Appeal of Townsend

• Decision Date: 01 December 1896
• Citation: 36 A. 815,68 Conn. 358
• Court: Connecticut Supreme Court
• Parties: Appeal of TOWNSEND et al.

36 A. 815

68 Conn. 358

Appeal of TOWNSEND et al.

Supreme Court of Errors of Connecticut.

Dec. 1, 1896.

Appeal from court of common pleas, Hartford county; David S. Calhoun, Judge.

Appeal by Sarah P. Townsend and other landowners from an assessment of damages and benefits by the board of street commissioners of the city of Hartford on the establishment of a building line. The court of common pleas dismissed the appeal, and said owners again appeal. Reversed.

John W. Coogan, for appellants.

William Waldo Hyde and William J. McConville, for appellee.

TORRANCE, J. 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 the city of Hartford, bounded north on Farmington avenue, east on Imlay street, south on land of John R. Keep and land of the grantors, and west on Laurel street; being four hundred feet (400) on said avenue, four hundred feet (400) on Imlay street, and four hundred feet (400) on Laurel street, the rear lines running each to the middle at right angles to said side streets; said Imlay and Laurel streets being parallel and exactly four hundred feet (400) apart. The building lines are to be as follows: On Farmington avenue 40 feet, on Imlay street 40 feet, and on Laurel street 20 feet, in each case, from the line of the street." This deed contained the usual habendum and warranty clause, "and no reference is made to said building line, either in the habendum clause or warranty clause, and said property is in said deed warranted free of all incumbrance, except two mortgages therein mentioned." Two days later, September 3, 1868, Woodruff reconveyed by warranty deed said land to Gillette and Hooker by way of mortgage, "and no mention was made in said mortgage deed of said proposed building line." In March, 1874, Gillette and Hooker, by a quitclaim deed in the ordinary form made to one Pierce, released a part of the land described in their deed to Woodruff from the mortgage given to them by Woodruff, and from a subsequent mortgage to them covering said part released, and in said deed to Pierce appears the following: "It being intended hereby to release all our interests in said land derived from said mortgages, but in no manner to release the condition of our original deed to the said Samuel Woodruff with regard to building lines on said streets, or any other condition whatever of said deed." All these deeds were duly recorded within a short time after their respective dates. After the land was conveyed to Woodruff as aforesaid in 1868, and up to the time this case was tried to the committee, there had been various deeds given of portions of the original plot of land described in said deed to Woodruff, but there was no reference to said building line in any of said deeds, except as above stated. On the trial before the committee no evidence was offered "intended to extend or enlarge the language of the deeds above quoted, or to explain the intent of the parties to those deeds. It appeared in evidence, however, that all parties who had built houses on the west side of Imlay street had located such houses forty feet west from the west line of said street" and this is found to be true.

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, 40 feet west of the west line of Imlay street, with the exception of the land of John R. Redfield. The land of said Redfield consists of a vacant lot situated on the southwest corner of Farmington avenue and Imlay street, is 50 feet wide, front and rear, and 200 feet deep. On this lot the line is located 15 feet west of the west line of Imlay street for the distance of 150 feet from Farmington avenue, and for the remaining 50 feet said line is located 40 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...