Horowitz v. F. E. Spencer Co.
| Decision Date | 08 November 1945 |
| Citation | 132 Conn. 373,44 A.2d 702 |
| Court | Connecticut Supreme Court |
| Parties | HOROWITZ et al. v. F. E. SPENCER CO. |
OPINION TEXT STARTS HERE
Action by William Horowitz and others against the F. E. Spencer Company for an injunction commanding defendant to remove certain encroachments on a passway and for other relief, brought to the Court of Common Pleas and tried to the court. From a judgment fixing the boundaries of the disputed portion of the passway between the parties, plaintiffs appeal.
No error.
Charles M. Lyman and Herman M. Levy, of New Haven, for appellants.
Bernard Greenberg, of New Haven, for appellee.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
The defendant has, by deed, a right of way running easterly from a building it owns over the land of the plaintiffs to State Street in New Haven. The way is some 10 feet wide and 136 feet long. When the defendant acquired its land in 1925, there was, and ever since has been, within the limits of the way at the end farthest from the street, a platform which it has continuously used, in the course of its business, to receive and discharge merchandise. The platform, built of cement, starts on the land of the defendant lying southerly of the right of way and runs in a northerly direction, diagonally to the course of the way and slanting toward its inner end until it reaches about the center; this portion of it is approximately two feet and nine inches in height; over it is a roof, and this rests upon a beam which runs across the entire way and is supported by a steel column rising from the ground close to its northerly edge. From about the middle of the way, the platform, about a foot less in height but built up by wooden beams to the level of the other portion, continues across the way at right angles to its course and extends to the wall of a building belonging to the plaintiffs. In this action they sought damages and injunctive relief upon the ground that the platform, roof and column constitute illegal encroachments upon the way, and claimed an junction restraining the defendant from making any use of the land within the way other than for purposes of passage. The defendant filed an answer denying most of the allegations of the complaint, and pleaded specially that it had acquired, by prescription, the right to maintain the platform, roof and beam and that, by adverse possession, it had title to them. The trial court found the issues for the plaintiffs as regards the portion of the platform which runs at right angles to the center of the way and awarded them nominal damages; it concluded that the rest of the platform and the roof and beam were the property of the defendant; and it denied any injunctive relief. The plaintiffs have appealed.
The principal claim of the plaintiffs is that the defendant did not establish any right to the platform, roof and column. The trial court found, among the subordinate facts, that the defendant had, during all the time after it bought the property in 1925, occupied and use the diagonal portion of the platform and the shelter over it continuously, openly, uninterruptedly, adversely, under claim of right and without dispute. These findings are adequately supported by evidence and reasonable inferences. Use, to give rise to a prescriptive right, need not exclude the holder of the legal title from the premises; Phillips v. Bonadies, 105 Conn. 722, 728, 136 A. 684; nor need there be a claim of ownership; it is sufficient if the property is used by the possessor as his own. French v. Pearce, 8 Conn. 439, 443, 21 Am.Dec. 680; Searles v. DeLadson, 81 Conn. 133, 136, 70 A. 589. A continued, open and visible use of property gives rise to a presumption that the holder of the legal title has acquiesced, particularly where he makes no objection; School District v. Lynch, 33 Conn. 330, 334; and no specific finding of acquiescence is necessary. Even if the platform as a whole constituted a unit, the defendant would acquire a prescriptive right only to such portion of it as was used by it as its own; Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192; there was sufficient evidence, if the trial court gave it credence, as it did, to support its finding that for a number of years the defendant had paid an annual rental for the use of the portion of the property where the platform ran at right angles to the course of the way; and this would serve to limit extent of its adverse user to the other portion. The trial court perforce had to reach its decision by considering the nature and character of the use and the surrounding circumstances. Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22, 103 A.L.R. 677. The burden of proof was upon the defendant; Shea v. Gavitt, 89 Conn. 359, 363, 94 A. 360, L.R.A.1916A, 689; but nothing in the record suggests that the trial court did not consider the issues upon that basis. The defendant had acquired the right to use and maintain the diagonal portion of the platform. This was the trial court's ultimate conclusion, in the sense that it entered immediately into and was a determining factor in the decision; it was properly included in the portion of the finding containing the conclusions of the court; and the plaintiffs do not complain of the specific terms in which it is stated. Certain of the findings of the court characterizing the defendant's user are such that they might properly constitute conclusions because they might have been reached in whole or in part by deductions from other facts; and in so far as relevant facts are found in or could be added to the finding, these conclusions must be tested to see whether or not they are legally or logically consistent with such facts. Phillips v. Bonadies, supra, 105 Conn. 727, 136 A. 684; Conn.App.Proc., § 96. We can make no material correction in the finding, and no such inconsistency appears. The conclusion of the trial court that the defendant had, by adverse user, acquired the right to maintain and use the diagonal portion of the platform must stand, unless, indeed, it is vitiated by a ruling upon evidence which is assigned as error.
The president of the defendant corporation was permitted, over objection by the plaintiffs, to testify in effect that...
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