Berger v. Town Of Guilford.

• Decision Date: 23 August 1949
• Citation: 136 Conn. 71,68 A.2d 371
• Court: Connecticut Supreme Court
• Parties: BERGER et al. v. TOWN OF GUILFORD.

136 Conn. 71

68 A.2d 371

BERGER et al.

v.TOWN OF GUILFORD.

Supreme Court of Errors of Connecticut.

Aug. 23, 1949.

COPYRIGHT MATERIAL OMITTED.

D. Spencer Berger and others sued the Town of Guilford to quiet plaintiffs' title to land claimed by defendant as a public beach.

From a judgment of the Superior Court in New Haven County, Roberts, J., for plaintiffs in accordance with a report by William H. Comley, a state referee, defendant appealed.

The Supreme Court of Errors, Maltbie, C. J., found no error, holding inter alia, that evidence warranted the referee's findings that plaintiffs' lands were bounded by the high-water mark, not a road along the beach, and hence included the beach, and that the town abandoned the portion of the beach between a retaining wall on the beach side of the road and the high-water mark for use as a highway.

George C. Conway, Guilford, with whom was Lewis R. Whitehead, New Haven, for the appellant (defendant).

William L. Beers, New Haven, with whom, on the brief, was J. J. Henry Muller, III, New Haven, for the appellees (plaintiffs).

Before MALTBIE, C. J., BROWN, JENNINGS and ELLS, JJ., and MELLITZ, Superior Court Judge.

MALTBIE, Chief Justice.

The question at issue in this action to settle title is whether the plaintiffs own a small beach at Bloody Cove in the defendant town or it is owned by the town as a public beach. The action was originally brought by the plaintiff Berger; later George T. Sperry and Edith M. Gulliver were admitted as co-plaintiffs. Thereafter a substitute complaint was filed in two counts, the first of which set up the claim of the plaintiffs Berger and Gulliver and the second the claim of the plaintiff Sperry. After issue was joined the case was referred to a state referee, who held extensive hearings and made his report. To that report the defendant filed a remonstrance in five parts. The first part sought to have many paragraphs stricken from the report as not supported by the evidence; the second asked that the report be recommitted for the addition of certain facts; the third sought to have the same facts added to the report as admitted or undisputed; the fourth alleged that the report should not be accepted for certain reasons appearing on its face; and the fifth set out two rulings on evidence made by the referee which were claimed to be erroneous. The plaintiffs filed a single pleading in which they denied that any of the facts stated in the first part of the remonstrance were found without evidence and demurred to the other parts. The trial court sustained the demurrer, overruled the remonstrance and entered judgment in favor of the plaintiffs.

The pleading filed by the plaintiffs to the remonstrance is open to serious criticism. Our practice does not sanction the joining of an answer and a demurrer in a single pleading. The demurrer to the second part of the remonstrance, which sought the recommittal of the report, states in a single paragraph a number of grounds, some applicable to certain paragraphs and some to others; it was not within the statute which requires that all demurrers shall be special. General Statutes, § 7814. The proper ground of demurrer to a remonstrance seeking the recommittal of a report to have certain facts added is that they are clearly irrelevant or immaterial. See Hoffman Wall Paper Co. v. City of Hartford, 114 Conn. 531, 538, 159 A. 346. The demurrer to the third part of the remonstrance, which sought to have certain facts added, upon the ground that they were not admitted or undisputed, is not correct practice; Hoffman Wall Paper Co. v. City of Hartford, supra, 114 Conn. 537, 159 A. 348; the proper pleading to raise that issue would be a denial that they were admitted or undisputed. It does not appear, however, that any objection to the manner in which it was sought to raise the issues was made, and, as the case has been fully argued before us, we shall regard the issues as properly presented. Miller v. Cross, 73 Conn. 538, 541, 48 A. 213; Vincent v. Mutual Reserve Fund Life Ass'n, 77 Conn. 281, 284, 58 A. 963; Conn.App.Proc. § 28.

