Dudley v. City of New Britain

Hamersley, J.

The defendant’s claim which the court overruled is not one of law but of fact. It is not that there was no evidence before the court of the amount of damage, but that the evidence which convinced the court that the damage proved amounted at least to 11,200 was in fact insufficient for that purpose. Had the defendant formally claimed that in this case the plaintiff could not ask the' court to resort to mere arbitrary conjecture for the ascertainment of the damage, but would be entitled to recover only a nominal sum unless in some way he showed the amount of damage by evidence, data, and means from which the court could ascertain and fix it, the court would doubtless have sustained that claim; and we must assume that the court applied this rule in weighing the evidence produced.

The only claim of law which the defendant can now urge is this: It is apparent from the facts found, as recited in the finding, and from the statement therein of the facts which the plaintiff offered evidence to prove, that there could have been no testimony offered legally capable of proving damage to any definite amount. These facts are, in brief, as follows: That upon the land there was a grist-mill, dwelling-house, barn and outbuildings, and the mode of the construction of the grist-mill, and the manner in which the stream was used for running it, appeared; that the dwelling-house and other buildings were a short distance from the stream; that by the pollution of the stream the plaintiff and his workmen have been exposed to unhealthy odors, the occupation of the dwelling-house has been affected by the same odors, the well has been corrupted and rendered useless, the wheels and machinery in the mill have become clogged and frequently rusted, requiring repairing and renewal, and the business of the mill has been at times seriously impeded ; that the pollution of said stream by the defendant began about 1878, but did not become noticeably bad until about 1894 ; that the rental or usable value of the property was materially depreciated bjr this pollution ; that the plaintiff had operated the mill twenty-five years and up wards preceding the date of the complaint, and had done a large and profitable business up to 1894; that since 1894, owing to his ill-health and consequent inability to look after his business, the use of the mill and adjacent property to him was of nominal value only, but its use to him during that period, if he had been in good health, would have been worth $1,000 per annum; that the effect of the pollution, and consequent filthy character of the waters of the stream, upon the mill property and persons there at work, appeared ; and that the plaintiff offered no evidence, other than that received in support of the foregoing facts, of the value of the property or its usable and rental value at any time before or after the pollution of said stream.

The claim, therefore, is that it is legally impossible for the evidence which may have been offered in support of these facts to satisfy a court that the actual damage to the property by the wrong of the defendant was at least $1,200. Plainly this is not so. The defendant does not and cannot complain of the rule of damages adopted by the court at his request; but whether the rule as stated is or is not the most accurate statement of the process to be followed in the ascertainment of the actual damage under the circumstances of this case, it is certain that the damage which consists in a depreciation in the usable value of the plaintiff’s property directly caused by the defendant’s wrong may be ascertained without determining with mathematical certainty the precise amount of that value with the stream unpolluted and its precise amount after the pollution; the amount of damage in such case is intrinsically approximate, depending largely on the sound judgment of the trier, and it is sufficient if the evidence furnishes data from which damage to the amount found may be inferred with reasonable certainty and without resort to mere conjecture. It is also clear that the absence of evidence consisting of the opinion of the neighborhood as to the rental value of the property, of which absence in this case the defendant specially complains, is not a legal bar to any ascertainment of damage from other testimony. It is evident that in this case such opinion-tes timony might be far less reliable than tbe data upon which the court apparently based its conclusion.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.