Hurlburt v. Bussemey

• Citation: 126 A. 273,101 Conn. 406
• Court: Supreme Court of Connecticut
• Decision Date: 08 October 1924
• Parties: HURLBURT ET AL. v. BUSSEMEY ET AL.

126 A. 273

101 Conn. 406

HURLBURT ET AL. v. BUSSEMEY ET AL.

Supreme Court of Errors of Connecticut.

October 8, 1924.^[1]

Appeal from Superior Court, Litchfield County; George E. Hinman Judge.

Action by Charles W. Hurlburt and others against Emil A. Bussemey and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

See also, 99 Conn. 708, 122 A. 789.

This action is brought by the plaintiffs to recover possession of real estate, and for damages. The real estate in question is claimed by the plaintiffs to be a portion of a certain piece of land situated in the town of Morris, in Litchfield county known as the " bar" extending from Deer Island in Bantam Lake to the highway on the westerly shore of this lake. In 1885 Charles H. Woodruff and others quitclaimed to one Robert E. Hall all of their right, title, and interest in and to a piece of land containing about four acres, called the " bar," connecting Deer Island in the Great Pond with the mainland, and bounded west on highway, north and south on Great Pond, east on said island; Great Pond being what was known afterward as Bantam Lake. In 1896 Robert E. Hall, together with his wife, in whom the legal title was then vested, conveyed to Gideon H. Welch Deer Island bounded " north, east and south by Bantam Lake, and west partly by said lake and partly by the bar connecting said island with the main land, also said bar bounded north by Bantam Lake, east by said Island, south by Bantam Lake, and west by highway." In 1899 Gideon H. Welch conveyed to Watson M. Hurlburt Deer Island (except certain portions previously sold to other parties) and the bar, the island and bar being similarly described as in deed of Robert E. Hall and wife, and thereafter in 1900 this property, with the same description, was conveyed to Charles W. Hurlburt, one of the plaintiffs in this present action. On September 28, 1921, Charles W. Hurlburt gave a quitclaim deed to the W. M. Hurlburt Company, a plaintiff in this action, " of all that certain tract of land * * * lying between the highway and Deer Island, and bounded northerly on Bantam Lake, easterly on Deer Island, southerly on Bantam Lake, and westerly on the highway," being the same description of the bar as contained in the immediate previous conveyances. For many years there had been a single and clearlydefined road known as the Island road or the Bog road connecting Deer Island with the highway on the westerly shore of Bantam Lake, and in 1914 the W. M. Hurlburt Company conveyed to the town of Morris a strip of land 50 feet wide for highway purposes, extending from the highway on the west shore of Bantam Lake to the shore of Deer Island.

The land claimed by the plaintiffs in the present action is a piece approximately 50 feet in width, and 100 feet in depth, lying between the main highway and the west shore of Bantam Lake, the northerly line of this land being approximately 330 feet southerly from the roadway connecting the mainland and Deer Island.

During the trial of this cause, by agreement of counsel, the court viewed the premises in question for the purpose of aiding its determination as to what the bar described in the deeds referred to consisted of, its location, and existing conditions.

In or about 1908 one John H. Morrow, who occupied land on the west side of the highway, and also claimed to own the locus in question, cleared a passway across it from the highway to the lake, and used the land at the end of a line of stones resembling the foundations or remnants of a stone wall, ranging from 2 feet to less than a foot high, and extending from near the highway west of the land to the shore of the lake, for landing, storing a boat and canoe, and otherwise made use of the premises until September, 1911, when he gave a deed thereof to one Edward Croft, who gave to the defendant Bussemey a quitclaim deed of this land in question on June 29, 1921.

