Danbury & Norwalk Railroad v. Town of Norwalk , 37 Conn. 109 ( 1870 )

Phelps, J.

The practical question presented in this case is, whether the town of Norwalk, for the purpose of the necessary drainage of one of its highways, can rightfully construct a sewer to terminate and discharge its contents at, or'so near to, the rear of the excavation wall of the Danbury and Nor-walk Railroad Company, which supports its depot in the borough of Norwalk, as to seriously endanger the safety of the wall and depot.

The consequences to the petitioner of the respondent’s contemplated act are not denied, and are sought to be justified under the general statutory authority and duty given to, and imposed upon towns, to maintain their highways in a proper condition; and also on the ground that the petitioner, in the original construction of its railroad at the place of the excavation, intercepted the natural and accustomed course of the drainage of that locality, and thereby rendered necessary the. establishment of the projected sewer.

Upon the general question of the authority and duty of towns with respect to the proper maintenance of their highways, there is no opportunity for controversy. The authority is clear, and the duty imperative; always subject however to the salutary qualification, interposed for the protection of others, that this authority shall be so exercised, and this duty discharged in such a manner, as to occasion no wanton injury to the property or rights of other persons, natural or artificial.

The question whether such a corporation as the respondent, in consequence of any immunity inherent in its municipal character, is exempt from those liabilities for malfeasance for which individuals and private corporations would be liable in a civil action by the party injured, is no longer an open one. The acts, of the character of those now in question, involved in the necessary performance of a duty prescribed by a municipal ordinance, are strictly ministerial, and when performed by an officer or agent by direction and for the benefit of the corporation, no exemption from liability by the principal can be interposed when from negligence or wilfulness they are so performed as to produce unnecessary damage to other parties. Perry v. City of Worcester, 6 Gray, 544; Sprague v. City of Worcester, 13 id., 193; Rochester White Lead Co., v. City of Rochester, 3 Comstock, 464; Mayor &c. of New York v. Bailey, 2 Denio, 433; Mayor &c. of New York v. Furze, 3 Hill, 612; McCombs v. The Town Council of Akron, 15 Ohio, 476.

The finding discloses that the excavation is fifteen feet deep at the crossing of the highway and is continued southerly therefrom four hundred feet through rock, — that the depot building is of brick, erected upon the side walls of the excavation, — that the respondent designed to discharge the contents of the drain into the excavation, — that it directed its workmen to extend it to a point within six feet of the rear of the westerly wall thereof, and then tuim it southerly parallel therewith towards the north end of the recess under the depot building, with no instructions to provide an artificial passage through the wall. It is also found that to permit the water from the drain to so discharge itself at or near the wall and penetrate 'through it into the excavation, will greatly endanger the wall and depot building, and that the water from the drain as it now is, percolates through the wall in several places, and to such an extent in times of heavy rains and thaws as to flood the railroad track of the petitioner, — that the petitioner’s ditches in the excavation will be insufficient to carry off the water which th& drain, if completed, will at times discharge into them, and that the respondent can with additional expense so construct1 the drain as not to subject the petitioner to damage.

The expense of its construction is proper to be considered as an element materially qualifying the obligation of the respondent, but it is conceded that the proposed drainage is necessary to the proper condition of one of the principal streets in a large and densely populated village, and the amount required for the proper construction of the drain in such a manner as not to injure the petitioner is not found to be reasonably sufficient to seriously affect the extent of' the respondent’s obligation; and we think the facts above recited clearly justify the inference that the respondent’s conduct was characterized by an appearance of wantonness entirely irreconcileable with a reasonable consideration for the property and established rights of the petitioner.-

The general power of a court of equity with respect to its authority to intervene for the summary protection of a party threatened with injury by the wrongful act of another cannot be questioned, and the propriety of its exercise is not invariably limited to cases in which there is no adequate legal remedy. Its preventive authority may be, and frequently is, invoked and exercised in cases where apparently adequate legal redress for the menaced wrong might after its infliction probably be obtained; but it is a part of the wholesome policy of the law in its application to causes in this forum, to prevent an injury as well as to redress one, especially when the circumstances indicate essential wrong to the aggrieved party, which in its consequences is also likely to injuriously affect the public. Theoretically, as a general rule, chancery may not assume to exercise jurisdiction when there is adequate remedy at law. It does so practically," in numerous cases where the completeness of the legal remedy is disputed or doubtful; and sometimes also irrespective of that consideration, when it is manifestly better to prevent the perpetration of a wrong which will be not only highly prejudicial to the party immediately threatened, but also directly or incidentally detrimental to the public.

"With reference to the other branch of the respondent’s claim, it appears that at the excavation the petitioner’s railroad .crosses the highway nearly at a right angle, and that a plank bridge over the same forms at that point the surface of the highway. On the south side of the highway and westerly from the crossing and excavation, the respondents constructed the drain, commencing at the west end and leading it to the excavation, which is parallel with and on the west side of Norwalk river, the natural outlet of the drainage of that portion of the highway. Sixty years ago, a swale extended from a northerly direction across the highway about four hundred feet westerly of the excavation, thence passing southerly to the river, and through this most of the surface water passed. Since then, and from time to time, the highway at the excavation has been raised by individuals, by the Norwalk Horse Railroad Company, by the petitioner, and by the respondent, in all from five to six feet, by means of which the passage of the water through its former course has been much impeded, and it has to a considerable extent been forced across the highway in a northeasterly direction and down the northerly side of the highway to the river, and this was the condition of the drainage when the petitioner constructed its railroad. The grade of the Norwalk horse railroad, where it crosses the highway, was agreed upon by the respondent and the company, and the grade to which the petitioner raised the highway at the excavation was well known to, and without objection from the respondent, and acquiesced in by it, since 1852.

In view of these facts we think, if the respondent’s claim has any valid foundation, it is entirely insufficient against the prevailing equity existing in favor of the petitioner.

We have not considered the point made by the petitioner that the duty to maintain the highway in question was in the borough of Norwalk, and therefore not in the respondent, for the reason that in our view of the case it is unnecessary; and if otherwise, the charter and by-laws of the borough, referred to in the briefs of counsel, were not printed with the record, or produced or read in the argument of the cause.

We advise the Superior Court that the petitioner’s injunction should be made perpetual.

In this opinion the other judges concurred; Judge Granger of the Superior Court sitting'inthe place of Judge Butler, who was disqualified by interest as an inhabitant of Norwalk.