The trial court directed a verdict for the defendant on the ground that the natural channel of the stream was fully adequate to carry off the drainage turned into it; that the subsequent filling in and consequent insufficiency of the channel was in no respect chargeable to the defendant city; and that the city was not liable for continuing to discharge its surface drainage into a watercourse which, without its fault, had become inadequate to carry it away, in times of heavy rainfall.
Independently of any other consideration, we think there must be a new trial because the jury would have been justified in finding that the city was maintaining a nuisance by discharging offensive sewage on the plaintiff's land. It is immaterial that third parties also contributed to the result. Watson v. New Milford,72 Conn. 561, 45 A. 167; Morgan v. Danbury, 67 Conn. 484,35 A. 499.
That condition, if the jury should find it to exist, may be remedied by more frequent cleaning of the defendant's catch-basins; and the more important question is whether, as against this plaintiff, the defendant is entitled, under the circumstances indicated by the testimony, to continue to discharge this surface drainage into the stream, notwithstanding that the channel is no longer capable of carrying it away, in times of heavy rainfall.
The pleadings and the briefs of the parties treat the plaintiff as a lower riparian owner on a natural stream; and we accordingly adopt that view, although there is evidence which might justify a different conclusion.
The defendant city claims the right, as a riparian owner, to drain its premises into the stream and so *Page 129 accelerate its flow, without liability to lower owners for the consequences.
This claim assumes that the defendant was making a lawful and reasonable use of the stream. But there was testimony from which the jury might have found that, as to about one half of the area drained, the city had intercepted surface drainage which would naturally have found its way into the stream below the plaintiff's land and diverted it into the stream at a point above the plaintiff's land.
It would follow from such a finding that notwithstanding the channel was large enough, in its natural condition, to carry away both the normal and the surplus surface water without flooding the plaintiff's land, the defendant would be exceeding its rights as a riparian owner by casting such surplus surface water into the stream at a point above the plaintiff's land. The defendant could not have been made liable in damages for this wrong until some injury resulted therefrom; but if, and when, the channel became inadequate and the plaintiff's land was flooded, the defendant would then become liable for such portion, if any, of the total damage as the jury might reasonably find to have been caused by the wrongful act of the defendant in so casting surplus surface water into the stream above the plaintiff's land. Sellick v. Hall, 47 Conn. 260, 273.
It would also follow from such a finding that the defendant could not successfully claim to be immune from liability because engaged in the proper execution of a governmental duty; for the defendant, in constructing and maintaining this double system of sewers, was acting under the authority of its special charter, which gives it the right to take by condemnation proceedings "any land, or rights or easements in lands, watercourses, or ways," which may be necessary for the disposition of its sewage. 14 Special Laws, p. 351. *Page 130
The defendant has not so taken the plaintiff's rights in this stream, and therefore the defendant could not successfully claim to be acting within the scope of its authority from the State, in case the jury had found that it was asserting a right or easement in this watercourse which was inconsistent with and adverse to the plaintiff's rights as a lower riparian owner.
We also think that there was evidence from which the jury could reasonably have found that some part of the filling in of the channel below the plaintiff's land was due to the washing away of the land above such filling; and that such washing and filling was in some part attributable to the introduction of the surplus surface water into the stream above the plaintiff's land, and the consequent acceleration of the flow of the stream at and near that point.
There is error and a new trial is ordered.
In this opinion the other judges concurred.