New Britain herald. [microfilm reel] (New Britain, Conn.) 1890-1976, 1927-06-07
Injunction to Be Sought
Restraining Munich
patty From Conhnu.
ing Storm Water
Menace.
Justices Unanimous in
Ruling in Favor Of Don.
nelly Brick Co., Which
Sued for Flood Damage.

Following announcement tnh1 1Ao
supreme court Of errors has direct
ed a new trial in the action brought
by the Donnelly Brick Co. against
the City of New Britain for pollu-
ton Of Z cl"y-pit, Attorney Donald
Gaffney, counsel for the company
said today an injunction will be
sought to restrain the city from
using Willow Brook to carry off
storm water sewage in the future.
If this petition is granted import
ant changes in the sewerage syster
will result, the cost Of which Will
probably be much in excess OF the
$4,000 damages sought In the or
iginal suit and denied.
The case came before the supreme
court OF appeal by Attorney Gaffney
from the refusal of Superior Court
Judge Banks to set aside the jury's
finding and order a new trial. Chief
Justice George w. Wheeler, in sum-
ming UP the appeal. declared the
evidence to prove conclusively That
the city, by dumping its sewage into
the brook, had caused overfiows and
that in the food season OF April.
1924, brook flowed into the Dom
nelly clay-pits causing damage.
Judge Wheeler's opinion states the
Jury could not reasonably have de-
MED the plaintiff nominal damages.
In the opinion Of Justice Wheeler
the defense that floods caused the
damage and 1t was therefore an
"act Of God" is not found due to the
presence OF sewage In the brook,
taxing it beyond its normal capacity.
The supreme court finding fol-
lows:
THE plaintiffs cause Of action Is
founded upon the pollution of Will
low Brook and upon the increase OF
the carrying capacity of the Brook
beyond Its capacity, by the defendant
city. The part of the appeal which
is properly before us is from the
denial OF the motion to set aside the
verdict and in certain instructions
given the jury. We take up first
the refusal of the trial court to set
aside the verdict with especial ref
erence to the cause Of action found
ed upon the pollution of Willow
Brook. As we read the evidence We
are Of the opinion that the jury
must reasonably have found these
facts: The defendant Is engaged in
the manufacture of brick and its
plant occupies about seventy acres
on which are kilns. machine rooms.
boiler rooms, homes for workers. in
dustrial railways and other neces-
sary equipment for brick yard
and 1t employs about sixty men. Its
land is low and fiat. through it flows
in a southeasterly direction Willow
Brook which enters plaintiffs prop
erty through railroad culvert un-
der the New Britain Berlin branch
Of the New York, N. II. & H. r. R.,
which is ordinarily about twenty-five
feet in width and one or two feet in
depth. To the north and west Of
the railroad culvert is the South End
park owned by the City of New Brit
ain and through which flows this
brook and thence through the cul-
vert to and through plaintiffs land
WILLOW Brook prior to 1923 had
been divided on the west side Of this
railroad line into two branches,
about one-third Of the water flowing
in a stream along the west side of
the railroad tracks and thence in o
southerly direction. In 1928. New
Britain raised the land OF the park
which before would be covered with
water from the overflow of the brook
in times Of periodic flood. At the
Of the brook and deepened its bed
at the culvert from two and seven
tenths feet to three feet. AS a result
the flow OF the waters Of the brook
along the west side Of this branch
line to the south was cut off and al
most all the water Of the brook
caused to flow under the culvert and
through or upon the plaintiffs land.
The principal source OF Willow
Brook is Lake Shuttle Meadow
Reservoir. a large artificial reservoir
of New Britain. 1t draws its water
from four principal sources; the
much larger water shed of these
sources are foreign to this brook.
There was no rainfall from April
l to April S. 1924, yet because of the
water principally from foreign water
sheds the Lake Shuttle Meadow
reservoir rose to "a feet, 10 inches.
When the water rose to "a feet a
inch flash board was put on the