Ctr. Bridge Co. v. Wheeler & Howes Co.

• Decision Date: 11 March 1913
• Citation: 86 Conn. 686,86 A. 11
• Court: Connecticut Supreme Court
• Parties: CENTER BRIDGE CO. v. WHEELER & HOWES CO.

86 A. 11

86 Conn. 686

CENTER BRIDGE CO.

v. WHEELER & HOWES CO.

Supreme Court of Errors of Connecticut.

March 11, 1913.

Case Reserved from Superior Court, Fairfield County; Marcus IT. Holcomb, Judge.

Ejectment by the Center Bridge Company against the Wheeler & Howes Company. Reserved for the advice of this court on an agreed statement of facts. Superior court advised that plaintiff is not entitled to possession of the land involved.

In 1847, and for a long time prior thereto, one Birdseye G. Noble was and had been the owner in possession of a considerable tract of land in Bridgeport, adjoining the harbor. In that year he conveyed to the New York & New Haven Railroad Company, by warranty deed, a right of way four rods in width across this land from the harbor northerly "for the construction and use of said railroad." This strip was occupied by the main line of the railroad company until 1900. when its layout was changed. Down to 1868 there was only a single track, laid substantially in the center of the right of way.

In 1850 William H. Noble, the successor in title to Birdseye G. Noble to the entire tract the latter had owned, conveyed to Carmi Hart the land lying next easterly of the right of way, and bounded on the side next to the railroad "on the land of the New York & New Haven Railroad and running along the same." The defendant is the successor in title to all the land thus conveyed to Hart.

In 1855 P. T. Barnum and William H. Noble, the successors in title to William H. Noble to the land not conveyed by the latter to Hart as recited, conveyed to the plaintiff land on the opposite side of the right of way, and described as bounding east on Carmi Hart.

In 1858 the plaintiff conveyed to one Sanborn that portion of the land acquired by it under the deed last described, which adjoined the right of way. The east boundary in this conveyance to Sanborn was "the track of the New York & New Haven Railroad." The plaintiff claims no title under Sanborn. The land in controversy is the four-rod strip which comprised the railroad right of way. In its length it does not extend in either direction beyond the limits of the land conveyed to Hart on one side, or of that conveyed to the plaintiff by Noble and Barnum on the other.

In 1861 the trustee of the estate of William H. Noble made a conveyance to Charity Barnum of the fee simple of the undivided one-half part of the land covered by the right of way; and in 1864 P. T. and Charity Barnum gave to Sanborn a quitclaim deed of the western portion of the right of way, bounded east by the center of the tracks of the railroad, and further describing the tract as 33 feet in width.

In 1864 the plaintiff conveyed by warranty deed, to the city of Bridgeport, its bridge across Bridgeport harbor and Pequonnock river, located a short distance westerly of the railroad right of way, "together with all the real estate in any way connected With or used therewith or belonging to us." Following this general language was a particular description of the real estate, which includes a piece of land at the easterly end of the bridge described as bounded easterly on the land conveyed to Sanborn in 1858, as stated.

Other facts found need not be recited, as they are not involved in the discussion of the opinion.

William H. Comley, Jr., of Bridgeport, for plaintiff.

Thomas M. Cullinan and William H. Kelsey, both of Bridgeport, for defendant.

PRENTICE, C. J. (after stating the facts as above). This is an action of ejectment to recover possession of a strip of land which was for many years used by the railroad company now known as the New York, New Haven & Hartford Railroad Company as a part of its right of way.

The plaintiff must recover, if it recovers at all, upon the strength of its own title shown, and not by reason of the weakness of the defendant's title. Cahill v. Cahill, 75 Conn. 522, 524, 54 Atl. 201, 732, 60 L. R. A. 706; Moran v. Denison, 79 Conn. 325, 330, 65 Atl. 291.

Our advice is asked upon the ultimate question of the plaintiff's right to recover upon the facts found, and also in response to four other incidental questions. One of these relates to the rights of the railroad company; the plaintiff claiming that it has abandoned the use of the land for railroad purposes, and that with this abandonment it has lost all right or title in or to the property. Another asks an adjudication of the rights of the city of Bridgeport by virtue of a certain deed by the plaintiff to it. Neither the railroad company nor the city is a party to the action. The impropriety of answering these two questions is thus apparent. Fortunately, however, their answer is not involved in a determination of the right of the plaintiff to have the judgment it seeks. The...