Cherkoss v. Gasser

• Decision Date: 09 December 1937
• Citation: Cherkoss v. Gasser, 123 Conn. 368, 195 A. 737 (Conn. 1937)
• Court: Connecticut Supreme Court
• Parties: CHERKOSS et al. v. GASSER et al.

195 A. 737

123 Conn. 368

CHERKOSS et al. v. GASSER et al.

Supreme Court of Errors of Connecticut.

December 9, 1937

Appeal from City Court of Bridgeport; Paul L. Miller, Judge.

Action by Edward Cherkoss and others against George S. Gasser and others for an injunction restraining the defendants from trespassing upon plaintiffs' property, wherein the defendants filed a counterclaim for an injunction and damages. The issues were tried to the court. From a judgment granting the plaintiffs injunctive relief and awarding damages to defendants on the counterclaim, both parties appeal.

Error on plaintiffs' appeal, and judgment directed.

Charles Albom and Robert J. Woodruff, both of New Haven, for appellants.

Charles Weingarten, Edward Schine, and John B Canty, all of Bridgeport, for appellees.

Argued before MALTBIE, C.J., HINMAN, AVERY, BROWN, and JENNINGS, JJ.

AVERY Judge.

The plaintiffs and defendants own adjoining properties on the south side of Laurel avenue in Bridgeport; that of the plaintiffs lying easterly of that owned by the defendants. Between the two lots runs a driveway to a garage on the rear of the plaintiffs' property. The present controversy relates to a strip of land on the west side of the driveway nineteen inches wide on Laurel avenue and running back to a point on the rear of the property. This strip constituted a part of the driveway, and the present action was brought by the plaintiffs to enjoin the defendants from obstructing the driveway and also asking a reformation of the deed of the defendants' property. The trial court concluded that the plaintiffs were not entitled to a reformation of the deed but that they possessed a way to necessity over the property, and entered judgment accordingly. Both parties have appealed; the plaintiffs from denial of their prayer for a reformation of the deed, and the defendants from the decision giving the plaintiffs a right of way.

The defendants acquired their property by purchase at an auction sale; the deed to them being made by Mildred Cherkoss, in whose name the title stood but who is found to have been the agent of the plaintiffs, the real owners. The deed bounded the property on the north by Laurel avenue 42.65 feet, and on the east by the land of the plaintiffs. Between the two properties on Laurel avenue is a stone marker constituting the apparent boundary . If surveyors' measurements are taken from a definite boundary fence on the west side of the plaintiffs' lot, the dividing line between the properties, giving to the defendants the specified frontage on Laurel avenue, would come to the center of the marker; if the measurements are taken from the nearest street corner to the west, the boundary line would fall nineteen inches easterly of the marker in the driveway. If the latter point is taken as the true boundary, the effect would be to destroy the usefulness of the driveway to the plaintiffs. The defendants knew when they bought the property that the disputed strip of land was being used as a part of the driveway. The plaintiffs did not intend to sell and the defendants did not intend to buy the land easterly of the marker, and all parties acted in ignorance of the fact that the description in the deed included the disputed strip. The trial court concluded that the deed from Mildred Cherkoss to the defendants did not express the agreement intended between parties, that the mistake was a mutual one and common to all parties, but in spite of the mutual mistake the trial court concluded that the plaintiffs were not...