Dimmock v. City of New London
42 A.L.R. 3d 417, 157 Conn. 9, 245 A.2d 569 (1968)
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Rule of Law:
An upstream diversion of a natural watercourse is a wrongful infringement of a downstream riparian owner's rights, entitling the owner to at least nominal damages even without proof of actual harm. While a court may deny an injunction against such a diversion due to public necessity, it must provide an equitable remedy ensuring the riparian owner is compensated for the taking of their water rights.
Facts:
- The plaintiffs own land along Harris Brook and Fraser Brook.
- The defendant, the city of New London, owns Bond Pond, located upstream and created by damming a branch of Fraser Brook, whose water naturally flows across the plaintiffs' lands.
- Facing a severe drought with its water reservoirs at only 18.8% capacity, the city of New London sought additional water sources.
- In early 1966, the city excavated a canal between Bond Pond and its own reservoir, Fairy Lake, which lies in a separate watershed.
- The city then installed stop logs on the Bond Pond dam, which caused slightly less than half of the brook's natural flow to be diverted through the canal into the city's water system.
- After initiating the diversion, the city lifted water use restrictions on its customers and approved new water sales to additional properties and an atomic power site.
- The plaintiffs observed that during the spring, the diversion took hundreds of thousands of gallons per day, and during the summer, there was little to no flow in the brook on their properties.
Procedural Posture:
- The plaintiffs, who are riparian owners, sued the defendant, the city of New London, in the trial court.
- The plaintiffs sought an injunction to stop the defendant from diverting water and also sought money damages for the diversion already made.
- The trial court found that the defendant's use of the water was a reasonable public use, that its actions were necessary due to a drought, and that the plaintiffs had failed to prove any damages.
- The trial court rendered judgment for the defendant city of New London.
- The plaintiffs appealed the trial court's judgment to this court (the state's highest court).
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Issue:
Does a city's diversion of water from a natural watercourse for public use, without compensation, constitute a wrongful infringement of the rights of downstream riparian owners, entitling them to damages and injunctive relief, even if they cannot prove actual harm?
Opinions:
Majority - House, J.
Yes, a city's diversion of water from a natural watercourse for public use constitutes a wrongful infringement of downstream riparian owners' rights. A riparian owner is entitled to the natural flow of water through their land, undiminished in quantity. Any diversion by an upper proprietor is a violation of this common-law right, which constitutes a legal injury regardless of whether the lower owner can prove specific, actual damages. The law implies damage from the violation of a right itself, partly to vindicate the right and prevent an upper proprietor from gaining a prescriptive right to divert the water through continuous use over 15 years. While the trial court found the city's actions were for a necessary public use, this does not make the diversion lawful against the plaintiffs. Although public interest, such as a drought, may justify a court's refusal to issue an immediate injunction, it does not extinguish the plaintiffs' property rights. Equity demands that the riparian owners not be permanently deprived of their rights without compensation. Therefore, the proper remedy is to remand the case with instructions to award nominal damages and grant the defendant a reasonable time to compensate the plaintiffs for their water rights, failing which an injunction against the diversion should be issued.
Analysis:
This case strongly reaffirms traditional common-law riparian rights against appropriation by upstream users, even municipalities acting in the public interest. It clarifies that the violation of a riparian right is a legally cognizable injury in itself, supporting an award of nominal damages to prevent the establishment of prescriptive rights. The most significant contribution is the court's use of a 'conditional injunction,' which balances public necessity against private property rights. This remedy allows a necessary public use to continue but ensures that private owners are compensated for the permanent taking of their property, setting a precedent for resolving similar conflicts between public needs and private rights in resource allocation.
