151 A. 512 | Conn. | 1930
This action was begun in August, 1922, and a judgment was rendered defining the respective rights of the parties in March, 1925, and the plaintiff appealed to this court. Error was found and a new trial was ordered. Borden v. Westport,
The plaintiff claims to have acquired title to a certain tract of land on the shore of Long Island Sound in the town of Westport, through a certain line of deeds, the history of which appears in outline in the *155 text of our former decision in 105 Conn. at pages 140-146. The tract claimed by the plaintiff is described by him as bounded northerly by a "driftway, right-of-way or lane," easterly by land of Helen R. Mitchell and by a raceway, southerly by Long Island Sound and westerly by land of Stanley B. Fillow. It is included within the bounds of a larger tract which lay between Compo Pond so-called on the north and Long Island Sound on the south, the western boundary being what is known as the Hills Point Road running nearly north from Long Island Sound past the west end of Compo Pond. This larger tract was bounded on the east by water consisting of a portion of Compo Pond, a projection or inlet from Long Island Sound and channels or streams which form the outlet and inlet of Compo Pond. In 1662 Charles Second of England granted to the Colony of Connecticut certain lands by charter among which were included lands in the Parish of Greens Farms and the town of Fairfield, and these charter lands included the larger tract just described. In 1680 the proprietors of the town of Fairfield acquired title from the Indians to a large tract of land which also includes the last-mentioned tract. In 1685 they also obtained from the General Court a patent to such lands and this patent was confirmed by the General Court in 1703. The first individual interest in this land appears to have been obtained by one Thomas Ockley, who erected a tidewater mill upon Compo Creek, an outlet of Compo Pond, by authority of a vote in town meeting in Fairfield April 17th, 1705. By that vote a committee was appointed, consisting of three persons, to treat with Ockley, "about ye premises for all things" and to "lay out unto him not exceeding half an acre." The following day this committee entered into an agreement with Ockley which appears in the *156 text of our former decision, 105 Conn. at pages 142 and 143, but no reference was made to any particular portion of land, nor does it appear that any land was set out to him by any metes and bounds whatever. The mill was built and operated and was later conveyed by Ockley to George Cable, who in 1793 conveyed to one Scribner. In the latter conveyance we find the first reference by metes and bounds to a particular portion of land. The transfer covers the grist mill and its privileges "with about an acre of land adjoining, bounded westerly by the highway and on all other parts by creek and beach." The trial court found that the mill property, so-called, with the mill building standing thereon was always a separate and distinct parcel of land, and it is referred to in all the conveyances shown by the record, as containing one acre more or less. The measured area of this particular parcel is 1.34 acres and that of the balance of the land claimed by the plaintiff, including the road or driftway, is 1.23 acres, making his total claim under his title deeds, about two and one half acres. The pivotal question between the parties involves the exact location of the western boundary line of the land acquired by the plaintiff by these deeds. He claims this western boundary was originally the Hills Point Road, but now makes no claim to a certain tract lying immediately east of this road which was at one time enclosed in part by a stone wall and is known as the Bumpus tract, and later conveyed to one Fillow, by whom the plaintiff now claims to bound his land on the west instead of on Hills Point Road. The defendants claim, however, that the boundary which was first described in the deed to Scribner as "highway," did not refer to the Hills Point Road at all but to the road which is described in the complaint as driftway, right-of-way, or lane. The trial court in *157 both trials found this to be an ancient public highway which has existed from time immemorial. It runs from the Hills Point Road easterly toward the mill, and at a point opposite the southwest corner of the mill, now marked by a hedge, it branches northeasterly to the creek at the border of the mill pond, and runs thence across this creek. It was found that in some other conveyances and leases of the mill property it is referred to as "highway" and in some as "road" and has been and still is maintained by the town. South of this road and west of the so-called mill property is the tract in dispute, consisting of an open sandy beach as distinguished from upland. It is this sandy beach to which the plaintiff lays claim and which the defendants claim is "common lands," held for the benefit and enjoyment of the people at large. The conclusion of the trial court in both trials was that the west boundary of the land which plaintiff acquired by his deeds extended from a point near the junction of the road to the mill with the northeasterly branch of that road, thence southerly along the west boundary of the property of Helen R. Mitchell which was deeded to her by the plaintiff, and to the west wall of the raceway. As thus described the property of the plaintiff was bounded on the west by the branch road referred to and by the sandy beach in question, and with this west boundary line the tract contains approximately 1.34 acres. The location of this west boundary line was and is practically determinative of the whole case. The court in each instance reached the conclusion that the plaintiff had no right or title to this sandy beach lying west of the boundary line so determined. The conclusions of the trial court judge at the second trial and of the judge who presided at the first trial, are in accord as to the location of this line. Both heard much involved and complicated *158 testimony and inspected many documents, deeds, leases and public records, and the record shows that at the second trial the judge personally visited and examined the premises by consent of counsel. All the documents and papers introduced as exhibits are certified to this court together with what we must assume is all the testimony relevant to the questions raised by the plaintiff on this appeal. The plaintiff seeks to avoid the effect of the decision of the trial court by obtaining at our hands sweeping changes in the finding of vital facts and by claims of error in the application of certain principles of law and in rulings upon evidence.
