Opinion
The plaintiff claimed damages because of the discharge into the Stamford canal and turning basin, which it uses in its operations as common carrier, of debris from the storm water sewers constructed by the defendant for the purpose of carrying off its surface water. The defendant in a special defense set up governmental immunity and that any injuries to the plaintiff were caused by acts of God beyond its control. One of the allegations of the complaint alleged negligence and one of the errors assigned by plaintiff was the court's ruling that the defendant "is not charged in the complaint with negligence nor with maintaining a nuisance," thus indicating that they claim to recover upon the basis of negligence. Held: 1. That governmental immunity was properly pleaded as regards any claim of negligence which the plaintiffs might assert under the complaint and the demurrer to this phase of the special defense was properly overruled. 2. That it could not be said as matter of law that any damage which the plaintiffs might prove they suffered was not caused by acts of God for the results of which the defendant would not be responsible, and the demurrer addressed to this portion of the defense was also properly overruled.
Argued February 2d 1938
Decided April 8th, 1938.
ACTION for an injunction restraining the defendant from maintaining its storm water sewers in such manner as to discharge accumulations into the navigable basin known as Canal Basin, brought to the Superior Court in Fairfield County, where a demurrer to the special defense was overruled, Wynne, J., and the plaintiffs failing to plead further, judgment was rendered for the defendant, Booth, J., from which the plaintiffs appealed. No error.
Warren F. Cressy, for the appellants (plaintiff).
Samuel Gordon, with whom was Julius B. Kuriansky, for the appellee (defendant).
The appellants filed a motion for reargument, which was denied.
PER CURIAM. The plaintiffs' demurrer to the answer in this case having been overruled, it made a motion that judgment be entered forthwith without prejudice to its right of appeal to this court. This motion was granted and judgment rendered for the defendant. The plaintiffs appealed and we decided that there was no error. The effect of this decision was to leave in full force the judgment for the defendant rendered by the trial court. The plaintiff by a motion to reargue now seeks to secure a change in the judgment of this court so that the case will be remanded to the trial court for further proceedings. In some jurisdictions, by statute, or rule of court, or even without either, it would seem that a case may be remanded for further proceedings after affirmance in such a situation as that before us. 4 C.J. 1146; 5 C.J.S. 1355. But that would not be proper under our practice. The only claims which were or could have been presented by the plaintiffs on the appeal were that the trial court erred in overruling the demurrer. When those claims were decided against the plaintiffs the only logical result which could follow under our method of procedure was that upon the decision that there was no error the judgment of the trial court remained in full force. No appeal lies to this court except from a final judgment; General Statutes, 5689; France v. Munson, 123 Conn. 102, 109, 192 A. 706; the overruling of a demurrer is not such a judgment; Costecski v. Skarulis, 103 Conn. 762, 131 A. 398; an appeal by the party filing the demurrer overruled lies only when judgment has been rendered upon the issues in the case and that this occurs because the party refuses to plead further does not alter the effect of that judgment as one which is final. Manghue v. Reaney, 99 Conn. 662, 663, 122 A. 566. If, when a judgment is affirmed upon appeal, the case could be remanded for further proceedings, the appeal would be from a judgment which was not final; for, though the appeal was found to be groundless, the appellant's right would still be open to determination by a further judgment in the trial court. Banca Commerciale Italian Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838. The situation is well expressed in Whiting v. New York, 37 N.Y. 600, where it is said: "Where a pleading is sustained, the demurrer being overruled, and leave is given to answer the pleading, the demurrant is put to his election to answer over or submit to judgment; and if he submit to judgment, the judgment is final. If he appeals therefrom to this court, such appeal comes here on the question of affirmance or reversal only; and no leave to the demurrant to answer or plead anew can be given. The judgment here is absolutely final." The motion to reargue is denied.
The substituted complaint alleges that the plaintiffs are the owners of certain docks, piers, buildings, franchises, rights and privileges located on and appurtenant to the Stamford canal and turning basin. The canal is a public, navigable waterway under the jurisdiction of the federal government and with the turning basin at its upper end has been used by the plaintiffs and their predecessors in title for over fifty years in their operations as common carriers engaged in interstate commerce. A brook or natural watercourse empties into the basin at its northeasterly corner. This brook and its tributaries have been largely confined to culverts and drains where they flow through the defendant city. Connected therewith are certain storm water sewers constructed by the defendant for the purpose of caring for surface water, including a large eight foot drain which empties into the basin about eight hundred feet north of the entrance from the canal to the basin. Large quantities of silt, sand, filth, mud and leaves collect on the streets of Stamford, are washed into these brooks and drains, are discharged by them into the canal and basin and, by the action of the tides, are washed to and fro so as to fill up the basin and render it unfit for navigation. As a result, the plaintiffs have been put to large expense for dredging. The operation of the plaintiffs' boats has been imperiled by these unlawful acts which constitute a private and public nuisance.
The defendant answered, denying all the allegations in the complaint which alleged that the plaintiffs had been injured by debris being carried into the canal and basin by the drains and sewers, and also pleading a special defense. While inartificially drawn, this set up three defenses: That the acts complained of were performed in the exercise of the defendant's governmental functions; that any debris which found its way into the drains and sewers did so by reason of acts of God beyond the control of the defendant; and that any filling up of the canal and basin was caused by persons, circumstances or conditions unknown to the defendant and beyond its control. The plaintiffs demurred to this special defense, in so far as it purported to set up a defense that in performing the acts described in the complaint the defendant was carrying out a governmental function and also in so far as it purported to set up a defense that the injuries to the plaintiffs were the result of acts of God beyond the control of the defendant. The demurrer was overruled on the authority of Lovejoy v. Norwalk, 112 Conn. 199, 152 A. 210.
As pointed out by the defendant, it is under a legal obligation to maintain its highways in a reasonably safe condition for public travel; Bartram v. Sharon, 71 Conn. 686, 692, 43 A. 143; General Statutes, 1411; and it has been empowered to construct drains and sewers to accomplish this purpose. Special Acts, 1933, p. 1192, 5 (27). Under the complaint, it might be proved that the damage complained of has resulted from the attempted performance of that duty. One of the allegations of the complaint is that the defendant "has at all times neglected and refused . . . to so operate" the drains and sewers "as to eliminate the damage" of which the plaintiffs complain, and one of the errors assigned is the trial court's ruling that the defendant "is not charged in the complaint with negligence nor with maintaining a nuisance." The plaintiffs thus indicate that they claim to recover upon the basis of negligence on the part of the defendant in failing to prevent debris being discharged into the canal and basin through the drains and sewers. Governmental immunity would be a defense against liability for such negligence. Colwell v. Waterbury, 74 Conn. 568, 572, 51 A. 530; Pope v. New Haven, 91 Conn. 79, 80, 99 A. 51. It is true that under the allegations of the complaint the plaintiffs might also prove that the acts complained of constituted a nuisance. But whether or not governmental immunity would be a defense in such a situation we have no need to determine. It was properly pleaded as regards any claim of negligence which the plaintiffs might assert under the complaint and the demurrer to this phase of the special defense was properly overruled.
The demurrer admitted any facts provable under the special defense. Cashman v. Meriden Hospital, 117 Conn. 585, 586, 169 A. 915. We cannot say as matter of law that any damage which the plaintiffs may prove they suffered was not caused by acts of God for the results of which the defendant would not he responsible. The demurrer addressed to this portion of the defense was also properly overruled.
The laudable attempt of the plaintiffs to present the issue as one of law must fail for the reasons stated. Although the ruling on the demurrer unnecessarily went to the merits of the defense, since it reached the correct result, it must stand.