Byrne v. Town of Farmington

Hamebsley, J.. This is an action against the town of Farmington to recover damages for injury to the plaintiff’s [373] dwelling house and property, from a flow of water into his cellar, caused by the negligence of the town in respect to a culvert under the highway in front of the plaintiff’s premises. The defendant demurred to the complaint. The demurrer was overruled. No question is now raised as to the sufficiency of the complaint. The case was tried to the court upon the issues raised by the answer, and judgment rendered for the defendant. From that judgment the defendant appeals. The material facts as found by the court are as follows : — The plaintiff bought the land described in the complaint in 1876, and the following year built a house thereon, where he now resides ; the house is on the west side of a highway of the defendant town, and stands in a swale where surface water from melting snow or heavy spring rains tends to collect, but only occasionally, and from these causes. The highway has been built for more than fifty years. In 1878 the road commissioner of the defendant built a stone culvert in the highway in place of a wooden sluice which had become obstructed. The culvert was situated just south of the defendant’s house, in front of his lot, and at the lowest part of the swale. The sluice and culvert were built for highway purposes only, to enable the water to pass from the west to the east side of the highway when a passage Avas needed-; no watercourse ever flowed through either. The culvert, if unobstructed, was sufficient to carry off any collection of surface water on the west side of the highway, and from the plaintiff’s land ; without.such a water-way the surface water would be retained by the highway bank. In the winter of 1892-93, owing to the extreme and protracted cold, this culvert was frozen up and thus became completely obstructed; the accumulations of surface water caused by melting snow and rain during January and March, 1893, were extraordinary; on three occasions during that time, the culvert being obstructed by ice, such water accumulated in the swale on the plaintiff’s premises and flowed into his cellar damaging his property. On April 8th, the defendant opened and cleared the culvert. The defendant was guilty [374] of negligence in not opening and clearing the culvert at an earlier date, if it were the duty of the defendant to keep the culvert open and unobstructed for the benefit of the plaintiff. The plaintiff claims that the trial court erred in not holding upon the facts found, as a matter of law, that it was the defendant’s duty to keep the culvert unobstructed for the benefit of the plaintiff; and that therefore the defendant was liable to the plaintiff for damages caused by negligence in the performance of that duty. There is no foundation for such claim. In the discharge of its obligations in the maintenance of a highway, a town, if it has any duty to an adjoining proprietor in reference to the flow of surface water, has no greater duty than is imposed on an individual owner of land. The rule in such cases is well settled. “ The right of an owner of land to determine the manner in which he will use it, or the mode in which he will enjoy it, the same being lawful, is too high in character to be affected by considerations growing out of the retention, diversion, or repulsion of mere surface water, the result of falling rain or melting snow.” Grant v. Allen, 41 Conn., 156. “ No action can be maintained for changing the course or obstructing the flow of mere surface water by erections on adjoining land. It makes no difference in the application of this rule that the land is naturally wet and swampy. A conterminous proprietor may change the situation or surface of his land by raising or filling it to a higher grade, by the construction of dykes, the erection of structures or other improvements which cause water to accumulate from natural causes on adjacent land and prevent it from passing off over the surface.” Dickinson v. City of Worcester, 7 Allen, 19; Gould on Waters, § 256; Chadeayne v. Robinson, 55 Conn., 346; Smith v. King, 61 id., 517; Gannon v. Hargadon, 10 Allen, 106; Franklin v. Fisk, 13 id., 211; Bates v. Westborough, 151 Mass., 174. In the present case, the use of its land by the town in raising slightly the grade of the traveled part of the highway was a lawful use; the town was not liable in damages [375] for the obstruction of the flow of mere surface water caused by such raising of grade. It was under no obligation to the adjoining proprietor to build a culvert; it had a right, as against such proprietor, to close the culvert either permanently or by failing to remove a temporary obstruction. As the court says in Chadeayne v. Robinson, p. 350: “ It is the right of the defendants to erect for the entire depth of their lot a structure which will be a perfect barrier to surface water. Of course that which they may do perfectly and permanently, they may do imperfectly and temporarily; and the plaintiffs must accept the consequences.” The facts found by the trial court bring this case clearly and without any room for doubt, within this well established rule. It is unnecessary to consider what rule might apply, if the defendant had succeeded in proving, as he seems to have claimed upon the trial, that the water obstructed aud set back upon his land was not merely the natural and occasional accumulations of surface water, but was in the nature of a watercourse which the defendant undertook to control, and by its negligence diverted or repelled from its natural course to his damage. The plaintiff claims that § 2683 of the General Statutes makes the defendant liable in damages for neglecting to clear the culvert. That section is: “Persons authorized to construct or repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water; and when it should be necessary to make any drain upon or through any person’s land for the purpose named in this section it shall be done in such way as to do the least damage to such land; provided that nothing in this section shall be so construed as to allow the drainage of water from such highways into or upon any door-yard iu front of any dwelling house, or into and upon yards and inclosures used exclusively for the storage and sale of goods and merchandise.” This statute has no application to the plaintiff’s case. The defendant has neither made nor cleared any watercourse or [376] place for draining water from the highway into or through the plaintiff’s land, and therefore has not within the meaning of the statute drained any water from the highway into or upon the plaintiff’s door-yard. If the plaintiff has been aggrieved by the judgment of the trial court, his grievance consists solely in his failure to convince the court that he had proved the facts alleged in his complaint; upon the facts as found, the court correctly held that the defendant was not liable to the plaintiff for damage caused by its failure to keep the culvert open for the benefit of the plaintiff. There is no error in the judgment of the Court of Common Pleas. In this opinion the other judges concurred.