Waterbury evening Democrat., 1903-05-13
BROWN WINS HIS CASE.
Against City of Waterbury in the Lit
 tie Brook Matter.

Main street, and allowing him $032 damages, was decided by the supreme | court yesterday. The decision of the | superior court is upheld. This allowed | MT Brown $1,S10 damages, and from | this the city appealed to the supreme | court Following is the decision as written by Judge Torrance, the other | judge concucr1ng: T Brown vs the City of Waterbury; Su-
 preme Court of Errors, Third Judicial
 District, April Term, 1908.
 Action by way of appeal from an as- sessment of damages and benefits made by the city of Waterbury, brought to the superior court in New Haven coun- | ty at Waterbury, and tried to the court, Robinson, J.; facts found and Judgment rendered against the city, and appeal by 1t to this court. f
 The case is stated in the opinion.
 No error.
 Tn 1899, the present appel1ees were the owners of a certain lot of land in the city of Waterbury through which owed natural water course called Lit tie brook, in a conduit made b the predecessors in title of the appellees in accordance with the provisions of Q resolution of the common council of the city of Waterbury, passed in 1867.
 The waterway in this conduit was four feet wide and four feet deep. Each side wall of the conduit was of mason ry one foot in thickness, the bottom of it was cobbled and the top was cov- cred with fagstones. Said conduit was entirely sufficient to take care of and conduct all the water of the brook; but the channel of the brook on the lands of others above and below the land of the appellees was not of sufficient ca pacity to take care of the flow of the brook at all times, and in consequence thereof the water at times overhowed the banks of the brook and caused damage.
 To remedy this the city in 1899, by condemnation proceedings, laid out and took, for the waters of this brook, a right of way ten feet wide, through the land of the appellees and of others above and below them on this brook, following substantially the course of the brook as 1t then was. As 8 part of said condemnation proceedings the city caused to be assessed to the ap- pellees as damages for the layout of said right of way through their land the sum of S532, and as benefits the sum of $1,719.
 From this assessment of damages and benefits the present appellees took an appeal to the superior court, and upon the trial of that appeal that court assessed as damages to them the sum of $1,810, and found that there were no benefits resulting to them from said layout Of said right of way, and rem dered Judgment accordingly; and from that Judgment the present appeal was l taken.
 The city now contends that the court below erred in the trial of said cause,
 l) in its rulings upon evidence, and | (2 in overruling a certain claim made by the city in the courts below.
 The claimed erroneous rulings upon evidence will be first considered. The city apparently claimed that the con- duit for this brook, through the land of the appellees, was inadequate, and therefore a larger one was necessary,
 and that this was benefit to the ap-
 pellees. The appellees were permitted to show by the witness Cairns, that
 during the last twelve years the waters of Little brook had been increased to
 more than their former and natural flow, by the erection of many buildings z jected to this evidence as not being
 within the pleadings. Itwas apparent. l 1y offered merely to show that if the
 conduit was inadequate at times, Il
 was because of the addition so made
 to the natural flow of tho brook.
 The court has found, however, that
 the old conduit was entirely adequate
 to take all the water at all times com
 ing through the brook; and in view oi E this the evidence objected to clearly , did the city no harm, and furnishes nc ground for new trial. even If we con
 cede, without deciding, that it was not i, admissible.
 On the trial below the present ap . pel1ees claimed, as one element of theil , damages, that they had, by the layout . been deprived of their right to sniff the bed of Little brook on their owr ? land Gh- pleasure, and were thus pre- vented from increasing the cellar room
 of their building fronting on Mai1 . street and occupied as dry goodl ' store, In proof of the amount and ex
 tent of such damages, Curran, Brown : and Gaffney, witnesses for the presen appellees, were permitted, against tn, objection of the city, to give certain t evidence detailed upon the record. ? The court has found that the exten . and amount of the damages to the ap l pellees from t1lis-cause twas not provel P with reasonable certainty.' and as $ sesses only nominal damages therefor i. Tn view of this finding, the admission ' of the evidence in question clearly dit :: the city no harm, whatever view ma : be taken of it's admissibility. a poin ,. which need not here be considered.
 The question asked of the witnes {; Brooks as to the value of given sizet . strip of the appellees' land, and hi
 answer thereto were, we think, admis . sible under the circumstances detaile s upon the record with reference there r to.
 2 The questions asked of the witnesse Gaffney and Boughton as set forth i : paragraphs 37 and 8S of the finding, t
 which the city objected, do not appea
 to have been answered, and therefor
 furnish no ground for new trial, eve
 ~, {v.o