evaluating scope of riparian rights and reasonable use, rather than deciding when riparian right actually existsSummary of this case from Ace Equipment v. Buccino
The rights of a riparian owner are appurtenant only to lands which touch on the watercourse or through which it flows and which are used as a whole for a common purpose, not to any lands physically separated from the stream and the land bordering on it, although belonging to the same owner, and any attempted transfer of rights by a riparian to a non-riparian proprietor is invalid. The question of reasonable use of a riparian right is one of fact, although the conclusion reached upon subordinate facts may be reviewed upon appeal. Limitations of rights of a riparian owner discussed. The plaintiff was the owner of a tract of land on which was located a brook and pond therein, waters from which flowed to the defendant's reservoir and pumping station. The plaintiff divided the tract into building lots which it advertised for sale with the privilege to purchasers of bathing in the brook and pond, contracted for the sale of a number of the lots with this privilege and in its advertising campaign invited and permitted large numbers of people to come upon the premises and bathe in the pond. None of the lots to be sold were bounded on the pond, a strip all around it being retained by the plaintiff. Bathing in large numbers, as proposed and advertised, would pollute the public water supply and constitute a serious menace to the inhabitants supplied. The defendant posted and published notices that bathing in the pond was prohibited. Held: 1. That the grantees or contractees from the plaintiff of lots separated from and not bordering on the pond have no riparian privileges in its waters, and any attempted transfer of such rights to them would be invalid. 2. That the court's conclusion that the proposed granting of the bathing privilege to the public and non-riparian lot owners was an unreasonable use of his riparian rights by the plaintiff, was clearly correct. 3. That the defendants' notices prohibiting bathing were a proper means of minimizing damages in the event that they proceeded under the statute to protect the water supply and were appropriate to their duty to protect the community from risk of infection.
Argued March 6th, 1930
Decided April 17th, 1930.
ACTION for an injunction restraining the defendants from interfering with the plaintiff in the sale of its land and for other relief, brought to the Superior Court in New Haven County and tried to the court, Ells, J.; judgment for the defendants and appeal by the plaintiff. No error.
The complaint named as defendants the borough of Wallingford, the water commissioners of the borough, the superintendent of water works, and the commissioner of the state department of health. It alleged ownership of a tract of land on which is located a brook (now known as Pine River), which land the plaintiff caused to be staked out for building lots and offered lots for sale with the privilege of bathing in the brook or in a pond therein; that the defendants water commissioners and superintendent publicly announced that bathing therein would be prohibited and that the state commissioner of health directed that the land be posted notifying the public that bathing would be prohibited; and that the sale of lots by the plaintiff was thereby interfered with.
The defendants set up that the acts complained of were done in pursuance of their duty in giving notice of their intention to protect the public water supply of the borough located on the brook, against unlawful bathing. The borough also filed a counterclaim praying an injunction against the use by the plaintiff of its premises as a pleasure resort or as a rendezvous for swimming, boating or fishing in the pond or stream, or in any way rendering the waters unfit for water supply purposes. The judgment for the plaintiff on this counterclaim is not appealed from.
The facts found by the trial court include the following: For more than thirty years the borough has been authorized by its charter to furnish water for the inhabitants of the town of Wallingford, and has furnished and is furnishing such supply. By purchase and condemnation proceedings, and adverse use for more than fifteen years, it acquired the privilege of taking and diverting the waters of Pine or Muddy River at its pumping station on the river, on its premises, as against the other riparian proprietors on the stream, and against all upper proprietors so far as the quality and quantity of the waters are concerned. Since the acquisition of land and the establishment of the original pumping station on the river, in 1892, it was found necessary to erect a new pumping station thereon and to enlarge its reservoir at that place, and the borough erected, and completed, in 1926, a station of one million gallons daily pumping capacity. In connection therewith it constructed a dam about forty-eight feet long and seven to eight feet high, which backs the water in Pine River about six hundred feet creating a reservoir averaging forty-five feet in width and holding two hundred thousand gallons of water. Without this reservoir the pump could not be operated properly.
