In no jurisdiction has the subject of the pollution of a stream to the injury of a riparian owner received a fuller or more frequent consideration than in our own State. The law upon this subject is too firmly settled in the cases we cite to require further consideration. Morgan v. Danbury, 67 Conn. 484, 35 A. 499; Nolan v. New Britain, supra; Platt Bros. Co. v. Waterbury, 72 Conn. 531, 45 A. 154; Waterbury v. Platt Bros. Co., 76 Conn. 435, 56 A. 856; New Milford Water Co. v. Watson, 75 Conn. 237, 52 A. 947, 53 id. 57; Platt Bros. Co. v. Waterbury, 80 Conn. 179, 67 A. 508; Gorham v. New Haven, 79 Conn. 670, 66 A. 505; Feudl v. New Britain, supra; Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co., 101 Conn. 310, 125 A. 623. The defendant's claim that there could be no recovery in this action because there had been no unreasonable or substantial pollution of Willow Brook, is based upon a misconception of the evidence before the court.

Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139, 204 A.2d 833; Slavitt v. Ives, 163 Conn. 198, 207, 303 A.2d 13. A taking of private property by the state for highway purposes under Connecticut's statutory eminent domain procedure is complete when the assessment provided for by General Statutes 13a-73 (b) is filed with the clerk of the Superior Court. Slavitt v. Ives, supra, 206; Carl Roessler, Inc. v. Ives, 156 Conn. 131, 139, 239 A.2d 538; Clark v. Cox, 134 Conn. 226, 228, 56 A.2d 512. But a taking may also occur in the so-called constitutional sense pursuant to article first, 11, of the Connecticut constitution by a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed. Dooley v. Town Plan Zoning Commission, 151 Conn. 304, 311, 314, 197 A.2d 770; Platt Bros. Co. v. Waterbury, 72 Conn. 531, 550, 45 A. 154. Actual physical possession of the property by the state, of course, constitutes a taking. Carl Roessler, Inc. v. Ives, supra, 144; Trumbull v. Ehrsam, 148 Conn. 47, 55-56, 166 A.2d 844. But there can be a de facto taking of private property by the state without any such actual, physical appropriation.

Municipal corporations are granted broad powers of eminent domain and, if, in the construction of their sewers, it becomes necessary to utilize the waters of a stream they can secure the right to do so by condemnation proceedings, involving payment to those whose property rights will be thereby invaded. Platt Bros. Co. v. Waterbury, 72 Conn. 531, 551, 45 A. 154. To restrict them to that right accords with the doctrine exemplified in so many ways in modern jurisprudence that loss to the individual should be made good by spreading its burden over the many where this can be done without injustice or undue hardship. If the town did not see fit to proceed by condemnation to acquire the right to utilize the stream for its sewage, it must expect to answer in damages for any invasion of the rights of others in its waters.

Nolan v. New Britain, 69 Conn. 668, 683, 38 A. 703. Moreover, this was an action complaining of a nuisance which the defendant had produced by depositing certain things in the brook above the plaintiff's premises, of such kind and in such quantities that the water came to him polluted, his mill-pond had been nearly filled up, his mill greatly damaged, and the use and value of his property largely taken away. A riparian proprietor cannot acquire by any prescription a right to maintain a nuisance like that described in this complaint and finding. Platt Bros. Co. v. Waterbury, 72 Conn. 531, 548, 45 A. 154; Morgan v. Danbury, 67 Conn. 484, 493, 35 A. 499. The claim of such a right in another's land is unnatural and unreasonable, and is not sanctioned by law. A prescription to be valid must be reasonable. Merwin v. Wheeler, 41 Conn. 14, 25. Therefore the defendant was not entitled to a charge upon this subject, either in the form he asked for it or in any other that recognized and approved of a prescriptive right to continue the nuisance complained of in this action.

Waterbury v. Platt Brothers Co., 76 Conn. 435, 437, 442, 443, 56 A. 856; New Milford Water Co. v. Watson, 75 Conn. 237, 249, 52 A. 947, 53 id. 57. These well-settled propositions were applied by the Superior Court in the former action between the plaintiff and defendant, commenced April 23rd, 1891, and controlled the judgment therein rendered for the plaintiff on December 18th, 1898. That judgment was affirmed by this court in January, 1900. 72 Conn. 531, 45 A. 154. It gave the plaintiff $500 as damage for the defendant's unlawful acts done between 1884 and April 23d 1891, in discharging into the river noxious substances in such manner that the same were carried by the flow of the river to the premises of the plaintiff and there produced a public nuisance, and it covered all damages sustained by the plaintiff by reason of said unlawful acts and nuisance up to April 23d 1891. The present action was commenced on March 19th, 1902, and was brought to recover similar damage sustained by the plaintiff between April 23d 1891, and March 19th, 1902, by reason of similar unlawful acts done by the defendant between those dates, producing a similar nuisance upon the plaintiff's premises.

