Birdsey v. Kosienski
| Decision Date | 10 November 1953 |
| Citation | 140 Conn. 403,101 A.2d 274 |
| Court | Connecticut Supreme Court |
| Parties | BIRDSEY v. KOSIENSKI et al. Supreme Court of Errors of Connecticut |
Charles G. Albom, New Haven, and Joseph Bogdanski, Meriden, for appellants (defendants).
Samuel H. Platcow, New Haven, with whom was Francis R. Danaher, Meriden, for the appellee (plaintiff).
Before BALDWIN, INGLIS, O'SULLIVAN, and QUINLAN, JJ., and DALY, Superior Court Judge.
The trial court rendered a judgment enjoining the defendants from obstructing a right of way which the plaintiff claimed to have over their land. On this appeal from that judgment the principal contentions are that the court erred in concluding that the plaintiff owned the right of way, particularly in the course designated by the court, and that, if the right of way existed, the court should have refused an injunction because the plaintiff had been overburdening the easement.
The facts found may be summarized as follows: The defendants are the owners of a tract of land which fronts on the north side of East Main Street in Meriden. The property is bounded on the north by the plaintiff's land, which, together with a portion of the defendants' land, was originally owned by Charles Seeley. On March 27, 1861, Seeley conveyed by warranty deed to Parker and Perkins one of the parcels included in the tract now owned by the defendants. As described in the deed, the land conveyed was bounded on the north by Seeley's land and on the south by the Middletown and Meriden turnpike, which is now East Main Street. The deed contained the following language: 'I reserve the right of passway from the north end to the south end of said piece of land.' This conveyance was recorded at volume 23, page 46, of the Meriden land records. On the same day Parker and Perkins, by separate deed recorded at volume 23, page 47, of the Meriden land records, granted the right to Seeley to construct a road over the land in question.
By various mesne conveyances the property conveyed to Parker and Perkins, hereinafter referred to as the servient tenement, came, on August 10, 1939, to Alexander W. Tomkievicz, and in such of those conveyances as were warranty deeds the property was warranted free of all incumbrances except as appeared of record. Tomkievicz conveyed to Joseph F. Fredericks and P. B. Goodale by deed dated April 9, 1946. This deed recited that the property was subject to the right of way reserved in the deed from Seeley to Parker and Perkins dated March 27, 1861, volume 23, page 46, of the land records, and to the right to construct a road contained in the deed from Parker and Perkins to Seeley at volume 23, page 47, of the land records. In all the conveyances which finally brought title from Tomkievicz into the Hartford-Connecticut Trust Company on June 9, 1948, the same incumbrances were mentioned. The Hartford-Connecticut Trust Company conveyed to the defendant Thaddeus Kosienski by quitclaim deed on June 9, 1948. That deed made no mention of incumbrances but in the mortgage deed which Thaddeus gave to the Hartford-Connecticut Trust Company the two incumbrances were recited in full. On July 1, 1950, Thaddeus quitclaimed an undivided one-half interest in the property to the named defendant.
The property which Charles Seeley continued to own after his conveyance to Parker and Perkins, that is, the dominant tenement, was quitclaimed by him to George Seeley on August 2, 1873. George Seeley conveyed it by warranty deed dated March 25, 1874, to J. S. Manley. The description of the property conveyed included: By various mesne conveyances, in all of which the rights of way were expressly mentioned, title to the dominant tenement came to Georgia Birdsey by deed dated February 26, 1880. It has been in the Birdsey family ever since, going first to Edwin A. Birdsey and Arthur T. Birdsey in 1906, then to Arthur T. Birdsey alone and then to his son, the present plaintiff, in 1941.
At least as far back as 1907, two buildings were located on the servient tenement, a frame structure known as the spoon shop and, to the west of it, a stone building also used as a shop. There was a fence along the front of the property on East Main Street with a gate in it. From this gate a roadway about twenty-five feet wide extended to the north about thirty-five feet, then west about 150 feet and then north again between the two buildings to the dominant tenement. This roadway was the only means of access to the dominant tenement from East Main Street. It continued over the dominant tenement to gravel pits located thereon. Prior to 1939 the roadway was used by the plaintiff's father and his predecessors in title as a way to cart farm produce, hay, ice and gravel from the farm to East Main Street. In 1913 a slaughterhouse was erected on the dominant tenement, and from then on the road was used for transportation to and from the slaughterhouse.
Shortly after Tomkievicz acquired the servient tenement in 1939, he constructed a building thereon which later became known as the Sun Valley Restaurant. The front of this building was about thirty feet north of the portion of the roadway which ran in an easterly-westerly direction, and the west side of it was about fifty feet east of the roadway as it turned to the north. By that time the two old shops had been demolished. Tomkievicz built two driveways as entrances to the restaurant, one to the east and the other to the west. After the building was completed, Tomkievicz, desiring to eliminate vehicular traffic in front of the restaurant, proposed to the plaintiff's father that the location of the passway be changed so that it would run from East Main Street over the westerly driveway just constructed by Tomkievicz and thence on north to the dominant tenement. Birdsey agreed to the proposal, and thereafter, he and, pursuant to his direction, all others who had occasion to reach the dominant tenement used the way in the new course agreed upon. On several occasions thereafter, the plaintiff and his father repaired the new roadway on the servient estate.
Commencing in 1942, a portion of the dominant tenement was leased for the purpose of removing sand and gravel. From then on, the passway was used more and more for the carting of gravel until, by 1951, a total of 150 crossings a day were being made. The defendants complained to the plaintiff, and the lessee of the plaintiff put calcium chloride upon the modified roadway to lay the dust and also repaired some holes made by his trucks. Finally, however, in January, 1952, the defendants barricaded the roadway.
The defendants seek many additions to the finding. Most of them, if supported by the evidence, would relate only to the question whether the plaintiff and his predecessors in title had acquired a right of way by prescription. Inasmuch as the trial court did not predicate the judgment on a right of way by prescription, these requested additions are immaterial. Several others are immaterial for other reasons or are not undisputed facts. One only calls for notice. It is a request for a finding that at the time of the conveyance in 1861 the dominant tenement was bounded upon East Main Street at the place it now touches it. This has reference to the fact that the plaintiff's property now extends to East Main Street some distance to the east of the servient tenement. There is nothing in the evidence to indicate that Seeley owned this frontage. In the deed from George Seeley to J. S. Manley in 1874, the dominant tenement is described as being bounded on the south by 'land of Charles Parker and highway.' It is quite possible that the land which brought the boundary down to the highway was acquired by one of the owners of the dominant estate subsequent to 1861. This...
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