439 A.2d 416
Supreme Court of Connecticut
BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, Js.
The plaintiff sought an order directing the defendant to proceed with arbitration under the terms of an agreement contained in a deed conveying to the defendant certain land and the improvements thereon. The agreement also granted the defendant the right to draw water onto that land from a pond owned, at the time of the Conveyance, by the plaintiff’s predecessor in title. The agreement provided, inter alia, that the defendant was to be responsible for the proper repair and maintenance of the dam which formed the subject pond and that any controversy between the parties concerning the repair and maintenance of that dam was to be decided by arbitration. The trial court ordered the defendant to proceed with the requested arbitration concerning certain dam repairs made by the plaintiff at the direction of the state department of environmental protection which had found the dam unsafe. On the defendant’s appeal to this court, held that the work done by the plaintiff clearly fell within the scope of the arbitration agreement.
Argued February 5, 1981
Decision released April 14, 1981
Application for an order directing the defendant to proceed with arbitration, brought to the Superior Court in the judicial district of Waterbury, where Green Valley Developers, Inc., was substituted as party plaintiff; the issues were tried to the court, Driscoll, J.; judgment granting the plaintiff’s application and directing the defendant to proceed with arbitration, from which the defendant appealed to this court. No error.
W. Fielding Secor, for the appellant (defendant).
Joseph P. Fasi, with whom was Joseph Adinolfi, Jr., for the appellee (plaintiff).
ARTHUR H. HEALEY, J.
This case involves an application for an order under General Statutes
Page 482
52-410,[1] directing the defendant to proceed with arbitration under the terms of an agreement contained in a deed conveying certain property owned by Stuart Judd[2] to the defendant Loretta Boutin. The trial court granted the application and ordered the defendant to proceed with arbitration. This appeal followed.
Prior to 1968, Judd was the owner of land and buildings which constitute the Mattatuck Manufacturing Company, the pond which supplies the company with water for industrial use, the dam which creates the pond, land below the dam and pond, and a flume which conducts water from the pond to the
Page 483
company. By warranty deed dated January 10, 1968, Judd conveyed to the defendant the land and improvements constituting the Mattatuck Manufacturing Company.[3] Judd also conveyed by this deed all his right, title and interest in that portion of a flume “running on, over or under the real property herein conveyed.” The deed further provided that there was also conveyed “for the benefit of the property herein conveyed and uses to which it may be put (1) the non-exclusive right to draw water from said flume so long as water flows therethrough and (2) the right so long as Grantor’s [Judd’s] pond and the dam forming same continue to exist, to draw water into the flume from the Grantor’s pond, provided, however, that both such rights are expressly conditioned on (a) the proper repair and maintenance by the Grantee [Boutin] at her cost of that portion of the flume running on, over or under other land of the Grantor not being conveyed hereunder; (b) the proper repair and maintenance by the Grantee at her cost of the dam forming the pond from which water is drawn into said flume and of the gate controlling the amount of water flowing into said flume and of the gate controlling the Water flow over or through the same into the Mad River . . . .” The deed contained a specific proviso that “Grantor, his heirs or assigns, shall be under no duty whatsoever, in connection with said rights to draw water from said pond or said flume, to maintain, repair or replace the dam or its controls or regulate the flow of water into said flume or over or through said dam or perform any act to preserve the water level of the pond or the water flowing through said flume . . . .”
Page 484
The clause in the deed which generates this action provided the following: “In the event of any controversy between Grantor, his heirs or assigns, and Grantee, her heirs or assigns, in connection with the flow of water into or through said flume or over or through said dam or the repair or maintenance of said dam, its controls or the flume and the parties then in interest are unable to resolve their differences, Grantor, for himself, his heirs and assigns, agrees and by the acceptance of this deed Grantee, for herself, her heirs and assigns, agrees any said controversy (ies) shall be decided by arbitration in accordance with the rules and procedures of the American Arbitration Association.”
In 1971, Judd conveyed a portion of the property he had retained, including the property upon which the dam is situated, to the plaintiff Green Valley Developers, Inc., which is the successor in title and interest to Judd. In February, 1972, the Department of Environmental Protection (DEP) began an investigation of the dam, pursuant to 130 of Public Acts 1971, No. 872 (now General Statutes 25-110),[4] because DEP found that the dam was “one which by breaking away or otherwise might endanger life or property.” General Statutes 25-111 provides that the commissioner of DEP
Page 485
“shall investigate and inspect or cause to be investigated and inspected all dams or other structures which, in his judgment, would, by breaking away, cause loss of life or property damage.” If he “finds any such structure to be in an unsafe condition, he shall order the person, firm or corporation owning or having control thereof to place it in a safe condition or to remove it, and shall fix the time within which such order shall be carried out.” Ibid.
In 1972, the engineering firm of Mozzochi Associates, which had been retained by DEP to inspect[5] and evaluate the spillway capacity of the dam, made its report and certain recommendations to DEP. The Mozzochi study concluded that if 7.5 inches of rain fell in a six hour period, no freeboard (the distance between the level of water and the top of the dam) would remain and the dam could not prevent the splashing of water over the top of the dam (“overtopping”). It also concluded that in the event of 5.1 inches of rain in a six hour period there
Page 486
would be two feet of freeboard.[6] This study made the following recommendations: “(1) Provide an emergency spillway to prevent possible overtopping . . .; (2) Remove all trees and growth from the downstream embankment; (3) Repair wash-out of downstream embankment west of spillway and `dress-up’ entire downstream embankment; (4) Divert surface runoff from streets easterly of the structure off of embankment onto natural ground.” A further recommendation proposed the placement of obstructions “to prevent automobiles from crossing the bridge across the spillway.” DEP adopted the Mozzochi recommendations.
