There is no error in the disposition of the preliminary motions.
The demurrer to the special defense was properly sustained. Under the charter of the city of Waterbury the board of sewer commissioners is established to execute certain powers vested in the city, and the municipal corporation is responsible for the acts of the commissioners within the scope of their authority. The action complained of in the complaint was the action of the city. West Hartford v. Board of WaterCom'rs, 44 Conn. 360, 369.
Sustaining the demurrer to the three special defenses subsequently filed is not ground for a new trial. These defenses contained certain allegations of facts that may be admissible under the issues formed by the denials of the several paragraphs of the complaint; possibly some of these allegations might have been retained in the answer as explaining the nature of the denials, but if so, the defendant has not been injured. It has gone to trial on the denial of the facts stated in the complaint, and it has had the benefit of all evidence that it could have introduced under the special defenses. All claims of law arising on these defenses are also fully presented in the record by the action of the court in overruling the claims of the defendant as to the legal effect of the facts found, and will be considered in disposing of those claims.
The court did not err in overruling the defendant's claims set forth in paragraph 33 of the finding. To understand the precise nature of the questions of law involved, it is convenient to briefly restate the material facts. The plaintiff *Page 547 owned an ancient water-privilege on the Naugatuck river below the defendant city, and also the land on the river and large manufacturing establishments run by the water-power; the river drains a section somewhat thickly populated and largely used for manufacturing; by this use of the river, reaching back to the early settlement of the Naugatuck valley, its water prior to 1884 had become polluted to a considerable extent, rendering it unfit for primary uses; about 1884 the defendant constructed, under authority from the legislature, certain main and lateral sewers, by means of which filthy and noxious substances accumulated by inhabitants of the city were collected and discharged into the river in such quantities that the water was inadequate to dilute such sewage, and the same was carried to the premises of the plaintiff, producing the injuries complained of; before the construction of the sewers the pollution of the river was not of such a nature as to produce such injuries.
The defendant claims that its use of the river is a reasonable use, and is justified by the fact that the water of the river has been, for an indefinite period, given up to secondary uses. This claim is substantially disposed of by the court as a question of fact. Whether or not the use of a river by a riparian proprietor is a reasonable use in view of the rights of other riparian proprietors, depends largely on the circumstances of each case, and is essentially a question of fact. Keeney Wood Mfg. Co. v. Union Mfg. Co., 39 Conn. 576, 581. The inference of the trial court from the special facts found, that the city's use of the river is an unreasonable one, is the only inference that can legally be drawn from those facts. The use of a stream for drainage may under some circumstances be reasonable, although the water is thereby rendered unfit for its primary use; but the concentration of the fifth accumulated by one proprietor, whether an individual or a municipal corporation, and its discharge into the river in such quantities that it is necessarily carried to the premises of another where it produces a nuisance dangerous to his health and destructive of the value of his property, must be unreasonable.Morgan v. Danbury, 67 Conn. 484, 493. If the *Page 548 defendant has, as claimed, a prescriptive right to pollute the river in the manner used prior to 1884, that right does not justify it in further polluting the river by an additional and different use; and the defendant cannot acquire by any prescription a right to maintain a nuisance like that described in the finding. Nolan v. New Britain, 69 Conn. 668, 683. Its defense therefore must rest wholly on legislative authority.
The main contention of the defendant may be stated in this way: The use of the sewers, under authority of the legislature, in the manner described, is a public governmental use; the injuries to the plaintiffs result from this governmental use, and are not direct but merely consequential; the victim of consequential injuries resulting from a governmental use is entitled to no remedy unless one is given by statute; the defendant's charter provides no remedy for consequential injuries resulting from the use of said sewers; ergo the plaintiff has no remedy and its damage isdamnum absque injuria.
The premises essential to this conclusion are untrue. A governmental use may include any act which the State may lawfully perform or authorize. There are, however, governmental acts to which certain immunities attach; and it is with this restricted meaning that the phrase is used by the defendant. In this sense a governmental act is one done in pursuance of some duty imposed by the State on a person, individual or corporate, which duty is one pertaining to the administration of government, and is imposed as an absolute obligation on a person who receives no profit or advantage peculiar to himself from its execution. It is the State, exercising its governmental power through an agent, who in this matter is the agent of the State and nothing more. It is to be distinguished from a large class of governmental acts which the State, by way of grant or special privilege, authorizes persons to perform in part for their personal benefit. The principal immunities belonging to a governmental act, in this restricted sense, are: 1. Freedom from personal responsibility for the consequences of the act done. So long as a lawful *Page 549 mandate of the State is faithfully executed, the agent acting within the scope of that authority enjoys the exemption from suit which belongs to the State. 2. Freedom from personal responsibility for the negligence of his servants. The rule ofrespondeat superior does not apply, because the agent of the State is not the superior; the real superior is the State itself.
