New Britain Herald Newspaper, June 7, 1927, Page 8

their top. These dikes were built to prevent the ¢ pit from filling | with the water of periodic fr N " and floods of Willow Brook. In the [fall of 1523 the plaintift opened | new clay pit situated directly to the north of the \)l(lt ay pit. Dikes were RULING REVERSED (Continued trom First Page) | 0 “ryje south dike of the new pit was not quite parallel with the north dike of the old clay pit and brook flowed between the dikes. his restricted the overflow of the Lrook in times of freshet over a con- able area it had been accus- u to overflow, and the dike en built with ade- on for the escape of In the late afternoon 24, the plaintiff’s dikes ‘cted and found in good waters of Willow isen to within about one h feet of the top 1 had ponded on all and land ent north of the new of several Before seven o'clock ing of April 7, the water through or over the of the old clay pit and old clay pit. no controversy 1926, there was nd water pre- dam. On April a heavy rain cipitated over the dam at the ra of a million gallons an hour into this brook. The rain continued on April 4 the overflow of the dam was con- stant and the brook was greatly swollen as a result. Because of th deepening of the channel of the brook ng the preceding summer, md the straightening of t of the brook and the raising level of the ground on both s of the stream the waters Lrook did not pond as formerly he \‘»\' tevritory of .\Hm.’. End ‘ot pial park as it had before the city turned | 88 FEEC into the division of v > the brook. br precipitated DULRAOT, sith great foree and velocity at this ee i wo the brook and thence road culvert and The jury mig found that April 5 and 6 and at t t April 6 1 onditi Brook ha and dike s lar to a of th or on» on of the or ow ts water distunce, on the mo b n the wi over o s of plaintift’s npr n ime 1ood of of this in JonaloLbe Willow Brook drain t e 1hout one i directly and also dis- drippings and upwards of fifteen storm Al of these dis- above plaintiff’'s prop. tinued to the date o s no real dispute bu s of pollution \ppreciable in plaintiif was entitled owner to have t rain the sewers of o Willow Brook pulation of N & . storm wat Jt full capacity would wards of 8.2 hours. ['pwards of 20 storm sewers of New Britain h catch brook as sewers, c08 Wore vy and cor trial lischi so disch teh bas v \s a riparian rook flow thros omed to flow as a exed to 3ritain, 69 Conn. 668, rdant city had no right ably or materially pollute the brook and thus cause a nuisance {and im Stamford Extra 4 Rolling Mills Co., 101 Tf a municipal corporation < solid el and in washed brook hasins t! measu 1eht six dirveet sanitary ol onnections from bu Britain, throug vards of connections. Prior to there wers two dir from the sanitary of South Main Brook, and water the irunk line which is u 1,000 people would be discha lirectly into of these disch plaintiff’s pr private sew tions disch v Brook above tl rty. All of these s connections, storm and sanitary. the city of New Britain flow Willow Brook and are either stantly discharging yently discharging into it in heavy rain or flood. On \'\'U i and 7 alarge volume of water flow- “d_over the Shuttle Meadow reser- | voir dam every This w mgmented by the diseharge from all Ihese sewer outlets and connections The waters of Willow Brook have 1ot heen fit for domestic use at plaintiff's premis r vears and they became as t of this con tant pollution of city of N tain greatly polluted and filth > water gave nosious odors its April. connections or at the foot to Willow age to pollute a water- _use of which a lower whose premises th flows is entitled, it i e for which dam- Nolan \ a, at page 678. # was so conclusive that nt city had appreciably ¢ polluted this hrook jury could not have rea- 11 otherwise and m cd the plaintiff at least I damages. of the justifies the sion we reached in Britain, 88 Conn. t page 128: or cons | be { would ha | that the nuisan watercour rzing pollution into Wil- plaintiff's prop- wer outlets and | for into con- | h aintiff upon ume conclu- udl v, New when we said, he case fhis issue leration, we think the new frial hecause the ¢ been justified in finding city was maintaining a by discharging offensive > on the plaintiff’s land no jurisdiction has the subject of the pollution of a stream to the fnjury a riparian oy “r or more frequent, consideration