The Pine River station is used to augment the supply from Pistapaug Pond, when that becomes low, and is also necessary in case of large draughts of water, by fire or otherwise, to maintain pressure. Coincident with the construction of the new pumping station and appurtenances, the borough, in conjunction with the owners of property bordering on the river above the station, built new cesspools and privies for the use of such owners, in order to prevent contamination of the water supply.
On June 6th, 1928, Barnett Cohen, for $500 cash and by giving back a mortgage for $3500, acquired title to about one hundred and sixty-two acres of land upon which was a small pond in the stream in question; soon afterward he, with his wife and daughter as the other incorporators, organized the plaintiff corporation and conveyed the land to it. Thereafter the plaintiff laid out streets, cleared brush, and cleaned out and increased the size of the pond, which now covers about an acre. A part of the land, a strip about one hundred and fifty feet wide all around the pond, was set apart by the plaintiff as a park for public use, and none of the lots or land to be sold were, nor could they be, bounded on the pond. Between eighty and eighty-five acres were divided into about seventeen hundred and thirty lots, having a width of twenty feet, and varying in depth up to seventy-five feet. Plaintiff called the property "Pine Lake Park" and the pond Pine Lake. Waters from this pond flow through Pine River a distance of three and one tenth miles, to defendant's reservoir and pumping station.
Commencing on July 2d 1928, the plaintiff conducted an advertising campaign for the sale of lots, and invited church and fraternal organizations and large numbers of other people to come upon the premises and bathe in the pond, and numerous people did bathe therein every day, especially on Saturdays and Sundays. These advertisements also offered to purchasers of lots the privilege of bathing in Pine Lake. The plaintiff contracted for the sale of about three hundred lots to ninety-seven various purchasers for the sum of about $25,000, on the instalment plan and had collected about $15,000, which contracts included provisions for purchasers having bathing rights in Pine Lake. Twenty-eight deeds covering ninety-two small lots were recorded in the land records and none of them granted water rights or bathing privileges in Pine Lake.
On June 18th, 1928, before the plaintiff took title to the property, Cohen, the then owner, was notified orally and by letter, by the water commissioners and superintendent, that bathing in Pine Lake would violate the statutes of Connecticut, as the waters were part of a public water supply. On July 13th the superintendent wrote another letter to Cohen, who is general manager of the plaintiff corporation, again calling his attention to these statutes. About the middle of July, the state department of health caused to be placed near Pine Lake notices informing those who read them that the lake was a part of a public water supply and that bathing therein was prohibited by statute. At about the same time the superintendent of water works posted a notice on a tree near but not on the plaintiff's property. Within a day or two all of these notices were torn down. On July 20th, the board of water commissioners caused to be published in a Meriden newspaper a notice to the public of the statutory prohibition against bathing in and polluting reservoirs. Subsequent to August 1st, 1928, the plaintiff secured seventy contracts for the sale of lots, whereas before that date only forty-seven contracts had been signed, but subsequent to the posting and publishing of the notices the plaintiff permitted numbers of those who had signed contracts for the purchase of land to cancel the same.
Bathing in large numbers, as proposed and advertised by the plaintiff, would pollute the public water supply, constitute a positive and serious menace to the health of the inhabitants supplied, from typhoid fever and other intestinal diseases, and would be an unreasonable use of the waters of the pond and stream.
From the facts found the trial court reached the conclusions that the pond at the pumping station constitutes a reservoir within the meaning of § 2544 of the General Statutes which is quoted in a footnote and that bathing in Pine Lake would violate this statute; that the plaintiff's riparian ownership confers only a personal and family privilege of bathing in the pond or stream; that the proposed according of the privilege to the public and lot owners not riparian proprietors is an unreasonable use, and that, since the pond is entirely surrounded by land owned by the plaintiff, none of the lot owners are riparian proprietors having, as such, bathing a rights in Pine Lake.
Sec. 2544. Every person who shall bathe in any reservoir from which the inhabitants of any town, city or borough are supplied with water, or in any lake, pond or stream tributary to such reservoir, or who shall cast any filthy or impure substance into such reservoir, shall be fined not more than one hundred dollars or imprisoned not more than six months or both. Prosecutions under this section may be had in the town in which said city or borough is.