The defendant claims these immunities. It may be doubted whether the use of sewers under the charter of the defendant, for the collection and disposition of refuse belonging to its citizens, is a governmental act within the definition given. The charter authorized the construction of sewers for that purpose, but no absolute duty was imposed upon the city; action in pursuance of the authority was at its option and could not have been enforced by any process of law without further legislation. While sewers or drains for the disposition of surface waters collecting in highways may be considered as mere adjuncts of a highway, partaking of its nature as a governmental use (Cone v. Hartford, 28 Conn. 363, 372), it is different with sewers for the disposition of refuse and filth accumulated on private property. The disposition of such stuff is in part for the benefit of the property-holder. The city represents in such respects the interests of its inhabitants, and is granted certain special powers, in part for the promotion of their interests. Bronson v. Wallingford,54 Conn. 513, 519. It is well settled that there is a clear distinction between those governmental duties imposed upon a city as a mere agent of government, and those governmental powers granted as a privilege primarily for the personal benefit of its inhabitants. But the tests for the demarcation of the two classes of power are not so well settled. When the terms of the statute are clear they furnish the most reliable test; and some weight perhaps may be given to the nature of the power as commonly regarded (Jewett v. New Haven,38 Conn. 368, 377, 379, 387, 389, Jones v. New Haven, 34 id. 1, 11, 13, 14), care being taken not to clothe an individual with the immunity of the State beyond the necessity of his agency. The distinction must always be, in some cases, a difficult one to draw. We think it evident that the mere *Page 550 granting authority to a city to construct for the convenience and benefit of its inhabitants sewers adapted to carry off their refuse matter to some neighboring stream, does not necessarily make such use of the sewers a governmental use in the sense indicated. On the other hand, it is also evident that the legislature may impose the duty of constructing sewers in such manner as to make the performance of that duty strictly a governmental act.
But if, for the purpose of this case, we concede the defendant's claim that the use is a governmental use, it is nevertheless liable to the plaintiff. The injury described by the complaint is not a mere consequential damage, like that resulting wholly from the lawful use of one's own property, or the lawful exercise of governmental power; it is a direct appropriation of well recognized property rights within the guaranty of the Constitution, — "The property of no person shall be taken for public use without just compensation therefor" — (Nolan v.New Britain, supra, p. 681), and so the defendant's claim that its charter does not authorize the condemnation of the plaintiff's property rights, is immaterial. Upon a careful examination of the charter as enacted in 1871 (7 Special Acts, 206), and amended in 1881 (9 id. 233 et seq., 237), in 1883 (9 id. 839), and in 1884 (9 id. 954), and applying the rule which requires a law to be so construed, if reasonably possible, as to give it validity, we think the city is authorized to make compensation by agreement or after appraisal, for any private property taken for the purpose of the maintenance and use of the sewers authorized. But if it were otherwise, the defendant would not be benefited. Its whole defense of acting under lawful State authority would then fail, and the mere finding of the facts alleged in the complaint would clearly support the judgment.
The defendant's brief presents its claim in a form somewhat different from that stated in the finding, and certainly novel in this State. It is substantially this: 1. A riparian city has a right to use the river for surface drainage, and such surface drainage necessarily pollutes the water to some extent, increasing with the growth of the city. 2. The use of these legitimate *Page 551 drains to carry off the noxious refuse accumulated by its inhabitants, becomes in time an absolute necessity. 3. The right of surface drainage is thereby enlarged so as to include the right to discharge into the river, by means of these drains, such noxious refuse. Therefore the necessities of municipal growth give to the city a right to convey these noxious substances to the property of down-stream proprietors, and so to appropriate that property for public use without compensation.
It is unnecessary now to discuss the limitations to the right of surface drainage, for the second and third propositions are clearly wrong. The right to pour into the river surface drainage does not include the right to mix with that drainage noxious substances in such quantities that the river cannot dilute them nor safely carry them off without injury to the property of others. The latter act is, in effect, an appropriation of the bed of the river as an open sewer, and the proposition that it may become lawful by reason of necessity is inconsistent with undoubted axioms of jurisprudence. The appropriation of the river to carry such substances to the property of another, is an invasion of his right of property. When done for a private purpose it is an unjustifiable wrong. When done for a public purpose it may become justifiable, but only upon payment of compensation for the property thus taken. Public necessity may justify the taking, but cannot justify the taking without compensation. It may be necessary for a city to thus mix with its drainage such substances, but it is not necessary to pour such mixture into the river, without purification; indeed the purification is coming to be recognized as a necessity. But however great the necessity may be, it can have no effect on the right to compensation for property taken. The mandate of the Constitution is intended to express a universally accepted principle of justice, and should receive a construction in accordance with that principle, broad enough to enable the court to protect every person in the rights of property thus secured by fundamental law.
