Carney v. Hennessey

• Decision Date: 09 March 1905
• Citation: 60 A. 129,77 Conn. 577
• Court: Connecticut Supreme Court
• Parties: CARNEY v. HENNESSEY et ux.

60 A. 129

77 Conn. 577

CARNEY

v. HENNESSEY et ux.

Supreme Court of Errors of Connecticut.

March 9, 1905.

Appeal from Court of Common Pleas, New Haven County; James Bishop, Judge.

Action by Margaret Carney against James Hennessey and wife. From a judgment for plaintiff, defendants appeal. Reversed.

In 1873 Joseph Fairchild was the owner of a triangular piece of land bounded northerly by the junction of State and Olive streets about 25 feet, westerly by State street (which ran in a direction a little north of east) about 160 feet, easterly by Olive street and land of the railroad company about 188 feet, i. e., by Olive street (which ran in a direction a little east of north) about 145 feet, and by the railroad land about 43 feet (the railroad line running about parallel with State street), and southerly by land of one Lewis about 116 feet. On this lot stood his homestead, being about 25 feet front and 60 feet deep, with a projection on the northerly side of about 4 feet. The front was on State street, the doorsteps extending to or beyond the street line. The southerly line of the building was about 51 feet, and the projection on the north about 80 feet, from the Lewis land. The building was then, and ever since has been, used as a dwelling house.

In 1873-74, Fairchild built upon the land north of his house a building about 24'x36' in size. The building faced on State street, the doorsteps extending to or near the east line of State street. The first floor was intended for a store, and the upper floors for a tenement. The southern face of the building was about four feet from the northern face of the projection of his own house. On October 16, 1874, Fairchild conveyed to his daughter, Mrs. Easton, a piece of land described in his deed of that date as follows: "Bounded westerly by State street 28 feet; southerly by my own land 90 feet, more or less; easterly by Olive street 35 feet, more or less; and northerly by my own land 67 feet, more or less—hereby conveying the brick store and dwelling house recently erected by me on the land above described." On February 4, 1892, the plaintiff became owner of the land and building conveyed by Fairchild to his daughter. The trespasses alleged in the complaint were committed on land lying south of the south face of this building, and the plaintiff's right of recovery depended upon the proof of her ownership and possession of the land lying south of said building.

Mrs. Easton died intestate March 6, 1876, her land descending to her two daughters, Josephine, born April 19, 1866, and Mary, born March 13, 1868. No administration on her estate was taken out until April 6, 1881. Joseph Fairchild died in February, 1881. He devised all his real estate, including his land lying north and south of that conveyed to Mrs. Easton, to his five sons, Frederick W., Joseph H., Edward L., William C., and Sidney B. Fairchild. April 23, 1881, Frederick W. and Joseph H. Fairchild released their interest in the lot lying south of the Easton lot to Edward L., William O., and Sidney B. Fairchild, and the latter three released to the former two their interest in the lot lying north of the Easton lot. On November 20, 1890, Josephine Easton and her husband, William O. Pardee, and Mary Easton and her husband, William H. Forsyth, released, through John C. Gallagher, their interest in the Easton lot to said William H. Forsyth, and February 4, 1892, William H. Forsyth conveyed the lot to the plaintiff. In all these deeds the lot is described in the same way as it was described in Joseph Fairchild's deed to Mrs. Easton, and as being the same premises so conveyed by Joseph Fairchild. On September 27, 1884, William O. Fairchild conveyed to Edward L. Fairchild his undivided one-third of the lot lying south of the Easton lot, describing it as bounded westerly by State street 82 feet, more or less; northerly by land of Josephine and Mary Easton 72 feet, more or less; easterly by Olive street and railroad land; and southerly 116 feet, more or less, by the Lewis land. On September 21, 1885, Sidney B. Fairchild released to Edward L. Fairchild his interest in so much of the lot south of the Easton lot as lies northerly of a line drawn parallel to the northerly line of the Abram Lewis land, describing it as "bounded westerly by State street 46 feet, more or less; northerly by land of heirs of Mrs. Easton 72 feet, more or less; easterly in part by Olive street and in part by land of the New York, N. H. & H. R. R. Co.; and southerly by land quitclaimed to me by said Edward L. Fairchild by deed of even date herewith, from which it is separated by a line parallel with and 36 feet distant northerly from the north line of land formerly of Abram Lewis when measured on the east line of State street 116 feet, more or less." On February 20, 1891, Edward L. Fairchild conveyed by quitclaim deed to Spier and Straus his equity of redemption in the land released to him by his brother by the last-mentioned deed, and on March 19, 1891, said Spier and Straus conveyed to the defendants the same land, describing it as bounded westerly by State street 46 feet, northerly by land formerly of Joseph Fairchild about 72 feet, easterly by Olive street and railroad land, and southerly by land formerly of Sidney B. Fairchild 116 feet, more or less. In this way the defendants, on March 19, 1891, became owners of the land of Joseph Fairchild lying southerly of the land which he conveyed to his daughter, Mrs. Easton, on October 16, 1874; and the plaintiff, on February 4, 1892, became owner of the land acquired by Mrs. Easton by virtue of said deed from her father.

George E. Beers and Frank S. Bishop, for appellants. Charles S. Hamilton, for appellee.

HAMERSLEY, J. (after stating the facts). The acts of trespass complained of were done on a piece of land lying between a northerly line including the face of the plaintiff's building and a southerly line including the face of the projection of the defendants' building, the distance between the face of the projection and the face of the plaintiff's building being about four feet. The plaintiff bases her claim of ownership of this land, or that portion of it on which the alleged trespass may have been committed, upon the deed of Joseph Fairchild to his daughter, Mrs. Easton, of October 16, 1874. Fairchild owned at the time of conveyance not only the land conveyed, but the land to the north and south of it, and described the land conveyed as bounded on the north and south by his own land. He gives no point as the beginning or ending of any of the boundary lines. The only certainty as to the location of the boundaries is that they must include the building he has recently erected, which is expressly conveyed by the deed, and presumably must exclude his own residence. Any location of the land conveyed which will give a frontage on State street of 28 feet and on Olive street of about 35 feet and include the recently constructed building of 24'x36' between boundary lines, whether straight or not, measuring about 67 feet on the north and about 90 feet on the south, will conform to the description. It is patent that a location in substantial accord with the description may exclude all the land in dispute or may...