The condition shown by the finding, as made or as it might properly be corrected, cannot be regarded as an "absolute" nuisance, and so a nuisance as a matter of law. The real questions in the case are those presented by the plaintiff's claims of law, viz.: Whether the areaway (1) opened or closed, or (2) when opened as constructed and designed to be normally operated, or (3) as maintained on the day of the injury, had such "a natural tendency to create danger or inflict injury" as to constitute a nuisance, i.e. a nuisance as a matter of fact. Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499. Our inquiry, then, is whether, upon the facts, the trial court was precluded from concluding, as it did, that the areaway did not constitute such a nuisance, either as created or maintained.
As designed, constructed and normally maintained, I contend it was not a nuisance in any accepted sense, or at least that it was open to the trial court to reach that conclusion. The encroachment of fourteen inches on the sixteen foot passway is not to be regarded as "wrongful" either in nature or intent, in the sense contemplated in order to be an element in nuisance. Although wrongful in the sense of constituting a trespass, it was not — in the meaning here connoted — a deliberate and at least impliedly intended exposure of others to injury. The five-inch coping was built for the essential purpose of guarding against water from melting snow and otherwise, it was not in a public highway or sidewalk but beside and extending slightly within a private passway, traffic through which, except *Page 21 for the purposes of the city itself, would naturally be on the other side, near the Santoro buildings. Therefore the finding that "the existence of the areaway did not interfere with the ordinary and proper use of the passway nor was its construction an act wrongful in nature or intent" should stand. The plan and construction of the doors obviously was designed to safeguard against, rather than create, danger; the purpose of the chains was to prevent the doors from going back too far, that of the bar to keep them from falling inward, and the effect of both, when normally operated, was to hold the doors upright. Although while the lift was being used the bar might be across the back side, it was clearly intended that at other times it would be placed across the easterly end, creating in effect a railing, and it is found that this was customarily done. It cannot be that — as the plaintiff goes so far as to claim — the open space, two and three-quarters feet high, under the bar when so placed would, of itself, constitute an actionable nuisance. Therefore it seems to me that a conclusion that the condition as normally maintained did not amount to a nuisance cannot be overturned as a matter of law.
Coming to the situation as it is found to have been at the time of the accident, it must be conceded that the departure from normal had its origin and existence through negligence in failing to repair the chains and in leaving the doors flat open, contrary to the design and prevailing custom. Ordinarily, continuance is the essence of nuisance. The plaintiff appears to admit, in his brief, that in order that the result of negligent acts or omissions may "ripen into" and become a nuisance it must have continued an unreasonable length of time. The finding is that the doors had been left open only two days before the accident. Can we say as a matter of law that, contrary to the necessary *Page 22 import of the trial court's conclusion, this was sufficient to convert a condition, created through negligence, into a nuisance? In Flynn v. West Hartford,98 Conn. 83, 84, 118 A. 517, we were dealing with "acts which the municipality has directed to be performed" — an excavation and pile of dirt in a public highway — and not with a condition, not originally calculated to work injury to others but becoming such through negligent failure to repair or to operate normally. The quotation from the Hoffman case in the memorandum of decision seems pat — the fault consisted in negligent failure to remedy a condition, rather than in the creation of a condition by direct act. In my opinion the record discloses, at most, a condition which may result in injury to others if not properly operated or guarded, rather than one which in the nature of things must so result, and in which liability depends upon negligence in operation or mode of maintaining. For mere negligence, of course, the city is not liable.
In this opinion AVERY, J., concurred.