There are certain apparent, but not real, exceptions to this *Page 552 protection. Emergencies may be such as to justify the taking of property without waiting to provide for compensation; property may be destroyed without compensation in certain cases when used unlawfully, or when it has become a thing of danger. But this is not a case of war or conflagration. The plaintiff has not so used its property as to subject it to the harsh police power of confiscation. The plaintiff has certain rights as a riparian landowner. These rights are property within the meaning of our constitutional guaranty, and an invasion of these rights such as the defendant has made is a taking of that property. The legislature has no power to authorize such taking except for public use, and then only upon providing for just compensation. Kellogg v.New Britain, 62 Conn. 232, 239; Wadsworth v. Tillotson, 15 id. 366, 373; Harding v. Stamford Water Co., 41 id. 87, 93;Nolan v. New Britain, 69 id. 668, 681; Fisk v. Hartford,70 Conn. 720, 731; Seifert v. Brooklyn, 101 N.Y. 136; Chapman v. Rochester, 110 id. 273, 277.
In England the protection of property from appropriation for public use without compensation does not depend on any fundamental law, but upon inherent justice; and the principle is carefully recognized in all legislation authorizing an infringement of private rights. So the legislative authority for emptying the sewage of cities into watercourses and rivers, is coupled with the provision that no nuisance is thereby authorized. Such legislation protects private rights in a manner similar to our constitutional legislation. The city of Leeds having obtained an Act of Parliament for emptying its sewage into the river Aire, claimed that the usual protection was not included in the Act, and therefore the city was not responsible for nuisances maintained under an Act of Parliament, urging the same plea of necessity pressed in this case. James, V. C., held that the Act would not bear the construction claimed, and said he would be bound to put any construction on the Act "which would prevent such a monstrous injustice." This decision was affirmed by the appellate court, Gifford, L. J., saying: "In construing the Act, one must always consider that, if it had a different meaning, *Page 553 it would be against common sense." Attorney-General v. Leeds Corporation, L. R. 5 Ch. App. 583, 588, 596.
The theory of the defendant that the necessities of a city may not only justify the taking of riparian rights but the taking without compensation, seems to find support in some Indiana cases. Richmond v. Test, 18 Ind. App. 482; Barnard v. Sherley, 135 Ind. 547; Valparaiso v. Hagen, 153 id. 337. We do not find other cases that take this extreme ground. The right to compensation cannot be questioned in this State.
The defendant claims that the plaintiff is not entitled to equitable relief, because it contributed to its own injury: (1) by not arranging its dam and canal so as to effectually prevent the accumulation of noxious substances brought down by the river; (2) by using the sewers in the same manner as other inhabitants of the city. The court finds that devices were used by the plaintiff to mitigate the evil, and that "it did not appear from the evidence that any other means could reasonably be adopted and preserve the full efficiency of the water-power;" and also finds that the plaintiff owned property in Waterbury which prior to 1884 drained into the Naugutuck river, and that after that date, in compliance with the city ordinances, the plaintiff connected this property with the sewer. These facts fall far short of proving that the nuisance complained of was due in part to the fault of the plaintiff so that it does not come into court with clean hands.
It appears that some steps have been taken by the legislature looking towards the adoption of a plan of sewerage for the whole Naugatuck valley. The present rights of the plaintiff are not contingent on the future action of the legislature; and there is no public policy which forbids the issue of an injunction to protect its rights because of such possible legislative action.
It was plainly unnecessary to incorporate in the order of injunction a provision that it is made subject to the authority of future legislation, or that it should become inoperative if the defendant should hereafter acquire the plaintiff's premises by condemnation. *Page 554
The claim is made that the court abused its discretion in granting an injunction under all the circumstances of the case. "The granting or refusal of an injunction rests . . . in the sound discretion of the court, exercised according to the recognized principles of equity." Fisk v. Hartford, supra, p. 732. We think the trial court has acted within the limits of this discretion. The plaintiff cannot initiate proceedings of condemnation, and it is difficult to see how it can obtain adequate remedy except by injunction. We fail to see how any great public mischief will be produced by compelling the city within the time limited, either to make compensation for the property taken or to provide proper means for the disposition of its sewage.
Under the Practice Act the plaintiff was entitled to claim damages for the injury already done, and an injunction against its continuance.
There is no error in the rulings upon evidence. The testimony of Mr. Platt (stated in paragraph 24 of the finding), that his foreman refused to take charge of the premises because of the stench, was not admissible to prove the fact of the stench, but was admissible to prove the fact that the foreman refused to act on that ground. It was offered for no other purpose. Moreover the fact of the stench was fully established by direct and proper testimony.
The testimony of Franklin G. Newbert (par. 25), that he had refused to work on the plaintiff's premises for a similar reason, was not inadmissible because the refusal was made after the action was brought, although that fact might affect its weight.
The court properly refused to admit the evidence referred to in paragraph 26. It was offered for the purpose of proving the construction of the Act of 1881, and for that purpose was an irrelevant fact. For similar reasons the evidence referred to in paragraph 27 was properly excluded.
The defendant was not injured by the admission of evidence of a verbal notice given to the sewer commissioners (par. 32), as notice to the city was duly proved.
The complaint charged that the noxious substances committed *Page 555 to the river by the defendant produced certain deleterious effects upon the premises of the plaintiff; and it was competent for the plaintiff, certainly in the absence of all objection, to show that this effect was accomplished by the current of the river depositing these substances in the plaintiff's pond and canal leading to its manufacturing establishment, and the court did not err in finding that fact.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.