19 Conn. 154 (Conn. 1848), Curtiss v. Hoyt

Citation:19 Conn. 154
Opinion Judge:Ellsworth, J. Waite, J.
Party Name:Curtiss v. Hoyt and others.
Attorney:Booth and Butler, (with whom was Carter ,) in support of the motion, Hawley and Dutton, (with whom was Ferry ,) contra
Judge Panel:In this opinion Church, Ch. J., and Storrs and Hinman, Js., fully concurred.
Court:Supreme Court of Connecticut

Page 154

19 Conn. 154 (Conn. 1848)



Hoyt and others.

Supreme Court of Errors of Connecticut.

July, 1848

         In an action of trespass for an injury to a building, owned by and in the possession of the plaintiff, the defendants justified the acts complained of, on the ground, that they did them by the direction of S, who owned the land on which the building stood, subject to a right of way in the public, the building constituting an incumbrance on the land of S; also, that the building being an obstruction in the highway, the defendants removed it, for the plaintiff, after he had been requested, and had neglected, to remove it; also, that such highway needed to be graded and made, and the defendants removed the building, on the plaintiff's account, in order to grade and make the road. The plaintiff, to show that he was the owner and in possession of the building, offered in evidence a deed of it to the plaintiff, executed by certain individuals, as a committee of a fire engine company; a vote of such company, signed by all its members, authorizing the sale and transfer of the building, by said committee; proof that the company erected the building, with their own funds; that up to the time of the sale, they had used it exclusively for an engine house, and for their library; that all the members of the company, at the time of the sale, delivered, each one, his key of the building to the plaintiff; that all prior members had, on leaving the company, left the building to their successors, making no claim to it thereafter; that the avails of the sale to the plaintiff, were appropriated, by the company, to procure for them another engine house; and that no other persons had objected to the sale, or made any claim to the avails thereof. Held, that such evidence was admissible, for the purpose for which it was offered; and thereupon it was further held, 1. that the members of the company had property in the building; 2. that though not incorporated, they, as individuals, could hold the property; 3. that the vote of the company, with the assent of each individual member in writing, was binding, and imparted authority to their committee; 4. that the building, under the circumstances of the case, was personal estate, and might be transferred without seal.

         Though it is a general principle of law, that a building permanently fixed in the freehold, becomes a part of it, and is real estate, yet if it was erected, by the builder, with his own money, and for his own exclusive use, as disconnected from the use of the land, and with an understanding to that effect between the owner of the land and the builder, it will be considered as personal estate.

         A plaintiff in trespass, having the sole and exclusive possession, may recover against a wrong-doer, the whole damage done by the defendant, though the conveyance from some of those under whom he claimed title, was defective.

         Where personal property belongs to the members of a voluntary unincorporated association, especially for public, and not for private, purposes, if a member abandon the association, he thereby abandons his interest in such property, and those who remain are entitled to such interest.

          Where the owner of a building leases at will the rooms therein, though they constitute the chief parts of the building, such owner is not thereby put out of possession, so as to preclude him from suing in trespass for the destruction of the building, or such an injury to it as to render it untenantable.

         Where the town of N., in 1804, passed a vote, that certain persons [naming them,] " have liberty to make a road from & c. over the public land, provided they give a deed to the town of their own lands, two rods wide; " the deed was given accordingly, in due season; but nothing of importance to wards the execution of this vote was afterwards done; it was held, that the vote was a mere license, and must have been executed and the road made, in a reasonable time and manner, for public travel, or the vote would cease to have any efficacy; and consequently, there was no highway at this place.

         To constitute a dedication of land for a highway, the road must be made and accepted by the public: it is usually, if not always, proved, by public use and enjoyment.

         Where the court, in an action of trespass for the destruction of a building, instructed the jury, that if the defendants acted bona fide, under a claim of right, doing no unnecessary or wanton injury, the value of the property destroyed, was the proper and legal rule of damages; but if the transaction was of a different character, and the defendants acted wantonly and maliciously, the value of the property merely, was not, of course, the rule of damages; but the jury might, in the exercise of a sound diseretion, allow something more; it was held, that this instruction was correct.

         This was an action of trespass, for an injury to a building. The declaration contained three counts; an abstract of which is given in the opinion of the court. The defendants pleaded Not guilty, with notice of special matter to be given in evidence by way of defence.

         The cause was tried at Fairfield, February term 1848, before Ellsworth, J.

         It was admitted, that neither the plaintiff, nor those from whom he claimed to have purchased the building, had any interest in the land on which it stood. But to show that he was the owner and in possession of said building, at the time of the alleged grievance, he offered in evidence:

         1. A deed thereof to himself, dated the 14th of January 1843, executed by certain individuals, as a committee of a fire engine company in the borough of Norwalk, consisting of about twenty persons, organized by the warden and burgesses of the borough. The members of this committee were original and present members of the company; and the deed was executed in behalf of the company. It purported to release and forever quit-claim to the plaintiff, in consideration of 400 dollars received of him by said company, " all the right, title and interest of said company in and to a certain building," & c. [describing the building in question.]

          2. A vote of said company, at a meeting held on the 24th of January 1843, authorizing the execution of said deed, signed and approved, by all the members. But no power of attorney under seal, was given to the committee, or to any other agent.

         3. Proof that said company erected the building, with funds raised chiefly among themselves, but in part by the voluntary subscription of others.

         4. That the building, up to the time of said sale, had been occupied by the company exclusively, in part for an engine house, and in part for a library of their own.

         5. That all the members of said company, at the time of the sale to the plaintiff, (each one of them having a key,) delivered their keys to him.

         6. That all prior members of the company, had relinquished the building to their successors, and made thereafter no claim of title thereto.

         7. That the avails of the building were appropriated, by the company, to procure another engine house, for them.

         8. That no other persons whatever had objected to the sale, or made claim to the avails thereof.

         To the admission of this evidence, the defendants objected, on the ground that it did not show, or tend to show, any property in the building, in said company, or the members thereof, which they could convey; that they were not a corporation, and could not, as a company, hold any property in the building; that they could not act with reference to a conveyance of it, by vote, or appoint a committee to sell, by vote; that said vote, of itself, imparted no authority to the committee, and they had no power of attorney under seal; that they could not sell the building, for such a purpose; and that the vote and deed conveyed no title to the plaintiff. But the court admitted the evidence.

         The defendants claimed, that the court should charge the jury, that if said deed was not signed by all who were, or had been, members of the company, the plaintiff could not recover for the whole of the building, even against a tort-feasor, though the plaintiff was in possession. The court did not so instruct the jury.

         It was admitted, that the plaintiff had leased the lower room of the building, for five years, to Henry Hands, who was in possession thereof, at the time it was removed from its foundation: also, that the upper room was, by virtue of a parol lease at will, at the time of the alleged trespass, in the possession of Thomas Easton, who entered by a flight of stairs on the outside. It was also admitted, that the building, at this time, was removed from the foundation to a point near the centre of the Main street passing through the borough of Norwalk; that the plaintiff knew it stood there, and was requested to remove it; that it remained there several weeks, abandoned by the tenants, unoccupied, and untenantable; and was there destroyed, in the night season, by some person or persons unknown to the plaintiff. The defendants thereupon claimed, that the plaintiff could not recover, on the ground that he was out of possession of the building.

          The plaintiff claimed, that the possession of the tenants of said rooms, did not divest the plaintiff of the possession of the foundation, sides, roof, garret and outside stairs, of the building, (each of which still existed,) nor of the general possession of the building; and that, on the removal of the building from its foundation, and its abandonment by the tenants, the possession of the whole building reverted to the plaintiff.


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