He requests fourteen changes in the finding and a large amount of evidence is printed in the record with reference to them together with numerous citations of exhibits not printed. A study of each of these requests and of the evidence and exhibits does not show justification for extensive changes. Of those paragraphs which the plaintiff asks to have stricken out, we find none which are unsupported by evidence or by reasonable inference and deduction from evidence before the trial court. Many of the changes and additions, even if made, would have no effect whatever upon the decisive features of the case. Some of these are not supported by evidence, and none of those which are important are supported by evidence which is uncontradicted. There are three paragraphs of the draft-finding which can be added as requested, though we consider them of minor importance under the issues. We add the following:
"43. On November 9, 1908, the plaintiff, who had caused a map to be made of said premises, placed the same on record, said map being Exhibit E in said cause."
"44. In and by said map the plaintiff divided the *159 premises in dispute into seven building lots, and indicated a roadway on the easterly and westerly sides of the building lots, leading from the roadway to the beach. The westerly roadway from the mill property to the beach was along the Bumpus tract, so-called, and was substantially the location of an ancient driftway."
"53. The ten foot driftway running from the roadway northeasterly to the pond had a bar-way anciently across it." This bar-way consisted of two rails to keep cows from the pond, and they were removable by anyone who wished to use the road.
We are compelled to add the last sentence to paragraph 53 in order to make this finding reflect the true situation.
It is unnecessary to comment in detail upon the various requests. We note at least two attacks upon the finding on the ground that the use made by the trial court of the word "beach" is incorrect, covering as it does the entire tract in question. It is urged that the word means only that portion of the shore between high and low-water marks. It may be admitted that this is the technical definition, but the word has, in common parlance, another and well recognized use in designating that portion of the shore consisting generally of sand and pebbles, resulting usually from the action of the water, as distinct from the "upland," to which it often extends above normal high-water mark.Wakeman v. Glover,
A long and detailed study of the evidence and exhibits made necessary by these requested changes in the finding goes to the root of the case. The plaintiff's requests clearly reflect an attempt to change the decision by obtaining a reversal of the trial court's conclusions as to the underlying facts. It seeks in effect a retrial of the facts by this court. "The claims most strongly urged all depend upon this court's finding upon the evidence a series of facts different from those adjudicated by the trial court. This we cannot do."New Haven v. New York, N. H. H.R. Co.,
The next reason of appeal relates to the admission of the testimony of Lawrence Donahue who had lived for fifty-three years about a quarter of a mile from the premises in question, who said that Aaron Sherwood had lived in the next house for his lifetime and died about 1913 or 1914; that Sherwood had lived there ever since the witness could remember and owned the property he lived on; that when he died he was an old man; that he frequently saw him on the disputed premises and had a conversation with him at one time thirty-five or forty years before while they were standing together near the west end of the mill itself. Over the plaintiff's objection the witness then stated that Aaron Sherwood at that time pointed out to him the west boundary of the so-called mill property and told him that was the boundary line; that Sherwood called it the charter property. The witness then pointed out the line so shown him, on the map in evidence, Exhibit G. At the close of the evidence the plaintiff moved to strike out this testimony on the ground that the defendants had failed to show any further knowledge of this property on the part of Aaron Sherwood, who or what he was, or how he came to know about it. It was the claim of the plaintiff that the question was the same as that decided in Borden v. Westport,
It should be borne in mind that this entire controversy involves a matter of peculiar difficulty, the fixing of an ancient bound after the lapse of two centuries and a quarter from the original grant of the mill property. Obviously there could not be in the nature of things, testimony from the lips of living witnesses who had personal knowledge as to where the original bounds were fixed by many of the ancient transfers. It is one of the necessities of such a situation, if disputes are to *164 be finally settled at all, that some of the strictness of our rules regarding hearsay evidence shall be softened in the interest of all concerned, recognizing, as we did in Turgeon v. Woodward, supra, that otherwise there must be a practical abandonment of all attempts to prove such lines; and further, that it is "established and general knowledge that the great majority of human affairs are more or less affected by reliance upon hearsay without imperilling their trustworthiness, or their efficiency and safety . . . . In such way the law uses, in many cases, the only available evidence, and the truth benefits by its use. The difficulty of proving private boundaries furnished the indispensable and urgent necessity for the admission of declarations of the deceased with respect to them." (p. 540.)
