See, e.g., Capers v. Lee , 239 Conn. 265, 266–67, 684 A.2d 696 (1996) (notice of claim filed with office of claims commissioner pursuant to General Statutes § 4-147 is not "an ‘action’ " under § 52-592 (a) ); Bank Building & Equipment Corp. v. Architectural Examining Board, 153 Conn. 121, 124–25, 214 A.2d 377 (1965) (appeal from order of architectural examining board was not "an ‘action’ " under § 52-592 (a) or "a ‘civil action’ " under General Statutes § 52-593 ); Arute Bros., Inc. v. Dept. of Transportation , 87 Conn. App. 367, 369, 865 A.2d 464 ("[an] arbitration proceeding [under General Statutes § 4-61 ] is not an action under § 52-592 [a]"), cert. denied, 273 Conn. 918, 871 A.2d 370 (2005). See, e.g., Rutkoski v. Zalaski , 90 Conn. 108, 115, 96 A. 365 (1916) (referring to action filed and adjudicated in Superior Court as "tried on its merits"); Downie v. Nettleton , 61 Conn. 593, 594, 24 A. 977 (1892) (same). I agree with the majority that "[t]he question of whether a particular case has been ‘tried on its merits’ within the meaning of [the accidental failure of suit statute] ... turns on the basis of the judgment ultimately rendered"; (emphasis in original) footnote 7 of the majority opinion; but I disagree that the judgment rendered by the trial court in this case "turned on the merits of the claims raised" by the plaintiff.

Based upon the facts that are before us, compliance with the temporary mandatory injunction requiring the removal of the fill would obviously interfere with the enjoyment of the land in its present state, which cannot be compensated through a monetary award. See Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 374, 84 A.2d 681 (1951) (indicating that the granting of immediate possession of real property to a utility pending a decision on the utility company's petition to take the property under its delegated powers of eminent domain would be appealable); Rutkoski v. Zalaski, 90 Conn. 108, 114, 96 A. 365 (1916) (interference with a person's use of their land constitutes irreparable injury). In this case, removal of the fill clearly would prevent the defendants from using the property in the state it was in prior to the removal.

On those factors, causation between the defendants' failure to act as to the culvert and the plaintiff's damage should present no problem. Rather than causation, it appears that the basis of the trial referee's decision was the application of the common enemy doctrine which permits a landowner to repel surface water without incurring liability to adjoining landowners. The plaintiff requested this court to reject the common enemy doctrine and to substitute a less harsh and more equitable rule. That there are other rules in other jurisdictions was recognized by this court in Rutkoski v. Zalaski, 90 Conn. 108, 96 A. 365 (1916). Some jurisdictions have adopted the civil law rule which holds that "`the right of drainage of surface-waters, as between owners of adjacent lands, of different elevations, is governed by the law of nature.

The amount of damages is not necessarily decisive where a right is materially interfered with by a nuisance caused by wrongful use by another of his property, if the injury is of a continuing nature involving a recurrent grievance and a multiplicity of suits to secure redress, as in the case of invasion of a right to have water flow in its accustomed channel and quantity. Burlington v. Schwarzman, 52 Conn. 181, 184; Rutkoski v. Zalaski, 90 Conn. 108, 114, 96 A. 365; Lawton v. Herrick, 83 Conn. 417, 425, 76 A. 986; Hansen v. Crouch, 98 Or. 141, 193 P. 454; 5 Pomeroy, Equity Jurisprudence, p. 4486; 31 L.R.A. (N.S.) 900. In such a case equity intervenes on account of the nature of the injury done rather than of the magnitude of the damage.

The plaintiff does not question that, under our law as it has long been settled, an owner of land has the right to occupy and use it as he sees fit, generally speaking, by changing its surface or erecting structures upon it, despite the fact that such a use will cause surface water falling upon it or naturally flowing over it from adjacent lands to accumulate upon the later or to pass over them in changed direction or quantity. Grant v. Allen, 41 Conn. 156; Chadeayne v. Robinson, 55 Conn. 345, 350, 11 A. 592; Rutkoski v. Zalaski, 90 Conn. 108, 96 A. 365. Not merely is this principle the settled law of this jurisdiction, but whatever balancing of considerations of public good or principles of abstract justice might be indulged in, we cannot perceive that adherence to it through the years has worked more injury to landowners than would be the adoption of a stricter limitation upon their rights, or has in fact retarded the natural development of this State, while a departure from its essential basis at this time would tend to upset one of the foundations upon which that development has proceeded. Our consideration of the plaintiff's claim must necessarily proceed upon the basis of the law so established.