Gioia v. Annunziata

• Decision Date: 23 February 1925
• Court: Connecticut Supreme Court
• Parties: GIOIA v. ANNUNZIATA ET UX.

127 A. 921

102 Conn. 52

GIOIA v. ANNUNZIATA ET UX.

Supreme Court of Errors of Connecticut.

February 23, 1925

Appeal from Court of Common Pleas, Fairfield County; John J. Walsh Judge.

Suit by Raffaela Gioia against Emilio Annunziata and wife to quiet and determine title to real estate, and for injunction and damages. Judgment for defendant Raffaela Annunziata as to ownership of the land, and for plaintiff to recover of defendant $50, and plaintiff appeals. No error.

William E. Burton, of Bridgeport, for appellant.

William F. Tammany, of South Norwalk, for appellee Raffaela Annunziata.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The amendment to the complaint presents the principal point of this controversy, namely, the title to a strip of land one foot wide between the land of plaintiff and defendant. The correction of the finding cannot be considered, since no transcript of the evidence accompanied the motion, nor were any exceptions taken as required under our practice. Further, the plaintiff abandoned the method of attack upon the finding which he first made and elected to proceed under General Statutes, § 5832. Careful examination of the evidence leads us to overrule all of the assignments of error predicated upon improper findings of the court, or the failure to incorporate additional facts in the finding. The facts as to the title are these: Veitenheimer conveyed on September 28, 1906, to the defendant and her husband a parcel of land 38 feet wide front and rear and bounded on the north by his own land. Following the description of the parcel is the statement:

" Said grantee is to use the space north of the house on said premises for a driveway and is not to erect any building or shed on the north of said house that will in any way become a nuisance to the adjoining property. Said grantee is to build the division fence on the north of said premises."

Shortly after this conveyance defendants erected a fence along their northerly line 38 feet distant from and parallel with the southerly line, finding that they did not have sufficient space in the driveway for a team and truck, they demonstrated this to Veitenheimer, whereupon he verbally agreed to give, and did give, possession to the defendants of an additional foot of land, which is the foot of land now in controversy.

The plaintiff negotiated with Veitenheimer for the purchase of his parcel of land lying north of the parcel conveyed to defendants, and pending these negotiations the plaintiff was informed that this foot of land now in controversy belonged to the defendants, who were in possession of it. On January 25, 1907, Veitenheimer conveyed by warranty deed this parcel to plaintiff and bounded it " southerly by land of Emilio Annunziata." At this time Veitenheimer was out of possession of this foot of land. Following this description appeared the statement, " I hereby waive any objections to Mr. Annunziata's building an addition on the north side of his premises."

At about this time plaintiff assisted defendants in erecting a fence parallel with and 39 feet northerly of the southerly line of defendants' land, and a number of the posts then erected still remain. On March 23, 1907, Veitenheimer conveyed to defendants the foot of land which he had theretofore placed them in possession of, and orally agreed to convey to them.

About ten years ago defendants erected a wooden building on the northerly side of the 39-foot front parcel, and the plaintiff was employed as a laborer upon the foundations of the building, knew just where it was located,...