In 1914 the defendant Bussemey entered on these premises by authority of the said Edward Croft, cut trees and bushes, and erected a garage thereon. While Bussemey was clearing land for the garage in 1914, Watson M. Hurlburt questioned his right so to do, and ordered him off the land. Bussemey refused to leave, and there was no further interference with his occupancy, until a store building was being erected by Bussemey in 1921. He was then notified that this building was on the plaintiff's land, and within a few months this action was instituted. This building was erected for the purpose of engaging in selling ice cream, candy, cigars, cigarettes, soda water, gasoline, and carrying on a general place of amusement for the purpose of dancing, bathing, boating, etc.

At the time this building was erected the plaintiff, Charles W. Hurlburt, was engaged in a similar business upon land adjoining the land in question on the north, and the defendants in constructing a store and place of amusement diverted trade which would otherwise have gone to Charles W. Hurlburt's business.

Edward B. Reiley, Jr., and Ulysses G. Church, both of Waterbury, for appellants.

Clayton L. Klein and J. Howard Roberts, both of Waterbury, for appellees.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG, JJ.

KELLOGG, J. (after stating the facts as above).

The plaintiffs seek a correction of the finding in many particulars, both by substituting a large number of the statements contained in their draft finding for those contained in the finding by the court, and by adding thereto other additional paragraphs. Many of the statements of facts thus sought to be now incorporated in the finding are covered by the finding and its amendment, and many are not admitted or undisputed facts. Also a very large number of the paragraphs of the draft finding, sought to be incorporated in the finding, set forth many of the deeds in the defendants' chain of title to the locus. Inasmuch as the plaintiffs must recover, if at all, by the strength of their own title, and not by the weakness of the defendants' title, as will be discussed more in detail hereinafter, it is not necessary to correct the finding by the addition of these paragraphs. A careful examination of the evidence, and of the finding and its amendment, leads us to the conclusion that the finding and its amendment contain all material facts, either admitted or undisputed, which are necessary for the determination of all questions of law arising in this action.

As has been said above, the plaintiffs, in order to recover in an action in the nature of ejectment, must rely upon the strength of their own title, and not upon the weakness of the defendants' title to the premises in question. This has been repeatedly decided in this court, and does not admit of question.

" In an action in the nature of ejectment, the plaintiff must rely on the strength of his own title, and not the weakness of the defendant's." Mad River Co. v. Pracney, 100 Conn. 466, 123 A. 918; Center Bridge Co. v. Wheeler & Howe's Co., 86 Conn. 585, 86 A. 11; Moran v. Denison, 79 Conn. 325, 65 A. 291; Cahill v. Cahill, 75 Conn. 522, 54 A. 201, 732, 60 L.R.A. 706.

In this action the plaintiffs now claim title by deed, and also by adverse possession. The deeds offered in the plaintiffs' chain of title begin with a quitclaim deed from the heirs of Morris Woodruff in 1885, describing the property therein as " a piece of land containing about four acres, called the ‘ bar,’ connecting Deer Island in the Great Pond (Bantam Lake) with the mainland and bounded west on highway, north and south on Great Pond, east on said Island." By mesne conveyances this property came into the hands of the plaintiffs, and, it is claimed by them, includes the land in question. It was the duty of the court therefore to determine the extent of this bar, and it relied not only on the evidence produced, but also on its view of the premises with counsel. No clear or accurate testimony was offered by any one on the part of the plaintiffs showing the exact boundaries or dimensions of the bar, or that it necessarily included these premises in question, and the court must have relied to a considerable extent upon its view of the premises to determine whether or not the plaintiffs had established their claim that the land in question was a part of the bar described in the deeds.

The court has found that the plaintiffs have no title by deed to the premises in dispute, and from a careful examination of the evidence, and taking into consideration the court's own view of the premises we cannot hold that it was in error in coming to this conclusion. Also the evidence of Gideon H Welch, the immediate grantor of the plaintiffs, and who held the title to the bar from 1896 to 1899, must have had much influence in determining the strength of the plaintiffs' title to the premises in question. The description of the property conveyed in 1899 by this witness to Watson M. Hurlburt, of the W. M....