Fisk v. Ley

• Decision Date: 18 December 1903
• Citation: 76 Conn. 295,56 A. 559
• Parties: FISK v. LEY et al.
• Court: Connecticut Supreme Court

56 A. 559

76 Conn. 295

FISK

v. LEY et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1903.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Suit for injunction by Louis A. Fisk against Frederick Ley and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Talcott H. Russell and Harry W. Doolittle, for appellants.

Edmund Zacher, for appellee.

BALDWIN, J. In 1885 a five-acre tract of land situated in Pine Orchard was conveyed to "Ellis B. Baker, trustee," by deed bounding it north on a highway, and "south by the sea or Long Island Sound," and describing it "as shown on a plan deposited with the town clerk of Branford, marked 'Plan of 35 building lots belonging to Ellis B. Baker, trustee, located at Pine Orchard, Branford, Conn.'" The plan so filed showed that the tract was a long and narrow strip of upland about 220 feet in width, laid out into lots of nearly equal size on each side of an open space marked "Avenue," leading from the highway to an open space, on which the four southerly lots faced, marked "Lawn." The southerly boundary of the lawn was an irregular line substantially parallel to, and some 40 feet distant from, a line below which was marked "Long Island Sound." On the margin of the plan was written the following: "West boundary, commencing at stone 1 on line, runs north 881 ft. to roadway, stone 3, thence southeast at angle of 54° to post 4 on roadway and line east of property, thence south 630 ft. to post 2 on east line, thence west 220 ft. to west line post 1." Each lot was numbered. Those facing the lawn on the west of the "Avenue" were numbered 2 and 4, lot 4 being the lot next to it Lots 3 and 1 were on the other side of it, lot 3 being next to it. Lots 1 and 2 were only accessible by going over the "Lawn."

Although the boundary indicated on the plan by the marginal words above quoted included nothing south of the 35 building lots, this cannot control the express terms of the deed, which clearly include the whole tract out of which they were carved. Merwin v. Wheeler, 41 Conn. 14, 26. The reference to the plan was made to explain the arrangement of lots, not to limit the area of the land conveyed.

The lawn was a level, grassy piece of upland, not over 50 feet in depth at any point, terminating in a slope leading down to the beach, which was some 20 feet below. Prior to July 5, 1892, a wooden bulkhead, five feet high above the beach, had been built to protect this slope, and on top of it, and extending back a short way, was a board walk, forming part of a walk of similar construction running for a quarter of a mile on each side of the tract in question. This walk was supported throughout its entire length by a wooden bulkhead built on a uniform curve, and was used by the general public.

On July 5, 1892, Baker, as trustee, conveyed to F. E. Drake, trustee, lot 36, together with "the avenue and common lawn with all improvements thereon, viz., summer house, flagstaff, bulkhead, and stairs, and all other property belonging to said E. B. Baker, trustee for E. B. Baker, Harriet A. Fuller, and A. M. Young, located at Pine Orchard, Branford, Connecticut, as shown on a plan deposited with the town clerk of Branford marked 'Plan of 35 building lots belonging to Ellis B. Baker, trustee, located at Pine Orchard, Branford, Connecticut'" Drake, describing himself as trustee for the same parties, afterwards conveyed these premises to Prosper Istas, trustee. Istas, in 1901, conveyed them by warranty deed from himself individually to the plaintiff; and in 1903, pending this action, Istas, as trustee executed and delivered another warranty deed of them to him. The plaintiff also acquired title individually, in December, 1901, under Baker, trustee, through sundry mesne conveyances, to four other of the lots, all said conveyances describing them by reference to the plan on file.

In 1893 the bank and bulkhead in front of the lawn having been partly washed away, the bulkhead was rebuilt on the new line made by the washout, making a jog of four feet at its Intersection on the west with the center line of the "Avenue" projected. A wharf, reached by a stairway from the lawn, had been constructed on this center line. The new bulkhead was a foot or two lower than the former one, and was connected with the bulkhead and walk on either side by stairs.

Shortly before January, 1903, the bulkhead, as thus reconstructed, became dilapidated, and it was necessary to protect the lawn by a new embankment. Up to that time the owners of the four lots fronting on the lawn had always taken care of it, cut the grass, and made whatever repairs of the bulkhead were needed. The defendant Ley was one of them. They now, without consulting the plaintiff, began the construction of a substantial granite wall to replace the wooden bulkhead. Such a wall had already been built to replace the original wooden bulkhead for a space of a quarter of a mile on each side of the five-acre tract by the owners of the shore lots. The line of the wall which the defendants proposed to construct did not follow exactly the line of the original bulkhead in front of the lawn, and varied substantially from that of the line of the bulkhead as reconstructed in 1893, being run nearer to the water. It corresponded with the lines of the similar wall on either side, and made part of the same curve. The wall was to be raised to the same level as that of the adjoining walls, thus dispensing with any stairway in the public walk on top. It would protect the bank better than a wooden bulkhead, make the walk safer, be of general advantage to the owners of all the 35 lots, and increase the value of their property. The real purpose, however, of the front lot owners in selecting the new line was to increase the extent of the lawn, and secure as large a measure of benefit for themselves as possible. For this purpose they proposed, as part of their scheme of improvement, to change the level of the lawn, carrying back the top of the slope so as to make that occupy half the lawn, which would conform to the manner in which the adjoining ground on the east is graded. This would make the use of the lawn less convenient for the owners...