In 1977, DEP, in an order preceded by a finding that “[t]his dam. . . was found to be in an unsafe condition,” ordered the plaintiff to “repair said dam in accordance with engineering plans and specifications prepared by Joseph A. Adams . . .[7] [s]aid work to commence by August 1, 1977 and be completed by January 1, 1978.” Pursuant to the DEP order, the plaintiff undertook the work and completed it in 1977 at a cost to the plaintiff of $14,400. The plaintiff requested that the defendant proceed with arbitration concerning this work, pursuant to the agreement, but the defendant has refused to do so.
The court found that the work done included the following: The construction of reinforced parapet
Page 487
walls to raise spillway depth, the removal of all trees and growth from the downstream embankment, the raising of the height of the existing bridge, the repair of the walkway, and the filling in of eroded areas.[8] In addition, a new earthen embankment was built at the same elevation as the wall to prevent the water from running around and down the face of the west side. To prevent autos from using the bridge, stairs were installed, instead of the originally ordered gradual slope, with the consent of DEP. A new gate was installed in place of the old one in order to obtain entry to valves controlling the flow of the water. The gate had been shortened by the building of the wall to prevent the water from running over the dam.
The trial court disagreed with the defendant’s claim that the arbitration clause of the deed did not cover the work done because the work amounted to “structural improvements” and was not “repair” or “maintenance” within the meaning of those terms as used by the parties and interpreted by our courts. On appeal, the defendant claims (1) that the dispute between the parties for the cost of the work done is not within the scope of the arbitration clause by virtue of the language in the deed obligating the parties to arbitrate “any controversy . . . in connection with the flow of water into or through said flume or over or through said dam” and (2) that the work done to the dam by the plaintiff, upon the order of PEP, constituted “capital changes and improvements in the nature of structural alterations”
Page 488
and were neither “repairs” nor “maintenance” within the ordinary meaning of those words. We disagree.
Arbitration is a creature of contract; see, e.g., Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); and, being designed to avoid litigation and secure prompt settlement of disputes, is favored by the law. See Hartford v. American Arbitration Assn., 174 Conn. 472, 480, 391 A.2d 137 (1978); Gaer Bros., Inc. v. Mott, 144 Conn. 303, 307, 130 A.2d 804 (1957). “But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 [1967]; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 [1967] . . . .” Marsala v. Valve Corporation of America, 157 Conn. 362, 365, 254 A.2d 469
(1969). “Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question also. Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 198, 169 A.2d 646
[1961]; College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832 [1965].” Frager v. Pennsylvania General Ins. Co., supra, 274. The “positive assurance” test of arbitrability, as laid down in United Steelworkers of America v. Warrior Guy Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), is the law in this state. See Board of Education v. Frey, 174 Conn. 578, 581-82, 392 A.2d 466 (1978); Policemen’s Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 7, 376 A.2d 399 (1977). “Under the positive assurance test, `judicial inquiry . . .
Page 489
must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'” Board of Education v. Frey, supra, 582.
This arbitration clause is broadly worded. See Two Sisters, Inc. v. Gosch Co., 171 Conn. 493, 497, 370 A.2d 1020 (1976); A. Sangivanni Sons v. F. M. Floryan Co., 158 Conn. 467, 472, 262 A.2d 159 (1969). It encompasses “any controversy . in connection with the flow of water into or through said flume or over or through said dam or the repair or maintenance of said dam, its controls or the flume . . . .” (Emphasis added.) The scope of this language is such that the present controversy, Which is “in connection with the flow of water,” because of the necessity to control the flow of water, falls clearly within the scope of the arbitration clause. Moreover, the repeated and nonaccidental use of the disjunctive “or” demonstrates the spelling out of the separability of circumstances under which any controversy in connection with the flow of water could arise under the language of the arbitration clause. This clause, under the circumstances, is not ambiguous, so as to require construction against the plaintiff.
We also disagree with the defendant’s contention that the work performed by the plaintiff cannot be considered as either “repair” or “maintenance.” The DEP specifically found that the dam was “in an unsafe condition” and ordered the plaintiff “to
Page 490
repair” it. The verb “repair” has been defined to mean “to restore to a sound or healthy state; to make good.” Webster, Third New International Dictionary. The verb “maintain” means “to keep in a state of repair, efficiency or validity; to sustain against opposition or danger.” Ibid. There is nothing to indicate that the parties had a technical or special meaning in mind when they used the words “repair” or “maintenance.” Under the circumstances of this case, these words must be given their ordinary meaning. See Leathermode Sportswear, Inc. v. Liberty Mutual Ins. Co., 150 Conn. 63, 66, 186 A.2d 79 (1962); Perkins v. Eagle Lock Co., 118 Conn. 658, 663, 174 A. 77
(1934).
We conclude, then, that the work done by the plaintiff clearly falls within the scope of the arbitration clause.
There is no error.
In this opinion the other judges concurred.