Dawson v. Town of Orange

• Citation: 78 Conn. 96,61 A. 101
• Court: Supreme Court of Connecticut
• Decision Date: 20 June 1905
• Parties: DAWSON v. TOWN OF ORANGE et al.

61 A. 101

78 Conn. 96

DAWSON

v. TOWN OF ORANGE et al.

Supreme Court of Errors of Connecticut.

June 20, 1905.

[Copyrighted material omitted.]

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Sidney H. Dawson against the town of Orange and others, on the statute, for a decree determining the plaintiff's title to certain land of the value of $20,000, situated in the defendant town and bounded on Long Island Sound, brought to the superior court for New Haven county. A demurrer to the complaint having been overruled, an answer was filed, part of which was struck out by the court, and a demurrer to the residue overruled. The cause was then tried to the jury on issues of fact, and a verdict for the plaintiff directed and returned. No error.

Samuel C. Morehouse and Anion A. Ailing, for appellants. Talcott H. Russell, for appellee.

BALDWIN, J. The statute under which this action was brought (Pub. Acts 1893, p. 237, c. 66; Gen. St. 1902, § 4053) authorizes any person claiming an interest in real estate to bring suit against any person or persons claiming an adverse interest in it, for the purpose of determining such adverse interest and to settle the title to the property. Either party to such a proceeding has the right to a trial by jury of any issues of fact arising upon legal, as distinguished from equitable, claims. Miles v. Strong, 68 Conn. 273, 286, 36 Atl. 55. This being so, there is nothing in its provisions which is in conflict with the Constitution of the state or that of the United Stales. It introduced, indeed, a novel mode of judicial procedure, but it was fully in the power of the General Assembly thus to enlarge our methods of remedial justice. Holden v. Hardy, 169 U. S. 366, 385, 18 Sup. Ct. 383, 42 L. Ed. 780; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52. Nor was the complaint insufficient in form. A claim may be adverse, within the meaning of the statute, although no attempt has been made to enforce it To set it up is treated as of itself a sufficient injury to justify a suit. The demurrer to the complaint was therefore properly overruled.

The answer was divided into twelve separate "defenses." The first denied the plaintiff's title to a certain portion of the land described in his complaint, and also the alleged value of the entire tract. In several of the others the first defense was made a part by reference, and substantially the same denials were also repeated. The plaintiff moved that the denials be struck out of each of these, or that all the defenses should be consolidated. The court might properly, in the interest of simplicity, since the so-called "defenses" were in substance specifications of sources of title, have ordered such a consolidation. In doing less, by merely striking out the repetition of the denials, it committed no error.

It was alleged in the answer that the tract in controversy, which was a part of the main tract south of the line of an old stone wall and between that and the Sound, was a public beach, and from time immemorial, and certainly since 1686, had been laid out and used as a highway. To this the plaintiff replied that for more than 100 years its use for a highway had been abandoned, and another highway substituted for it, and used by the public, on his land north of the line of this wall. A motion to strike out so much of the reply as set up the substitution and use of the new highway was properly denied. These allegations tended to put the plaintiff's case more fully and plainly before the jury, and it was within his right, although not strictly necessary, to state it in that manner.

A demurrer next filed to this part of the reply was properly overruled. The only cause of demurrer assigned was that the abandonment of the use of the beach as a highway left it still a public beach. If so, the sufficiency of this part of the reply to meet the defense founded on the existence of a highway along the shore was not affected. Its sufficiency to meet the claim founded on the existence of a public beach was not properly put in question by this demurrer. That there was such a beach, the reply elsewhere had denied.

A lengthy trial to the jury ensued.

