Borden v. Town of Westport

• Decision Date: 03 October 1930
• Citation: 151 A. 512,112 Conn. 152
• Court: Connecticut Supreme Court
• Parties: BORDEN v. TOWN OF WESTPORT et al.

151 A. 512

112 Conn. 152

BORDEN v. TOWN OF WESTPORT et al.

Supreme Court of Errors of Connecticut.

October 3, 1930

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

Action by William A. Borden against the Town of Westport and others to quiet and settle the title to a tract of land. The case was tried to the court. Judgment for defendants, and plaintiff appeals. No error.

Warren F. Cressy, of Stanford, for appellant.

Raymond E. Baldwin, of Bridgeport, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

This action was begun in August, 1922, and a judgment was rendered defining the respective rights of the parties in March, 1925, and the plaintiff appealed to this court. Error was found, and a new trial was ordered. Borden v. Town of Westport, 105 Conn. 139, 134 A. 803. Upon the second trial the court found the issues for the defendants, and the plaintiff has again appealed. The second trial was begun early in December, 1927. After various adjournments by agreement of counsel, the case was argued February 2, 1928, and thereafter briefs were filed. Judgment was rendered February 6, 1929. Prior to that decision a misplaced exhibit caused the application by the court to counsel for the plaintiff for a duplicate which counsel agreed to furnish, making no protest or objection to the delay. In his brief, the plaintiff calls attention to the fact that the judgment of the trial court was not filed until after the end of the term or session next succeeding that at which the trial was had and suggests that it is therefore in conflict with General Statutes, § 5524. Beyond calling attention to the fact and pointing out the salutary purpose of the statute, he makes no claim for relief at the hands of this court. Moreover, it appears that, while the draft finding contains two paragraphs touching this matter and it is included by the plaintiff in the claims of law said to have been made to the trial court, it is in no way referred to in the conclusions of the trial court in the finding, nor included in the appended list of the claims of law made by the plaintiff. Neither in the motion to correct the finding nor in the exceptions taken by the plaintiff is the matter mentioned or referred to, and in the assignments of error the plaintiff omits it altogether. Under these circumstances we cannot do otherwise than conclude that the plaintiff voluntarily waived consideration of the question by this court. To obtain consideration upon appeal to this court of claimed errors of the trial court, they should be " specifically stated in the reasons of appeal." General Statutes, § 5837; Mazzotta v. Bornstein, 105 Conn. 242, 245, 135 A. 38; Draus v. International Silver Co., 105 Conn. 415, 418, 135 A. 437; Hines v. Norwalk Lock Co., 100 Conn. 533, 535, 124 A. 17. We point out that a judgment rendered under these circumstances is irregular but not void. If no timely and appropriate advantage is taken of the delay, it will be assumed that the parties consented to it. Lawrence v. Cannavan, 76 Conn. 303, 306, 56 A. 556; Whitford v. Lee, 97 Conn. 554, 557, 117 A. 554; Cheshire Brass Co. v. Wilson, 86 Conn. 551, 560, 86 A. 26.

