54 Conn. 67 | Conn. | 1886
The parties were at issue in this case as to whether a certain strip of land, upon which the selectmen of the defendant town were about to enter and grade it as a part of a public highway, was in fact a part of such way, or belonged to the plaintiff as his private property.
In deciding the question the court used the following language :—“ The court having heard the parties, finds the issues for the plaintiff, except as to the western boundary of the land described in the complaint, and also finds that the plaintiff is the owner in fee simple, free from any public easement, of the following described piece of land, with the buildings thereon, situated in the town of Newington.” Then follows a description of the tract of land, which includes, it is conceded, the strip of land in controversy.
In the finding of facts the following statement appears with regard to this strip of land:—“ The ground has always been occupied by the plaintiff and his predecessors as far back as the testimony extended, by setting out fruit and ornamental trees and by other trees and shrubbery, and the surface of the ground and the character of the occupation have been such as to make it impracticable for the public to use it as a highway, and it has nerrer been dedicated to or
These findings would seem to dispose of the defendant’s claim, that the strip of land was a part of the public highway.
But it appears in the case that the highway adjoining the plaintiff’s premises on the west runs nearly north and south, and that the strip of land in controversy lies along the easterly side of the highway as it passes the plaintiff’s premises. On the easterly side of the strip of land there were the remains of an old fence running north and south by the premises of the plaintiff and parallel to the highway, that had stood there, or one like it at the same place, for a period of forty years. On the trial of the cause in the court below the defendant asked the court to rule, as a matter of law, that the old fence was on the eastern boundary of the highway along the plaintiff’s premises; constituting, as the highway was dedicated, the eastern line of the dedication, leaving all outside of the old fence to fall into the highway. The court did not so rule, and the omission is made the ground of error in this court.
Manifestly it cannot be said, as matter of law, that the old fence afforded conclusive evidence that it was coincident with the line of the highway as dedicated, although it may be from its location strong evidence of the fact. The question was one of fact for the court to determine, and not one of law.
The defendant further requested the court to rule “ that no injunction should be adjudged against the town of Newington, because the selectmen of the town did not act in the premises as agents of the town, but as agents of the law only.”
The court finds that the selectmen claimed to act solely under the authority of votes passed by the town. But, however it may be in certain cases that the selectmen of towns act for the public in removing nuisances from highways, still they never act for the public in committing tres
Again, the defendant claimed, and requested the court to rule, “ that relief by way of injunction was not the proper remedy.”
But the court has found that the threatened acts of the defendant “ if permitted to be done, would cause irreparable injury to the plaintiff.” We think there is no foundation for this claim. It is every day’s practice to grant injunctions to restrain the commission of injuries to real estate, in cases where the injuries would be irreparable if committed.
There is no error in the judgment appealed from.
In this opinion the other judges concurred.