Diamond Match Co. v. Town of New Haven

Park, C. J. In the year 1881 the selectmen of the town of New Haven straightened and deepened the channel of West River, which flowed through the western part of the town and emptied into the harbor. The course of the river was winding and its width varied from five hundred feet in some places to fifteen hundred in others. It ran through low meadow lands, covering them to a considerable extent, and became thus a source of malarial disease. Complaint was made of its injury to the public health, and the purpose of the selectmen in straightening and deepening the channel of the river was to confine it to narrow limits and thus put a stop to its deleterious influence. It was the abatement of a nuisance. It was a sanitary measure, and a necessary one. Two avenues crossed the river, which were public highways of the city and town. One, Whalley avenue, was on the north, and the other, Derby avenue, was on the south — 524 — of the meadow through which the river flowed. The alterations of the channel extended from one avenue to the other. The town employed the best engineering still for the preparation of the plans for the work, and everything was done in accordance with the plans thus prepared. In the opinion of the engineers, as ample provision was made for the passage of the water below Whalley avenue as existed before. The selectmen intended to secure this and believed they had done so. Before the change in the channel of the river the water, in times of freshet, overflowed the banks and became ponded on the low meadow lands, and it was thought that the change in the channel would make no difference in this respect. But the earth thrown out in excavating the new channel was placed on the sides of the channel in such a manner as to prevent this overflow, and this, with the stopping up of the old channel, caused the water to set back in- times of flood, and the water thus set back did the damage complained of by the plaintiffs. With regard to the character of the flood and the circumstances attending it the court finds as follows:— “ It occurred at the time of an exceptionally heavy rainfall in the winter season of 1885, which, with the smooth and hard surface of the ground co-operating, occasioned severe freshets, not only in West River, but throughout a wide extent of country. It was an extraordinary freshet as compared with the ordinary annual overflows or freshets common to the river. * * * The freshet was unusual and extraordinary but not unprecedented; and had the rise in the liver been only the ordinary annual freshet the damage to the plaintiffs would not have resulted. * * * In addition to the annual freshets, the river was subject in occasional years to extraordinary freshets or floods, which should be expected occasionally to occur. * * * The waterway span of Whalley avenue bridge is one hundred feet, and is ample to take aud discharge all water coming in such extraordinary freshets or floods occasionally occurring, and the waters of such freshets could easily and readily be — 525 — disposed of by permitting the same to spread over the low meadow lands without the obstruction of the banks of the new channel.” These are the principal facts of the case. It is expressly found that the work was done under authority conferred upon the town by a private act passed by the legislature in 1881, and which may be found among the acts of that year, page 230. That act authorized “the town of New Haven, acting by and through the selectmen thereof,” to “ deepen, clear out, alter and straighten any and all streams and watercourses, natural and artificial, or any portion thereof,” within the limits of the town, “in order to protect and preserve the public health,” and they were authorized to do it “ at such times and in such manner as the public health, in thé opinion of the selectmen, may require.” Acting under this authority, the selectmen of the town, believing that the preservation of the public health required that certain alterations in the channel of West River should be made, employed the city engineer to make an examination and determine what could be done to accomplish the object. The work involved a problem of scientific engineering. It required, for the abatement of the nuisance, that the channel of a winding and sluggish river should be straightened, to keep its waters from spreading over a wide expanse of territory. The question was, how this could be done in the most efficient manner with reference to confining the water within the new channel, and at the -same time provide an ample way for all the water passing under the Whalley avenue bridge, which opening, the case finds, was ample for the passage of all water coming down the river at all times, extraordinary as well as ordinary. The matter had thus to be considered prospectively. The selectmen were to judge as well as they were able of future results. The best human judgment is liable to err in such a case. After an injury has occurred, and all the facts with regard to it have been investigated, it is often quite easy to see how it might have been avoided, but with a slight change in the circumstances a new case would be presented, — 526 — in dealing with which human judgment would be liable to be again in error. All that can be expected or required is, that officials, in the performance of a duty, shall bring to the service reasonable care and judgment, and that professional men employed by them in planning and superintending the work shall have all the knowledge and skill that experience in such work would naturally give them. It would seem in this case that such care was exercised by the selectmen, and that such skill and experience were brought by the city engineer to his part of the work. No complaint is made of any want of skill in the engineer or of intelligent and careful consideration of the matter on the part of the selectmen. Every effort seems to have been made by both to have the work so done, as, while