Ensign v. Colt.

• Decision Date: 18 July 1902
• Parties: ENSIGN et al. v. COLT.
• Court: Connecticut Supreme Court

52 A. 829

75 Conn. 111

ENSIGN et al.

v. COLT.¹

Supreme Court of Errors of Connecticut.

July 18, 1902.

Appeal from court of common pleas, Hartford county; William S. Case, Judge.

Action by Elizur R. Ensign and others against Elizabeth H. Colt. From a judgment for defendant, plaintiffs appeal. Reversed.

John A. Stoughton and Albert C. Bill, for appellants.

Arthur L. Shipman and Charles A. Goodwin, for appellee.

HALL, J. This is an action for damages for an alleged breach of the covenant of warranty contained in a deed from the defendant to the plaintiffs. The complaint states that the defendant has failed to defend to the plaintiffs the stone wall included in the "second piece" described in said deed, and that the plaintiffs have been evicted from a part of the premises by the operation of a judgment permanently enjoining the plaintiffs from removing the stones from said wall. In the appeal to this court the plaintiffs claim that the trial court erred in holding that the facts found failed to establish a breach of the covenant of warranty. It appears from the record before us that in 1859 Samuel Colt owned a tract of land, of which that now owned by the plaintiffs was a part, bounded west by the Connecticut river, and north by one Dowd. In that year said Colt, with the consent of Dowd, built at his own expense a stone wall on the boundary line between them, from the river to an ash tree 250 feet east of the river. This wall was a massive structure, about 11 feet thick and more than 12 feet high at the river, and diminishing in size from that point for a distance of 130 feet, and of a general uniform height and thickness of about 3 feet from the latter point to the ash tree. The divisional line of the two properties is the center of the wall throughout its entire length. While the wall incidentally serves the purpose of a divisional fence, it was chiefly Intended as a permanent protection for the land north and south of it against damage from the river in times of flood. It serves its purpose as a protection to the Dowd land on the north and the land embraced in the Colt tract on the south; but its main value, so far as the plaintiffs' land is concerned, was impaired when the use of that tract in connection with their ferry was abandoned by the Colts before the plaintiffs took their title. After the death of Samuel Colt, the defendant, his devisee, on April 27, 1876, by warranty deed, conveyed the eastern part of said Samuel Colt tract to Roger Lang, describing it as "a certain piece of land, with the buildings and appurtenances thereon (excepting as to a certain stone wall hereinafter mentioned), * * * beginning at the angle formed by the north and west lines of land belonging to William Coburn; running thence southerly, on line of said Coburn, 121 feet; thence westerly, on line of land belonging to myself, 220 feet; thence northerly, on line of my own land, 43 feet, to the stone wall above mentioned, and at right * * * thereto; thence easterly, on line of said wall, about 210 feet, to the place of beginning-it being understood and agreed that nothing herein contained shall be construed to convey the right to remove said stone wall or any part thereof, the right to the maintenance thereof being expressly reserved." On the 2d of December, 1892, the defendant conveyed the rest of said tract lying between the tract conveyed to Lang, as above stated, and the river, to the plaintiffs by warranty deed describing that part of the premises, called in the deed the "second piece," as follows: "A small piece of land at the Ferry landing, bounded north on land of Mrs. Dowd and Roger Lang, south on Colt street, and west on the Connecticut river, including the Ferry landing, wharf, and the stone wall bounding said land on the north, and also including that part of the wall which is north of the land of Roger Lang, and which was reserved to the grantor in a deed from the grantor to said Lang dated April 27, 1876." Thereafter, the plaintiffs having commenced to remove the stones from said wall, claiming that by their said deed from the defendant they became the owners of the entire wall and the land under it, the owners of the Dowd property north of the wall, by an action brought to the court of common pleas of Hartford county, which action the present defendant assisted in defending, obtained a permanent injunction restraining these plaintiffs from breaking up and removing the wall. This judgment of injunction was not appealed from and is still in force.

In considering whether the judgment of the trial court in the present case was erroneous, the first inquiry is, what part of or what interest in the wall or the land under it does the deed from the defendant purport to convey to the plaintiffs? and, second, if it appears from the language of the deed that it was intended to convey to the plaintiffs some interest in the wall or in the land under it, is the judgment of injunction an eviction which works a breach of the defendant's covenant of warranty?

It will be observed that the description of the interest sought to be conveyed in the easterly portion of the wall, namely, that part north of the Lang tract, differs from the description of the interest conveyed in the remaining or westerly part of the wall north of the Ensign tract. The former is described as "that part of the wall which is north of the land of Roger Lang, and which was reserved to the grantor in a deed from the grantor to said Lang dated April 27, 1876," and the latter as "the stone wall bounding said land on the north." Looking at the Lang deed referred to in order to ascertain what part of the wall north of Lang was reserved by the defendant, we find these words, "excepting as to a certain stone wall hereinafter mentioned; * * * It being understood and agreed that nothing herein contained shall be construed to convey the right to remove said stone wall or any part thereof, the right to the maintenance thereof being expressly reserved." We find here no exception or reservation of the wall itself nor of a right to remove it. The provision "as to" this stone wall, whether it be an exception or reservation, is that the grantee shall not take the right to remove it, and that the grantor shall have the right to maintain it. The fact that such a provision is made indicates an intention of the defendant to convey to Lang the land owned by her under this part of the wall, and in connection with that provision, and the fact that the divisional line between the defendant and the land north of the Lang tract was the center line of the wall, the words in the deed to Lang, "thence northerly to the stone wall," and "thence easterly on the line of said wall," may properly be construed as defining Lang's north boundary as the center line of the wall. When, therefore, the defendant, in 1892, conveyed to the plaintiffs, she was not the owner of any land under that part of the wall north of the Lang tract, nor of any interest in that part of the wall itself beyond the right to maintain it upon the land owned by Lang and that owned by Dowd north of Lang; and no greater interest in that part of the wall, or the land under it, than that which she thus owned is described in the deed to the plaintiffs. As to the other part or westerly end of the wall, the language of the plaintiffs' deed does not import that the entire wall north of their tract and west of Lang's land is conveyed to them. The center line of the wall is the divisional line between the defendant and the Dowd land on the north, and, the wall being a part of the realty, the defendant owned only the south half of it at this place. The deed itself bounds the plaintiffs on the north by land of Mrs. Dowd. The line thus defined is the controlling monument in the description of the northern boundary at this place of the...