55 Conn. 378 | Conn. | 1887
The material facts found by the trial court in this case are in substance as follows: In 1857 the water commissioners of the then borough of New Britain, acting under an act of the legislature passed that 3'ear, purchased of the plaintiff, and of his father, Harvey Dunham, now deceased, and of some other parties, certain lands for the construction of a reservoir for supplying the borough with water for public and private purposes ; and sundry absolute warranty deeds were executed and delivered to the borougli of the lands so purchased, and possession was taken by the latter and a reservoir was constructed upon the land and filled with water and used by the borough until the present city of New Britain was chartered, which succeeded to all the rights, privileges and property of the borough, and ever since the reservoir has constituted the sole water supply of the city and is largely used for domestic purposes.
“ Whereas, the Warden, Burgesses and Freemen of the borough of New Britain are about to pond ‘Shuttle Meadow,’ on the mountains in the east part of Southington, for the purpose of supplying water to the inhabitants of New Britain under the charter granted to them by the last legislature, and a large portion of the land to be covered by the water of said pond has been sold and conveyed to said Warden, Burgesses and Freemen of the borough of New Britain by Harvey Dunham and Robert C. Dunham of Southington : Now, therefore, the said Warden, Burgesses and Freemen of the borough of New Britain, in consideration of the sale and conveyance aforesaid, do hereby, give and grant unto the said Harvey Dunham and R. C. Dunham the right to sail on said pond and take fish therefrom at all times ; said privilege not to be enjoyed by them exclusively, but to secure to them, in common with the grantors and such other persons as said grantors shall license during their natural lives. In witness whereof the grantors, by the hands of their water commissioners, duly appointed according to the provisions of said charter, have hereunto affixed their name and seal this 1st day of December, 1857.
(l. s.) The Warden, Burgesses and Freemen OE THE BOROUGH OE NEW BRITAIN.
F. T. Stanley, ) Water Gr. M. Landers, j Commissioners
The decision of the court below was adverse to the plaintiff on all of his claims, and the only grounds of his appeal are: (1.) The exclusion of certain testimony by which the plaintiff claimed to be able to prove that in the negotiations for the sale of his and his father’s land to the borough for the purpose of a reservoir, it was agreed by certain members of the board of water commissioners that the Dunhams should have the privilege of boating and fishing on the lake forever, and that this privilege, instead of being reserved in the deeds, as the Dunhams Avished, should be secured to them by a separate agreement. (2.) The refusal of the court to hold as a matter of law upon the evidence that the plaintiff had acquired by prescription the right to fish and boat upon the lake.
The assignments of error restrict the questions for revierv to a very narrow compass. No complaint is made that the court upon the facts as found denied the injunction and the reformation of the deeds, or refused to set them aside, or to aAvard damages, nor is there any complaint because the court held the ordinance a valid one. To prevent the possible implication that it might haAre been better for the plaintiff had these matters been assigned for error, Ave will say in passing that in our opinion the decision of the court upon these points upon the facts as found Avas correct. The ordinance, having for its object the preservation of the public health and being adapted to that object, and hayang. been authorized by the legislature, was a proper and valid exercise of the police poAver of the state; and even if the ordinance were invalid, it is obvious that there Avould have been, an adequate remedy at larv, so that in either event no error could
The parol evidence of the conversation and negotiations between the Dunhams and the water commissioners, which was excluded by the court, was undoubtedly relevant to that part of the complaint which prayed for a reformation of the deeds, and was admissible upon that issue, but it is manifest that if the evidence had been received the result would have been the same, for, upon the facts which the plaintiff offered to prove, taken in connection with the other conceded facts, the deeds could not properly have been corrected.
No foundation for such relief was laid or even claimed’. There was neither a mutual mistake nor even a mistake on the part of the plaintiff concerning the deeds. The deeds were knowingly made and executed on the part of the Dun-hams precisely as the water commissioners insisted they should be, without any reservation or provision concerning the plaintiff’s right to use the lake for boating and fishing. And besides, the parol agreement was all merged in the written agreement signed by the water commissioners, which was accepted by the Dunhams without any objection or claim then or since that it did not truly embody the agreement of the parties on that subject, and it was this agreement which the court finds in part induced the plaintiff and his father to execute and deliver the deeds ; and it is very significant that the complaint does not even, ask for any correction of this instrument. It is manifest therefore that whatever express rights relative to this reservoir the plaintiff has, must now be found in the terms of this mitten agreement.
And this brings us to the only remaining question—whether the court ought to have found upon the facts that the
Several independent answers might be made to the plaintiff’s claim rmder this head. It surely can make no difference with the result whether the plaintiff’s sole right is under the agreement or under a prescriptive right. Either title would be insufficient to lay the foundation for an injunction against the enforcement of an ordinance which is a valid exercise of the police power of the state. But there is a direct answer to the plaintiff’s claim which we prefer to rest th'e case upon. Upon the facts found the plaintiff’s use of the reservoir lacks one indispensable element of a prescriptive title—it was not adverse. The court has found that the plaintiff relied upon this agreement, which was an express license to do the acts relied upon to establish the adverse title. Under this license the plaintiff acted, and he has never repudiated it in any way; and he cannot now by such use convert the license of a personal privilege limited to his life into an absolute title to last forever.
But in this connection the question will naturally be suggested whether the agreement was valid. The court finds that there was no voté of the borough authorizing its execution or delivery, and that there was no vote or act of the board of water commissioners acting as -a board. But it Avas signed —“ The Warden, Burgesses, and Freemen of the borough of New Britain: F. T. Stanley, G. M. Landers, Water Commissioners.” And the act of 1857, Avhich authorized the establishment of the reservoir and the taking of land and water rights for the purpose, directed the borough to elect three persons as water commissioners, and authorized such Avater commissioners to purchase and take conveyances for and in the name of the borough of all property necessary for the purposes of the act. This is sufficiently broad to include as a necessary incident the right to fix the terms and conditions of the purchase. If then, as claimed by the plaintiff, this license to boat and fish was to take the place in part of money compensation for the land conveyed, the borough, having
In confirming the judgment of the court that upon the record the plaintiff is not entitled to the redress sought, we do not intend to decide, or even to express any opinion upon, the claim made hy the plaintiff, that the rights and privileges of which he has been deprived constituted a part of the payment agreed to be made for the price of his land, and that for the loss of these he is entitled to compensation.
There was no error in the judgment complained of.
' In this opinion the other judges concurred.