ÆäÀÌÁö À̹ÌÁö
PDF
ePub

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ERRORS

OF THE

STATE OF CONNECTICUT.

ASA L. CHAMBERLAIN AND ANOTHER vs. WILLETT HEMINGWAY AND OTHERS.

New Haven & Fairfield Cos., Jan. T., 1893. ANDREWS, C. J., CARPENTER, FENN, PRENTICE and J. M. HALL, JS.

A mere sluice-way or inlet from the sea, through which a current flows in and out with the tides, is not a water-course, and the owners abutting on it have no riparian rights.

An owner of land through which such a sluice-way runs has a right to fill it up and convert it into upland.

A water-course, as defined in the law, means a living stream, with definite banks and channel, not necessarily running all the time, but fed from more permanent sources than mere surface water.

[Argued January 20th-decided March 6th, 1898.]

SUIT for an injunction against the filling of a sluice-way by the defendants; brought to the Superior Court in New Haven County and heard before Thayer, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiffs. The case is stated in the opinion.

H. G. Newton, for the appellants.

1. For more than fifty years the water-way in question has existed, twenty feet wide, and over three hundred feet in length, and in it the water was six feet deep at ordinary high VOL. LXIII.-1

(1)

Chamberlain v. Hemingway.

tide. It connects at each end with the Quinnipiac river. Water has passed through it during all this time. Loaded boats have passed through it. The plaintiffs and defendants have had sewers running into it. A town sewer flows into it. Upon these facts it is a water-course, subject to the usual law of water-courses. The main body of water flows in different directions, but, during substantially all the time, it is flowing in one direction or the other. It is not necessary that the water should flow in only one direction. "A river is a running stream of water pent in on either side by banks, shores or walls; and it bears that name as well where the waters flow and re-flow with the tide as where the current is always in one direction." Gould on Waters, § 41. Clearly it is not necessary that the waters should be always flowing in order to constitute a water-course. That ravines through which the water flows only a part of the time are watercourses if they show traces of running water flowing frequently, seems to be well established. Earl v. De Hart, 12 N. J. Eq., 280; Palmer v. Waddell, 22 Kan., 352; McClure v. City of Red Wing, 28 Min., 186; Conniff v. City of San Francisco, 67 Cal., 45. The courts of this state fully recognize the common law rule that riparian proprietors have a right to have the water flow where and as it has been accustomed to flow for fifteen years. Ingraham v. Hutchinson, 2 Conn., 590; Jennings v. Sherwood, 8 id., 128; King v. Tiffany, 9 id., 166; Tucker v. Jewett, 11 id., 318; Parker v. Griswold, 17 id., 302; Branch v. Doane, 18 id., 241.

2. Here is a continuously flowing stream. There is a large drain through the plaintiffs' premises, carrying sewage and waste water from eleven stores and tenements. The town sewer from Fair Haven Heights runs into it, as well as the waste water from the defendants' premises. These are enough to constitute a continually running stream.

3. This is an artificial water-course, and the plaintiffs are therefore all the more entitled to its continuance. "A watercourse, though artificial, might have been so long used as to become a natural water-course, prescriptively. *** When the owners of different parcels of land conduct water across

Chamberlain v. Hemingway.

such parcels in an artificial channel, and do not define their respective interests in the water, they have the same right to its use on their respective lots as between themselves as would exist if the artificial water-course were a natural one." Gould on Waters, § 225. "An uninterrupted adverse use of water for more than twenty years in a particular manner, gives the right to continue to use it in the same manner." Townsend v. McDonald, 12 N. York, 381.

H. Stoddard and S. A. York, Jr., for the appellees.

ANDREWS, C. J. All the questions of law made in this case depend upon a question of fact. In their complaint the plaintiffs say they are the owners of a piece of land adjoining a sluiceway running out of and into Quinnipiac river. In the second count the sluiceway is spoken of as "a river or water-course.'

[ocr errors]

If the sluiceway so spoken of is a "river," or "a watercourse," so that the owners adjoining it on either side have riparian rights of the same kind and to the same extent that land owners upon the banks of an inland stream possess them, then the contention of the plaintiffs is correct, and there is error in the judgment of the Superior Court; otherwise there is no error.

From the finding it appears that the Quinnipiac river flows southerly and empties into New Haven harbor. The lower part of the river is a part of that harbor. That part of the city of New Haven which lies on the easterly side of the river at this point is called Fair Haven. On the Fair Haven side the flats spread out originally very wide between the upland and the channel of the river. The highway which has always existed from Fair Haven to New Haven is now known as Grand Avenue. About one hundred years ago a bridge was built across the Quinnipiac river as a part of this highway. In building it a causeway was constructed from the upland on the Fair Haven side over the flats to a point where a pier was placed. About twenty feet westerly from that pier another pier was erected. Over the space between these two

Chamberlain v. Hemingway.

piers a bridge was laid. From the second pier the causeway was continued westerly about one hundred feet further, and constructed solid by filling in earth, where a third pier was built. From the third pier the bridge was carried across upon a series of piers to the westerly side of the river. The space so left between the first and second piers afforded a passage way through which the water passed and re-passed with the tides. At low tide there was no water at that place. At high tide the water was about six feet deep. The plaintiffs' predecessors in title were the owners of the upland on the north side of the highway. The predecessors in title of the defendants owned the upland on the south side of the highway. These, and other owners north and south of the highway, have from time to time reclaimed the flats lying in front. of their respective pieces of upland. In doing so they have conformed to the plan of the causeway and bridge; that is to say, they have each left an open space in the filling, for the water to pass through, at the same place and of the same width as the one left in the causeway. The sluiceway so formed extends north of the highway about two hundred feet, and south of the highway about one hundred and twenty-five feet, is open at both ends to the water of the harbor when the tide runs, and is the "river" or "watercourse" described in the complaint, for the obstruction of which the plaintiffs seek to recover damages. The reclaimed land of the plaintiffs as well as that of the defendants, with the opening through it as is above stated, had been in substantially the same condition that it was in for more than fifteen years before this suit was brought.

The plaintiffs asked the court to hold that the sluiceway had become a water-course in which they as riparian proprietors had all the usual rights of riparian proprietors. The court did not so decide. The only reason of appeal which it is necessary to consider is that "the court erred in holding that the premises in question had not become upland and said sluiceway a water-course, and that the plaintiffs were not entitled to the ordinary rights of a riparian owner in such water-course."

« ÀÌÀü°è¼Ó »