than in our own state. The law upon this sub, too firmly settled fn te to require further Morgan v. Danbury, il vapors. el “On plaintifi's property east of its s was u clay pit from which been extracted. The pit all depression in the north- orner in which rain water w and used for boiler pu Tn the southeist portion o the pit was a sump hole at which point a pump was located. Surround- ing the pit the plaintiff had built | consideration posos. the city of New Britain | o of a legal right so to | “Independently of any | ner received a full- | NEW BRITAIN DAILY HERALD, TUESDAY, JUNE 7, 1927. ew Britaln, | Co. v. Water- | Waterbury V. 1 6 Conn. 433 \\':xi('r Co. 2 Al 0475 | | 67 Conn. 434; Nolan v, supra; Platt Bros. bury, 72 Conn., 531; Platt Bros. & Co., Atl, & . Watson, Platt ‘onn. Conn. 670, New Britain, tract Mfg. Co. | Mills Co., 101 Conn. 310, i Th defendants claim that there could be no recovery in this action beeause there had been no unrea- <onable or substantial pollution of Willow Brook. is based upon a mis- conception of the evidence befors court he defendant like: in er- vor in assuming that plaintifi's ac- | tion was not for the damage to its | property through the pollution of the brook but merely for the dam- | age resulting from the overflow of the polluted waters of the brook hased upon a single flood. The ac- 1c as we ad the complaint and idence, was for the damage to th plaintif’s property caused by th pollution of the brook and the over- flow of its polinted waters. The plaintiff upon this ground was at loast entitled to mominal damages. A\ I' ent & Co. v. W Gorham . 66 Atl. supra; ew Haven, | 505; Weudl v. | it a continuing one the \l(llfll) that a new trial will not be ted for nominal damages is not | ctherwise the continu- rula 1pplicable, ance of the nuisance might he per- \1”"4“" and carrying petual and the owner of the fand | Willow the jury of a right inseparably attached 10 fyou should find that the defendant|that it could not have been foreseen has exceeded its rights as a ripavian | g he could prove | awner to make a reasonable use o! break in the dike would not have!jiuth Bassette, well known in local | Mitchelstown and that there was no | the waters of the brook, in that IL occurred without it, they would not |theatrical circles for her dramatic |relationship between the two fami- hecause §t | has substantially increased or ac-|be justified in finding defendant ll- [ability and terpsichorean talent, who | lies. compelled to submit to the invasion | his soil hecanse the only damage |from the nuisace vas nominal, or it defendant’s con- tontion wera acceptad, ¢ | was not unreasonable or substantial, | Sy | quences would be an intolerable in- | | vasion of a riparian ow right and requires us to overrule a long | ties. | | “The court charged that the dc»[ | fendant city had the right fo make | | such use of the brook as does not | | unnecessarily and unreasonably pol- °|lute 1t. In effect this was saving | | that the city had the right to pollute this brook If it was necessary so to do, and it it was reasonable for it 50 to do. The city had no right to appreciably or materially. that is. substantially, thus pollute the | brook: if it do so, it was an unrea- sonable nse. Platt Brothers & o. | [v. City of Waterhury. 72 Conn. 531, : Nolan v. City of New Britain, |69 Conn. 668, When the nse by he city has been shown, as in this . to he a nuisance, the reason- | | That Baby You've | Longed For c | | Mrs. Burton Advises Women on Mother- hood _and _Companionship 1 a | litt and autttul ipanton a1 b dauehter s inspiration to my hus- hundreda of other women would to know the secret of my | | happiness, and T will gladly reveal It to | iy married woman who will write me." [\ Burton offers her adviee entirely ut charge. She has nothing to sell. rs should bo nddressed to Mrs. wet Burton, | 082 achusctts, City, M. e will be | ctly confldentis dikes 8 or 9 fect above the surface | of the ground, wide and strong ! “nough to have a cart driven over What does Lean Smoked | SHOULDERS Q. B. Mean? i Best _Pu?e LARD 2 s 27¢ erbury, 80 | thing which 1s complained of. Stamford Ex- |of nuisancé does not depend on the | v, Stamford Rolling | question whether the defendant is | stood from this instruction that no sity. compensation. necessary to pour such mixture into | recognized as a necessity. | can have no effect on the right to comoensation taken.’ LOIN LAMB CHOPS . FRICASSEE FOWL ROAST PORK ....... LAMB FORES ..... FRANKFORT LEAN CORNED BEEF SIRLOIN STEAKS ('ahph@ll Pork & Beans 3 cans 25'c—957c'[-)er7 dz. Evaporated Milk SUGAR . Winner Cofiee . ... Palmolive SOAP 4 cakes 2 9(- Vancy Cut Be BA POWDER ¢ b Tomatoes .. 3 cans 29¢ 3 larg ans 29¢ We Loan Up to $300 Fancy Peaches Maine Confectionery Sugar e can 19¢ Com WEDGWOOD CREAMERY make no long drawn out, em barrassing tigat cosigners are required Yo‘. get your loan on your own personal responsibility. Ab solute confidence ed Come in. if you r FRESH SELECTED Gold Coin ‘il(vnTu»Inr‘l'tl) 1h 28 Good Luck Oleo « Ib 32¢ e ol Calif. Sunkist Oranges The Mutual System e 11211 Profss 1 Bl 81 WEST MAIN STREET Oy Theater Conn, ONIONS 3 s 25 n Cukes New Brit Loans made in Plain.ille, Fo and Rerlin n, lnr 15¢ eh Beets or Can 100 Native Radishes New Gre s heh. 3 behs, 10¢ m 10c b 19 Pristal stvill N Cabbage Red Ripe Tomatoes Rumford’s 27 Large Ripe Bananas . .. 3 cans 29¢ 10-1b sack 65¢—25 Ihs $1.62 b 31¢—3 ths 89¢ Elizabeth Park CORN and PEAS 19¢ can KING Rose Tuna 2 cans 3: cans 2 cans 2 cans BUTTER g 2 s 95c EGGS3 ddz."'7é—c 1 30c 1h 30¢ . dozen 25¢ (lolen 25¢ 3 qts. 25 Nucoa Nat O First Prize Oleo Pan'y Baldwin APPLES Calif. Sunkist Lemons doz. 2 Sweet Green Peppers .. 1h 3 Ibs head b Kiln-Dried Sweets Native Lettuce Native Rhubarh ablencss of the use could not justify for the flood which damaged plain- the nuisance. It is no defense to|tif's property, and the burden s an action at law or a bill for an in- | upon the plaintiff to prove by a | junction against a nuisance for the i fair preponderance of the evidence | defendant to say he is conducting | that the flood which. caused the himself reasonably in doing the | damage was the proximate result of The | the acts of the city in substantially principle governing | increasing the flow of water in Wil- low Brook. “The jury might well have under- | pplication of the jurisdiction of the court in cases using his own reasonably or other- | matter to what extent the city of wise. The real question is, does he | New Britain had increased or ac- jure his neighbor?”® 5 Pomegoy | celerated the flow of the water of | on Equitable Jurisprudence 4th Ed.) | the brook beyond its natural ca- 1 Reinhardt v. Mentasti, L. R. | pacity, the plaintiff could not re- 42 Ch. Div. 685, The city could not | cover in this action unless it proved support its pollution of this stream | by a fair preponderance of the evi- upon the ground of its public neces- | dence that this increase or acceler- | A like claim was made in ation was the cause of the flood | Platt Brothers and Company v. Wa- | which damaged plaintiff's property. | terbury, supra, and disposed of at | Manifestly the charge that the city | 50, in these words: ‘Public |must have caused the entire flood | may justify the taking, but | hefore the plaintiff could recover for stify the taking without [its acts of increase and acceleration It may be necessary | ig not the law. If defendant’s acts T a city to thus mix with its drain- | were a contributing cause of the in- o such substances, but it is not|crease and acceleration, together | with the flood, although not the sole the river without purification; | proximate cause of it, the lability iced the purification is coming to be | of the city would follow provided But how- | defendant's acts and the flood were cver great the necessary may be, it | cach an efficient cause of the break- ing of the dike, and without the op- eration of which the accident would | | not have happened. “Upon plaintifi’s second cause of | «gchnare Ryan Unmack co.! action, defendant’s Increase of the|sgs Conn, 25, 230. Tn this connec- capacity of tion the court instructed the jury| Brook the court instructed | in effect that if they found the storm as follows: ‘Now, even if | was so unusual and unpreccdented | cannot in- for the property defendant claimed, and that the | clerated the flow of water in the able for the consequences of the inviting sueh conse: | brook heyond the natural capacity of | break and that unless the act of the the channel of the brook, not liable therafor to the plaintiff in | proximate cause of the break, this action unless you find that its| plaintiff’ could not recover against its land as it had | line of our hest estabiished authori- | action