The action complained of was the action of the city, and the city was properly made defendant. Platt Bros. Co. v. Waterbury, 72 Conn. 531, 546; West Hartford v. Board of Water Commissioners, 44 id. 360, 369. The State cannot, without its consent expressed through legislation, be sued for injuries, otherwise tortious, resulting from an act done in the exercise of its lawful governmental power and pertaining to the administration of government; and when this power is exercised, as in most such cases it must be, through an agent, the agent cannot be sued for injuries resulting from a strict performance of the agency.

requirement of due process of law. In addition to cases before cited see Yates v. Milwaukee, 10 Wall. 497; Pumpelly v. Green Bay Co., 13 Wall. 166, 177 et seq.; Sweet v. Rechel, 159 U.S. 396 et seq.; Mass. Decl'n of Rights, XII, XXX; Baker v. Boston, 12 Pick. 184, 194; Commonwealth v. Alger, 7 Cush. 53, 103-4; Morse v. Stocker, 1 Allen, 150, 157-8; Watertown v. Mayo, 109 Mass. 315, 319; Lowell v. Boston, 111 Massachusetts, 454; Sawyer v. Davis, 136 Mass. 239; Wilkins v. Jewett, 139 Mass. 29; Newton v. Belger, 143 Mass. 598; Rideout v. Knox, 148 Mass. 368, 374; Miller v. Horton, 152 Mass. 540; Commonwealth v. Parks, 155 Mass. 531; Langmaid v. Reed, 159 Mass. 409; Bent v. Emery, 173 Mass. 495; Quintini v. Bay St. Louis, 64 Miss. 483; Waupen v. Moore, 34 Wis. 450; Janesville v. Carpenter, 77 Wis. 288; Priewe v. Wisconsin c. Co., 93 Wis. 534; Priewe v. Wisconsin c. Co., 103 Wis. 537; Ex parte Whitwell, 98 Cal. 73; People v. Elk River Co., 107 Cal. 221; State v. Railway Co., 68 Minn. 381; Platt v. Waterbury, 72 Conn. 531, 551; Ruhstrat v. People, 185 Ill. 133, 141; Williamson v. Liverpool Ins. Co., 105 F. 31, and cases cited; Mayor of Hudson v. Thorne, 7 Paige, 261; Evansville v. Miller, 146 Ind. 613; Des Plaines v. Poyer, 123 Ill. 348. The information and decree stand solely upon the statute of 1898.

The plaintiffs in the present case make no claim that the maintenance and repair of a storm sewer system is proprietary in nature. Cf. Platt Bros. & Co. v. Waterbury , 72 Conn. 531, 549, 45 A. 154 (1900) ("[w]hile sewers or drains for the disposition of surface waters collecting in highways may be considered as mere adjuncts of a highway, partaking of its nature as a governmental use ... it is different with sewers for the disposition of refuse and filth accumulated on private property " [citation omitted; emphasis added] ); Brusby v. Metropolitan District , supra, 160 Conn. App. at 653, 127 A.3d 257 (concluding that there was genuine issue of material fact as to whether maintenance of sanitary sewer system, of which plaintiff was paying customer, was proprietary function). New York state courts continue to accept this distinction between duties that are imposed on municipalities and those that they voluntarily assume.

We begin by noting, contrary to the defendants' assertion, that "[i]n an action for injunction the court may, in addition to or in lieu of injunction, give . . . (a) a judgment for damages. . . ." 4 Restatement (Second), Torts § 951 (1979); see also Platt Bros. Co. v. Waterbury, 72 Conn. 531, 554, 45 A. 154 (1900) (affirming award of damages in addition to injunction); 42 Am. Jur. 2d, Injunctions § 272 (2000) ("[i]n the exercise of its power to retain the cause to afford complete relief to the parties, a court of equity may award injunctive relief and damages as an adjunct to its equity jurisdiction"). We also note that our remand in Frillici v. Westport, supra, 231 Conn. 440, appears to limit any claim under count one to "injunctive relief" while allowing for damages under counts two and seven.

butting owner, in the absence of statute or ordinance, ordinarily is under no duty to keep the sidewalk in front of his property in a reasonably safe condition for public travel, though he may be liable for maintaining a nuisance thereon"); Perkins v. Weibel, 132 Conn. 50, 51, 42 A.2d 360 (1945) (plaintiff, who fell on a sidewalk due to a greasy condition thereon, charged the landowner with "maintenance of a nuisance"); Croughwell v. Chase Brass Copper Co., 128 Conn. 110, 112, 20 A.2d 619 (1941)("[a]ction to recover damages for personal injuries, alleged to have been caused by negligence of the defendant and by nuisance maintained by it"); Bagni v. Bristol, 127 Conn. 38, 41, 14 A.2d 716 (1940) ("[w]here a municipal corporation creates and maintains a nuisance"); Wheaton v. Putnam, 126 Conn. 330, 331, 11 A.2d 358 (1940) (smoke from material burned in public dump by others than the defendant's agents constituted "maintenance" of a nuisance to the occupants of the neighboring property); Platt Bros. Co. v. Waterbury, 72 Conn. 531, 547-48, 45 A. 154 (1900) (riparian proprietor cannot acquire by any prescription a right to maintain a nuisance); Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 439, 553 A.2d 197 (1989) ("[t]he plaintiffs contend that genuine issues of fact exist in this case as to whether [defendant mortgagee] . . . was a substantial factor in causing or maintaining the alleged nuisance"); LaPalme v. Tottle, 16 Conn. Sup. 121 (1949) (patron of restaurant alleged that he "was injured by fall upon flight of stairs which were maintained in such condition as to constitute a nuisance"). See also Practice Book (1963) Form 355 ("Injunction and Damages, in Case of Nuisance by Maintenance of Slaughterhouse") and Practice Book (1978) Form 104.4 ("Injunction Against Nuisance — Maintenance of Disposal Area").