Deregibus v. Silberman Furniture Co., Inc.

• Decision Date: 01 February 1938
• Citation: 124 Conn. 39,197 A. 760
• Court: Connecticut Supreme Court
• Parties: DEREGIBUS v. SILBERMAN FURNITURE CO., Inc.

197 A. 760

124 Conn. 39

DEREGIBUS v. SILBERMAN FURNITURE CO., Inc.

Supreme Court of Errors of Connecticut.

February 1, 1938

Appeal from Superiof Court, Fairfield County; Newell Jennings Judge.

Action by Thomas Deregibus against the Silberman Furniture Company Inc., for an injunction restraining the defendant from blocking a passageway on the defendant's property brought to the superior court in Fairfield county and tried to the court. Judgment for the plaintiff, and the defendant appeals.

No error.

The admission of evidence as to use, during certain years, of right of way, allegedly obtained by adverse possession, was harmless even if erroneous, where much more time than the prescriptive period elapsed after such period of use before the first interruption in the use.

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

Maurice J. Buckley, of Stamford, for appellee.

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

HINMAN, Judge.

The judgment appealed from was rendered upon the retrial ordered in the appeal from the judgment on the first trial of the same case. 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183. The material facts recited in that opinion as having been found on the former trial, again contained in the finding on the present appeal, need not be repeated here. Additional facts are now found, however, lack of which was held to vitiate the former judgment. These include that the easement in dispute is the only means of ingress and egress by vehicles between the street and the plaintiff's garage in the rear of his premises; that when Shannon, who is still living and testified on the trial, with McNally, now deceased, bought the premises now owned by the plaintiff, and who were the lessors and later the grantors of the plaintiff as detailed in the former opinion, he understood and has always understood and believed that he had a right of way over the adjoining property now of the defendant, for the purpose of driving into the rear of the property, and that he would not have bought the property if he did not have such a right of way; that during the period that he was owner no one ever complained or objected to him because of the use made of the passageway by his tenants; that he visited the premises frequently and both he and McNally knew that their tenants, and others occupying the premises as subtenants, were making use of this way, neither of them objected to such use, and they knew that it was necessary in order to get to the rear of the premises.

The trial court concluded that these facts caused the user of the tenants to enure to the benefit of the landlords (Shannon and McNally) for prescriptive purposes, so that the period of such user may be tacked to that...