Ferrie v. Sperry
| Decision Date | 07 March 1912 |
| Court | Connecticut Supreme Court |
| Parties | FERRIE v. SPERRY. |
Appeal from Superior Court, New Haven County; Marcus H. Holcomb Judge.
Action by Vincent Ferrie against A. William Sperry. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.
Action to recover damages for the negligence of the defendant, as civil engineer, in locating one of the boundary lines of the plaintiff's land, and for a breach of his warranty that the line as located was true and correct, brought to the superior court in New Haven county and tried to the jury before Holcomb, J. Verdict and judgment for the plaintiff and appeal by the defendant for errors in the admission of evidence and in the charge of the court. Error, and new trial ordered.
The plaintiff's claim, as stated in the complaint and finding, was, in brief, that, having purchased a parcel of land on the westerly side of East street in New Haven bounded southerly by one Dunn, and being about to erect an expensive building thereon to cover the entire lot, there being a dispute between him and Dunn as to the location of the division line between them, he employed the defendant, as a civil engineer, to furnish him the true location of that line; that the defendant undertook the employment, but performed it so negligently and unskillfully that he advised the plaintiff that the line was along a location which he designated and pointed out, and which was about 14 inches farther south than the true line; and that the defendant warranted and guaranteed the line so given to be the true and correct line. Thereupon the plaintiff began the erection of his building, extending it nearly up to the line given by the defendant on the south, and was met by an action in the nature of ejectment, brought by Dunn, which resulted in the latter's favor. The plaintiff was then obliged to pay the expenses of the litigation and $800 for the land in controversy to save the greater expense of removing the portion of his building which had been constructed thereon.
The complaint contained two counts; one counting upon the defendant's negligence, the other upon his breach of the warranty. The answer was a general denial with a so-called second defense, wherein the defendant's claim as to the purport of the contract between the parties was stated.
The plaintiff, to prove the true line between the parties offered evidence to the effect that for a period of 30 years prior to and up to about 8 years before the institution of this action there was a divisional fence between the two properties running substantially east and west two feet north of and parallel with the north side of Dunn's house, and that since 1882 the owner of the Dunn property had been in the uninterrupted, exclusive, peaceable possession of the property up to such fence line, occupying the same under a claim of right which had been acquiesced in and never disputed by the owners of the adjoining land on the north until the plaintiff's encroachment in constructing his building.
The defendant claimed to have proved that he was employed only to survey the plaintiff's land and determine the southerly boundary thereof; that he personally, or by assistants, made an examination of the land records and of the standard map in the office of the city engineer and consulted with the plaintiff, who lived near the land, as to the lines; and that the latter told him that for 22 years last past there had at no time been any fence between the Dunn property and that of the plaintiff, and that a post located near, but a little southerly of, the west end of the line, which was afterward designated by the defendant as the correct line had been acquiesced in and agreed upon by the plaintiff and Dunn as being in the boundary line between them. By this and other evidence, he claimed to have shown that he used due care in ascertaining and designating the plaintiff's southerly line. He also claimed to have shown that the line designated by him was the true line, and that he did not warrant or guarantee it to be correct. Any other facts necessary to an understanding of the questions raised are stated in the opinion.
George E. Beers and Walter J. Walsh, for appellant.
Charles S. Hamilton and Robert C. Stoddard, for appellee.
THAYER, J. (after stating the facts as above).
The defendant's denial of the allegations of the complaint threw upon the plaintiff the burden of proving that the location of the Dunn boundary line, as designated by the defendant, was not correct. Against the objection of the defendant, the plaintiff was permitted to introduce in evidence the pleadings, verdict, judgment file, and charge of the court in the ejectment suit of Dunn against the plaintiff. After its admission, a motion by the defendant that its...
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