Cox v. McClure

• Decision Date: 03 January 1901
• Court: Connecticut Supreme Court
• Parties: COX v. McCLURE.

47 A. 757

73 Conn. 486

COX

v. McCLURE.

Supreme Court of Errors of Connecticut.

Jan. 3, 1901.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Action by John Cox against Thomas McClure in the nature of trespass quare clausum fregit for damages and for injunction. After the equity issues were tried to the court, and judgment rendered thereon for defendant, the case was tried to the jury, and there were verdict and judgment for plaintiff for $50 damages. Defendant appeals. Reversed.

The following facts appear of record: The plaintiff and defendant are owners of adjoining tracts of upland upon a cove on the north shore of Long Island Sound, the plaintiff's land lying easterly of the defendant's. The plaintiff brought the present action, returnable in June, 1898, alleging in his complaint that within a few days prior to the date thereof the defendant had commenced to trespass upon the plaintiff's riparian rights by setting up a large number of posts upon the shore, and commencing the construction of bath houses thereon, and that the defendant threatened to continue said acts, and asking for a permanent injunction restraining the defendant from proceeding further in the construction of said bath houses, for a temporary injunction to that effect, and for $5,000 damages. In October, 1898, the defendant filed his answer, the first defense of which consisted of admissions and denials, and the seventh and eighth paragraphs of the second defense of which are as follows: "(7) A short time prior to the time when this suit was brought the defendant dug holes in the sand below high-water mark, and placed posts therein, for the purpose of constructing bath houses. These holes and posts are located southwest of a line drawn from the extremity of the easterly boundary of the excepted tract (the defendant's upland), where the easterly boundary meets the high-water mark, perpendicular to a line drawn across the mouth of the bend or cove from headland to headland, and in front of said excepted tract. (8) Defendant has not otherwise exercised riparian rights, nor done any acts except upon the excepted tract and in front of the same, and to the west of said perpendicular line." Upon the first trial of the case to the jury the plaintiff claimed that the deed through which he received his title from the defendant conveyed to him the entire shore rights south both of his own upland and of that of the defendant. The trial court having sustained the plaintiff's said claim, and the jury having returned a verdict for the plaintiff for five dollars damages, the defendant appealed to this court, and a new trial was granted upon the ground that the construction placed by the court upon said deed was erroneous, and that by the terms of said deed the defendant was the owner of the shore rights and privileges south of, and appurtenant to, his (the defendant's) said tract of upland. See Cox v. McClure, 71 Conn. 729, 43 Atl. 310. Thereupon, in November, 1899, the plaintiff amended his said complaint, alleging that when he purchased his said up land of the defendant it was agreed that he should have a conveyance of all the wharf and shore rights to the shore south of his own land and of that of the defendant, and asking for a reformation of said deed, and the defendant amended his answer, denying the allegations of said amendment to the complaint. The pleadings having been thus amended, in December, 1899, upon motion of the defendant, the case was transferred to the court docket "for the trial of the equity issues." In a judgment file in this case dated April 10, 1900, it is stated that the parties appeared and were at issue to the court as on file, and that the court found "the issues for the defendant on his first and second defenses as on file," and that "it is adjudged that the prayers of the complaint numbered, respectively, 1, 2, and Al (being the prayers for a permanent and temporary injunction and for the reformation of the deed), be denied, and that the defendant recover of the plaintiff his costs." A memorandum of decision of the same date, signed by the judge presiding at the trial of the equity issues, after stating that the plaintiff had failed to present such proof as entitled him to have the deed reformed, concludes with the following statement: "I find the facts in accordance with the defendant's first and second defenses. Judgment may be rendered in favor of the defendant on prayers 1, 2, and Al." In another judgment file in this case, dated June 22, 1900, it is said that on the 13th of June, 1900, "the parties appeared and were at issue to the jury upon those issues in said case-remaining on the jury docket as on file"; that, the case having been committed to the jury, they rendered a verdict for the plaintiff for $50 damages, upon which verdict judgment was rendered for the plaintiff for said sum and costs. By the finding of facts made by the judge who presided at the jury trial, it appears that, before the jury was impaneled for the trial of those issues remaining after the trial of the equity issues, the defendant moved that no jury be impaneled in the case, for the reason that all the issues therein had been decided upon the hearing before the court in the trial of said equity issues. The court overruled said motion, and permitted said jury trial to proceed. Upon the trial the defendant, upon the same ground, objected to evidence offered by the plaintiff to prove the trespass alleged in the complaint, and the court overruled said objection. The defendant also requested the court to instruct the jury to render a verdict for the defendant upon the ground that the case had already been decided by another branch of the court, and that the issues therein were res adjudicata. The court did not so charge, but instructed the jury that the question tried by the equity side of the court was whether the plaintiff was entitled to a reformation of his deed as claimed by the amendment to the complaint. Upon the trial to the jury, while each of the parties claimed that the true divisional line between their shore rights was a line drawn from the point of in tersection of the divisional line of their uplands with the high-water line, perpendicular to a line from headland to headland across the mouth of the cove, they differed as to what should be considered the cove; that is, what should be regarded as the proper point of land on the east to which should be drawn the base...