Smith v. Moodus Water Power Co. , 33 Conn. 460 ( 1866 )

McCurdy, J.

The substance of that part of the plaintiff’s declaration on which he recovered is, that as administrator on the estate of Jeremiah Smith he was lawfully possessed of a tract of land lying on the side of Bashan Pond and bounded partly by it; that as such administrator he had the legal right to the water of the pond for agricultural and domestic purposes, especially for watering his cattle, and for forming in part the boundary and enclosure of the tract; and that he had the legal right to have the Water kept at a certain height for these purposes; that during the life of said Smith one Brownell, unlawfully and against the will of said Smith, deepened and enlarged the outlet of the pond, whereby it was drained and the water lessened about six feet below the height at which it should have been kept; that the defendants with intent to injure the plaintiff in the premises have wrongfully kept, maintained and continued the outlet so deepened and enlarged ; that he has thereby been injured in his possession of the1 land, and in the use of the water for the purposes aforesaid, and his boundary has been destroyed, and his cattle have strayed, and the land has been exposed to depredation, and he has been obliged to build an expensive fence.

The defendants insist that the declaration is insufficient to sustain the verdict, and assign various reasons.

One is that it does not appear that the estate was in course of settlement when the suit was commenced or when the injury occurred; and again, that it does not appear that the land was or is a part of the estate, nor that the same was not specifically devised, nor that said Smith died intestate.

The declaration alleges that the plaintiff is administrator on the estate, and as such has lawful possession of the land. This averment includes and imports prima facie all the, conditions of legality. Even if it had been proper to have stated the facts from which the lawfulness of the possession was to be inferred, yet the omission is a mere want of particularity in the mode of setting out the title, and the defect is cured by verdict.

Another reason assigned is of a more serious character. It is that the declaration does not charge that any positive acts were done by the defendants; that it alleges that Brownell made the excavation and that the defendants have done nothing but to let it alone, without setting out any duty or obligation on their part to interfere or restore it to its original condition.

But the words of the declaration, as it seems to us, import much more than this. By a fair construction they impute to the defendants acts done directly by themselves. The language is, that the defendants “kept, maintained and continued the outlet.” In ascertaining the full meaning of this we must take into consideration the tendency, the incidents and the effects of such an excavation. Although in some cases the banks and bottom may remain unaltered, yet in very many others they are subject to great and continual change. The sides cave in by their weight; they are washed down by the rains; they are thrown down by the frosts; rocks, stones and other obstructions are carried in, and bars are formed at the mouth. This operation of the elements requires to be counteracted by human endeavors. To “ keep, maintain and continue” the outlet, that is, the channel, for the water to run free and clear at the increased depth, must be supposed to have necessitated direct and positive efforts — constant labor, digging and clearing out. Under this declaration such acts may have been proved, and they probably were, to an extent which will justify the verdict.

We think the declaration is sufficient and that the judgment should be affirmed.

In this opinion the other judges concurred.