The plaintiff claims to have acquired title to a certain tract of land on the shore of Long Island Sound in the town of Westport, through a certain line of deeds, the history of which appears in outline in the text of our former decision in 105 Conn. at pages 140-146, 134 A. 803-805. The tract claimed by the plaintiff is described by him as bounded northerly by " a driftway, right of way or lane," easterly by land of Helen R. Mitchell and by a raceway, southerly by Long Island Sound, and westerly by land of Stanley B. Fillow. It is included within the bounds of a larger tract which lay between Compo pond, so called, on the north and Long Island Sound on the south; the western boundary being what is known as the Hills Point road running nearly north from Long Island Sound past the west end of Compo pond. This larger tract was bounded on the east by water consisting of a portion of Compo pond, a projection or inlet from Long Island Sound, and channels or streams which form the outlet and inlet of Compo pond. In 1662 Charles Second of England granted to the colony of Connecticut certain lands by charter, among which were included lands in the parish of Greens Farms and the town of Fairfield, and these charter lands included the larger tract just described. In 1680 the proprietors of the town of Fairfield acquired title from the Indians to a large tract of land which also includes the last-mentioned tract. In 1685 they also obtained from the General Court a patent to such lands, and this patent was confirmed by the General Court in 1703. The first individual interest in this land appears to have been obtained by one Thomas Ockley, who erected a tidewater mill upon Compo creek, an outlet of Compo pond, by authority of a vote in town meeting in Fairfield April 17, 1705. By that vote a committee was appointed consisting of three persons, to treat with Ockley " about ye premises for all things" and to " lay out unto him not exceeding half an acre." The following day this committee entered into an agreement with Ockley which appears in the text of our former decision, 105 Conn. at pages 142, 143, but no reference was made to any particular portion of land, nor does it appear that any land was set out to him by any metes and bounds whatever. The mill was built and operated and was later conveyed by Ockley to George Cable, who in 1793 conveyed to one Scribner. In the latter conveyance we find the first reference by metes and bounds to a particular portion of land. The transfer covers the gristmill and its privileges, " with about an acre of land adjoining, bounded westerly by the highway and on all other parts by creek and beach." The trial court found that the mill property so called with the mill building standing thereon was always a separate and distinct parcel of land and it is referred to in all the conveyances shown by the record as containing one acre more or less. The measured area of this particular parcel is 1.34 acres, and that of the balance of the land claimed by the plaintiff, including the road or driftway, is 1.23 acres, making his total claim under his title deeds about 2 1/2 acres.

The pivotal question between the parties involves the exact location of the western boundary line of the land acquired by the plaintiff by these deeds. He claims this western boundary was originally the Hills Point road, but now makes no claim to a certain tract lying immediately east of this road which was at one time inclosed in part by a stone wall, and is known as the Bumpus tract, and later conveyed to one Fillow, by whom the plaintiff now claims to bound his land on the west instead of on Hills Point road. The defendants claim, however, that the boundary which was first described in the deed to Scribner as " highway" did not refer to the Hills Point road at all, but to the road which is described in the complaint as driftway, right of way, or lane. The trial court in both trials found this to be an ancient public highway which has existed from time immemorial. It runs from the Hills Point Road easterly toward the mill, and at a point opposite the southwest corner of the mill, now marked by a hedge, it branches northeasterly to the creek at the border of the millpond, and runs thence across this creek. It was found that in some other conveyances and leases of the mill property it is referred to as " highway" and in some as " road," and has been and still is maintained by the town. South of this road and west of the so-called mill property is the tract in dispute, consisting of an open sandy beach as distinguished from upland. It is this sandy beach to which the plaintiff lays claim, and which the defendants claim is " common lands." held for the benefit and enjoyment of the people at large. The conclusion of the trial court in both trials was that the west boundary of the land which plaintiff acquired by his deeds extended from a point near the junction of the road to the mill with the northeasterly branch of that road, thence southerly along the west boundary of the property of Helen R. Mitchell, which was deeded to her by the plaintiff, and to the west wall of the raceway. As thus described, the property of the plaintiff was bounded on the west by the branch road referred to and by the sandy beach in question, and with this west boundary line the tract contains approximately 1.34 acres. The location of this west boundary line was and is practically determinative of the whole case.

The court in each instance reached the conclusion that the plaintiff had no right or title to this sandy beach lying west of the boundary line so determined. The conclusions of the trial court judge at the second trial and of the judge who presided at the first trial are in accord as to the location of this line. Both heard much involved and complicated testimony and inspected many documents, deeds, leases, and public records, and the record shows that at the second trial the judge personally visited and examined the premises by consent of counsel. All the documents and papers introduced as exhibits are certified to this court together with what we must assume is all the testimony relevant to the questions raised by the plaintiff on this appeal.

The plaintiff seeks to avoid the effect of the decision of the trial court by obtaining at our hands sweeping changes in the finding of vital facts and by claims of error in the application of certain principles of law and in rulings upon evidence. He requests fourteen changes in the finding, and a large amount of evidence is printed in...