CHAPTER 912*
FLOWAGE PETITIONS

      Sec. 52-446. Petition to flow land; contents; procedure. When any person who has set up or desires to set up a water mill on his own land, or on land of another with his consent, desires to build or raise a dam on any land of his own, or of another with his consent, in order to create or improve a waterpower by means of a pond or reservoir, for the benefit of such mill, which dam would flow water upon land belonging to any other person, or to secure the right to build or improve discharge-ditches, to carry off the water flowing from his mill; or when any owner of any water mill, on any stream flowing out of a natural pond, desires, with the consent of the owner of the outlet of such pond, to build or raise a dam across such stream or outlet for working such mill; or when the owner of any waterpower and dam desires to conduct the water from such dam across the land of another to some point on his own land for milling purposes; or when the owner of any mill desires to deepen any watercourse below his mill, or the raceway conducting the water from such mill, in such a way as not to affect the interests of any other owner of any dam, mill or mill privilege situated on or receiving water from such watercourse; then, if such person, desiring to make any such erections or improvements, cannot agree with the owner of any land which will be affected by the same, as to the damages to be paid to him therefor, he may bring his petition against such owner to the superior court for the judicial district where the land to be overflowed or taken, or any part of it, lies; which petition shall contain such a description of the land to be overflowed or taken, and of the dam or other improvement proposed, its location and proposed height and dimensions, that the record will show with certainty the matter to be determined. Mesne process on any such petition shall be a writ of summons, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be signed as in other civil actions and may run into any judicial district.

      (1949 Rev., S. 8188; P.A. 78-280, S. 2, 127.)

      History: P.A. 78-280 substituted "judicial district" for "county".

      See Sec. 13a-54 re abandonment of highway for construction of dam.

      See Sec. 22a-403 re permits necessary to build, alter, repair, etc. dams and other structures.

      This statute is constitutional. 33 C. 550; 34 C. 84; 87 C. 432. It is to be strictly construed. 35 C. 510; 36 C. 317. A mill owner may sue without joining a tenant at will. 33 C. 552. Joinder of respondents. Id., 89, 356. One who desires to let the waterpower, when obtained, to third parties, may sustain a petition. 35 C. 511. The petition will not be defeated by proof that the petitioner has already wrongfully appropriated the privilege he seeks to obtain. 33 C. 552. Proof of failure to agree. 34 C. 86. The petitioner's mill need not be on or contiguous to the land where he seeks to build his dam. Id., 85. Attempt to extend Flowage Act to the creation of a pond from which to take ice, held ineffective; law to be strictly construed. 65 C. 322. Right to flow land under this statute too remote an element of damage to be considered in proceedings to condemn water rights. 75 C. 248. Nature of proceedings. 87 C. 205. Waterpower created and maintained under Flowage Act is not protected from condemnation proceedings; but quaere if it is devoted to a public use at time of condemnation. 92 C. 220. Cited. 95 C. 91 et seq.

      Sec. 52-447. Petition to be heard by committee, unless parties agree. The petition, unless the parties thereto agree upon the judgment rendered thereon, shall be heard and decided by a committee of three disinterested property owners of the judicial district to be appointed by the court; and, if such committee is of the opinion that the flowing or taking of such land in the manner proposed will be of public use, it shall establish the height to which any such dam may be built and the water raised thereby, and the length of time or period during which the same may be kept up in each year thereafter, or the dimensions and location of any such discharge-ditches, aqueducts, watercourses or raceways, as the same may be built or improved; and shall assess the sum to be paid by the petitioner to the respondent for the right thus to overflow or take his land in the manner established in its report. In estimating the damage, such committee shall take into account any damage occasioned to any other land of the respondent, as well as to that overflowed or taken, and shall report its doings to such court, which shall add fifty per cent to the damages so assessed, as the sum to be paid for such right so to flow, take or injure such land.

      (1949 Rev., S. 8189; P.A. 78-280, S. 2, 127.)

      History: P.A. 78-280 substituted "judicial district" for "county".

      Certainty in report. 34 C. 86. The committee need not fix the height at precisely that asked for. 33 C. 552. Flowage law recognizes mills and manufacturing establishments as being for public use. 41 C. 91. Distinction as to taxation between land taken for profit and for a town water supply. 44 C. 371. Petitions are to be served by citation, as were bills in equity before the practice act. 49 C. 348. Evidence that petitioners are pecuniarily unable to avail themselves of the right sought is inadmissible. Id., 349. Specific issue held not to involve effect of flowage upon the public health. 52 C. 459. Statutes authorizing the taking or flowage of land by compulsory process should be strictly construed. 65 C. 323. Whether a law empowering riparian owners to create ice ponds on the land of others, against their will, can be supported, quaere. Id., 234. Cited. 69 C. 435. See note to section 52-425.

