DiMaggio v. Cannon
| Decision Date | 02 May 1973 |
| Citation | 327 A.2d 561,165 Conn. 19 |
| Parties | Thomas F. DiMAGGIO v. Josephine CANNON. |
| Court | Connecticut Supreme Court |
Garon Camassar, New London, for appellant (defendant).
C. Robert Satti, New London, for appellee (plaintiff).
Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.
The plaintiff and the defendant are brother and sister and are owners of adjoining tracts of land situated in the city of New London. Prior to 1939, the parents of the parties held title to both parcels as one tract of land. In 1939, the parents deeded to the plaintiff the easterly portion of the tract with a forty-five-foot frontage on the city street. At the time the plaintiff received his deed in 1939, there existed an old fieldstone wall about three feet wide on the easterly boundary of his land. In 1940, the plaintiff built a foundation for his home with some stones from the stone wall. After the foundation was completed, the plaintiff, with the help of his father, replaced the southerly eighty feet of the old fieldstone wall with a new flat-faced wall having a cement cap which was about twelve inches wide. In 1967, the defendant obtained the remainder of the tract. During 1967, the defendant caused to be erected a chain link fence one and one-half feet east of the location of a fence erected in 1946 by the plaintiff, his father, and Walter Cannon, the defendant's husband, as the westerly boundary of the plaintiff's premises.
The basic issue of this action as litigated was whether the starting point in measuring the frontage of the plaintiff's tract runs from the east face or the west face of the wall constructed in 1940 by the plaintiff and his father at the easterly boundary of the plaintiff's tract. The court found the issues for the plaintiff, and the defendant has appealed.
There were three assignments of error raised by the defendant but two of them have not been pursued in the brief and consequently are treated as abandoned. Housing Authority v. Dorsey, 164 Conn. 247, 320 A.2d 820; Lipscomb v. Renzulli, 159 Conn. 570, 576, 271 A.2d 327. The only assignment of error pursued in the defendant's brief relates to a single ruling on evidence.
While the defendant was a witness, she was asked by her attorney what John Peters, deceased, a former owner of land abutting the plaintiff's land to the east, had said concerning the location of 'the wall.' This statement was apparently made in the presence of the plaintiff, his father, and the defendant when they were together prior to the rebuilding of the wall in 1940 at the plaintiff's easterly boundary. There was an objection by the plaintiff on the ground of hearsay. Thereafter the court inquired specifically whether the conversation took place before the new wall was built. The defendant's counsel informed the court that the conversation occurred subsequent to the removal of part of the old wall but prior to the building of the new wall. The court then stated that The defendant then took an exception.
The defendant claims that the evidence was admissible as an exception to the rule prohibiting hearsay since it was the statement of a deceased abutter concerning a boundary line. Had the court not stated that it would have permitted the hearsay evidence if the conversation had occurred after the construction of the wall, the ruling could have been supported simply on the ground that a declaration relating to an intention concerning the location of a wall is inadmissible as hearsay. Carney v. Hennessey, 74 Conn. 107, 113, 49 A. 910. Since the rationale of the ruling was that the wall was not constructed, this basis would have no bearing on the admissibility of a declaration of a deceased person relating to a boundary line, if the declaration came within an exception to the hearsay rule. The issues of the case and counsel's comments at the time of the offer of the declaration were sufficient to alert the court that the declaration would be offered as evidence to establish a boundary line.
Under our rules of procedure the sanction of an oath and the test of cross-examination are required before evidence may be admissible. On proper objection hearsay evidence is inadmissible unless the circumstances surrounding the hearsay provide some other sanction or test deemed equivalent for ascertaining the truth. South-West School District v. Williams, 48 Conn. 504, 507. In cases involving the location of boundaries, the rule has been clearly settled. The admission of hearsay evidence is permissible if the following conditions are met: (1) that the declarant has died; ...
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...which we will consider in the order presented in their brief. The claims of error not briefed are considered abandoned. DiMaggio v. Cannon, 165 Conn. 19, 21, 327 A.2d 561; Maltbie, Conn.App.Proc. § I All four doctors called by the plaintiff were permitted to testify over the defendants' rep......
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... ... They are of the nature of admissions. Putnam, Coffin & Burr, Inc. v. Halpern, supra, 154 Conn. at 513, 227 A.2d 83; DiMaggio v. Cannon, 165 Conn. 19, 327 A.2d ... Page 1058 ... 561 (1973); Turgeon v. Woodward, supra, 83 Conn. at 543-44, 78 A. 577; Apostles of the ... ...
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