Benjamin Slade and Louis Weinstein, for the appellant (plaintiff).
Oswin H. D. Fowler, John E. Downey and William B. Gumbart, with whom, on the brief, was Arthur L. Corbin, Jr., for the appellees (defendants).
The only correction of the finding which is pursued on appeal seeks the insertion of facts tending to show nonuser of the original pumping station for the actual taking of water between 1908 and 1924. The evidence as to this was conflicting, the trial court expressed belief in the testimony to the contrary which we must accept in view of this conflict, and even were the facts found as requested they would not work an abandonment of rights previously acquired. Richardson v. Tumbridge, 111 Conn. 90, 149 A. 241; Schroeder v. Taylor, 104 Conn. 596, 605, 134 A. 63.
All of the other reasons of appeal are directed to the conclusions reached by the trial court as above summarized, and we may confine our discussion to those which relate to and determine the principal issue on which the case was tried — the scope of the riparian rights of the plaintiff, with special reference to the extension to its grantees of non-riparian land and to invitees and the general public, of the privilege of bathing in Pine Lake. A riparian proprietor is an owner of land bounded by a watercourse or lake or through which a stream flows, and riparian rights can be claimed only by such an owner. They are appurtenant only to lands which touch on the watercourse or through which it flows and which are used as a whole for a common purpose, not to any lands physically separated from the stream and the land bordering on it, although belonging to the same owner. "This limitation . . . stands upon the necessity for a restraining rule in order to secure something for all, and upon the presumption that the brook will supply the absolute needs of as large an area of land as is usually held in riparian ownership. If land not riparian may draw to itself, equally with land riparian, water for man and beast thereon, because it is in the possession of a riparian owner, then land not riparian may take precedence of land riparian and deprive it of water for either man or beast." Williams v. Wadsworth, 51 Conn. 277, 304; Kelly v. Nagle, 150 Md. 125, 132 A. 587, 593; 40 Cyc. p. 558. It is clear that the grantees or contractees, from the plaintiff, of lots separated from and not bordering on Pine Lake can have, of their own right, no riparian privileges in its waters. And any attempted transfer of the right made by a riparian to a non-riparian proprietor is invalid. 1 Tiffany on Real Property (2d Ed.) p. 1138; Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 17 P. 535; Gould v. Eaton, 117 Cal. 539, 49 P. 577; Roberts v. Martin, 72 W. Va. 92, 77 S.E. 535.
Each riparian proprietor has an equal right to the use of the water to drink and for the ordinary uses of domestic life, although such use may in some degree lessen the volume or affect the purity of the water, and this right extends to such use "both by the owner himself and all living things in his legitimate employment." 27 R. C. L. p. 1086. The right includes use of water for drinking, culinary and other domestic purposes, and for watering of animals. Williams v. Wadsworth, supra, 304; Wadsworth v. Tillotson, 15 Conn. 366, 373. The right, being to use "ad lavandum et potandum," logically includes ordinary and reasonable bathing privileges by the riparian owner, his family, and inmates and guests of his household, in the stream or pond as well as in waters drawn therefrom. The trial court states, and the record indicates, that this right of the plaintiff was not questioned or involved in the present action; the proposed extension of the privilege to the plaintiff's grantees of lots and to the general public was the subject of the defendants' objection and notice of intention to resist. The court held that this exceeded the bounds of the reasonable use to which the plaintiff was entitled; the appellant claims the contrary. the question of reasonable use is one of fact, although the conclusion reached upon subordinate facts may be reviewed on appeal. Hazard Powder Co. v. Somersville Mfg. Co., 78 Conn. 171, 178, 61 A. 519.
Each riparian owner is limited to a reasonable use of the waters, with due regard to the rights and necessities of other such owners. It is the common right of all to have the stream preserved in its natural size, flow, and purity, without material diversion or pollution. A riparian proprietor has no property in the water itself but a simple usufruct while it passes along. Though he may use the water while it runs over his land, as an incident to the land, he cannot unreasonably detain, divert or pollute it, unless he has a prior or special right to some exclusive or particular enjoyment. He must use and apply the water in a reasonable manner and so as not to destroy, or render useless, or materially diminish or affect the legitimate application or use thereof by other riparian proprietors. Donnelly Brick Co., Inc. v. New Britain, 106 Conn. 167, 137 A. 745, and cases cited at page 173; Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co., 101 Conn. 310, 320, 322, 125 A. 623; Twiss v. Baldwin, 9 Conn. 291, 306; Wadsworth v. Tillotson, 15 Conn. 366, 373; Gillett v. Johnson, 30 Conn. 180, 183.