in this respect was the cause | Hm city for damages resulting from | READ HERALD CLASSIFIED ADS jestate will be distributed, are: ill it sole the | is| defendant contributed as a SILK CHARMEUSE with silk back and beauti- ful lustre Anniversary $ l .29 Sale ..... yard signs so Annivers: VANITY SILK A Jarge assortment of small figured, all over patterns; guaranteed tub fast. Annnemaly R 49c TUB SILK Guaranteed washable silk, in all the newest floral de- signs. Anniversary 9 8 c Sale ....... yard {in order to have it considered an | Miss Bassette to Dance {and indications point to a large at- merly sold at $2 and $2.49 yd. the increase and acceleration of the brook beyond its capacity. This in- struction referred to the so-called ‘Act of God’ defense of the defend- ant. The flood cannot be regarded as an act of God and thus relieve the defendant of liability for the ac- cident resulting in damage if a con- tributing cause of the accident were its own act. The flood must be the | sole cause of the accident which no | foresight or care, reasonably to have been expected, could have prevented act of God. Nitrophosphate Co. v.| London Docks Co, L. R. 9 Ch. at p. 519; 1 Corpus Juris, 1174, 1175. The instructions to which we have 3125,000 ESTATE of Southington Judge The award of the estate of th “|late Jane L. Donovan of Southing- ,000 to ton amounting to about $12 referred are four of the six instruc- tions to the jury which are com- plained of in the appeal; the o!her‘ two instructions complained of were | clearly unexceptionable. All of the| requests to charge and cannot be| considered as already stated, for the | reason that plaintiff’s requests to | charge were not made a part of the | finding. “All concur. Wheeler, C. J., M.’ll(-i ble, Haines, Hinman and Jennings. | Js. | On Sisterhood Program | ‘ the committee arranging the B'nail tion which will be given at the s Junior High school auditorium on | Wednesday evening at 8:15 o'clock, has announced that the romm)ltm'l has secured the services of Miss | will appear in the show. Tickets will be on sale at the door, | itendance. | CREPE DE CHINE popular just now for dresses. ary Sale ....... yard VOILE in small all over designs Anniversary Sale 2 vards 25 C GINGHAM All our Fast Color Ging- ham to close out. Reg- ular price 39¢ yard. Anniversary 1 7 c Sale ..... yard RAYON SILK A good wearing material with little designs ‘\nn“elgary Vald 490 Sale " SILK FLAT CREPE 40-inch all Pure Dye Silk in all Summer colors. — Annivi enarde $ 1 19 Sale . \V:\SHABLE SILK CREPE Heavy quality silk for eve- ning and afternoon dresses in all wanted shades. — Anniversary $ 1 59 Sale ..... yard CREPE BACK SATIN 40-inch extra heavy silk with a beautiful lustre in all colors. A wonderful value that cannot be dupli- cated. Price up to $4 yard. Anniversary Sale ..... yard $2'39 FROST CREPE A good draping silk with a small neat figure. Colors, rose, copenhagen, grey, tan, brown, navy, black, white. Anniversary 1 3 5 . Sale ..... yard TAFFETA All our changeable Silk Taffeta. Value 2.00 yard. Anniver- Sale yard $1 59 Sale, LK PONGEE Imported Silk Jap- anese Pongee, tub fast. Anniversary Sale, . 59 C, vard ... CURTAINING Filet Net with pretty fig- ures. Anniver- sary Sale, yard 390 SILK NET NET Yards and yards of Silk Filet Net, plain and all over designs. 49c Anniversary Sale . 3md CURTA]Nb Hemstitched Marquisette with border, 21/, yds long | Anniversary Sale .... pair$1'19 RUFFLED CURTAINS Imported Voile with col- | ored ruffle. Guaranteed tub fast. Made to re- | tail at $1.98 pair. Annneuarv | woman. |13 cousins by Judge of Probate of Southington, a decision C. Thomas F. Welch has been confirmed in handed down by Judge Edwin Dickinson of the superior court. ‘Without mentioning her that Miss Bridget Brighton, Mas: an aunt of M titled to the entire estate. | Donovan died while the contest ove the estate was pending. 