Barrs v. Zukowski

• Citation: 169 A.2d 23,148 Conn. 158
• Court: Supreme Court of Connecticut
• Decision Date: 08 March 1961
• Parties: William J. BARRS et al. v. Peter ZUKOWSKI et al. Supreme Court of Errors of Connecticut

Page 23

169 A.2d 23

148 Conn. 158

William J. BARRS et al. v. Peter ZUKOWSKI et al.

Supreme Court of Errors of Connecticut.

March 8, 1961.

Richard F. Corkey, New London, with whom, on the brief, was Arthur Barrows, New London, for appellants (plaintiffs).

Joseph E. Moukawsher, New London, with whom, on the brief, was Francis F McGuire, New London, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

SHEA, Associate Justice.

In this action, the plaintiffs sought an injunction to restrain the defendants from trespassing on the plaintiffs' land. They also asked for damages. The defendants, in their answer, denied that the plaintiffs were the owners and in possession of the land which was in dispute. The court rendered judgment for the defendants, and the plaintiffs have appealed.

The case arose out of a dispute over a boundary line. The finding, with certain corrections to which the plaintiffs are entitled, recites the following facts: In 1936, Arthur H. Keeney conveyed to Edna Copp lots 13, 14 and 15 as shown on a map entitled 'Plan of Building Lots at 'Quaker Hill,' Waterford, Conn., etc.' and filed for record July 19, 1901, in the Waterford land records. These three lots, as shown on the map, are situated on the north side of Mohegan Avenue Extension, a state highway also known as Scotch Cap Road, and are numbered in order from west to east, lot 15 being bounded on the east by Broad View Court, a street which intersects Mohegan Avenue Extension from the north. In 1932, before the three lots were conveyed from Keeney to Copp, the state of Connecticut had taken, for highway purposes, a portion of them which bordered on the north side of Mohegan Avenue Extension for about 105 feet. The portion taken was in the shape of a triangle with a base of about eight feet on Broad View Court and its apex at a point on the south line of lot 13 or 14. The description of the land in the deed from Keeney to Copp contained no reference to the piece taken by the state for highway purposes. In September, 1941, Edna Copp conveyed to the plaintiffs, Mr. and Mrs. Barrs, the western part of her property, describing it by metes and bounds rather than by reference to specified lots in the Quaker Hill tract. With the exception of the west boundary line, where the distance in feet was fixed with exactitude, i. e., 113.6 feet, the distances on the boundary lines were modified by the words 'more or less.' The distance given along Mohegan Avenue Extension was sixty-four feet 'more or less to land of one Pinch.'

Meanwhile, in May, 1941, the defendants' predecessors in title, Charles S. Pinch and Alice T. Pinch, had acquired title to a portion of lots 14 and 15 as shown on the map. The description of the land in their deed, as well as in the deed from Copp to their grantor, fixed the point of beginning 'at the intersection of the northeasterly side of Mohegan Avenue [Extension] as now established, with the westerly side of * * * [Broad View] Court' (italics supplied). The distances given in these deeds were exact measurements on all four sides of the property, including a frontage of ninety-three feet on Mohegan Avenue Extension 'as now established.'

The plaintiffs' property was bounded on the east in part by the Pinch land and in part by land of one Dhiel lying to the north of the Pinch property and consisting of the north part of lot 15 and the northeast part of lot 14. In 1942, the plaintiffs and Dhiel erected a retaining and division wall along what the plaintiffs considered to be a part of the east boundary line of their property and the west boundary line of the Dhiel property. Dhiel then erected a picket fence along the wall and extended it southerly to a point where he planted a hedge, which continued southerly to the southwest corner of his land. The line formed by the wall, fence and hedge was straight, and its prolongation southerly in the same course ran just west of some bushes planted on the Pinch property. In January, 1942, the plaintiffs moved into a house which they built on their land. They have lived there since that time. There was nothing to mark the boundary between the plaintiffs' land and the Pinch land. This area was planted with lawn grass. These conditions continued until March, 1957. Mrs. Pinch was a sister of Mrs. Barrs. No question was ever raised concerning their mutual boundary line. From 1942 to March, 1957, the plaintiffs or their son mowed the grass as far east as the bushes planted by Pinch. In other ways, the plaintiffs also exercised dominion and control over the land to the west of these bushes. The plaintiffs were in uninterrupted possession of the land described in their deed from September 26, 1941, to March, 1957.

In August, 1956, the defendants caused a survey to be made of their property. On one occasion, while the surveyor was on the property, he told the named plaintiff that he was making a survey for the defendants. The surveyor placed two stakes on what he set out as the plaintiffs' east boundary, and the defendants later stretched a string between the stakes. This string was laid in the grass and driven into the ground with clothespins. The defendants did not tell the plaintiffs that the stakes or string marked the boundary line or that they were claiming ownership up to the string line. In March, 1957, the defendants erected a wire fence on their side of the string line. In August, 1957, the plaintiffs engaged a surveyor, who claimed that the fence erected by the defendants was five feet six inches west of the plaintiffs' eastern boundary line. The plaintiffs' surveyor established the boundary line by referring to the map of Quaker Hill filed in the land records in 1901. In making his field survey, he used, as a starting point, the junction of stone walls at the northwest corner of the 1901 plan, a considerable distance from the line in dispute. From this starting point, he attempted to establish the intersection of the northerly line of Mohegan Avenue Extension and the westerly line of Broad View Court. He used, as monuments, the stone walls which were still in existence. His location of the southwest corner of the plaintiffs' land coincided with a state highway department merestone located at the southwest corner of the land of Arthur H. Keeney after the state had taken a portion of lots 13, 14 and 15 for highway purposes in 1932. The plaintiffs' surveyor claimed that the point marking the original intersection of the westerly line of Broad View Court with Mohegan Avenue Extension was within what is now the surfaced portion of Mohegan Avenue Extension.

There was no marker or merestone to indicate the point where the northerly line of Mohegan Avenue Extension and the westerly line of Broad View Court intersected. The northerly line of Mohegan Avenue Extension, as originally laid out on the map of Quaker Hill in 1901, was not straight. The land taken by the state...