(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person's land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
(b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise.
(1949 Rev., S. 2134; 1958 Rev., S. 13-18; 1963, P.A. 226, S. 138; P.A. 81-162, S. 1.)
History: 1963 act replaced previous provisions: See title history; P.A. 81-162 divided section into Subsecs. (a) and (b).
Municipalities are not liable for damage from draining water from highways onto private lands within statutory restrictions. 54 C. 520. Section not applicable to draining water off private land. 64 C. 375. Section does not prohibit grading of street so that surface water runs into dooryard. 73 C. 35. Meaning of “dooryard”. 74 C. 321. Constitutionality of statute quaere. Id.; 79 C. 91. Does not apply where draining on land can be avoided by reasonable expense. Id. Scope limited. 81 C. 392. Section, as in derogation of private rights, to be strictly construed. 112 C. 568. Cited. 120 C. 551. Does not imply consent on part of state to be sued. 146 C. 316. Drainage easement not created in state in any particular land so as to constitute breach of covenant against encumbrances. 151 C. 183. Cited. 189 C. 740; 217 C. 520.
Cited. 6 CA 229. 15-year limitation period of Sec. 13a-138a applies to both Subsecs. (a) and (b); to construe otherwise would yield an unworkable result. 110 CA 591.
Town liable where it did not drain so as to do least damage to land. 3 CS 404. Proviso construed. 5 CS 487. Unnecessary discharge of surface water from state highway. 6 CS 485. No right of recovery where highway commissioner has neither drained water onto nor opened or cleared any watercourse on plaintiff's land. 20 CS 142. Cited. 29 CS 499.
Subsec. (a):
Clear and unambiguous language that drainage “shall be done in such way as to do the least damage to such land” does not provide for a balancing test that weighs the least damage against the least expense and other considerations claimed by defendant town. 49 CA 781.
Notes of Decisions
Hillman v. Town of Greenwich, 587 A.2d 99 (Conn. 1991).
· cites it 14× “General Statutes § 13a-138 (a) provides: “Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary…”
Boyne v. Town of Glastonbury, 955 A.2d 645 (Conn. App. Ct. 2008).
· cites it 13× “In count one, the plaintiff alleged that the defendant’s use of the ditch to discharge storm water violated General Statutes § 13a-138 (b). 4 In count two, the defendant alleged that the defendant had created *595 a private nuisance on his property by removing some of the…”
Peterson v. Town of Oxford, 459 A.2d 100 (Conn. 1983).
· cites it 5× “It argues that the trial court erred: (1) in finding that the town violated General Statutes §13a-138; (2) in finding that the defendant created and maintained a nuisance by draining water in a “natural” watercourse through the plaintiffs’ land; (3) by not applying the doctrine…”
Emerick v. Town of Glastonbury, 173 A.3d 28 (Conn. App. Ct. 2017).
· cites it 5× “In the operative complaint, he set forth claims against the defendant of private nuisance, reckless and wanton conduct, trespass, violation of General Statutes § 13a-138, 2 intentional infliction of emotional distress, negligent infliction of emotional distress and breach of…”
Johnson v. Town of North Branford, 781 A.2d 346 (Conn. App. Ct. 2001).
· cites it 7× “General Statutes § 13a-138 provides: “(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary…”
Hutchinson v. Town of Andover, 715 A.2d 831 (Conn. App. Ct. 1998).
· cites it 8× “The defendant, the town of Andover, appeals from the judgment of the trial court enjoining the town from causing drainage of surface water from a public road onto the plaintiffs’ property in violation of General Statutes § 13a-138 (a). 1 The defendant claims that the trial court…”
Glasson v. Town of Portland, 504 A.2d 550 (Conn. App. Ct. 1986).
· cites it 8× “3 The plaintiffs’ complaint was in five counts as follows: first count, a violation of General Statutes § 13a-138; 4 second count, nuisance; third count, trespass; fourth count, nuisance, based on the town’s approval of the Scenic Farm subdivision which allegedly aggravated the…”
Northrup v. Witkowski, 210 A.3d 29 (Conn. 2019).
· cites it 2× “The plaintiffs' complaint did not contain any claim for common-law nuisance; nor did it raise a statutory claim under General Statutes § 13a-138. For this reason, the majority's discussion of nuisance law; see footnote 17 of the majority opinion; is dicta.”
Laviero v. Bristol (D. Conn. 2022).
· cites it 7× “Improper Drainage (Count Six) Plaintiff’s final count of the Complaint alleges that the City has violated Connecticut’s highway drainage statute, Conn. Gen. Stat. § 13a-138. Plaintiff directs this count only at the City.”
Northrup v. Witkowski (Conn. 2019).
· cites it 2× “The plaintiffs’ complaint did not contain any claim for common-law nuisance; nor did it raise a statutory claim under General Statutes § 13a-138. For this reason, the majority’s discussion of nuisance law; see footnote 17 of the majority opinion; is dicta.”
Corentin v. Town of Columbia, 294 A.2d 80 (Conn. Super. Ct. 1972).
“In this connection the town cites § 13a-138 of the G-eneral Statutes, which allows municipalities to drain water from highways upon or through private land.”
— Conn. Gen. Stat. § 13a-138(a) — 1 case
Laviero v. Bristol (D. Conn. 2022).
“Improper Drainage (Count Six) Plaintiff’s final count of the Complaint alleges that the City has violated Connecticut’s highway drainage statute, Conn. Gen. Stat. § 13a-138. Plaintiff directs this count only at the City.”
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