Deregibus v. Silberman Furniture Co., Inc.

• Decision Date: 10 July 1936
• Citation: 121 Conn. 633,186 A. 553
• Court: Connecticut Supreme Court
• Parties: DEREGIBUS v. SILBERMAN FURNITURE CO., Inc.

186 A. 553

121 Conn. 633

DEREGIBUS v. SILBERMAN FURNITURE CO., Inc.

Supreme Court of Errors of Connecticut.

July 10, 1936

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin Judge.

Action by Thomas Deregibus against the Silberman Furniture Company Inc., for an injunction against the blocking by defendant of a right of way claimed by the plaintiff over defendant's land. From a judgment for the plaintiff, defendant appeals.

Error and new trial ordered.

Frank Rich and Nathan B. Silberman, both of Stamford, for appellant.

Maurice J. Buckley, of Stamford, for appellee.

Argued before HINMAN, BANKS, AVERY, and BROWN, JJ.

BROWN Judge.

In this action to enjoin the defendant from blocking a passageway over its land which the plaintiff claimed a prescriptive right to use in passing between the street and the rear part of his property adjoining that of the defendant, and for other equitable relief, the following facts material to this decision appear in the finding: The plaintiff owns a tract of land adjoining the tract next west owned by the defendant on the northerly side of State street in Stamford. The boundary line between the two properties extends northerly 65 feet at right angles to State street, thence westerly on a right angle 29 feet, and thence northerly on a left angle intersecting the rear line of the properties on the north. The brick building on the defendant's land and the stucco building on the plaintiff's land have been standing for about 30 years, and are so located that there is an open space some 20 feet wide between them along the 65-foot line, and a similar space about 16 feet wide along the 29-foot line, forming the passway in question leading between State street and the open space at the rear of the plaintiff's land north of his building, and east of the rear part of the defendant's building. Of the part that is 20 feet wide, about 8 2/3 feet lies west of the boundary line, and 11 1/3 feet east of it. Of the part that is 16 feet wide, about 8 feet lies north and 8 feet south of the boundary line, except that an addition built by the plaintiff in 1924 near the easterly end comes to within 2 feet of the line at that point. The plaintiff has a garage on the northeast corner of his land.

Up to June 29, 1904, title to both tracts was in a common owner, and the passage-way was in existence at that time. On that date the tract now owned by the plaintiff was deeded to Fred Berg, who on October 1, 1904, conveyed an undivided one-half interest therein to John J. Looney. July 28, 1905, Shannon and McNally were deeded the tract now owned by the plaintiff. From the fall of 1905 until April 25, 1922, when they deeded it to the plaintiff, the property was occupied by their tenants. Rosa and Romano had a lease of it from 1905 until June 1, 1913, conducting a saloon on the ground floor in the westerly part of the building, and from 1908 on, the plaintiff, as their sublessee, occupied the easterly part of the ground floor as a restaurant and the rooms upstairs where he has ever since lived. June 1, 1913, the plaintiff took a lease in his father-in-law's name, of the entire property, for three years, and occupied thereunder, and from June 1, 1916, until April 25, 1922, he continued to occupy the premises as a tenant from month to month. Since the fall of 1905 this passageway has been used by the tenants during their occupancy of the building now owned by the plaintiff, and by those who had occasion to make deliveries as a tenant from 1908 until April 25, 1922, and thereafter up to the present as owner, for means of ingress and egress to the rear of these premises. This use has included the driving of vehicles in and out between the barn or garage on the rear of the plaintiff's premises and State street as well as other incidental uses, and has been continuous and uninterrupted in the manner stated since 1905. It has been open, notorious, and adverse, and under a claim of right as against the successive owners of the defendant's property.

The defendant acquired title to its property May 18, 1929. No deed in the chain of title of either property mentions any right of way over this passway in question. After receiving its deed, the defendant demanded of the plaintiff an annual rental of $1.00 for the use of the way, which he refused to pay, claiming a right of way. After negotiations for the purchase by the plaintiff of the defendant's land included in the passway and also that on which part of its building stood failed, the defendant set four posts along the 29-foot boundary line preventing further use of the way by the plaintiff, and this action was brought.

The defendant has assigned as error the court's finding of certain of the facts above recited, and its failure to find certain other facts. As to the former, while the evidence is conflicting as to some of them, in each instance the court's finding as made is supported by sufficient evidence. As to the latter, the defendant is not entitled to have any fact added which can materially affect the result. In this connection it has complained of the court's refusal to find an interruption of the user of the way by the tethering of horses to the east wall of the building now owned by the defendant, prior to 1921, by the American Express Company, the then occupant of the property, and also of its refusal to find an interruption thereof by the deposit of building materials along this wall by the Maguires as owners during 1921 and 1922, incidental to improvements in the property. The court has expressly found, as the evidence amply warranted, that neither of these things constituted an interruption of the user, and, further, that the only interruption since 1908 resulted from the defendant's above-mentioned setting of the posts, which were forthwith removed pursuant to a temporary injunction issued in this action. The court did not err in its finding of the facts.

The other errors assigned relate to the court's conclusion that an easement of way by prescription now exists appurtenant to ...