Hamilton v. Smith

• Decision Date: 08 January 1902
• Citation: Hamilton v. Smith, 74 Conn. 374, 50 A. 884 (Conn. 1902)
• Parties: HAMILTON v. SMITH et al.
• Court: Connecticut Supreme Court

50 A. 884

74 Conn. 374

HAMILTON

v. SMITH et al.

Supreme Court of Errors of Connecticut.

Jan. 8, 1902.

Appeal from court of common pleas, New Haven county; Leverett M. Hubbard, Judge.

Suit by Alexander K. Hamilton against Jeremiah Smith and others for an injunction to restrain trespasses on oyster grounds and for damages. From a judgment for defendants, plaintiff appeals. Reversed.

William H. Ely, for appellant.

Edward A. Harriman, for appellees.

BALDWIN, J. In 1866 the town of East Haven designated to sundry persons, respectively, in square one-acre lots, certain oyster grounds in Morris Cove, in accordance with and by the lot numbers given on a map made in May of that year for the purpose by Wm. Hartley, a county surveyor. When he made his survey, he marked the situation of each lot by stakes, buoys, or stones, and tagged one of the stakes with the number assigned to that lot on the map. This map was drawn approximately, though not accurately, to a scale. The east and west side lines of each lot were at right angles to a base line upon the map drawn from a corner of a certain wharf to a point on the shore described as a white stone. Each side of each lot was 208.7 feet in length. Both parties claim under the designations thus made, and the suit turns on the distance (which the map did not state) between the white stone and the corner of the nearest oyster lot (lot 2), which was in the first full range or tier, and next west of the base line. Other parallel tiers ran north of the first full tier, and in one of these, separated from it by eight tiers, was a lot marked "Lot 185." The defendants' lots were in the eighteenth range, and the plaintiff's in the nineteenth, on the south side of the first full tier. The lots were mapped in parallel and contiguous tiers, so that they are related to each other like the squares on a checker board, and to locate the lines of one is therefore necessarily to give the key for locating those of any other. Hartley was dead at the time of the trial. The plaintiff produced one Talmadge as a witness, who was one of those to whom lot 185 was originally designated, and who had owned it ever since, and offered to show by him that at the time of such designation there were stakes or buoys at each corner, and on one a certain stone also, and that Hartley then gave him the location of the lot and pointed out the stakes. The evidence thus offered was excluded as being an attempt to modify the description of the lot in the map by extrinsic matter having no connection with it in this there was error. In 1865 the laws respecting oyster culture were so amended as to make it a criminal offense for "any person or persons other than the committee appointed by law for that purpose or persons authorized by said committee" to "stake out or inclose any of the public grounds of the navigable waters . of this state." Pub. Acts 1865, p. 61, c. 56. Prior to that time the person to whom any such grounds had been designated by the committee was required to stake it out Pub. Acts 1855, p. 112, c. 92, § 2. In the revision of 1866, which went into effect on January 1st of that year, this act of 1855 appears unaltered in chapter 2, § 61, on page 471, and that of the act of 1865 became section 71, on page 473, which prescribes a pecuniary forfeiture for "every person, except the committee appointed for that purpose, who shall stake out or enclose any of the public grounds in the navigable waters of the state for the purpose of planting oysters ther in." If the later of these two secti6ns qualified or repealed the directions given in the other, then only the oyster committee of the town of East Haven could lawfully have staked out the Talmadge lot in 1866; and, if both sections are to stand together, it could also have lawfully staked it out. If, then, Talmadge, on taking possession in 1866, found the lot which was designated to him already staked out by Hartley, and it was Hartley who pointed out its distinguishing marks to him, it might fairly be presumed, in 1900, when the cause was heard, that Hartley did this in behalf of the committee; for he could not lawfully have set the stakes without their authority. "Ex diuturnitate temporis omnia praesumuntur rite et solemniter esse acta." A staking out by the committee stands on the same footing, as a matter of evidence, as a staking out by a grantor of land when he delivers possession. It applies the written description to the land, and is entitled to great weight when that description is incomplete or ambiguous. The committee occupied the place of a grantor as to both parties to this suit its acts, therefore, and those of its authorized agent, were admissible in favor of each party against the other, so far as they served as declarations of what the committee deemed the true bounds of any one of the lots designated; for to fix the lines of that tended, by reference to the map, to fix the lines of every other. Doming v. Carrington, 12 Conn. 1, 7, 30 Am. Dec. 591; Hill v. Bennett, 23 Conn. 303.

Charles H. Townshend, who since 1866, had owned and occupied the northernmost tier of the lots delineated on this map, one of which was contiguous to lot 185, was a witness for the plaintiff, and was asked if the line between him and Talmadge ran from a drill hole in a rock on the shore, which Hartley had made in 1870. This question was properly excluded. His answer could only have been an opinion, and, though supported by long possession, that possession might not have been in conformity with the original and true boundary.

In order to show the proper location of the white stone, the defendants were allowed to introduce a tracing, made in 1891 by one Sanford, of a tracing then on file in the town clerk's office in East Haven as a part of the files and records relating to oyster grounds....