The power of the plaintiff to take the water rights which it seeks to appropriate by this proceeding was made by its charter to depend on its obtaining a finding, either from the Superior Court of Litchfield county or a judge of the Superior Court, that such taking was necessary. The judge of the Superior Court before whom it brought its application made such a finding, and this was an exercise on his part of that judicial power which is vested in the Superior Court. Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 601,608. His order making an appointment of appraisers was a *Page 242 further exercise of judicial power, and if, in the proceedings leading up to it, he committed any errors of law, an immediate appeal could have been taken to this court. New York,N. H. H.R. Co. v. Long, 69 Conn. 424, 437. Such an appeal lies only from a final judgment, and that is the nature of such an order. It ordinarily closes the judicial part of the proceedings, what remains to be done being of an administrative character, as the appraisers discharge only a quasi-judicial function.
The orderly conduct of judicial proceedings requires a record of them. The natural place in which to record the proceedings in the case at bar before the judge of the Superior Court was in the records of that court for Litchfield county, and the provision in the plaintiff's charter that every assessment of damages made on its application for taking land should be "returned with the application to the clerk of said Superior Court, who shall record it," imported that not only the application and the assessment, but also the judicial order following the application and preceding the assessment, should be thus recorded.
Provision was in this way made for spreading upon the records of that court a full history of any steps (except the making of the final payment) which the plaintiff might ever take under its charter in the exercise of its power of taking land or water without the consent of its owner, whereby it might claim that a title had been acquired. No land could be so taken, nor any right to divert water from another's land gained, unless every step to that end prescribed in the charter was fully accomplished.
The action of the committee appointed to assess the damages in the present proceeding was made by them the subject of a lengthy report. This sets forth a protest by the defendants against their undertaking to make any assessment, which they refused to entertain; a decision by them as to the burden of proof, to which exception was taken; and several rulings upon matters of evidence. It was therefore apparent that legal questions were presented, on the answer to which the validity of the assessment might depend. *Page 243
These questions might have formed the subject of an equitable action to enjoin the occupation of the property which the plaintiff sought to appropriate. Williams v. Hartford N. H.R. Co., 13 Conn. 397. It is now the policy of this State that all courts shall, to the full extent of their jurisdiction, "administer legal and equitable rights and apply legal and equitable remedies, in favor of either party, in one and the same suit, so that legal and equitable rights of the parties may be enforced and protected in one action." General Statutes, § 877 (Rev. 1902, § 532). The present proceeding, as originally brought, was a suit at law. New York, N. H. H.R. Co. v. Long, 69 Conn. 424, 437; New York, N. H. H.R. Co. v. Cockcroft, 49 F. 3. It called for a determination, first, as to the propriety of a taking of the defendants' property for the plaintiff's purposes; and, second, should it be deemed proper, of the just amount of the necessary compensation. It certainly did not come to an end when the first point was determined. It remained to appoint proper persons to assess the compensation. It certainly did pass into a final judgment when that order of appointment was made; for else there could be no appeal to this court from such an order, and it is settled that such an appeal will lie. New York,N. H. H.R. Co. v. Long, 69 Conn. 424; Hartford C.W. R. Co. v. Montague, 72 id. 687. But a final judgment may be followed, in cases of certain kinds, by a further judgment.Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37;Barber v. International Co., 74 id. 652. The plaintiff's charter expressly provided for a judgment by the Superior Court, subsequent to the return of such an assessment of damages, in case the parties to whom these damages were due were not ascertained. It would be an unnecessary formality to institute any new and independent action to secure such a judgment. The basis of it would be the report of the appraisers in the hands of its clerk, and the way to ask for it would be by a summary motion in the proceeding of which the return of that report was an incident and which, for the purposes of such a motion, could fairly be considered as still in progress.
Both parties to the present proceeding have assumed that *Page 244 the Superior Court had like jurisdiction to examine generally the report of the committee with a view to its acceptance or rejection. The committee incorporated a narrative of their doings in the return of their assessment to the clerk of the court, and addressed the return, not to him, but to the court. The court entertained a remonstrance to it. Four of its judges have since successively sat to dispose of questions thus presented, and it is to review their rulings that this appeal is brought.
