Torrington v. Messenger Et Ux.

This appeal states thirty reasons therefor. Our view of the case renders it unnecessary to consider more than one of them. In some of its possible aspects the case suggests certain important questions. Not least of these, perhaps, is one as to the construction to be given to § 2683 of the General Statutes, upon which the plaintiff relies for authority for its action in the premises. Any construction accorded to it must bear the test of constitutionality, if the section is to be an operative one. Clearly, its language must be kept within such bounds that it shall not authorize the taking of private property without due process of law and just compensation. It seems quite apparent that if full meaning and scope is to be given to the language employed, as the ordinary man might read it, rights would be conferred which it would be hard to defend under constitutional limitations. We have no occasion in this case to enter upon a further discussion of this subject. We have, however, felt it our duty to sound a note of warning to any who may wish to avail themselves of the powers conferred, or apparently conferred, by this statute, to be well advised that their action is such as is not forbidden by organic law.

The finding effectually precludes the defendants from denying that Prospect Street Extension has, since 1889, been a public highway. Both the dedication of the land to highway uses by the land owners in that year, and the acceptance by the public, are distinctly found. The finding likewise forecloses all contention that the situation involves only a consideration of conditions arising from the disposition of mere surface water. Under the finding the "depression or ravine" through the defendants' lot was, or rather contained within it, a watercourse, as the court held. The water flowed, and from time immemorial had flowed, in a defined channel therein. Gillett v. Johnson, 30 Conn. 180. The rights of the parties incident to the locus must therefore be determined upon these premises established by the finding.

The plaintiff asks the court for its protection in going upon the defendants' land to dig up the ground and open up the watercourse, to the end that full and free passage of water from the adjacent highway may be hereafter had. The court below accorded this protection by permanently enjoining the defendants from "any further obstruction or interfering with the plaintiff's use as a drain of a natural stream of water flowing on and across the said tract of land."

The plaintiff bases its claim to exercise the rights contended for, solely upon the statute to which we have called attention. This statute, however, contains an important express exception. The language is, "provided that nothing in this section shall be so construed as to allow the drainage of water from such highways into or upon any dooryard in front of any dwelling-house," etc. The court has found that the "watercourse and drain which the plaintiff proposed to clear was not in any dooryard in front of any dwelling-house." That is quite true, if by dooryard "in front" of a dwelling-house, as the term is used in the statute, is meant only that portion of a dooryard which lies strictly in front of the house, that is, between the house and street and between lines drawn from the house to the street parallel to the sides of the house. The course of the drain in question lies just outside these parallel lines. Plainly the statute uses its language in no such narrow meaning. The words "in front of," etc., plainly qualify "dooryard." They do not fix a place in the dooryard where water may not be drained. The words taken together are equivalent to "front dooryard," and these words have no such confined signification as the plaintiff's contention compels. Whether we look at the language, or manifest spirit and intent of the exception, the result is the same in excluding the strained and narrow interpretation.

It should be borne in mind also, in reading this statute, that it is one in derogation of private rights, and therefore should be strictly construed against its grant of power. For every reason, therefore, it is apparent that the court below erred in holding that the waterway sought to be opened up was not in the defendants' dooryard in front of his dwelling-house. The statute, accordingly, fails as a justification for the court's order, and the plaintiff's claim, therefore, falls to the ground.

As the plaintiff makes no claim to any authority apart from the statute, no other question calls for our decision.

There is error and the judgment is reversed.

In this opinion the other judges concurred.