Branch v. Lewerenz

• Decision Date: 05 December 1902
• Citation: 53 A. 658,75 Conn. 319
• Parties: BRANCH et al. v. LEWERENZ.
• Court: Connecticut Supreme Court

53 A. 658

75 Conn. 319

BRANCH et al.

v. LEWERENZ.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

Appeal from superior court, New London county; Ralph Wheeler, Judge.

Action by Mary L. Branch and another against Alfred C. Lewerenz. From a judgment for defendant, plaintiffs appeal. Affirmed.

Charles F. Thayer and John L. Branch, for appellants.

Francis H. Parker, for appellee.

TORRANCE, C. J. This action is brought by Mary L. Branch and her husband to recover possession of the land described in the complaint, which Mrs. Branch claims to have Inherited and to own as sole heir of John R. Bolles, who died in 1895. The land in question now and for many years past, in connection with other contiguous land, has been and is used by the United States for naval purposes. The defendant is an officer in the United States navy, who, in behalf of the United States, has been, since June 5. 1899, in possession of the land in dispute as part of the land near New London used for naval purposes. He makes no claim to the land in dispute, save in his official capacity and in behalf of the United States. It is conceded that John R. Bolles owned said land in fee in 1867. One of the defenses in the case is that in 1867 his title in fee was taken by virtue of certain condemnation proceedings set out in the record, and ultimately became vested in the United States. The plaintiffs claim that the act under which said condemnation proceedings were had were unconstitutional, and therefore did not devest the title of Bolles to said land; and one of the important questions in the case is whether the plaintiffs, with the judgment in the condemnation proceedings in full force, can now make this claim. The facts bearing upon that question are, in substance, the following: In March, 1867, an act of congress authorized and directed the secretary of the navy "to receive and accept a deed of gift, when offered by the state of Connecticut, of a tract of land on the Thames river, near New London, Conn., with a water front of not less than one mile, to be held by the United States for naval purposes." 14 Stat. 489. In July, 1867, in order to enable the state to offer to the United States a gift of the kind above described, the legislature of this state (Pub Acts 1867, c. 137) authorized the governor to appoint three commissioners to select and designate a tract of land answering the above description, and authorized the city of New London to acquire title to the land which should be so selected and designated "by purchase or otherwise in trust, and for the purpose of conveying the same to the United States." It is further claimed that, if the city and the owners of the land so to be selected could not agree as to the purchase of it, the city might take the land upon making compensation to such owners in the manner provided in certain sections of chapter 4, tit. 37, Gen. St., in the Revision of 1866. The act of July, 1867, above referred to, also provided in effect that, after the city had obtained the title to said land, said title should be conveyed to the United States for naval purposes. In October, 1867, the governor appointed three commissioners pursuant to said act, and they subsequently, in co-operation with an agent of the federal government, selected and designated a tract of land on the east side of the Thames river, near New London, answering to the description in the act of congress aforesaid, which included the premises in dispute. Afterwards, in December, 1867, the city of New London, being unable to agree with the owners of said land for the purchase of the same, brought its petition, under the provisions of the statutes above referred to, before the Honorable John D. Park, a judge of the superior court, praying for the appointment of commissioners of appraisal, and making all the parties interested in said land, including John R. Bolles, parties to said proceedings. This petition, after due notice to all concerned, was fully heard, and commissioners of appraisal were duly appointed. Said commissioners, after notice to and hearing of all parties interested, reported their doings in writing to said judge, who, after notice and hearing, confirmed said doings and report. All the proceedings in the matter of said petition before said judge were in conformity with the aforesaid statutes, and all the files and records in said matter were recorded at full length in the records of the superior court in New London county and in the town clerk's records of the town where said land lay. John R. Bolles appeared in person and by attorney before said judge and before said commissioners of appraisal, and was fully heard. The sums of money ordered to be paid to John R. Bolles for the land in dispute in the order of confirmation were duly paid to him by the city of New London, and he accepted the same, and took no appeal or proceedings in error of any kind from the action of said judge or of said commissioners of appraisal. In April, 1868, the state of Connecticut, acting by its duly appointed agents, and the city of New London, executed and delivered to the secretary of the navy, for naval purposes, a deed conveying the premises so acquired by the city of New I/ondon in and by virtue of said condemnation proceedings, includiug the land here in dispute, and said deed was received and accepted by said secretary, in behalf of the United States. On or before July 1, 1868, the United States took possession of all the premises thus conveyed to it, claiming title thereto, and has continued in the exclusive possession thereof ever since,...