Smith v. King , 61 Conn. 511 ( 1892 )

AS a general rule an injunction will not be granted to prevent a threatened trespass. But where there is something particular in the case, so as to bring the injury under the head of quieting possession, or so as to make out a case of irreparable mischief, or where the value of the inheritance is put in jeopardy, an injunction may be awarded. The rule, with its exceptions and the reasons therefor, is very clearly stated by Chancellor KENT inStevens v. Beekman, 1 Johns. Ch., 318;Livingston v. Livingston, 6 id., 497;Jerome v. Ross, 7 id., 315. See also Story's Eq. Jur., § 928.

The strictness of the rule so laid down has been considerably relaxed in various jurisdictions.Goodrow v. Richardson, L. R., 9Cha. App., 221;Winter v. Easum, 2 De G., J. S., 272;Allen v. Martin, L. R., 20 Eq. Cases, 462; Baron v. Korn, 127 N. York, 224;Wilcox v. Wheeler, 47 N. Hamp., 488.

This court however has always adhered pretty rigorously to the rule as given by Chancellor KENT in the cases above cited. Goodwin v. N. York, N. Haven Hartford R. R. Co., 43 Conn., 494; Hawley v. Beardsley, 47 id., 571. In the latter case the court said, quoting fromEnfield Toll Bridge Co. v. Conn. River Co.,7 Conn., 50, — "An injunction is not ex debitojusticiœ for any injury threatened or done to the estate or right of a person, but the granting of it must always rest in sound discretion governed by the nature of the case." And quoting also from Whittlesey v. Hartford,Providence Fishkill R. R. Co., 23 Conn., 44, — "Writs of injunction are not to be granted for every trifling cause or made substitutes for every action of trespass or ejectment. * * * They ought not to be issued except for the prevention of great and irreparable mischief, and in the language of our present statute, in cases only in which adequate relief cannot be had in the ordinary course of law."

Assuming that the condition of things, as it existed at the time this action was brought, was such as to justify the court in overruling the demurrer to the complaint, does the case as shown by the finding of facts come within the rule respecting injunctions as it has been given by our own cases? The defendant had removed the flash-boards from his dam before the cause was tried. There is no allegation nor any finding, there is not even a suggestion, that he intends to replace them. Indeed the fact that he removed them voluntarily would indicate that he does not intend to infringe any right of the plaintiff. As the defendant's dam now exists the water in the pond must be raised more than seven inches before it will set back at all upon the plaintiff's land-In the ordinary flow of the stream there will be no flooding of the plaintiff's land; but the court finds that "sudden and severe rains in the spring and fall, or sudden melting of snow, will cause the pond to fill and the water to set back and cover the land of the plaintiff." This is the full extent of the injury to which the plaintiff is now exposed. It amounts to this, — that by reason of a structure which the defendant has placed upon his own land the accumulated water from sudden and severe rains in the spring and fall, or from the sudden melting of snow, will flow off from the plaintiff's land less quickly than it otherwise would. It is somewhat doubtful whether this is an injury for which the defendant can be made liable to the plaintiff. In Gould on Waters, § 267, the law is stated thus: — "The right of an owner of land to occupy and improve it in such manner and for such purpose as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rain or snow falling on its surface or flowing upon it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass upon and over the same in greater quantities or in other directions than they were accustomed to flow." The law as so stated was fully approved by this court in the very recent case of Chadeayne v. Robinson,55 Conn., 345. See also Grant v. Allen,41 Conn., 156.

It may be argued that the present case does not fall within the law as so stated for the reason that in this case there is a stream of water which is swollen by the rain and melting snow, and so caused to flow upon the land of the plaintiff. The argument would be a difficult one to maintain because it is the rain and snow which falls upon the plaintiff's own land that (in part at least) causes the overflow of the stream. But granting the argument to its fullest extent, still there is no case of irreparable injury shown. On the subject of damages the court below says: — "I am unable to determine the amount of damage the plaintiff has suffered by reason of the overflowing of his land by the defendant, or the amount of damage he will suffer by the continued and repeated overflowing of his land; but the effect of repeated overflowing will be to destroy and kill the growing trees and render the plaintiff's land less valuable." It is very likely true that the effect of repeated overflowings, especially if they were continuous, would be to destroy trees and to make the land less valuable. But it does not follow that occasional overflowings caused by sudden and severe rains in the spring and fall or by the sudden melting of snow, and which must be of brief duration, would produce any such effect. There is no such finding, and in the absence of a finding we cannot presume it. On the contrary, as a matter of common knowledge, we might almost, assume that such occasional overflowings would do no damage to the trees or to the land. There is no irreparable injury found, nor is there any such liability to repeated actions in trespass shown as makes this a case of irreparable mischief.

There is error and the judgment is reversed.

In this opinion the other judges concurred.