The following facts were undisputed:

The land in controversy was part of an allotment made to Thomas Trowbridge, pursuant to an order of the town of New Haven, voted on December 20, 1679, by which a committee was appointed to prepare a scheme for allotting to particular proprietors certain lands which up to that time had been held in common. These lands were situated in what is now the defendant town, and, on the report of the committee, it was further ordered, on December 20, 1680, that the lots should be laid out beginning "at Mr. Malborn's Cove and So a long by ye sea to Oyster River." The whole allotment to Thomas Trowbridge was 111 1/2 acres. The land in controversy was a narrow strip bounded northerly by the line of an old stone wall, which ran a short distance northerly of and substantially parallel with the ordinary high-water line of Long Island Sound. This strip is, at ordinary high tide, of a width varying from 3 or 4 feet in some places to 66 in others. A large part of the land originally existing, of which it was the northerly part, has been washed away by the action of the sea from time to time. The plaintiff owned a tract of land, comprising over 30 acres, immediately north of the line of the wall, for the entire length of the strip, with the exception of a portion occupied by a regular highway of the town of Orange, which had been made by the state, and was a good road. The trend of the shore line along this strip was somewhat northeast and southwest. No fences had ever existed between the stone wall and the Sound. The land in controversy had until recently been of little value. There was no proprietors' committee in the defendant town.

The plaintiff introduced evidence tending to show both title and possession.

The sole defendants were the town, and three persons described as its selectmen. It was admitted in the pleadings that these persons were such selectmen, and as such, and by its authority, had claimed that it owned the land in dispute, and that they claimed no interest in their own right. The answer denied the plaintiff's title to or possession of any land south of the line of the stone wall, and set up (1) ownership and possession in the town ever since its incorporation in 1822, and, before that, in the town of New Haven ever since its formation; (2) title in the town under a deed to it from Walter Wilmot, given in 1846; (3) that the land had been reserved for a highway by the town of New Haven in 1686, and ever since used as such; (4) that it was a public beach; and (6) that from time immemorial it had been a town common, whereon the citizens of the state had, and had exercised, the right of entry and occupation to gather seaweed, catch fish, dig shellfish, enjoy for picnic purposes, and use for access to the public waters of the state. In support of their answer, they introduced evidence tending to prove that in early colonial times, and until recent years, the main road from New Haven to Bridgeport lay inland, crossing Jones Hill some distance northerly of the land in question; and that this road, and also one over the strip in controversy, were thus described in the New Haven town records in 1686: "In ye laying out of ye 3d division on ye west side beginning at ye place called Malbone Cove, Henry Bristolls Lott was first which began as soon as ye land would bear as ye sizers adjudged wherein a considerable piece of Comons was left between ye sd Bristoll's Lott & ye Meadow, from which Comon was land allowed at least 4 rod wide by ye seaside round to Oyster river mouth & soe at ye reare of yt teere of Lotts a highway from ye Comon, down to sd Oyster river mouth between ye sd teere of Lotts & Benjamin Bunnels Lott which near Oster river mouth was about 12 rod wide & so running to ye sd Comons as the sd lines will beare not to be less than 4 rod wide in any place & soe from ye sd highway at sd Oister river mouth a highway round by ye sd meadows yt the northwest side of Edward Preston's Lott wher ther is another highway as Mr. Harriinan gives account of"; * * * "in yt part of ye third division in Newhaven that was layd out in ye yeare 1681. Ensigne Jno Miles Daniel Sherman and John Clarke, Sizers & John Harriman Surveyor ye high-waies are as followeth 1. From the Comon on ye East to ye Meadow at Oister river on ye west a highway of four rods wide at ye East end & about 6 rods at ye meadow bounded by John Downes his land on ye North." The road last described was claimed by the defendants to be the Jones Hill Road. The plaintiff offered evidence tending to prove that prior to 1846 there had been no highway over the land in question, but the Jones Hill Road was the regular road from New Haven to Bridgeport, and a branch ran down from it to the shore near the land in controversy.

The deed from Walter Wilmot, set up in the answer as supporting the title of the town, was a quitclaim deed, executed and recorded in 1840, of "a piece of land lying in the town of Orange, and laid out for public highway, containing four acres, more or less, bounded Easterly by land of James Ward: southerly, by an old stone wall, or where the old fence formerly stood: westerly by land of Hannah Brown; and northerly by my own land." The defendants asserted (and the plaintiff denied) that this conveyance embraced the fee of the highway which they claimed to have been laid out between the stone wall and the Sound.

The plaintiff produced a series of conveyances of the whole tract described in his complaint, under which he claimed title, running consecutively from 1829 to 1894; the first being from one Thomas Ward, and Walter Wilmot being one of the intermediate grantors. Since 1894 the plaintiff has been the owner. In each of these conveyances the tract was bounded...