This case arises out of the facts set forth in the record of the case of Lane v. Board of Harbor Commissioners for New Haven Harbor, 70 Conn. 685, recently before this court, with reference to the digging of a channel over certain tide-water flats in New Haven harbor. In that case the present plaintiff sought to have the order of said commissioners, which limited his right to wharf out and confined it to the inshore line of said channel, modified or set aside ; in this case he sues the parties who were concerned in the actual digging of the channel, for the damages which he claims were caused to him by their acts.
The complaint contains three counts. The first alleges, in substance, these facts : that the plaintiff is the owner and in possession of a certain described portion of the tide-water flats in the harbor, in front of his upland, between high-water mark and the established harbor line, and that this territory has been duly designated to him, under the laws of this State, for the cultivation of oysters and clams; that he had, at large expense, prior to the acts complained of, improved and prepared said ground and made it fit for the cultivation and raising of oysters and clams, and had placed a large quantity of valuable oysters thereon which were upon said ground when the acts complained were done, and was engaged in the cultivation of oysters and clams thereon; that the defendants unlawfully entered upon said premises and with a steam dredging machine dug, excavated and tore up said premises, *67and thereby greatly injured them and the plaintiff’s property thereon, and the plaintiff’s business.
The second count alleges that while digging and excavating on said premises the defendants took away and converted to their own use large quantities of the material which had been placed upon said premises by the plaintiff and his grantors for the purpose of making said premises fit for the cultivation of oysters, and also large quantities of the oysters and clams then being and growing upon said premises.
The third count alleges that the defendants did the acts complained of without notice to the plaintiff, without giving him an opportunity to preserve and protect his property, and that said acts were done negligently and with intent to injure the plaintiff and his property.
In their answers the defendants denied that they had taken away or converted to their own use any of the property of the plaintiff, as alleged; they denied the allegations of the third count, the substance of which is above stated; and they then, in substance, set up in justification of their entry and the digging of the channel, the facts with reference to this matter, set forth in the finding in the ease of Lane v. Board of Harbor Commissioners for New Haven Harbor, hereinbefore referred to, and to which case, for a detailed statement of said facts, it is sufficient, for the purposes of this case, to refer, without setting them out here in full.
In substance and briefly stated, the facts set up in the answers were these: A portion of the natural channel in this part of the harbor was shallow, narrow and very crooked in 1896, and had been so for a long time, and was inadequate to the requirements of public navigation. The channel in question here was dug by the defendants for the purpose of straightening and improving this portion of the old channel; it was in fact merely a straightening and improvement of the same, and its completion has greatly improved the navigability of the waters here. It was dug with the approval of the secretary of war and of the board of harbor commissioners, under written permits for that purpose issued by them, and the work was performed, in effect, under their supervision. *68These facts were stated in detail, substantially in the same manner as .they are stated in the record of the former case of Lane v. Board of Harbor Commissioners.
To these answers the plaintiff demurred, mainly on the ground that the digging of the channel at all constituted a taking of his property and an invasion of his rights in these tide-water flats, and the answers did not show that the property so taken had been taken by any proper condemnation proceedings, nor that any compensation for such taking had been made to the plaintiff therefor or had been provided for at all; and therefore failed to show any justification for the entry upon said premises and the digging of said channel.
Other causes of demurrer were assigned, such as want of notice to the plaintiff that the permits for the digging of the channel were about to be issued; want of opportunity to him to be heard before they were issued; and the fact that the permit from the harbor commissioners was not issued at a meeting of the board; but they ail grow out of and depend upon this main ground of demurrer.
If the mere excavation of the channel in a proper and rear sonable manner would not constitute a taking of the plaintiff’s property, nor any such invasion of his rights as would entitle him to compensation, then he was not entitled to notice, nor to be heard before the issue of the permits, and cannot avail himself in this action of any mere informality in the issue of the permit by the harbor commissioners.
The court sustained the demurrers, and the case was tried to the jury upon the pleadings as they stood after this ruling, and as they thus stood, substantially the only question before the jury, as the court told them, was the amount of damages.
For the reasons stated in the case of Lane v. Board of Harbor Commissioners, supra, which need not here be repeated, we think the facts set up in the answers, if proved, would constitute a defense to the entry complained of, and to the excavation of the channel in a reasonable and proper manner. Of this substantial part of their defense the defendants, by the ruling upon the demurrers, were deprived, *69and for this reason alone a new trial must be granted. In view of the law applicable to this part of the defense, as stated in Lane v. Board of Harbor Commissioners, supra, we think most, if not all, of the questions raised by the other assignments in this case, will not be likely to arise in case of a retrial, and therefore we deem it unnecessary to consider them.
There is error and a new trial is granted.
In this opinion the other judges concurred, except Baldwin, J., who dissented.