Application of these rules readily demonstrates that the uses contemplated and threatened by the plaintiff clearly were extraordinary and unreasonable. The few cases in which the bathing rights of riparian owners have been directly determined confirm this conclusion. In State v. Morse, 84 Vt. 387, 393, 80 A. 189, it was held that if bathing in a pond from which a city takes its water supply contaminates or, in circumstances reasonably to be apprehended, may contaminate the water, such bathing, even by a lessee of a cottage and land abutting on the pond, is not a reasonable use of his riparian right. In People v. Hulbert, 131 Mich. 156, 91 N.W. 211, in which bathing by a riparian proprietor in a lake used as a water supply was held such an ordinary and reasonable use as to be within his riparian rights, the court added (p. 174): "In what we have said we do not mean to intimate that an upper proprietor may convert his property into a summer resort, and invite large numbers of people to his premises for purposes of bathing, and give them the right possessed only by the riparian owner and his family." We do not construe Battle Creek v. Goguac Resort Asso., 181 Mich. 241, 148 N.W. 441, as at variance with this expression, especially as to resorts established after the taking of waters for water supply purposes. George v. Chester, 111 N.Y.S. 722, 121 N.Y.S. 1131, affirmed, 202 N.Y. 398, 95 N.E. 767, merely confirms the right of a riparian proprietor to use the water for boating, bathing and fishing for himself, his guests, and lessees of camping privileges on land adjoining a lake so long as such use is reasonable. The principle that the use of rights of riparian proprietors must be reasonable — not immoderate or excessive, wanton or reckless, is further illustrated by McEvoy v. Taylor, 56 Wash. 357, 105 P. 851, 26 L.R.A. (N.S.) 222, and cases in note; Strobel v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142, 51 L.R.A. 687; New York v. Blum, 131 N.Y.S. 87 (raising ducks); and the many cases reviewed in People v. Hulbert, supra. The conclusions reached by the trial court as to this feature of the case were warranted in law and fact.
The appellee contends that the cause of action attempted to be pleaded and proved by the plaintiff sounds in slander of title and as such lacks necessary ingredients, including falsity of the publication and malice. 37 Corpus Juris, 131. It seems that any recovery of damages in this action as pleaded would have to be claimed upon that theory, and injunction as a remedy therein is of doubtful availability. Warren Featherbone Co. v. Landauer, 151 F. 130; 32 Corpus Juris, 273. However, we have chosen to consider and determine the issues as they appear to have been construed and tried by the parties, with a view to settling, to that extent, the points of controversy between them. Osborn v. Norwalk, 77 Conn. 663, 665, 60 A. 645.
The constitutional validity of § 2544 of the General Statutes was not questioned upon the trial, nor is it by the reasons of appeal, and we have no present occasion to determine or discuss it, further than to observe that unless and until it be attacked and overthrown, it is to be obeyed, and the defendants were within their rights in declaring an intention to invoke it.
Another means of protecting the water supply was also available to the defendants, under § 2540, and was resorted to under a counterclaim, the judgment as to which, on the ground that protection sufficient for present purposes was available under § 2544, is not appealed from. Proceedings under § 2540 might involve the assessment of damages against the borough. The giving of notice of intention to protect the supply by preventing the contemplated injury by promiscuous bathing was not only fair to the plaintiff and prospective purchasers but a proper means of minimizing damages. Rockville Water Aqueduct Co. v. Koelsch, 90 Conn. 171, 178, 96 A. 947. The notices were appropriate, also, to a fulfillment of the duty resting upon the defendants to adopt such precautionary measures as are reasonably proper and necessary to protect the community served by the water supply from risk of infection. Hayes v. Torrington Water Co., 88 Conn. 609, 612, 92 A. 406.