The next assignment of error relates to the admission of the testimony of Henry R. Sherwood who was asked: "Have you ever talked with any other aged men who are now dead, or have you heard any other aged men make any statements concerning the general reputation as to this particular beach that I have just described to you?" The witness replied: "I have heard my father and grandfather," and also stated that they had been dead many years. This is clearly a statement that the witness had heard these men of a past generation speak of the general reputation of the premises. He was then asked more specifically what the occasion was for such statements and replied: "Well, a good many years ago there used to be an argument between the people over further to the east and Greens Farms [in which the premises in dispute were located], where the owners of the property used to put up a gate or fence to try to keep the public out. When these occasions arose I know my father and grandfather used to say, `Well, there are two places left where we will never be barred *165 out; one is Cedar Point and the other is Compo Mill beach.'" This obviously indicates a knowledge of the views of the general public as to the character of these two beaches, and shows the reputation which attached to them. The witnesses were "the mouthpiece of the reputation." The plaintiff apparently has in mind the legitimate distinction existing between public reputation and mere private opinion. Upon this point, Wigmore, in Vol. 3, at page 333 et seq., states a question for a witness as follows: "What have you heard old men, now deceased, say as to the reputation of this place?" The distinction is a somewhat narrow one, but we think the questions and answers shown in this case properly reflect the principle upon which reputation evidence is admitted. The admission of this evidence was not error.
There were numerous claims of law made by the plaintiff at the trial and the overruling of each of these is separately assigned as error. Some of the questions have already been disposed of by what has been said. The remaining questions raised by these assignments may be summarized as follows: The plaintiff claimed as matter of law, that the evidence disclosed no record title in either the State of Connecticut or in the Town of Westport, and therefore the conveyance to the plaintiff and his possession having been shown, it conclusively established the plaintiff's title; that the unorganized public could not acquire a title above mean high-water mark; that the unorganized public could not obtain title above high-water mark on behalf of the State of Connecticut or the Town of Westport without having claimed ownership before this action was brought; that the use of this tract above high-water mark by the unorganized public differed only in degree from that of all beaches in that vicinity; that a dedication must be shown to be unequivocal and intentional *166 and to have been accepted, and that the evidence of dedication given at the trial was not inconsistent with a license by successive owners to the general public to use the beach.
In the complaint the plaintiff alleged that he had a title in fee simple to the premises in question. He assumed the burden of establishing that. Upon prima facie proof by him, the burden of showing the contrary rested upon the defendants. The plaintiff now asserts that he did establish a prima facie title in fee. We are well aware of the numerous obscurities and indeed discrepancies which are apparent in many of these old documents. There was not that precision of description or lay-out in the days of Indian and Colonial grants that exists today. The plaintiff lists a large number of these old deeds in his abstract of title, and he asserts that they include, in the descriptions contained in them, the land in question and that this implied constructive possession. If the premises were in fact thus included in the descriptions, his claim of constructive possession is sound. Dawson v. Orange,
The ruling of the trial court that the plaintiff has never had any right, title or interest in these disputed premises, is abundantly supported by the subordinate facts and by the entire record, to some aspects of which we have referred in discussing the plaintiff's claims of law.
The remaining assignments of error relate to the contention of the plaintiff that neither the State of Connecticut nor the Town of Westport ever had a title of record or any title or right by use by the unorganized public, or otherwise.
The plaintiff claims to derive his title directly through Thomas Ockley, who received his grant from the town. Yet he now claims that the original charter and the Indian and Colonial grants did not confer titles but only fixed boundaries and conferred jurisdiction. A plaintiff may not deny his predecessor's title. Catlin
v. Decker,
However, since the decision of the trial court that the plaintiff himself has no title or interest in these premises must stand, this last phase of the case and the assignments based thereon become of no importance upon this appeal and need not be considered. Having failed to prove his own title, the plaintiff is not permitted to question that of the defendants, nor to assign as error the rulings of the trial court relating thereto. Roberts v. Merwin,
There is no error.
In this opinion the other judges concurred.