      Sec. 52-448. Not to interfere with existing dams or millsites. No such dam shall be erected, or watercourse made or altered, to the injury of any mill lawfully existing on such watercourse, or on the stream upon which such dam is to be erected, or from or into which such watercourse flows, or to the injury of any millsite on the same on which a mill or milldam has been lawfully erected and used, unless the right to maintain a mill on such last-mentioned site has been lost or defeated by abandonment or otherwise.

      (1949 Rev., S. 8190.)

      This protects waterpower near a mill, held by the mill owner with the intention at some future time to use it for the mill; 35 C. 496; 36 C. 310; although purchased with the knowledge that the petitioner was negotiating for the right to flow it. Id., 319. An abandoned millsite may be flowed. 35 C. 159. Setting up small mills, simply to protect the privilege from condemnation, and of no practical use, will be of no avail. Id., 513. A mill is a "lawfully existing" one, notwithstanding the dam may be a little higher than it should be, whereby land of the petitioner is overflowed. 40 C. 43. Continuance of intent to build on millsite is a question of fact. 49 C. 350. The question of the existence of and injury to a millsite and dam is one of fact. 52 C. 462. Cited. 92 C. 221.

      Sec. 52-449. Procedure upon report of committee. New inquiry by court. Any person interested in the report of the committee may object to its acceptance for any irregularity or improper conduct, but, if accepted, it shall be final and conclusive except upon the question of damages. The court may set aside the report for any cause which may appear to it reasonable and, if required, shall inquire for itself whether such dam if erected would be of public use or not, notwithstanding any finding of the committee. If the court is of the opinion that such dam if erected would not be of public use, the petition shall be dismissed.

      (1949 Rev., S. 8191.)

      Cited. 52 C. 458.

      Sec. 52-450. Reassessment of damages by jury; addition by court. Either party may move for a reassessment of the damages by a jury of six, which shall be conducted in the manner prescribed for the reestimate of the damages and benefits for the layout or alteration of highways, and the court shall add fifty per cent to the amount assessed by the jury for the value of the land, as the measure of damages to be paid for flowing or taking the land described in the petition.

      (1949 Rev., S. 8192.)

      See Sec. 13a-64 and note re reestimate of damages and benefits by jury in cases concerning highway construction.

      Sec. 52-451. Objections to action of jury. Upon the return of the doings of such jury, any person interested therein may object to the acceptance of the same, and for any irregularity or improper conduct the court may set it aside and order a rehearing; but, if the court accepts such return, it shall be final in the matter of damages.

      (1949 Rev., S. 8193.)

      Sec. 52-452. Costs of reassessment; bond. If the petitioner moves for a jury, he shall pay the costs of the application and hearing whether the jury raises the damages assessed by the committee or not; and, if the jury does not lessen such damages, he shall pay costs to the respondent, but, if the jury lessens the damages, he shall pay no costs to the respondent. If the jury raises the damages, the whole costs shall be taxed against the petitioner, and the court may require bonds for costs to the adverse party from the petitioner at any stage of the proceedings, and from the respondent to the petitioner, if the respondent moves for a jury.

      (1949 Rev., S. 8194.)

      Sec. 52-453. Effect of assessment; payment of damages and costs. An assessment of damages so made shall be final and conclusive on the parties, their heirs and assigns, and give the petitioner, his heirs and assigns, forever, the right to keep up such dam as established; but the damages assessed, together with the costs, shall be paid to the respondent, or deposited for his use with the State Treasurer, before the water is flowed upon such lands and within sixty days after the proceedings on such petition have been ended. If such damages and costs are not so paid or deposited, the whole proceedings shall be of no effect.

      (1949 Rev., S. 8195; 1961, P.A. 517, S. 110.)

      History: 1961 act substituted state treasurer for county treasurer as recipient of deposit, county government having been abolished.

      Premature flooding of land will not violate proceedings, when. 52 C. 463.

      Sec. 52-454. Costs of petition. The fees and expenses of the petition shall be paid by the petitioner unless it is otherwise specially provided, and shall be the same as are taxed for like services in laying out highways by the Superior Court.

      (1949 Rev., S. 8196.)

      Sec. 52-455. Second petition; expenses of first petition to be paid. If, in any case, the petitioner fails to pay or deposit the damages and costs that may be adjudged to the respondent, within said period of sixty days, and afterwards either the petitioner or any subsequent owner of the same water privilege for the improvement of which such petition was brought brings another petition against the same respondent for liberty to flow or take the same lands for the same purposes, the court to which such petition may be brought shall, on motion of the respondent, ascertain the reasonable costs and expenses incurred by him in defending against the former petition, and order them to be paid to him by the petitioner; and, if such payment is not made within the time limited in such order, the plaintiff shall be nonsuited.

      (1949 Rev., S. 8197.)

      Cited. 63 C. 569.