40 Conn. 26 (Conn. 1873), Connor v. Sullivan

Citation:40 Conn. 26
Opinion Judge:Seymour, J.
Party Name:James Connor v. Murty Sullivan.
Attorney:Thresher, in support of the motion. Pratt and Swan, with whom was Wait, contra
Judge Panel:In this opinion the other judges concurred.
Court:Supreme Court of Connecticut
 
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Page 26

40 Conn. 26 (Conn. 1873)

James Connor

v.

Murty Sullivan.

Supreme Court of Errors of Connecticut.

March, 1873

A single instance of attempted interruption of an adverse user, resulting in no actual interruption, and followed by no attempt to test the right, does not necessarily destroy the presumption of a grant founded upon the user.

Such a fact is to be submitted to the jury, with all the circumstances attending it, to have its natural and proper weight according to those circumstances, upon the question whether the user fairly indicates a grant.

Trespass qu. cl. fr., brought to the Court of Common Pleas for New London County, and tried to the court on the general issue, with notice of a claim of right of way, before Willey, J .

On the trial the plaintiff showed title by deed to the premises described in the declaration; and the defendant claimed that he was entitled to a right of way over the same. The premises lie in front of the defendant's house, access to which from the street is inconvenient, if not made over the premises. The defendant introduced evidence to show, and claimed that he had shown, that he and his grantor had passed over the premises in going from the street to the house for a continuous period of more than fifteen years, claiming a right of way, and exercising and maintaining the right adversely to the claims of the plaintiff and his grantors. The plaintiff introduced the testimony of one Hollohan, the plaintiff's grantor, to the effect that in the year 1861, soon after the defendant obtained title to his premises, he forbade the defendant using the way, and commenced putting up a fence so as to prevent him from passing over it, and that the defendant told Hollohan that if he erected the fence he would tear it down, and that he did pull up a post which Hollohan had set in the ground for the purpose of making the fence, and by his threats drove him away and prevented him from erecting the fence.

The plaintiff thereupon asked the court to rule that the defendant had not gained a right of way over the land, and that in order to gain a right of way by user, the use must be uninterrupted under a claim of right adverse to and acquiesced in by the owner of the land, and that the testimony of Hollohan showed that the user had not been uninterrupted, and that he had never acquiesced in the claim of the defendant to a right of way over the premises.

The court, having found that the defendant and his grantor had used the way continuously for a period of more than fifteen years, under a claim of right, adversely to the claims of the plaintiff and his grantors, ruled that the acts and declarations of Hollohan, the plaintiff's grantor, not being followed by suit or any proceedings to test the right of way, would not prevent the defendant from gaining a right of...

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