Quintard v. Bishop

| Conn. | Oct 15, 1860

Ellsworth, J.

We think that Alfred Bishop, under whose original right the defendant justifies, obtained from Isaac Quintard, by his deed of the 3d of May, 1833, the right of way now in controversy. The instrument was duly executed, and it was intended by the parties as therein expressed that a public right of way should be vested in said Bishop. Bishop v. Quintard, 18 Conn., 396.

Another highway is mentioned in the same instrument as granted to said Bishop, to wit, one on the west side of the building then occupied by W. & R. Hoyt. To this latter way there is annexed a proviso, that the right of way shall continue only so long ,as the boating business (so called) shall be continued on a certain canal, then in the contemplation of the parties, which boating business it is found has since ceased; and thereby that highway has, so far as we may judge from any thing before us, ceased.

It was claimed on the argument, that the first named highway is subject to the same limitation as the second, and that that highway had likewise ceased. If so, then it is clear there was no defense to the plaintiff’s action; and he should have recovered of the defendant for the trespass complained of. But we do not think this claim is correct. We believe that the better construction of the deed confines the limitation to the second highway, though were this point made for the first time, it might possibly admit of a doubt. Our view too is strengthened by the rule of law, that in a case of ambiguity of construction, the construction is to be most in favor of the grantee and against the grantor. But the question is no longer open for discussion; it was fully decided in the case of Bishop v. Quintard, 18 Conn., 403.

Entertaining then this view of the instrument, we inquire* if there is any other limitation to the existing highway. To some of us it seems pretty clear that there is not any ; that the grantor has given and intended to give to his grantee an absolute highway of sixteen feet in width from the “ turnpike” to a certain landing place, which two termini were then well known and understood by the parties. This might be fairly argued from the fact that the grantor by annexing a limitation to the second highway showed that his attention was at the time called to the question of a limitation, but did not affix any to this highway, except as hereinafter mentioned. Be this however as it may, we are all of opinion that there is no other limitation to the first highway than the continuance of the use of the canal and basin mentioned in the deed. Now such canal and basin are found to be continued, and are in use. though not to the same extent as formerly. It is found to be considerably used. The court say the “ lumber business on the canal is still considerable, and is carried on in scows substantially as before.” So that if we agree to this particular limitation as a qualification of the right of way, it is one that can have no effect upon our present decision. We must therefore hold that the highway is still there.

We next inquire if the defendant had a right to have the highway kept open — that is, to have it kept in a condition to be used with freedom, or is he a trespasser for removing an obstruction placed entirely across it and stopping all travel over it. We can not see why he has not this right as fully as in any case of an obstructed highway. It was a nuisance to all who traveled over this road, and we see no reason why the defendant might not remove it at once, that all persons might see and know that the way was open and free for the uses for which it was given. We think he might do this, and was not put to the necessity of an action for breach of covenant.

It is said that the defendant should have resorted to this last remedy rather than have cleared the highway of the existing obstruction ; but, as we have suggested, if the defendant had a clear right of way, he might insist that it should be in a condition to be used; and as the fence was removed avowedly for this purpose, he did no more than the law justified him in doing.

Nor in our judgment was it necessary for him to prove that at the very time he removed the fence he was using the highway to go to or from the canal. We repeat, he was to have by his deed an open, unobstructed highway between the termini mentioned, while it continued. And further, had this last objection been made on the trial, it might have been shown how this fact really was, if deemed of any importance. We presume it was not so considered, nor does it appear to us that it could properly be.

We therefore do not advise a new trial.

In this opinion the other judges concurred.

New trial not advised.