68 Conn. 358 | Conn. | 1896
This is an appeal from the action of the judge of the Court of Common Pleas of Hartford county, in dismissing an appeal taken to him from an assessment of damages and benefits made by the board of street commissioners of the city of Hartford, consequent upon the establishment of a building line. The case was tried to a committee who made a written finding and report to said judge, which report was by him accepted and the appeal dismissed.
The important question in the case relates to the construction and effect of a certain deed of land made by Francis Gillette and John Hooker to Samuel Woodruff in 1868, and the facts bearing upon that question as they appear of record may be stated as follows:—
On the 1st of September, 1868, Hooker and Gillette, by a warranty deed of that date, in the usual form, conveyed to Samuel Woodruff certain land in Hartford, and the descriptive part of said deed reads as follows: “ A piece of land lying in said town of Hartford, and in the western part of
On the trial before the committee no evidence was offeréd
In 1891 the city of Hartford established a building line over the tract of land so conveyed to Woodruff, on the west side of Imlay Street, as follows : “ Commencing at a point in the south line of Farmington Avenue fifteen feet west of the west line of Imlay Street, thence running southerly one hundred and fifty feet in a straight line fifteen feet distant from and parallel to said west line of Imlay Street, thence westerly at right angles twenty-five feet, thence southerly to Hawthorne Street forty feet distant from and parallel to the west line of Imlay Street.” The report of the committee states that “ the line so established is located on the land of the several appellants, forty feet west of the west line of Imlay Street, with the exception of the land of John R. Red-field. The land of said Redfield consists of a vacant lot situated on the southwest corner of Farmington Avenue and Imlay Street, is fifty feet wide, front and rear, and two hundred feet deep. On this lot the line is located fifteen feet west of the west line of Imlay Street for the distance of one hundred and fifty feet from Farmington Avenue, and for the remaining fifty feet said line is located forty feet west of the west line of Imlay Street.” The land of Sarah P. Townsend, one of the appellants in the appeal to the judge of the Court of Common Pleas, has since said appeal been sold to, and was at the time of the hearing of said appeal owned by Julia Smith Reilly, who became a party to said appeal. This land adjoins the land of Redfield on the south “ and is improved by a dwelling-house fronting on Imlay Street, which is located about forty feet west of the west line of Imlay Street.” The land of Mary J. Moseley, another of said appellants, lies next southerly of and adjoins the land of Miss Reilly, “and is improved by a dwelling-house fronting on Imlay Street, and located about forty feet west of the west line
The board of street commissioners awarded to Redfield as damages for the establishment by the city authorities of said building line upon his land, the sum of two thousand dollars, and assessed no benefits against him. For the same work it assessed benefits to Sarah P. Townsend, Mary J. Moseley, Sarah A. Curtiss, and The Mechanics Savings Bank, and to other landowners on Imlay Street, to the amount of the damages assessed.
Before the committee, and also before the judge upon the remonstrance, the appellants claimed in substance, that upon these facts the deed from Gillette and Hooker to Woodruff, “ established the perpetual incumbrance of a building line on the Redfield property, forty feet west from Imlay Street;” and that the establishment of the building line by the city authorities in 1891 did not entitle Redfield to any damages, nor warrant the board of street commissioners in assessing benefits against the appellants. The committee found as follows upon this claim: “Tour committee finds, as a conclusion of law, that the language above quoted is not competent, either as a reservation or exception to the grant, to establish a building line on the property of said Redfield, and that the establishment of said line by the Common Council entitled said Redfield to his reasonable damages for
The reasons of appeal are five in number, but the fifth was abandoned orally in the argument before this court, and the other four really present but two questions in substance, namely: (1) Did the judge err in holding that the Woodruff deed did not establish a perpetual incumbrance or limitation upon the use of the Redfield land. (2) Did he err in holding that Redfield was entitled to damages for the establishment of the building line by the Common Council.
The principal question then, presented by this appeal, is whether Redfield as the owner of part of the Woodruff land on Imlay Street, was, at the time when the city authorities established the building line in 1891, bound by the restriction as to building, contained in the deed to Woodruff. If he was, we think it follows that he was not damaged by the establishment of that line, and we are of opinion that he was so bound.
To begin with, it seems quite clear that the deed in question, at least as against Woodruff, imposed a restriction upon the use of the land conveyed, and that it was intended by the parties to be a perpetual restriction. Gillette and Hooker being the owners in fee of the land, had the right to sell and convey it subject to such, reservations and restrictions as to its future use and enjoyment, as they saw fit to impose, provided such restraints were not contrary to law or public policy; and Woodruff was at liberty to purchase on such terms as he saw fit. Acting upon their rights in this respect, the grantors put into the descriptive part of the deed an
Looking then at the purpose, so far as it can be known, for which this provision was inserted, at the place of the provision in the deed, at the nature of the restriction, and at the language of the provision read in connection with the other parts of the deed, we are of opinion that the restriction set forth-in the deed was intended by the parties to be a perpet
. In this aspect of the case it is immaterial whether one or more of the owners of the Woodruff land could, at law or in equity, enforce this restriction as against Redfield; it is enough that the grantors in the Woodruff deed, or their heirs, assigns, or devisees, can do so when necessary, as it is manifest they can, for no claim is made that the restriction has been removed, or the light to enforce it in any way lost, released, waived or abandoned. At the very time then, when the city authorities laid out the building line in 1891 over Redfield’s land, he as owner of said land was bound not to build within forty feet of Imlay Street. If this be so, it is not, and cannot be, seriously claimed that Redfield was damaged to the extent of $2,000 by the establishment of the-building line of 1891.
The right, and power of the city authorities to establish this building line over Redfield’s land, under the circumstances, is not involved in this case and need not be discussed; the only question here being as to the right and power to assess damages to him therefor; but it may be safely said that the action of the city authorities, in establishing this building line on Redfield’s land, did not and could not affect the restriction imposed upon him as such landowner, by the Woodruff deed. The claim made before the committee and before the judge, in behalf of the right to assess damages to
Upon the argument before this court another ground in support of the claimed right to assess damages was advanced. Assuming that a restriction existed, binding upon Redfield and which the grantors in the Woodruff deed and their privies could enforce, it was said that inasmuch as that restriction could be removed at any time at the pleasure of the parties, and the line fixed by the city authorities could not be thus removed by the parties at pleasure, damages might arise from the establishment of that line which ought to be assessed in his favor.
It is not necessary upon this appeal to decide the questions involved in this claim, for it is manifest that the assessment complained of was not made upon this view of the matter. It was made—and the finding and conclusions of the committee and the decision of the judge proceed—mainly upon the supposition or assumption that Redfield was not bound by the restriction in the Woodruff deed ; and we think- the report of the committee must be regarded as finding, substantially, that if he was so bound, no damages were caused to him by reason of the mere establishment of this line by the city authorities.
For the reasons given there was error in the decision complained of, and it is reversed and the cause is remanded to the judge who rendered said decision, to be proceeded with according to law in conformity with this opinion.
In this opinion the other judges concurred.