifested and carried out by apt and suitable acts. Upon the facts found it cannot with reason be claimed, that prior to the appropriation of these waters by the borough, in 1892, the plaintiff had manifested any such intent to appropriate these waters, or had done any act which manifested or carried out such an intent if it existed; and we think there had been no such prior appropriation by the plaintiff. The plaintiff next claims that if the defendant appropriated all the waters of Pine river in 1892, it abandoned part of them by the votes of its officials in January, 1894, and that before the votes of January, 1898, were passed, the *303 plaintiff had appropriated the water so abandoned and was entitled to an injunction on this account. This claim is founded upon the votes of January, 1894, by officials of the defendant, coupled with the purchase by the plaintiff in 1897 of the Tyler mill and other property along this stream. In November, 1892, the freemen of the defendant borough directed its water commissioners to take this water for the use of the borough, and in May, 1893, the court of burgesses and board of water commissioners, each, also voted to do so. Under these votes the pumping station was procured, and the pump erected and the water taken. . In January, 1894, said court and board each voted, in effect ( see Exhibit J), that the borough did not need and would not take more than a million and a half gallons of water from Pine river daily, and to that amount, only during the time specified in the vote. In January, 1898, each of said bodies voted in effect to rescind the limiting vote of January, 1894, and to take the waters of the river for the use of the borough ( see Exhibit K). In November, 1897, the plaintiff bought and had conveyed to it the Tyler mill property, and in December and January following bought and had conveyed to it other property on this stream, as set forth in the finding. It is upon these facts that the plaintiff’s present claim is based. We assume in favor of the plaintiff, without deciding, that the defendant abandoned part of the water in January, 1894; but this will avail the plaintiff nothing unless it is also true that it appropriated the abandoned water before the votes of January, 1898, were passed; for unless this be true, the defendant was at liberty, quoad this plaintiff as a water company merely, to again appropriate the abandoned water. The question, then, is whether the plaintiff, prior to the votes of the defendant’s officials in 1898, had appropriated the abandoned waters. The court has not found specifically that it did so, and we think the facts found afford no basis for the plaintiff’s claim upon this point. It does not appear that it knew of the existence of the votes of January, 1894, when it bought the property in 1897. Prior to these votes the plaintiff did not take the water, or any of it, it did not *304 vote to take it, and it did no act manifesting such an intent as would constitute an intent to appropriate the water. True it bought land, and it bought water rights along this stream; but these things in and of themselves did not constitute a prior appropriation as matter of law. Even if we assume them to have been the direct acts of the plaintiff corporation, they indicate at most a general and indefinite intent to utilize the property in some way, at some indefinite time, and to appropriate the water, under its charter, not at present or in the near future, but whenever it should desire and determine to do so later on. Upon the facts found we think' the plaintiff, at the time the votes of 1898 were passed, can only be regarded, as against this defendant and in this case; as a riparian owner having the ordinary rights of such an owner. The plaintiff objected to the admission of the votes of January,- 1898, in evidence, on the claim that it had acquired the abandoned water by prior appropriation and therefore it could not be affected by the votes. As we hold that this claim was unfounded, it follows that the objection was properly overruled. The plaintiff next claims that as a riparian owner it is entitled to the full flow of the river, and to an injunction to restrain the defendant from diverting the water, at least until it pays damages for such diversion. It is conceded that the defendant has not paid damages for diverting the water from the plaintiff’s property, and that it is liable in damages for such diversion. But the real question in this case does not relate to the right of the plaintiff as riparian owner to damages, nor to the amount of such damages, nor even to its right, under certain circumstances, to an injunction restraining the diversion until damages have been paid; but it relates to the very different question, whether the trial court erred in refusing to grant an injunction upon the facts found. The answer to this question is to be looked for in the special facts found. The plaintiff bought its property in 1897 with full knowledge of what the borough had done prior to that time in this matter, and with full knowledge of all the other pertinent facts *305 spread upon the record. The water diverted is necessary for the uses of the borough, and to enjoin the defendant from diverting it might cause great hardship. This stream is practically the only source of additional supply open to the borough. It is found that it is doubtful whether the damages to riparian owners below the pumping station will be more than nominal; the borough has tried to settle for them, and is ready and willing and abundantly able to pay them as soon as the amount is ascertained. Upon the facts found upon this part of the case the injunction was properly refused. This disposes of all the points made in the case. There is no error. In this opinion the other judges concurred.