In Ferguson v. Stamford, 60 Conn. 432, 447, we held that, under a charter directing a return of an assessment of benefits on account of a municipal improvement to be made to the Superior Court, no order of the court relating to or accepting the return was requisite. The charter then under consideration gave a remedy for any injustice that might be done through such an assessment, by an application in the nature of an appeal to a judge of the Superior Court for a reassessment; and we observed that there could be "no presumption that the legislature intended a remedy by remonstrance and also by appeal." In the plaintiff's charter no opportunity to obtain a reassessment is afforded.
In Williams v. Hartford N. H.R. Co., 13 Conn. 110, we held that in condemnation proceedings under the charter of that company, a writ of error did not lie to review the record of them in the records of the Superior Court, when no act had been done or required to be done by the court upon the return of the appraisal. In the case at bar the return was addressed to the Superior Court, and a matter was thus brought directly before it upon which it acted. A final judgment having been rendered, the propriety of that judgment is a proper subject of appeal.
Whether the Superior Court had jurisdiction to render any judgment at all, there is no occasion to determine.
If it had not, the judgment appealed from could not be challenged by the defendants, for in that view of the case they have not been injuriously affected by it, their rights remaining as they were when the return was lodged with the clerk, and all subsequent proceedings having been coram non *Page 245 judice. Public Acts of 1897, p. 892, Chap. 194, § 15 (Rev. 1902, § 802). Nor have they in fact appealed on any such ground.
If, on the other hand, the Superior Court had jurisdiction, it committed no substantial error in its proceedings.
Error is first assigned with reference to certain rulings made by the judge of the Superior Court prior to his order appointing the committee of appraisal, and upon the order itself. These errors, if errors they were, would have founded an appeal from that order. New York, N. H. H.R. Co., v. Long, 69 Conn. 424, 437. The defendants could not lie by on the chance of further errors in a subsequent stage of the proceedings. The order was a final judgment, at least as the case then stood, and there having been no appeal from it within the time limited by statute (Public Acts of 1897, pp. 893, 895, Rev. 1902, § 807), its validity cannot now be challenged in that manner.
The remonstrance to the acceptance of the report returned by the committee was properly overruled. The main objection to it was that they included in their assessment damages for an unlawful occupation of the premises for a considerable period before the condemnation proceedings were instituted. This is apparently true, but it was precisely what they were directed to do by the order of appointment. That constituted their commission, and they could not act irregularly or improperly so long as they conformed to its mandate. If its directions were wrong, the remedy was by an appeal from that order; and none was taken.
The defendants also protested before the committee against their proceeding to act, on account of the uncertainty and insufficiency of the application. This protest was properly disregarded. The place to make any objection on such a ground was in the preliminary proceedings before the judge of the Superior Court.
The defendants claimed before the committee that the plaintiff had the affirmative and should go forward. This claim was overruled and they were compelled to proceed first to introduce their testimony. *Page 246
The application alleged that the plaintiff, on or about December 1st, 1874, built a reservoir on Cross Brook and had ever since been taking water from that reservoir; that Cross Brook flowed into Great Brook which, at a point about two miles from the reservoir, ran through a parcel of land of the defendants, comprising about two acres and a half; that it was necessary to take their rights in the water which would thus naturally flow over this land; and that damage had already occurred and was likely to occur to the defendants from said acts of the plaintiff, as to the amount of which it could not agree with them. The appointment of a committee was therefore asked "to assess the damages, if any, which have occurred and may occur" to the defendants by reason of the taking of the waters "so required and taken." The answer denied the legality of the taking, and the disagreement as to the amount of the damage, admitting substantially the other allegations.
The complaint having been found true by the judge of the Superior Court, before he appointed the committee, the single question before them was that as to the amount of the damages, past and future, to be assessed. The defendants were best acquainted with the alteration in the condition of their property which had been wrought by the construction and use of the plaintiff's reservoir. The plaintiff had nothing to prove, to entitle it to the assessment of damages for which it asked. The defendants had something to prove, if they wished the assessment to be for a substantial sum. The burden of proof therefore was properly held to be on them. ConnecticutRiver R. Co. v. Clapp, 1 Cush. 559, 563.
