Exley v. Gallavin

• Decision Date: 30 November 1921
• Citation: 96 Conn. 676,115 A. 482
• Court: Connecticut Supreme Court
• Parties: EXLEY v. GALLAVIN.

115 A. 482

96 Conn. 676

EXLEY v. GALLAVIN.

Supreme Court of Errors of Connecticut.

November 30, 1921

Appeal from Court of Common Pleas, New London County; Charles B Waller, Judge.

Action by Callia M. Exley against Timothy Gallavin for damages for breach of covenants against incumbrances and of warranty brought to and tried before the court of common pleas in New London county. Judgment for defendant, and plaintiff appeals. No error.

Clayton B. Smith, of New London, and Telley E. Babcock, of Norwich, for appellant.

William H. Shields, Jr., of Norwich, for appellee.

BEACH J.

The premises in question, fronting easterly on Thames street in the city of Norwich, were conveyed by the defendant to the plaintiff in 1917 by warranty deed, containing a covenant that the same were free from all incumbrances whatever. About one year afterwards the plaintiff discovered the existence of an underground sewer pipe, running from the rear to the front of the premises, and connected with the public sewer in Thames street, through which the owners of four tenement houses located westerly of the land conveyed claimed the right by prescription to dispose of their sewage and roof water. Whereupon the plaintiff brought this action, alleging that the premises were at the date of the conveyance subject to the easement claim. It is found that some time between 1881 and 1885 the Norwich Savings Society, being then the owner of the premises, joined with the owner of the land directly in the rear thereof in the construction of the sewer in question. There was no evidence of any agreement between the parties, and none was recorded in the land records; nor is there any finding as to the terms of the agreement or understanding under which the sewer was laid. The easement, if any, is by prescription.

The Norwich Savings Society conveyed the premises to the defendant in 1889, by quitclaim deed, and it is found that there were no visible indications of the course or existence of the sewer across the premises, and that the defendant during the time he was the owner of the premises had no knowledge of the existence of the sewer, nor of any claim of right or easement to maintain the same. It follows that the user was not open and adverse during the necessary 15 years, and the judgment must be affirmed unless this finding is corrected, or unless the trial court committed an error of law in failing to impute knowledge and acquiescence to the defendant.

There is no lack of evidence to support the finding that the defendant had no actual knowledge of the existence of the sewer or of any claimed right to maintain it, and the decisive question is one of imputed notice. It is said that the fact of user must have been apparent from the lay of the land, which slopes so abruptly towards Thames street that the alleged dominant estate, fronting...