86 years old. Donovan who claimed to be The claim of the Brighton woman Mrs. {Jane Martha Shea of Jamaica Plain, | It was based on the claim Donovan Mrs. Gershon Hadas, in charge O!H\ere descendants of the Donovans and Israel Sisterhood theatrical produc- that Miss Bridget Donovan was a was advanced by her niece, Mass. that she and Miss Jane of Castle Donovan, Ireland, ster ofsJames Donovan, father of s Jane, William 8. Hyde, 13 cousins, contended descended from the Donovans of J. Leonard of represented Mr. Pierce has since with drawn from the case. | Timothy Mas: The 13 cousins among whom the GOES T0 COUSINS t Superior Court Confirms Ruling claim, other assignments of error relate to | the decision in effect denies the fact of Donovan, was en- Bridget She was counsel for the that James Noble E. Pierce of Bristol and Boston, the Brighton James O'Leary, New London; Mrs. Jennie Clements and Patrick O’Leary, South Manchester; Thomus W. O'Leary, 42 Webb street, Water- bury; John L. O'Leary, 114 Mes- chant street, Bridgeport; Nellie O’Leary and Teresa O’Leary, New- ark, N. J.; Mrs. James 2JcCarthy, 49 Roberts street, and George Sch- weikert, 51 Roberts street, New Britain; James Meade at the Con- necticut State hospital at Middle- town, and Bridget Meade Wolf, 192 | Chestnut street, New Britain. BUTLER FAVORS LEAVING: PEKING Would Have Legation Move fo Point Nearer Seaboard London, June 7 (A—Reuters Pek- ing correspondent says that appar- ently there still is serious possibility of the American legation evacuating Peking if the northerners withdraw. |He understands that Brigadier Gen- eral Smedley D. Butler, in command of United States marines in China. has advocated withdrawal in view of the strong force necessary to keep the lines open to the sea. 1t is rellably reported in Peking. the correspondent adds, that the American state department has left the decision in the hands of the mili- tary authorities in Peking, stipulat- ing, however, that not a shot must be fired against the nationalists. e e T f i Dogs, motor cars, tobacco, salt and whiskey are among the abjects of taxation in Japan. Now it is pro- posed to put a tax on canaries, which are becoming very popular. COATING Yards and yards of Printed Crepe de Chine in a riot of beautiful shades, small floral de- For- $1.59 Anniversary Sale ... o SILK SPREADS 81x108, heavy Silk Rayon Spreads in all colors. Just a few dozen left to close out. Regular value $3.50. Anniversary Salero v $2'25 WOOL TWILL 56-inch Imported All Wool Twill—suitable for suits and dresses, in all wanted colors. Value $2.50 yard. Anniversary Sale .. yard 1'79 JERSEY TUBING 56-inch All Wool Jersey Tubing in all colors. Value $1.69 yard. . yard 980 \nnnelsarv Sale SILK HOSE Pure Dye Silk, guaranteed to wear—in all shades. Anniversary de 79c Sale . FIGURED CREPES An excellent opportunity to buy material for two or more dresses that will freshen up your summer wardrobe. yvard 6 9 C CURTAINS Guaranteed French Voile with lace insertion. — White and ecru. Regu- ]i\l‘ puce $4.00 pair. — nniversary | Sale . palr$2 75 DR APERY All silk- with small all over figures. Also plain colors. Gold, blue, rose. —Absolutely Sun fast. \mmelsalymd 59c Sale .. .. BED SPREAD: Krinkled Spread with colored stripes. Guaran- | teed color fast. 80x105. | Value $2.75 Anniversary $ l .98 Sale ....... Anniversary DIMITY Sale ..... Butterfield’s Fast Color Dimity in riot of colors. Anniversary o 39 c Sale 0 PRl\'l‘s A soft washable fabric suit- able for afternoon dresses. Anniversary yanl 39 c (,LI\H PRI\T 300 yards of Fast Color English Prints. Anniversary ga 25c Sale . ... “WOOLENS 56-in. dress flannel, suitable for dresses. Val. $2.50 yd. Anniversary $l .oo Sale ..... yard 56-inch All Wool Imported Silvertone. . yard $l '00 SERGE S— 36-inch All Wool Serge. Former value $1.00 yard. Anniversary sale . r. yard 069 € SILK HOSE Semi Chiffon, full fashioned hose. Value $1.59 pair. Sale .... pair $1.25 Anniversary Sale ..... pair SILK CHIFFON HOSE Made of pure dye all silk full fashioned. Val. $1.79 pr. Anniversary $ 1 g 49 Sale ..... pair HOMESPUN 36-inch imported Homespu 36-in. Imported Homespun. A very soft fabric. Reg- ular price $1.25 yard. — Anniversary Sale .. yard 3 5 (o TWEED RATINE 36-inch Imported Scotch Tweed, made in beautiful colored stripes. Regular price 98¢ yard. 25¢ Anniversary Sale ....... yard DRESS LINEN All Pure Irish Linen guaranteed washable Anniversary s 39 c Sale ..... SUITING 500 yards of good heavy cloth in all staple colors. Regular price 39c yard. — Anniversary iy lsc Sale ....... VOILE Chiffon Voile in small colored dots ‘\nmver&aly s l 9c Sale .. SHANTUNG A washable imported fab- ric, suitable for suits and dresses, in all the newest shades. 1.00 Anniversary Sale ..... yard BLOOMBERG'S Silks and Woolens Foremost in 186 MAIN STREET NO CHARGES DURING THIS SALE Y.M.C. A. BUILDING