The plaintiff was allowed to introduce in evidence before the committee the record of another action, in which the present defendants had sued it for an unlawful diversion of water and injury to their property from 1874 to 1896, by reason of the same acts for which the committee had been directed to assess the damages already incurred. A judgment in this former action (which was one the first trial of which is reported in 71 Conn. 442) had been rendered for $25, and the plaintiff claimed that this settled conclusively the amount of *Page 247 the damages done during the period to which it related. The record was properly admitted, and had the effect thus claimed. The matter was in every sense res judicata.
A later action had been brought by the defendants against the plaintiff, shortly before the present application, for damages accrued since April, 1896, and for an injunction against the further diversion of water. A demurrer to the complaint, because the only remedy open to the defendants was that given in the plaintiff's charter, was filed and overruled, with leave to amend. Another demurrer, for the same general cause, was then filed, and an order thereupon made continuing the cause "until after the termination of the condemnation proceedings now pending." The defendants offered the record of that suit in evidence, but, on objection by the plaintiff, it was admitted solely to show that such a proceeding was pending.
In respect to this, and to many other rulings on evidence which are stated in the report of the committee and were unfavorable to the defendants, it is sufficient to say that the case does not stand upon the ground of one heard before a regular judicial tribunal. It was heard before an administrative tribunal; and administrative tribunal are not bound to apply the strict rules of evidence which prevail in courts.Bristol v. Branford, 42 Conn. 321, 322. It is enough if they do not plainly transgress the fundamental lines of procedure, and in such a way as to indicate that substantial injustice may have been done. This does not appear in the present case.
The remonstrance alleged, and the plaintiff admitted, that the defendants claimed before the committee that they were entitled to damages as of the date of the taking (December 1st, 1874) alleged in the original application, with interest therefrom. It also alleged, but this the plaintiff denied, that this claim was overruled and that the committee refused so to hold and even to mention any such claim in their report. On the trial in the Superior Court of the issue thus raised, the defendants relied simply upon what appeared on the face of the report, and the plaintiff introduced no evidence. In this state of proof the court was justified in finding the issue *Page 248 for the plaintiff. The main question in dispute was whether the claim made had been overruled. The report did not show that it had been. It was therefore for the remonstrants to prove it. The report itself was not the only source of proof.McKeon v. Byington, 70 Conn. 429, 432. The committee could have been called as witnesses. Mosman v. Sanford,52 Conn. 23, 33.
Had they made such a ruling and then refused to mention it in their return, it might in the discretion of the court be ground for a recommittal, but could be none for the rejection of the report.
The defendants claimed that as under the Flowage Act (General Statutes, § 1216, Rev. 1902, § 982) they could have maintained a petition to acquire the privilege of flowing the lands of riparian proprietors above them on the brook, they were entitled to damages for the value of this right of action, or for what their property would be worth if such a petition had been brought and granted, less the cost of the proceedings and of the compensation that might be awarded to those whose lands might be thus flowed. The committee properly overruled this contention. The element of damage thus claimed was too remote and consequential. Watson v. NewMilford Water Co., 71 Conn. 442, 451.
The plaintiff was allowed, against the objection of the defendants that it was irrelevant to the issue, to introduce before the committee a deed given by them after 1874, to one Hill, of land which it claimed was part of the parcel belonging to them, the water from which it had then already begun to divert by its reservoir. The defendants afterwards claimed that, notwithstanding such conveyance, they were entitled to compensation for the damage to the whole parcel owned by them in 1874; but the committee overruled the claim.
In this there was no error. The claim was too broad. The committee were assessing damages for the taking of certain land or water rights, the payment of which would work a transfer of title from the defendants. The plaintiff was not seeking to condemn the property of Hill. From and after *Page 249 the date of his acquisition of title to the parcel deeded to him, he would have the right of action for damages to that parcel by the continuance of the plaintiff's works. The construction and maintenance of its reservoir would appear from the record to have been a daily invasion of the rights of the riparian proprietors on Great Brook. Denslow v. New Haven N. Co.,16 Conn. 98. Had it been from the first a lawful structure, creating a permanent diversion of the water, it might be that all the damage done or to be done to the original parcel would have been due to the defendants, for then the parcel sold to Hill would have gone to him subject to this burden. Fowle v. New Haven N. Co., 112 Mass. 334, 338.
