Greist v. Amrhyn
| Decision Date | 17 December 1907 |
| Citation | 68 A. 521,80 Conn. 280 |
| Parties | GREIST v. AMRHYN, Superintendent of Parks, et al. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, New Haven County; William S. Case, Judge.
Action in the nature of trespass for entering on land and breaking down gates, by John M. Greist against Gustave X. Amrhyn, superintendent of parks, and others, members of the board of park commissioners. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.
In 1904 the plaintiff inclosed a large tract of uncultivated woodland, about one mile square, situated partly in New Haven, and partly in the towns of Woodbridge and Orange. The land has been from the earliest times owned and occupied by a large number of different owners in severalty, these different holdings not being fenced in, but designated by stones and stakes at the corners thereof. Said tract had been known as Woodfield, and was sometimes called "Common Field." The different owners used the land for supplying themselves with wood. One of the owners prior to 1821 was Elijah Thompson, whose lot was at the southwest corner of the tract. On the westerly side of the tract, in the town of Woodbridge, there was originally an old road known as the' Dogman road. Throughout the tract there were cart paths used by the different owners in reaching their respective tracts. One of these, called in the answer and finding the Cavan road, opening from Fountain street, in Westville, at the northeast corner of the tract, extended entirely through it in a southwesterly direction, passing through said Thompson land, to said Dogman road at the southwest corner of the tract. This was a general path used by the different proprietors, from which they branched off when necessary to reach their respective tracts. By his will dated April 26, 1821, and probated in 1828, said Thompson made the following devise relating to said Thompson lot: "I give and devise to the selectmen of the town of New Haven, and their successors in office, forever to be used and improved for the benefit of an almshouse in said town, a tract of woodland containing about 45 acres situated in said New Haven at the southwest corner of the common field, known by the name of Woodfield, * * * reserving for my children, Sheldon, Rebecca, Mehitable and Grace a right to improve each onefifth part of said tracts of land during their natural lives, and for the children of my son, William E. Thompson, deceased, the remaining one-fifth part during their lives, also for my grandchildren Anna Bradly, Elizabeth, Jane and Edward Buddington each one-fifth of four-fifths parts of said tracts during their lives." Some of said children, and some of said grandchildren of said Thompson, subsequently conveyed their interests so reserved to them by the will to grantees, who afterwards conveyed the same to the town of New Haven. Whether these children and grandchildren or any of them are still living does not appear. Rights reserved by the will are still owned in part by the heirs of said Thompson. The selectmen of New Haven and the superintendent of the almshouse thereafter entered upon the Thompson lot and cut and carted wood therefrom over the ways mentioned. In 1840 the town of Woodbridge "voted that the proposition of Messrs. Clark and Hotchkiss to have a highway opened from near Widow Sherman's to near the dwelling house of said Eli Hotchkiss, viz., that the said gentlemen give the land and fence the same so far as their land goes, and that the selectmen give them a quitclaim of the old road so far as can be done without discommoding the proprietors of the Westfield woods or common field, so called, except its being continued as a pentway which shall be secured at the expense of said Olark and Hotchkiss with well-erected gates and bars, and that the selectmen open the road as proposed as soon as may be, in Substance as laid down on a map this day exhibited to the inhabitants of this town of Woodbridge." The old road referred to in the vote was said Dogman road, and the Westfield woods was said Woodfield. The new road proposed did not afford access to said Woodfield. It did not appear that the deeds referred to in the vote were ever in fact given by the selectmen; but it did appear that the new road referred to was constructed and is now in existence, and ever since that date has been used as a highway in place of the old road; and it is found that the latter was fenced up by direction of the selectmen, and has never been used by the general public or by anybody except the owners of the tracts of land in said Woodfield, with knowledge that it had been discontinued as a highway since the new road was built in 1840. The town and city governments of New Haven were consolidated in 1897. 12 Sp. Laws 1108. By the special act so consolidating them, all property belonging to the town of New Haven became vested in the city, and the powers and duties of the selectmen, concerning matters affecting detective and dependent classes, were devolved upon the board of charities and correction of the city; and the court of common council of the city was given power to pass orders for the management, regulation, and control of all city property. Beginning in 1901, and prior to December 12, 1904, the plaintiff had acquired by purchase from the several owners all of the land included in said Woodfield except seven small pieces, one of which was the Thompson tract, and had also acquired other adjoining land to the west in the town of Orange and Woodbridge, and the land over which the old Dogman road originally passed. After such purchase, without objection from any one, he erected a fence around the entire tract, with gates placed for his own convenience at said old Dogman road and said Cavan road. He caused said gates to be locked, but gave keys to all persons having lawful occasion to pass into said tract who desired such keys. In September, 1903, the aldermen of the city of New Haven passed the following order: "Ordered that the tract of land known as Thompson's woods be turned over to the park commission for park purposes." On December 12th, the defendant Amrhyn, who was superintendent of parks of the city of New Haven, by direction of the other defendants, who were the park commissioners of the city, entered upon the land of the defendant and removed said gates. He entered solely for the purpose of removing the gates, and without malice or intention to unnecessarily injure the plaintiff's property. These acts were admitted by the defendants in their answer and justified upon the ground that said Cavan and old Dogman roads were public highways, or, if not highways, were private ways appurtenant to the Thompson land; that the defendants as park commissioners had the custody of said land for the city, and removed the gates as obstructions thereto. The court held that neither of the roads was a highway at the time of the alleged trespasses; that the devise of the Thompson land, and the restrictions imposed thereon by the testator as to the use of the property, remain effective, and exclude any general public use or occupation of the property or its appropriation for park purposes; and that the order turning it over to the park commission for park purposes was without authority and of no effect.
Leonard M. Daggett and James K. Blake, for appellants. William H. Ely and William F. Alcorn, for appellee.
The court held that the Cavan road was not, and never had been, a highway, and no question is raised as to the correctness of that conclusion; but the correctness of the court's conclusion that the old Dogman road had been discontinued as a highway, and the correctness of its finding of facts upon which that conclusion is founded are raised by the appeal. As the evidence upon which the exceptions to the findings of facts are based is not certified, those exceptions cannot be considered.
Do the facts found warrant the conclusion of the court that the old Dogman road has been discontinued? A highway may be extinguished by direct action through governmental...
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