effecting the great object for which it was undertaken, to do as little harm as possible to private property. And it does not appear that the work was not so done as to secure the safety of contiguous property in all ordinary freshets, that is, in such as might reasonably be expected and therefore ought to be provided for. The case finds that ample provision was made for all ordinary floods in the river, and that it was only an extraordinary rainfall in the winter season, when the. ground was frozen and not able to absorb the water, that could produce such a flood as the one that caused the damage complained of to the property of the plaintiffs. In the ease of The State v. The Ousatonic Water Co., 51 Conn., 137, this court, in remarking upon a case of this sort, said:—“ The defendants were bound to provide against all the natural results of ordinary freshets in the river, whenever they might occur, and with whatever ordinary combination of circumstances they might be attended. The defendants were not bound to make provision against extraordinary freshets in the river, which rarely happen, or against extraordinary effects of ordinary freshets, owing to some peculiar and uncommon combination of circumstances. They were bound to consider and prepare for the ordinary results of ordinary freshets, and not extraordinary freshets nor extraordinary results.” This was said with reference to — 527 — the building of a dam by the defendants over the Housatonie River, but the same can be said with equal propriety in the case at bar. In Smith v. Agawam Co., 2 Allen, 355, the court, in remarking upon extraordinary freshets, says :—“ The changes which result from such causes are uncertain in extent and in the times of their occurrence; and the losses of which they are the occasion must be borne by those upon whom they fall.” And in Sprague v. City of Worcester, 13 Gray, 193, the court remarks as follows upon the same subject:— “By the exception of extraordinary freshets for unimportant periods of time, we consider was meant freshets not ordinarily occurring annually, but which come occasionally.” But it is said that the flood which did the damage in this case, though unusual, was not unprecedented, and that such extraordinary floods had sometimes, though infrequently, occurred, and ought therefore to have been expected and provided for. But the flood in the case of the Housatonie River referred to was not an unprecedented one, and yet the defendants were held not to be liable in that case, their liability or non-liability depending upon the character of the flood as in this case. An extraordinary freshet, in the view there taken of the matter, is not necessarily an unprecedented one, but it may be one that happens so rarely or in such unusual circumstances, that it is not to be expected. And it was so regarded in the cases cited from Massachusetts. And it is to' be specially noticed in this case that, aside from the extraordinary character of the flood, the frozen condition of the ground added greatly to its effectiveness for mischief. The water was not in part disposed of, as would happen in most floods, by soaking into the ground, but was compelled to flow in full tide within the frozen banks. This incident of the flood, in combination with the extraordinary rainfall, could not have been regarded as falling within ordinary probabilities, and therefore was not reasonably to be expected. But it is said that the raising of the banks of the new channel was no part of the engineer’s plan, but was done by the contractor under the authority of the selectmen as the — 528 — cheapest and most convenient mode of disposing of the earth thrown out in digging the new channel; and that it is found that the damage complained of would not have been done but for this raising of the banks, which held all the water within the new channel instead of its overflowing and escaping upon the low lands adjoining the river. Bub it is expressly found that the first contract for the excavation of the new channel contained among its specifications a provision for this precise thing, that is, that “ the material excavated from the new channel should be deposited on each side of the cutand it is further found that the specifications were prepared by the city engineer. It also appears that the engineer was to supervise the work and that any imperfect work was to be immediately corrected upon his requirement and that the work was in fact done to his acceptance. Upon these facts it is impossible to regard the raising of the banks as done by the selectmen upon their own judgment and in disregard of the plans and advice of the engineer. If there was misjudgment in the matter we must regard it as that of the engineer and not of the selectmen. As the placing upon the banks of the earth thrown out was the natural and ordinarily the proper mode of disposing of it, it was a failure of duty on the part of the engineer, if it was no part of his plan and he saw the danger arising from it, not to indicaté upon his plan, or in some mode have made it clear to the selectmen, that it ought not to be done. Especially was he in fault if, seeing the danger from it, he yet drew the specification which required it. But as the selectmen had employed a competent engineer, the town cannot be liable for his oversights or misjudgments. We have not thought it necessary to consider the question so ably argued before us, whether the duty discharged by the town was a governmental one, giving it some exemption from liability that would not exist if the duty was not of such a character, because, upon the theory which would hold the town to the highest liability, we think there was no negligence on the part of the selectmen by which the town could be made liable. — 529 — We think the defendant town was not liable, upon the facts found, for the damage done to the plaintiffs in this .case. There is error in the judgment appealed from and it is reversed. In this opinion the other judges concurred.