Barri v. Schwarz Bros. Co.

Decision Date11 June 1919
Citation107 A. 3,93 Conn. 501
PartiesBARRI v. SCHWARZ BROS. CO. et al.
CourtConnecticut Supreme Court

Appeal from Superior Court, Fairfield County; Donald T. Warner Judge.

Suit by John A. Barri against the Schwarz Bros. Company and others to determine the rights of the respective parties in and to certain mud flats, and to quiet and settle the title thereto brought to and tried by the superior court in Fairfield county. Facts found and judgment rendered in favor of the plaintiff, from which some of the defendants appealed. No error.

Andrew L. Winton was in 1872 the owner of a considerable tract of land situated in Bridgeport and lying on the westerly side of a body of water known as the Berkshire millpond. This so-called pond is formed by the combined action of the waters of the Poquonock river and the tides. The channel of the river extends down through the pond to the harbor and sound and the rising tides cause its waters and those of the harbor to set back in such manner as to form a body of water overflowing a considerable area. This condition of high water was, and since 1872 has been, maintained by Winton and his successors in title by the erection of a dam located upon the downstream portion of the land, and as thus maintained utilized in the operation of a mill, also located upon the land.

In 1872 Winton caused a considerable portion of his land to be surveyed, plotted into lots and mapped. The map which was the outcome of this work, duly certified, was filed in the land records of Bridgeport during that year. Winton died in 1892 without having sold any of the property thus surveyed and charted. In 1895 the executors of his will caused to be made and filed another map, practically identical with the 1872 map in so far as it related to the same territory, but covered slightly less. Both maps show a highway, called River street, extending along the westerly side of the pond, and touching it in spots. The shore line of the pond is irregular, and the distance of River street from it is therefore varying. Along the easterly or water side of this street are plotted a continuous series of lots numbered from 65 to 92, inclusive. These lots are marked as 50 feet wide in front and 100 feet deep. The shore line, which is delineated on the maps, is in some places substantially coincident with the easterly line of the street, and in others distant from it nearly 300 feet. This is the situation opposite to lots 84 to 92. All of these lots, save only lots 84 and 92, have upland extending to and beyond some portion of their rear limits. Lot 90 comprises upland entirely. Lots 84 and 92 have no upland on the side toward the water, and the remaining lots are part upland and part flats on that side. In the rear of lots 85 and 86 the upland extends back to approximately 300 feet from the street. The larger part of lot 92 is below high-water mark, and its rear is entirely so. From that lot to the tidal dam below is a little more than 100 feet.

Outside of this River street tier of lots, and adjoining them, is laid out a second tier, lying for the most part entirely beyond the shore line, but in six instances not reaching it. These lots do not extend far enough to the south to cover the rears of lots 91 and 92, and terminate at the northerly end at an indicated street called Evergreen Street. On the opposite side of this street, which is laid out at right angles with River street, are plotted other lots. A long line of them fronts on River street. Three of them, to wit, lots 62, 63, and 64, face on Evergreen Street. These three are located upon a point of land which extends out from the line of River street some 300 feet, and is approximately 300 feet in width on its extreme water front. The four most northerly of the second tier of lots above described are also located upon this point, but have some 100 feet of unplotted upland between them and the water. Lot 64 is the farthest out of the three lots, and, fronting on Evergreen Street, has its easterly side toward the channel. This easterly boundary as the lot is delineated is substantially in a line with the shore line of the promontory of which it takes in a part. Thus placed, it projects out in the direction of the channel farther by its entire width than any other lot upon the map. The major portion of its consists of flats, and on the channel side embraces no upland.

All the lots upon the 1872 map have their superficial area noted thereon. This feature is omitted from that of 1895. In September, 1895, the executors of Winton's will made a deed, covering, among other lots, lots 84 to 92, inclusive, to the defendant Edward Schrieber, who, or his successors in title, also defendants, now own them. In this deed the property conveyed is described by boundaries, one of which is upon the millpond, and by the further statement that it consisted of specified numbered lots upon the map of 1872 filed in the town clerk's office. By deed of December 3, 1895, the executors conveyed to E. W. and Rebecca Thornton lots 62, 63, and 64, using a similar description save that the map reference was to that of 1895. A deed from the executors to the plaintiff of the Winton property not already conveyed to others followed later in December, 1895.

