35 Conn. 117 | Conn. | 1868
This was a petition to the Superior Court for the restoration of a lost boundary. The statute upon which it was founded provides that, “whenever the boundaries of lands between two or more adjoining proprietors shall have been lost, or by time, accident or any other cause shall have become obscure and uncertain, and the adjoining proprietors cannot agree to establish the same, one or more of said ad joining proprietors may bring Ms petition in eqmty to the Su
In the case of Perry v. Pratt, 31 Conn. R., 433, the court held that a lost or uncertain boundary under the statute is a boundary which has lost its distinctive character, as by removal, displacement, decay or change, so that it no longer answers the purpose of a bound defining the true line. The language of the statute gives some color to the claim of the plaintiff in error in this case, that it is the duty of the Superior Court on an application of this character to first determine the question whether in fact there is a lost or obscure boundary within the meaning of the statute, before it can appoint a committee to restore it. But although this question was not directly involved in the case of Perry v. Pratt, yet it was expressly decided in that case that the court in cases under this statute acts as in ordinary cases in equity, and may review the findings of the committee as in ordinary cases. And if this be so, then it seems to follow, as of course, that the court is not bound first to find that the -boundary is lost or has become obscure, within the meaning of the statute, but may refer this and all other questions of fact to the committee as in ordinary cases in equity. And considering the inconvenience of trying a part of the case upon the facts to the court, and another before the committee, we are inclined to think that it was the intention of the statute, that the court should, if it was deemed proper in any case, refer the question as to whether there is in fact a lost boundary to the committee, as well as the question with regard to the restoration of it if found to be lost. We therefore come to the conclusion that there was no error on the part of the Superior Court in referring the whole case to a committee to inquire into the facts alleged in the petition, and to proceed to erect and establish such lost and uncertain boundaries, and report the facts and the doings of the committee to the court.
But this, of Course, ought not to deprive the respondents in
With this view of the object of this statute we think it clearly appears from the report of the committee in this case that the only boundaries which ever existed between these proprietors exist now. They were a straight line from a corner post erected by the respondents on the north side of the highway, nearly or quite, as the report says, in the line of the present fences between the proprietors, to a merestone. And this merestone, as we understand the claims of counsel, is the only disputed boundary between the parties. .And this dispute is not in respect to the fact that it was formerly the true boundary between them. But the real dispute is as to whether the respondents have acquired in any way a title to any part of the land which they all acknowledge once belonged to the petitioners up to the line of this ancient merestone. Under these circumstances it appears to us that, while the true line between these parties may be doubtful or obscure, there is no doubt or obscurity in respect to any monument, or other boundary that ever existed between them, and therefore that there was none for the committee to restore. Had the committee found that the true line between these parties was where the respondents claimed it to be, they could not have erected a monument there under this statute to mark the place of the line, for the plain reason that no monument ever existed at that place, and of course there was none to restore. And had they assumed the right to erect one there, as the true boundary between the parties, they would have been deciding a question of title between the parties rather than restoring a lost boundary ; and the statute does not authorize this. And their act of re-establishing the ancient merestone as the true boundary ought not to have any more effect in establishing the true line in favor of the petitioners at that place, than a contrary decision would have had in establishing the line where the respondents claimed it. And this leads us to say that, if the decision of the committee and the
For these reasons we advise the Superior Court that there is manifest error in the decree complained of.
In this opinion the other judges concurred.