On the final hearing in court after the remonstrance had been overruled, the defendants asked that the amount of the costs and expenses to which they had been subjected in defending against the proceeding might be adjudged to them as part of their just compensation. This claim was properly overruled. They were entitled to just compensation, but to nothing more. In assessing damages in a personal action for an unlawful injury, the legal costs and expenses which may have fallen upon the plaintiff by reason of the acts complained of cannot be considered. Under a statute he may be awarded the taxable costs but, if so, they come as an addition to his just compensation, and he could not claim them at common law, unless it were a proper case for the allowance of smart money. The same rule applies, and with even greater reason, to in rem proceedings under the power of eminent domain, for here the injury to or taking of the defendant's property is done by right or, at least, under color of right. Stevens v.Danbury, 53 Conn. 9, 23.
No objection was taken at any stage of the proceedings preceding the appeal, by either party, to the validity of the provision in the plaintiff's charter under which the committee were directed to assess the damages already done by its unlawful diversion of water to the defendants' injury. We have not therefore considered any constitutional question that might otherwise have been presented. Norwalk v. Blanchard,56 Conn. 461, 463. *Page 250
It appeared on the hearing before the committee that there had been a mill and pond upon the defendants' land, which rented for $60 a month; that the dam was carried away by a freshet in 1874, and before it could be replaced the plaintiff built its reservoir; and that all the rent they could thereafter get from the premises was $18 a month. The committee were asked to report these facts specially, but refused; and also refused to consider $42 a month as the proper measure of the defendants' loss. They were not bound as matter of law to consider it as such, nor therefore to detail in their report the facts on which the claim was predicated. Rules of Court, p. 34, § 100.
A motion by the defendants for the rejection of the report and the dismissal of the application was made in the Superior Court and denied. The sole reason which was stated in it was that the proceedings were insufficient upon their face. The only objection on this score, which we have not already considered, is that, notwithstanding it was conceded that the defendants' property was taken on December 1st, 1874, interest since that date cannot have been allowed, because the total sum assessed as damages is only $425. How much of this sum stands for original damage and how much for interest does not appear. It may be, therefore, that interest constitutes the greater part. As a matter of law, however, no taking of the defendants' property, within the meaning of the constitutional guaranty, occurred before the condemnation proceedings. Enfield Toll Bridge Co. v.Hartford N. H.R. Co., 17 Conn. 454, 463. Their rights were invaded on December 1st, 1874, and if any substantial damage that was evident and visible had been done on that day, they could have recovered the amount of it, with interest, by an appropriate suit. New York, N. H. H.R. Co. v. AnsoniaL. W. P. Co., 72 Conn. 703, 705. Every day's continuance of a wrongful diversion of water from its natural course with the like results, by the maintenance of the plaintiff's reservoir after December 1st, 1874, would have been remediable in the same way. In fact they have brought two successive suits, each on such a cause of action. *Page 251
The whole damage therefore not having been done on any one day, because the original act was an act of wrong, and not the construction of a lawful reservoir which could be rightfully maintained forever, the defendants' motion for judgment had no merits in any aspect. But the report is not inconsistent with the finding of the Superior Court, that the claim for interest was sustained precisely as it was made; and, therefore, whether it was sound or unsound, the defendants can have no cause of complaint.
There is, however, an error not assigned, in the form of the judgment rendered. This was "that the remonstrance to said report of the committee be and it is overruled and the report of said committee be accepted, and that the petitioner pay to the said Julia Watson and Joseph E. Watson the sum of four hundred and twenty-five dollars, without costs."
Whether the Superior Court did or did not have jurisdiction to accept the report of the committee, it certainly had none to direct the payment of any sum to the defendants. The provision in the plaintiff's charter was adequate and exclusive.Stevens v. Danbury, 53 Conn. 9, 22.
The judgment appealed from is modified by striking out the words "and that the petitioner pay to the said Julia Watson and Joseph E. Watson the sum of four hundred and twenty-five dollars," and, as so modified, it is affirmed. No costs will be taxed in this court for either party.
In this opinion TORRANCE, C. J., and HALL, J., concurred; HAMERSLEY and CASE, JS., dissented.