Ingham v. Brooks
| Decision Date | 05 August 1920 |
| Citation | 111 A. 209,95 Conn. 317 |
| Court | Connecticut Supreme Court |
| Parties | INGHAM et al. v. BROOKS et al. |
Appeal from Superior Court, Middlesex County; Lucien F. Burpee and Joel H. Reed, Judges.
Action by George C. Ingham and others against Jarvis E. Brooks and others. From a judgment for defendants on all issues except those raised by the second defense, plaintiffs appeal, and from the ruling adjudging the second defense to be insufficient, defendants appeal. No error on either appeal.
William Lynde owned, at his decease in 1847, the Lynde Neck farm, in the town of Old Saybrook, consisting of 250 acres of upland together with several fisheries or fish places off the Long Island shore of this tract.
Among those fisheries or fish places was the Gardner fish place, at a point within the borough of Fenwick and extending several thousand feet east of the land of D. C. Spencer on the shore of Long Island Sound, together with all the rights and privileges for the erection of fish houses, reels, and capstans for the purpose of taking and landing fish and a convenient right of way across said farm with teams and carriages for fishing purposes to and from all of said fisheries and premises.
The use of the " fish place" during its existence has included the landing of boats, the erection and use of capstans, the hauling and drying of nets, the hauling up sorting, and packing of fish, and temporary abode during the fishing season for those engaged in the fishing. Use of this fishery or fish place requires the use of the shore or beach and of a portion of the beach above high-water mark.
The fee of this farm was distributed among the children of William Lynde and through various grantors to the borough of Fenwick, which was incorporated in 1899 and includes a part of the territory of what was formerly the town of Old Saybrook. In each of the several conveyances of the fee the several fisheries, including the Gardner fish place, were excepted and reserved.
Upon the death of William Lynde the Gardner fish place through various wills and conveyances became vested in the plaintiffs, who at the time of bringing this action owned undivided interest therein; and for 70 years this " fish place" was held and used, free from the claim on the part of anybody else, by the plaintiffs and their predecessors in interest.
The owners of this fish place were not in fact damaged by the layout of Beach road; and no compensation by way of damages was ever asked for or claimed from anybody in 1871, when said highway was laid out, or at any time since, by any owners of the fish place in question.
In June, 1871, a highway known as Beach road was laid out 3 1/2 rods wide by the selectmen of the town of Old Saybrook, and ever since this date up to the acts of trespass alleged in the complaint this highway has remained a legal highway in the public records of the town as far as these plaintiffs are concerned, unless the fact that no compensation as paid and no notice as given the plaintiffs appears of record vitiates the legality of the layout. There was no specific evidence introduced of any compensation paid upon the layout of this highway, and no evidence of any conveyances or dedication of the land within the limits of the highway. After the layout of Beach road a traveled roadway of the width of from 15 to 20 feet was thereafter actually worked and continuously used.
At the time Beach road was laid out in 1871 the distance from its south line to the beach line at approximately the spot where the fish shed in question was removed was about 84 feet. At the time the Beach road was laid out as a highway Rev. William Jarvis, D. C. Spencer, and the New Saybrook Company were the only owners of the land through which the highway was laid out. Since 1899 a part of the highway has been within the limits of the town of Old Saybrook, and a portion running along the beach of Long Island Sound has been within the limits of the borough of Fenwick.
Since 1871 the beach line opposite the said fish shed has receded inland because of the action of the elements, and very much of the shore has been washed away, so that at the time of the acts in suit the beach line opposite the location of the fish shed extended northward over the south line of the Beach road and into and within its limits
Acting under the authority of its charter, the borough of Fenwick on September 14, 1901, passed the following ordinance:
The plaintiff Ingham, before moving the fish shed in question, knew of the ordinance and its terms. The borough officials duly warned Ingham against erecting this structure within the borough without first securing a permit therefor. About January 1, 1913, the plaintiff Ingham without obtaining such permit and without any of the plaintiffs obtaining such a permit, moved a fish shed which was used as a part of the Guard House Point Fishery, which was just west of the west line of the borough, to a point 800 rods easterly from the western limit of said borough to a point within the limits of the Beach road and west of the east bound of the Gardner fish place. After its location the borough officials gave Ingham notice to remove the fish shed within a reasonable time, and upon his failure so to remove they removed the shed with reasonable care and without unnecessary damage at a cost of $75.
In 1840 and thereafter there were several fisheries or fish places east of the Gardner fish place off the Long Island shore of this 250-acre tract. For upward of 40 years all of said fish places have been enjoyed and operated with one or two fish sheds located on the Sound shore, and during all of this time there were no other buildings located, maintained, or used in the operation of such fish places.
From about 1890 to about 1903 there were no fish sheds or any buildings whatever within the limits of Gardner fish place. George Ingham had not operated the Gardner fish place within 2 or 3 years prior to 1913. The plaintiff Frank Ingham, a son of George Ingham, operated in 1913 and thereafter the Gardner fish place, and has each year since applied for and obtained a permit from the state of Connecticut to set and maintain a pound and nets at Gardner fish place.
George E. Beers, of New Haven, and Ernest A. Inglis, of Middletown, for appellants.
Harry W. Reynolds and Lewis Sperry, both of Hartford, for appellees.
The complaint alleges as the basis of a recovery of damages and for injunctive relief that the defendants on July 5, 1913, removed and destroyed the plaintiffs' fish shed and personal property from their fishery, Gardner fish place, in the borough of Fenwick, which they owned by undivided interests and upon which they were maintaining this fish shed and personal property in the operation of their fishery and under and in pursuance of their right so to do, and by reason of these acts the plaintiffs have ever since July 5, 1913, been prevented from operating their fish place.
The defenses sustained by the judgment were the first and third.
The first defense is practically a general denial of plaintiffs' title together with a justification for the removal of the shed and personal property from the Beach road, a highway of the borough of Fenwick, within whose limits these had been placed after notice to remove them given by the authorities of the borough, and without doing unnecessary damage.
The third defense alleges that this shed was placed by the plaintiffs within the limits of the Beach road in Fenwick borough, thus encroaching upon the highway and obstructing its use, and that the defendant officials of the borough, pursuant to authority, duly removed this fish shed without doing unnecessary damage.
The plaintiffs denied the allegations of the third defense, and alleged that their right to erect the fish shed as alleged in the complaint had never been taken for highway purposes, and that the Beach road had never been legally laid out, since the plaintiffs had never been compensated for the taking nor received notice of the proceeding therefor.
The defendants rejoined by pleading specifically acts indicating that the highway had been legally laid out. So that the disputed issues upon the plaintiffs' appeal are: The title or right of the plaintiffs to locate and operate a fish place upon this part of the beach, and whether the locus upon which the plaintiffs had located the fish shed was within the limits of a duly laid out highway known as the Beach road.
As we read the finding, it locates the Gardner fish place along the beach on the shore of Long Island Sound at a point within the borough of Fenwick extending several thousand feet along the beach from the land of Daniel C. Spencer on the west to a heap of stones some distance east of that part of the shore opposite the...
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