Holt v. Wissinger

• Decision Date: 13 February 1958
• Citation: 139 A.2d 353,145 Conn. 106
• Parties: F. Sidney HOLT et al. v. Carl M. WISSINGER et al. F. Sidney HOLT et al. v. TOWN OF WEST HARTFORD et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 353

139 A.2d 353

145 Conn. 106

F. Sidney HOLT et al. v. Carl M. WISSINGER et al.

F. Sidney HOLT et al. v. TOWN OF WEST HARTFORD et al.

Supreme Court of Errors of Connecticut.

Feb. 13, 1958.

Harry L. Nair, Hartford, for plaintiffs (appellants) in both actions.

Valentine J. Sacco, Hartford, with whom was Jerome I. Walsh, Hartford, for appellees (defendants) in the first action.

Maurice J. Sponzo, Corporation Counsel, Hartford, for the appellees (defendants) in the second action.

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

KING, Associate Justice.

The five individual defendants in the first case, hereinafter referred to as the Wissinger case, own a tract of land in West Hartford known as Brookside Knolls which they are engaged in developing for residential use. The corporate defendant, The Juno-Maskel Construction Company, is engaged, under a contract with the individual defendants, in improving a roadway 60 feet wide and 185 feet long running from Brookside Knolls to Brookside Boulevard. This boulevard, since 1917, has been a public street in West Hartford for a length of at least 1200 feet measured westerly from its intersection with North Main Street. The sixty-foot roadway is referred to in the finding as Brookside Boulevard Extension. Shortly before the present actions were begun, the named plaintiff acquired by quitclaim deed all the right, title and interest of the owners of the land included in the extension. To simplify the discussion of the issues before us, we shall assume, contrary to the actual fact, that both plaintiffs own this land and the land adjacent to it, as a single tract.

The present cases were tried together and, practically speaking, identical memoranda of decision, judgment files and findings were filed in them. In this court both cases were argued and briefed as a unit. In each case the plaintiffs sought a declaratory judgment and coercive equitable relief, and the court found the issues for the defendants and rendered judgment in their favor.

The mere fact that the plaintiffs in each case saw fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof in civil actions. Murphy, Inc., v. Town of Westport, 131 Conn. 292, 302, 40 A.2d 177, 156 A.L.R. 568; Gionfriddo v. Town of Windsor, 137 Conn. 701, 706, 81 A.2d 266. The rule as to the burden of proof is implemented and made effective by our rule that the 'prayer for relief shall state with precision the declaratory judgment desired.' Practice Book, § 278(b).

The question to be decided on each appeal is whether the court was compelled, as a matter of law, to render a declaratory judgment and to grant injunctive relief as sought, the prayer for a declaratory judgment being accompanied by prayers for coercive injunctive relief. United National Indemnity Co. v. Zullo, 143 Conn. 124, 130, 120 A.2d 73. While the plaintiffs have indulged in a wholesale attack on the finding, only a few of their claims for correction are material in the view which we take.

In the Wissinger case the prayers for relief were five in number. The final one sought equitable relief in general terms, and the preceding three by way of injunction. The first sought a judgment 'declaring that the defendants are not authorized to install any culverts or bridge or construct any highway over [a brook which flows into Trout Brook] until the proper approval and authorization of such bridging and the manner thereof by the Town Council of the Town of West Hartford.' The 'highway' referred to is a projected continuation westward of Brookside Boulevard Extension. The equitable relief sought was a prohibitory injunction restraining the defendants from installing or maintaining the roadway across the tributary brook 'until a final determination of the appeals now pending [in the Court of Common Pleas] and relating to the layout of streets in [the] Brookside Knolls property'; a prohibitory injunction restraining the defendants from raising the grade of Brookside Boulevard Extension; and a mandatory injunction compelling the defendants to restore the grade to its former level.

In the second case, hereinafter referred to as the West Hartford case, the plaintiffs were the same as in the Wissinger case but the town of West Hartford and Arthur N. Rutherford, its acting town manager, were the defendants. The equitable relief sought was a prohibitory injunction restraining these defendants from raising the grade, or doing any further work on the grading, of the extension; a mandatory injunction requiring the defendant town manager to 'order the closing' of the extension as a public highway; and a mandatory injunction requiring the defendants to restore the grade to its former level. The first prayer for relief differed somewhat from that in the complaint in the Wissinger case and sought a judgment 'declaring that the action and vote of the Town Council of [the] Town of West Hartford in laying out, making, grading and establishing as a public highway said strip of land * * * is illegal, null and void.'

As the cases were tried, a fundamental issue was whether Brookside Boulevard Extension was merely a right of way appurtenant to Brookside Knolls or had been legally accepted as a public street by the town of West Hartford. In their brief the plaintiffs concede that the defendant owners of Brookside Knolls had and still have a right of way, appurtenant to their land, running to Brookside Boulevard over the extension. This right of way was reserved by predecessors in title of those defendants 'for all purposes for which a highway is ordinarily used,' and passed by mesne conveyances.

The court found in effect that the right of way existed in such broad terms that the improvements contemplated could lawfully be made whether the extension had or had not been accepted as a public street by the town of West Hartford. These improvements included making a suitable surface for vehicular travel and the changes of grade reasonably necessary for the enjoyment of the right of way as reserved. The court further found that the raising of the roadway for the change of grade would not endanger the plaintiffs' adjacent property through flooding or otherwise and that the proposed bridge over the brook would be entirely on the property of the defendant owners of Brookside Knolls and would not cause water to back up on the plaintiffs' property or otherwise injure it. These findings cannot be changed, especially since they were made after the court had viewed the premises with the consent and in the company of counsel. Practice Book, § 391; Maltbie, Conn.App.Proc., §§ 149, 161. On these facts it is clear that, even if the bridging of the brook, entirely on the Brookside Knolls property, would be illegal unless it was approved by the town of West Hartford, it would not be a material injury to the plaintiffs' property. Nor would the grading of the extension be an invasion of the plaintiffs' property rights. New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640, 136 A.2d 742; Nichols v. Peck, 70 Conn. 439, 441, 39 A. 803, 40 L.R.A. 81; 17A Am.Jur. 740, § 132. Indeed, so far as the extension is concerned, if, as the plaintiffs claim, it was not a public street, the defendant owners of the right of way, rather than the plaintiffs, were obligated to maintain it, if anyone was obligated. Earley v. Hall, 89 Conn. 606, 611, 95 A. 2; Staples v. Bernabucci, 119 Conn. 443, 448, 177 A. 380.

As previously noted, the declaratory judgment sought in the Wissinger case was to the effect that the defendants could not legally bridge the brook until the town council authorized the bridging and approved the manner of its being done. As we understand the plaintiffs' present position, as stated in their brief, the claim for such a judgment has been abandoned. The present claim of the plaintiffs is that there can be no legal bridging of the brook until there has been an effective and final approval by the town plan and zoning commission of a map showing the layout. Under the circumstances, it is unnecessary to decide whether the declaratory judgment sought should have been rendered.

In the West Hartford case, the declaratory judgment sought was to the effect that the action of the town council in establishing the extension as...