Harris v. City of Ansonia
| Decision Date | 18 December 1900 |
| Citation | 73 Conn. 359,47 A. 672 |
| Parties | HARRIS v. CITY OF ANSONIA. |
| Court | Connecticut Supreme Court |
Appeal from superior court, New Haven county; Ralph Wheeler, Judge.
Action by Catherine Harris against the city of Ansonia, for damages for a trespass to lands adjoining a highway in Ansonia, and an injunction against its repetition. Demurrer for misjoinder of causes of action in one count sustained. By leave of court the plaintiff then filed a separate statement of her legal cause of action, on which issues were joined and tried to the jury. Verdict and judgment for plaintiff. A motion to set aside the verdict was denied, from which denial the defendant appealed, and also for alleged errors in the trial. Reversed.
The alleged trespass was committed by the agents of the city of Ansonia in repairing and improving a highway, originally laid out in 1850 by the county court. The city claimed that the land in controversy was included within the limits of this highway, and it was admitted that it had been used for highway purposes by the public generally for many years, and repaired by the defendant, and the town of Derby, its predecessor. An ancient map of Derby, made in 1852, was also introduced, on which the highway was delineated. The plaintiff offered evidence tending to prove that this use of her land for highway purposes was against the protest of her father, who held the title as a tenant by the curtesy until six years before the date of the action. The defendant offered evidence tending to prove that, while he at first protested, it was finally arranged between him and the plaintiff and the selectmen of Derby that the former should withdraw their opposition, in consideration of the town's not moving back beyond a certain point a stone wall, which he claimed, and they denied, to be the front boundary of his land. The other facts and rulings material to the appeal are sufficiently stated in the opinion.
V. Munger, for appellant.
Charles S. Hamilton and Denis T. Walsh, for appellee.
BALDWIN, J. (after stating the facts). The plaintiff claimed title to the land in question by inheritance from her mother, who died in 1807, and by purchase of the interests of her brothers and sisters, who were co-heirs. These purchases were made after the death of her father, which occurred in 1892. From 1867 to 1892 he was tenant by the curtesy of whatever land had been the property of his wife.
The defendant claimed, among other things, that in 1875 the land had been dedicated for highway by the plaintiff, under an agreement between herself and her father on the one hand, and the selectmen on the other. On this point the court instructed the Jury that her father could not, by any act of dedication, bind the owners of the reversion, nor could any one of them bind the others by any act, and that no highway could be established over the land by a dedication of it, unless all of the owners of the reversion either participated in it or assented to such dedication. This charge was misleading with respect to the point in issue. As to this, the only important question was whether there had been a dedication which was a defense to the present suit by the present plaintiff. If, in 1875, she did what the defendant asserted that she did, it was of no consequence that she did not bind the other co-tenants. She bound herself. Her right of possession extended to every part of the common estate. If an action in the nature of trespass quare clausum fregit had been brought, before she bought out the co-heirs, against one using this land for highway purposes, in consequence of her acts of dedication, it would have been necessary to join all the tenants in common as co-plaintiffs, and a release by one would have barred the suit. Austin v. Hall, 13 Johns. 286; 2 Swift, Dig. *103. A license from one would, for like reasons, have been a good defense against all, and a dedication by one would be, to say the least, of no less effect. The plaintiff's purchase of the title of the others certainly could not diminish the defendant's rights.
The question whether there had been either a license or a dedication was properly left to the decision of the jury. The facts admitted were insufficient to make it a question of law.
Nor was the court bound to comply with the defendant's request for a charge that if the plaintiff knew that the defendant had expended, from time to time, large sums, and was about to expend much more, in grading and macadamizing the land in question, under the claim that it was part of the highway, and did not forbid it, then she could not recover for acts thus done, in the belief that this claim was just, and in reliance on her consent or acquiescence. Part of the evidence in the case could not thus be separated from the rest, and used to withdraw the question of estoppel from the jury.
The plaintiff alleged, as special damages, the cutting down of a large shade tree and changes of grade, and offered proof of the size of the tree, and that these acts were done by the defendant. Photographs were also introduced showing the appearance of the premises after the acts complained of, but there was no direct evidence as to the particular amount of damage sustained. Error is assigned because, under these circumstances, the jury were instructed that, if they found for the plaintiff, they could award her the actual damages sustained, and that the burden of proving the extent of these rested upon her. This charge was correct. It was eminently a case for the jury to determine the amount of loss, and it was not necessary to produce witnesses to measure it in money. The consequences of the acts spoke for themselves, and the photographs, if found to be faithful representations of the scene, took the place of a per sonal view.
The defendant offered in evidence a photograph of the highway in front of the plaintiff's premises, and of a place owned by a third party adjoining hers, and the photographer who had taken it, two years before testified to its correctness. After a lengthy cross-examination, the court, having inspected the photograph, found that it did not fairly represent anything in a way which could be of any assistance to the jury in determining the case, but was rather of a nature to confuse and mislead them, and so excluded it There was no error in this ruling. Photographs of a stretch of road, with fences and houses, can never represent such objects in...
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