C. B. Alling Realty Co. v. Olderman

• Decision Date: 15 March 1916
• Citation: 90 Conn. 241,96 A. 944
• Court: Connecticut Supreme Court
• Parties: C. B. ALLING REALTY CO. v. OLDERMAN.

96 A. 944

90 Conn. 241

C. B. ALLING REALTY CO.

v. OLDERMAN.

Supreme Court of Errors of Connecticut.

March 15, 1916.

Appeal from Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge.

Action by the C. B. Ailing Realty Company against Max Olderinan to recover damages and for an injunction to restrain the commission of continuing trespasses by the defendant upon land of the plaintiff through the claimed use of a right of way. Facts found, and judgment rendered in favor of defendant, and plaintiff appeals. Affirmed.

On February 15, 1860, and for some time prior thereto, Amos H. Ailing and Charles B. Ailing were the owners of practically all of an undeveloped tract of land in Derby bounded north on Third street, east on Elizabeth street, south on Main street, and west on Olivia street. On that day the Allings conveyed to Grove and Darius Camp a lot in the northwest corner of this tract having a frontage on Olivia street of 60 feet and extending back on Third street 100 feet. The parties in interest soon after the conveyance caused the lot to be fenced, and the Camps built a tenement building upon it which still stands there and occupies the north half of the lot for practically its full depth. December 5, 1881, the Camps conveyed this lot to George L. and William E. Beardsley. Subsequently, William E. Beardsley quitclaimed his interest to George L. Beardsley, who continued in the ownership of the property until February, 1910, when he died. In June of that year, his interest, including any and all rights in the passway, was conveyed to this defendant, who still owns the property.

March 9, 1887, the Allings conveyed to one Dennis H. Kelly a lot of land in the northeast corner of said tract. This lot extended on Elizabeth street 65 feet from the corner of Third street, and on Third street 84 feet. A strip of land was thus left between the rear of the land conveyed to Kelly and the rear of the Beardsley property described in various deeds as 16 feet in width, but measuring as at present fenced a little over 17 feet. At this time the Allings opened up this strip of land extending from Third street to the southern boundary of the Kelly land as a private alley or passway, and conveyed to Kelly "in common with the grantors and their grantees the use of a private right of way" over said strip.

April 30, 1892, the Allings conveyed to Charles Nettleton a tract fronting on Elizabeth street 31 feet, and lying 48 feet south of the Kelly land, and extending back from Elizabeth street 84 feet. At this time the passway was extended to the southerly line of the land conveyed, being 144 feet from Third street, and the conveyance to Nettleton granted to him, his heirs and assigns, "the right to pass and repass on foot and with teams for all reasonable purposes in common with others to whom the right may be granted" over the strip of land included within the passway, which, by the terms of the deed, was "to be forever kept open and unincumbered and free for the use as and for a private alley and passway for the use in common of the owners and occupants of land bordering on the same and upon any continuation of the same that may be made southerly and westerly to Elizabeth street."

June 27, 1893, the Allings conveyed to Kelly a lot lying immediately south of the Beardsley lot and having a frontage on Olivia street of 31 feet and a depth of 100 feet. This lot was described in the conveyance as extending back to the passway, which was defined by reference to the Nettleton deed. The right to use the passway was conveyed to Kelly, his heirs and assigns, and it was covenanted that it was "to be forever kept open and unincumbered and free for use as and for a private alley and passway in common of the owners and occupants bordering on the same."

The Allings made other conveyances of lots included in their original ownership in which references to said passway were made.

September 20, 1911, Kelly conveyed to the defendant the front portion, 57 feet in depth, of the lot above described lying next south of the Beardsley lot, together with its appurtenances. Subsequent to this purchase, he erected, partly on the land thus acquired and partly on the south portion of the Beardsley lot and extending to within a short distance of the tenement house built thereon by the Camps, a building containing eight tenements and two stores. Since its erection the defendant, by crossing the Beardsley lot, has used the passway for the purposes of access to and egress from the rear of this building, including that portion of it which stands upon the Kelly tract as well as that portion which stands upon the Beardsley lot.

When the Beardsleys in 1881 first acquired the lot, which the defendant now owns, there was no way of passage to and from Olivia street to the rear of the tenement house built thereon because of a high rock wall and embankment along Olivia street. At first, the Beardsleys began to use the passway for this purpose by removing a section of the fence which stood upon the boundary line between it and their lot. Concerning their use, the court's finding is as follows:

"Some time between 1887. the year when the passway was laid out, and 1891, the said Beardsley began to use the passway to go to and from the rear of his premises for various purposes, and, from that time down to the bringing of this suit, the said Beardsley and his successors in title, including the defendant, have continued the actual and uninterrupted use of said passway as of right, for the purpose of going to and from the rear of said premises on foot and by team, by themselves and servants and tenants, for various purposes, such as removing night soil and garbage, and taking in wood, coal, and furniture, and it is found that the use of said passway, for the purposes stated, was granted to the said Beardsley by the said Allings some time between said dates."

It does not appear that the character of the use has changed during this time, or that it is different in kind or extent to-day from what it was originally.

About 1891, under some arrangement between George L. Beardsley and one of the Allings, the nature of which did not appear, a gate Was put in the boundary fence. This gate was used under the direction of the Beardsleys until about the time of George L.'s death in February, 1910. After that time the fence and gate gradually disappeared, and about the time of the bringing of this suit had almost altogether disappeared.

Some time in 1914, prior to the bringing of this action, the plaintiff erected a tight board fence shutting off access to the passway from the Beardsley lot. The defendant thereupon removed a section of it for the purpose of regaining such access. The plaintiff claims the right to maintain the fence as erected by him, and to prevent the defendant from using the passway. The defendant claims the right to use it as he has been using it, and to remove any obstruction to such use.

April 1, 1905, the title of the Allings, both of whom were then deceased, in the passway and other land in said block, together with all their...