Brower v. Wakeman
| Decision Date | 05 March 1914 |
| Citation | 89 A. 913,88 Conn. 8 |
| Court | Connecticut Supreme Court |
| Parties | BROWER v. WAKEMAN et al. |
[Copyrighted material omitted.]
Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.
Action by Frederick Brower against Lewis P. Wakeman and others, for damages for an alleged unlawful injury to a bathhouse and for the destruction of personal property contained therein. The court found the facts and rendered judgment for defendants, and plaintiff appeals. Affirmed.
Spotswood D. Bowers, of Bridgeport, and Edward J. Quinlan, of Norwalk, for appellant.
Stiles Judson, of Bridgeport, for appellees.
The action is one to recover damages for the removal of a bathhouse and the destruction of it and its contents.
The defendants justify in several ways, upon one of which the trial court rendered judgment in their favor. This justification was that the bathhouse stood on a public beach owned by the town of Westport, and that the defendants, acting as selectmen and under direction of a town meeting, removed the bathhouse and its contents and gave the plaintiff notice thereof, but he failed or refused to remove them.
The decision of two questions of law and one of fact will be decisive of this appeal. (1) Did Westport have title to or the right to that part of the beach on which the bathhouse stood? (2) Was the plaintiff's occupation such as to entitle him to a reasonable notice prior to the removal and destruction of the bathhouse and its contents? (3) If so, was this given him?
The plaintiff insists that the location of the bathhouse is, by the finding, upon a public beach below high-water mark, and therefore the town neither has nor could acquire a right of ownership or of possession to this part of the beach.
"A public beach is one left by the state, or those claiming under it, open to the common use of the public, and which the unorganized public and each of its members have a right to use while it remains such." Dawson v. Orange, 78 Conn. 96, 119, 61 Atl. 101.
It may be that part of the shore between high and low water mark, or the strip of shore lying above high water by dedication having become a public beach. Dawson v. Orange, supra.
The title to that part of the beach below high water is in the state as the representative of the public. The town has no ownership or control of this. Simons v. French, 25 Conn. 352; Church v. Meeker, 34 Conn. 421, 427; New Haven Steamboat Co. v. Sargent & Co., 50 Conn. 202, 49 Am. Rep. 632; Farist Steel Co. v. Bridgeport, 60 Conn. 282, 22 Atl. 561, 13 L R. A. 590; Dawson v. Orange, 78 Conn. 118, 119, 61 Atl. 101.
The General Assembly could create a proprietorship in such a beach, and grant to the town such a proprietorship. Rowe v. Smith, 48 Conn. 446.
It has not attempted to convey to Westport any of the shore below high-water mark.
The Special Act 1907, p. 574, upon which the plaintiff relies, recites: "Any common or undivided lands situated within the town of Westport, that may have formerly belonged to the town of Fairfield or to the proprietors therein, shall belong to and be under the control of the town of Westport." This grant was of common or undivided lands, formerly belonging to the town of Fairfield or to the proprietors therein. The shore below high water, as we have seen, never belonged to the town, or to the proprietors therein. If, then, the locus of the bathhouse was below high water, the town and the officials of the town had no right or control over it.
One paragraph of the finding recites that the bathhouse was located upon a beach extending into the waters of Long Island Sound. It is upon this recital the plaintiff bases his claim that the finding locates the bathhouse below high-water mark. As we read the finding in its entirety and mark its conclusions, we think it clear the trial court located the bathhouse above and not below high water. The beach may have extended above high water and below It; hence into the waters of Long Island Sound. The trial court expressly finds that this locus was contained in the grant to the proprietors of Fairfield, and that it was never allotted to any individual. The grant to the early proprietors conveyed only to high water. Dawson v. Orange, 78 Conn. 96, 119, 61 Atl. 101; Church v. Meeker, 34 Conn. 421. This was a fact of early recognition in our law, and there is nothing to indicate that the court did not have in mind this historic fact in making up its finding.
From the finding we learn, not only that the locus of the bathhouse was upon the beach above high water, but that this part of the beach formerly belonged to the early proprietors; that they never conveyed it; that it has always been used by the general public, and was finally abandoned by the proprietors to the general public and became common and undivided land. This did not give the town any title to or proprietary interest in this undivided land of the shore. The proper representatives of the interest of the general public would be, as in the case of a highway, a number of the public or the state. The state, through the General Assembly, could convey the rights of the public in the shore between high and low water mark. Rowe v. Smith, supra. Likewise the General Assembly could convey the rights of the public to the part of the beach above high-water mark abandoned to them. This it did by the Special Act already quoted. By virtue of this act, Westport became the owner of this part of the beach, and, since this act went into effect, has had the right to its exclusive control.
Westport in 1903, before the passage of this act, assumed, without right, authority over Compo Beach by action taken at a town meeting in voting to appoint a committee "to investigate and ascertain what measures the town should employ to secure to the public the greatest possible benefit that can be derived from the shore property at Compo Beach and report." The report of this committee was accepted at a subsequent town meeting, and its recommendation adopted that permits be granted by the town clerk for one year on payment of $1 to any one to occupy a lot on Compo Beach from those laid out upon a chart to be filed in the town clerk's office. And it was further voted that the applicant have the right to renew the permit as long as, the present system continued. Although no chart was made and the town clerk did not Issue such...
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