Board of Water Commissioners v. Perry

Baldwin, J. The main claim of the appellant is that he should have been given larger compensation for the impair [467] ment of his right to avail himself of his ice-pond as fully as heretofore. This pond is on Edgecomb brook above its junction with a larger stream, known as Briggs brook. All the water of Briggs brook north of dam No. 2 (which is above this junction), the water board has voted to appropriate. The appellant, as a riparian owner upon both brooks, down to a point below their junction, and of the land lying between them, had a right to connect them by a canal, in order to feed his ice-pond, should he at any time find its natural inflow insufficient, from the waters of Briggs brook. This source of supply has now been condemned by the action of the appellee, and the damage thus occasioned to him has been included in the sum assessed in his favor. What he complains of is that nothing was included for such consequential loss as he may hereafter suffer, should his interruption of the natural flow of Edgecomb brook, for the purpose of filling his pond or by harvesting ice, be at any time an infringement of the rights of riparian proprietors on Briggs brook below the junction. By these condemnation proceedings the drainage area of Briggs brook is so far appropriated to the use of the city of New London, that what remains is less than that of Edge-comb brook. What has been the greater stream may thus become the smaller, and the riparian proprietors below the junction must henceforth rely for their supply of water mainly on what is contributed by Edgecomb brook, and flows through the appellant’s ice-pond. But the action of the water board has in no way diminished his rights in the water of Edge-comb brook, whether ponded or unponded, running or frozen. He had, before, the right to make a reasonable use of it, and for that purpose to detain or pond it in a reasonable manner, having in view the size and capacity of the stream, and the reasonable rights of riparian proprietors below, whether upon the same stream, or of one to which it is a tributary. Mason v. Hoyle, 56 Conn. 255, 265-268; Elliot v. Fitchburg R. R. Co., 10 Cush. 191, 195. This right he retains unimpaired and unaffected by the appropriation by the appellee of the waters of Briggs brook. The riparian proprietors upon that [468] have been awarded.just compensation for their loss, and can henceforth expect to enjoy of the waters above the dam which is to be built across it, only what from time to time the city may have no occasion to use. They stand in relation to the appellant precisely as if Briggs brook, above that dam, had never existed. The waters which it supplied may have been so abundant that the diminution and occasional interruption of the flow of Edgecomb brook, due to its use by the appellant, caused them no substantial injury, while they may now suffer great inconvenience from his continuance of the same use. If so, for the damage thus occasioned, so far as it may be the natural consequence of what has been done with respect to Briggs brook, they have been fully paid; and so far .as it may be due to the maintenance of the ice-pond on Edge-comb brook, they retain all rights of action that they have ever had, as lower riparian proprietors upon the channel through which its waters flowed. If it was reasonable for the appellant, prior to these condemnation proceedings, as an upper riparian proprietor upon Edgecomb brook, and irrespective of his rights in Briggs brook, to pond and use its waters, as he did, for ice purposes, it will be reasonable for him to continue in the same course of action; and otherwise, it will not be. These waters remain the same, and his rights in them as a riparian owner remain the same. . It was found that the Rogers’ ice-pond has been maintained for more than twenty years on Briggs brook, not far below the junction. It has been fed by both brooks. Henceforth its supply from one of them will be small and precarious; but from the other it will receive as much as before, and its owners have .no prescriptive right to demand more. Prescription is measured by adverse user; and their user has been limited to such water as the appellant, because he found its use unnecessary for the purposes of his ice-pond, allowed to flow over his dam. If he has been hitherto consuming more water from Edgecomb brook than was reasonable, an action could have been brought in their favor, notwithstanding they had suffered no actual damage. Parker v. Griswold, 17 Conn. 288, 306. If he should hereafter consume [469] more than is reasonable, an action of the same character would be open to them. His rights in Edgecomb brook are neither greater nor less than they were before he became a riparian proprietor upon Briggs brook. The judge of the Superior Court states in his finding that his assessments of damages were made on the assumption that the owners of each ice-pond had acquired the light to use the waters flowing into it in the manner in which they were then using them, and to the same extent. So far as the appellant is concerned, we do not understand this to mean anything more than that it was assumed that he had then a right to do what he then was doing, by virtue of his riparian proprietorship. It was not an attempt to adjudicate upon his rights after the condemnation proceedings were consummated, as against the owners of land lower down upon the stream. It is contended that the report, maps, and surveys, referred to in the application, were insufficient to give a complete description of the rights and property taken. This objection was not taken before Judge Shumway, and cannot, therefore, be considered on appeal. The amendment, stating what the appellee claimed to be included in its vote of condemnation, was properly allowed. The vote, indeed, could not thus be altered; but by stating what was claimed to be its legal effect, any opportunity for misconception of the appellee’s position was removed. By its terms there was appropriated the right to construct two reservoirs into which “to collect the waters of Briggs brook,” and to “ distribute the waters so collected by pipe lines into the city of New London.” The amendment states that under this is claimed the right to construct dams, reservoirs, and pipe lines, “ sufficient in size, material, height, capacity and method of construction to detain, collect, withhold and divert all the waters of Briggs brook above dam No. 2.” An appropriation for public use of “ the waters ” of a brook is, unless otherwise limited, an appropriation of all its waters; and an appropriation by means of reservoirs and distributing pipes naturally implies that they shall be sufficient in all respects to answer the public necessities. The appellee’s claim [470] was fully warranted by the language of the vote, and the interests of both parties were promoted by having it distinctly stated upon the record. It is a necessary incident of proceedings of this nature that the judge, before whom they may be brought, should have power to allow reasonable amendments at any stage of the hearing. There is no error. In this opinion the other judges concurred.