The record of testimony before the referee is very long and many exhibits were introduced. The argument before us has taken a wide scope and many incidental issues are presented. The brief of the defendant presents certain questions not raised by the remonstrance and these we disregard. It also refers to certain claimed admissions of plaintiffs' counsel as they appear in the transcript of evidence before the referee and in a brief filed by them before the trial court, but neither the transcript nor the brief is before us; if the defendant desired to present these matters, it should have taken steps to have the record rectified to include them. To discuss specifically all the claims properly before us would unduly prolong this opinion; we have considered them; but we shall refer only to those which are necessary to the decision of the case.

The primary issue arises out of the following situation as stated in the referee's report: The beach has an area of about .15 of an acre; it is curved; at the westerly end it is about 10 feet wide and at the easterly about 40 feet; and it is about 320 feet long. The plaintiffs own land northerly of the beach and on that of Sperry stands a hotel. Their titles are derived from an allotment of lands made in 1728 by the proprietors in a tract of common land which bordered southerly on part of Bloody Cove and which was known as the Great Ox Pasture. The lots were set out to various people by acreage but without any statement of boundaries. In 1729, by a committee, the proprietors set up a ‘Terrier Record’ of the several landholders of the town in order to settle titles and boundaries. Three of them owned land lying in whole or in part northerly of Bloody Cove, and from them the plaintiffs derive their titles. The records of the lands of each give a highway as the southerly boundary. The basic claim of the plaintiffs is that, despite this description of the boundary, ownership of the lands extended beyond it to the mean high-water line in the cove, while the town claims that such ownership stopped at the highway.

The report finds: As early as 1647 the town authority ordered that certain lands be fenced as an ox pasture and roads be laid out. While it does not appear what roads were actually laid out, they probably included two running inland from the shore, one easterly and one westerly of the cove, and, connecting them, the highway running along its edge. Within the memory of living men there was a time when there existed no definite limits to the last-mentioned road, travelers crossed the sandy beach where they chose, and it was not passable by heavy vehicles. The report then proceeds with a statement that from all the evidence the referee concluded that the whole beach, from the point where the road on the east met it to the point where it joined with the road on the west, was referred to as the highway, and a boundary ‘southerly on the highway’ was equivalent to a boundary on high-water mark, subject to the right of travel across the sand. The above findings of the referee as to the description of the road are plainly not conclusions from subordinate facts but primary facts based upon the evidence before him, and there is adequate support for them in the testimony of three witnesses. The remonstrance attacks the further statements of the court, not on the ground that they are conclusions of law, but because they are not properly drawn from subordinate facts.

In support of this contention the defendant advances several considerations. It says that there is no finding that the conditions described were present when the terrier record of the lands of the first proprietors was made, and this is true. There was testimony as to the building of a retaining wall on the beach side of the highway, but that dealt with a later time than that as of which the witnesses testified; there was evidence that the whole area had not then been built up into such a summer community as now exists there; the inference that the conditions described by the witnesses had existed when the terrier record was made is implicit in the conclusion of the referee; and the trial court could not well have held that that inference was an unreasonable one. The defendant also claims that the referee failed to apply a presumption that highways are defined with reasonable certainty; and to support such a presumption it relies upon New Britain Trust Co. v. Spencer, 117 Conn. 402, 404, 168 A. 16. The opinion in that case states that highways must be defined with reasonable certainty so that both the public and adjoining landowners may know their rights. The presumption claimed by the defendant is but an aspect of the broader principle that public authorities will be presumed to have properly performed their duty. The requirements in Guilford in 1647 as to the layout of roads do not appear, and that they included a definite establishment of boundaries would be a mere conjecture. It is interesting to note that in Beardslee v. French, 7 Conn. 125, 18 Am.Dec. 86, a committee appointed by the proprietors in Stratford in 1735 to lay out highways in a certain division merely designated a certain line without breadth or limits. We cannot hold that there is any presumption that the road in question was in 1647 so laid out with definite bounds as to overcome a reasonable inference that it was, when the terrior record was made, in the condition found by the referee.

A highway is merely an easement for travel by the public with the incidental right in the party bound to maintain it to do anything within its limits necessary for adapting and...