124 A. 244 | Conn. | 1924
The complaint contains three counts; as to the second and third the court found in favor of the defendants. The first count sets up the ownership and possession of a parcel of land, a trespass thereon by the defendants, and a threat by them to continue to enter upon this land and make it a part of the public highway. To this count the defendants *576 pleaded a general denial, except as to paragraph one, which alleged ownership and possession of this land in the plaintiff, and as to this paragraph it pleaded insufficient knowledge and information to form a belief.
The court found in favor of the plaintiff upon this count, and its finding on appeal recites the following facts: The plaintiff is the owner and in possession of a certain parcel of land at the intersection of Watertown Road and Davis Street in Watertown, the northerly boundary and the easterly boundary of which is south and west of a stone monument set at the intersection of the streets. This parcel lies between the curved lines shown on the northeasterly corner of this land on a map in the town clerk's office of Watertown, entitled "Map of the Davis Homestead located in the village of Oakville, Watertown, Conn.;" and the southerly line of the Watertown Road and the westerly line of Davis Street, meeting at the monument. The defendant town has through its agents threatened on several occasions to take possession of this parcel of land, and prior to this action the first selectman of defendant town entered upon this land between the monument and the curved line, caused its surveyor to survey the same and place its stakes along the curved line, and notified the plaintiff that such curved line was the highway line and that the defendant would claim and occupy the same. If the defendant had carried out its threats it would have interfered with the access to the plaintiff's building and property located upon this land.
The three assignments of error in this appeal are based upon one ground, to wit: that the title to the land which the plaintiff has alleged and the court found to be owned by the plaintiff was not in issue, since the defendants have not pleaded title in themselves. The defendants rely upon the case of Orentlicherman
v. Matarese,
Waterbury Clock Co. v. Irion,
Our authorities thus hold that a plaintiff may maintain his action of trespass upon an allegation of possession, or one of title from which possession is implied, but that the allegation of title in case possession is alleged is unnecessary. If both title and possession are alleged and defendant meets these allegations by a general denial, both the possession and title are put in issue.
In this case the prayer for relief is for damages for the trespass and an injunction for the continuing trespass. An owner in possession would have the right to set up, as this plaintiff has, his title and possession, for the continuing injury against which he prays an injunction is not only to his possessory right, but to his *579
inheritance as well. Title is an essential allegation in an action praying for an injunction to restrain threats of continuing acts of trespass thus quieting the possession and removing the jeopardy to the value of the inheritance. Estees on Pleading, Vol. 2, § 2821; McMillan
v. Ferrell,
There is no error.
In this opinion the other judges concurred.