Other facts are sufficiently stated in the opinion.

John C. Chamberlain, of Bridgeport, for appellants.

William B. Boardman, of Bridgeport, for appellee.

PRENTICE, C.J.

The appealing defendants, as the owners of eight lots, to wit, lots 64, 84, 85, 87, 89, 90, 91, and 92, and a part of lot 88, claim to be entitled to the enjoyment of riparian rights originally incident to the ownership of the upland lying within their limits. The plaintiff, as successor in title to Winton, disputes this claim, asserts that he is entitled to that enjoyment, and asks that the two conflicting claims be adjudicated and the rights of the parties be judicially established. Certain of the defendants are also owners of lots 62 and 63, but before us disclaimed as to those lots.

The defendants' first contention is that this action, brought under chapter 174 of the Public Acts of 1915, now appearing as section 5113 of the Revision of 1918, is not maintainable under its provisions since title to its subject-matter, to wit, unreclaimed lands under water and rights therein, cannot from its very nature be in the plaintiff, but rests in the public. The statute as it read when the action was brought, and as it has since remained runs in favor of any person claiming either title to or interest in property against any person claiming to have an interest in it adverse to him. It is true that the matter in contention between the parties here is confined to the enjoyment of riparian rights, but these rights have their source in property ownership and exist only as an original incident of such ownership. They are in the nature of a franchise, constitute a species of property, and are separable from and alienable as thus separated in the same manner as other property. Simons v. French, 25 Conn. 346, 352; Farist Steel Co. v. Bridgeport, 60 Conn. 278, 283, 22 A. 561, 13 L.R.A. 590. They clearly constitute interests in property.

Their second and major contention is that they, and not the plaintiff, are entitled to enjoy the rights in question.

The plaintiff and defendants derive their respective titles from a common source. They are all grantees of the legal representatives of one Winton, who, in 1872 and down to his death in 1892, was the owner of what is now theirs and its adjoining upland, together with the riparian rights attached thereto as upland bordering upon Berkshire millpond, a body of water formed by the joint action of the tides and the flow of the Poquonock river. These riparian rights, although originating in and derived from the ownership of upland adjoining the pond, were, as we have seen, separable from such ownership, and independently alienable by the owner at his pleasure like any other property or franchise he possessed. A conveyance by him or his legal representative after his death of portions of the tract bordering upon the pond would presumptively carry with the respective pieces the riparian rights attached thereto, including those of reclamation and wharfing...

To continue reading

Request your trial
21 cases
  • JP Morgan Chase Bank, National Association v. Holt
    • United States
    • Connecticut Superior Court
    • January 19, 2018
    ... ... phrase " more or less." Barri v. Schwartz ... Brothers Co. , 93 Conn. 501, 503 (1919); Mount Maumee ... Partnership ... ...
  • Rochester v. Barney
    • United States
    • Connecticut Supreme Court
    • November 7, 1933
    ... ... 398, 18 L.R.A. 668, 36 Am.St.Rep. 333; ... Brower v. Wakeman, 88 Conn. 8, 89 A. 913; Barri ... v. Schwarz Bros. Co., 93 Conn. 501, 107 A. 3; [117 Conn ... 469] Walz v. Bennett, 95 Conn ... ...
  • State v. Knowles-Lombard Co.
    • United States
    • Connecticut Supreme Court
    • December 1, 1936
    ... ... 590; Prior v. Swartz, 62 Conn. 132, 138, 25 A. 398, ... 18 L.R.A. 668, 36 Am.St.Rep. 333; Barri v. Schwarz Bros ... Co., 93 Conn. 501, 506, 107 A. 3; Walz v ... Bennett, 95 Conn. 537, 542, ... ...
  • Bird Peak Road Assn., Inc. v. Bird Peak Corp.
    • United States
    • Connecticut Court of Appeals
    • April 3, 2001
    ...and nineteen may be read, arguably, to transfer the fee in the road. The court relied on the rule enunciated in Barri v. Schwarz Bros. Co., 93 Conn. 501, 107 A. 3 (1919), to reconcile the discrepancy. In Barri, our Supreme Court ruled that when a deed sets forth two different descriptions o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT