Layton v. Bailey

• Decision Date: 14 June 1904
• Citation: 77 Conn. 22,58 A. 355
• Court: Connecticut Supreme Court
• Parties: LAYTON v. BAILEY et al.

58 A. 355

77 Conn. 22

LAYTON

v. BAILEY et al.

Supreme Court of Errors of Connecticut.

June 14, 1904.

Appeal from Superior Court, Fairfield County; John M. Thayer, Judge.

Action by Frank D. Layton against Frank T. Bailey and others, under Gen. St. 1902, § 4053, to determine the title to certain real estate. Judgment for defendants, and plaintiff appeals. Affirmed.

In 1855 one William H. Benger, the plaintiff's predecessor in title, bought a half acre of land, with a house thereon, described in the deed as follows: "Bounded northerly and easterly on highway, southerly on land of Anson Quintard and heirs of James Quintard, and westerly on land of Fannie Saunders, wife of Thomas Saunders." The land mentioned as the southerly boundary belonged to the defendants' predecessor in title, and was called the "Pottery Lot." The house fronted on the northerly highway, now known as "Ann Street." The easterly highway was an ancient wagonway extending from the northerly highway at the northeast corner of the Benger lot, along the hard land or upland, following the high-water mark to the northerly boundary of the Pottery lot. Easterly and northerly of this highway, marsh and mud flats extended to the river, and at very high tides the highway would be submerged. The easterly highway followed a direct line from the present Ann street in a southerly direction to within a short distance of the south line of the Benger lot, where it turned, following an easterly direction to the northeast corner of the Pottery lot. Soon after Benger's purchase, he built a fence extending from the northeast corner of his land along the side of the easterly highway to the point where it turned northerly, and then continued the fence in a straight line to the Pottery lot. This left a gore of upland between the fence and the highway and the mud flats beyond, as shown in the map. In building this fence, Benger placed a small gate nearly opposite the rear of his dwelling house, which was subsequently used in going to and from the rear of the house, and placed a large gate a short distance northerly of the point where the high way turned to an easterly direction, which was subsequently used for carting in fertilizer upon the garden and for other purposes, until within about 25 years of the commencement of this action.

It was claimed by the defendants that since 1831 this gore of upland bounding northerly on the highway was included in the land conveyed by the deeds in evidence, under which the owners of the Pottery lot claimed title. This claim was controverted by the plaintiff. The court found, as above stated, that shortly after his purchase Benger fenced his land (which had not been fenced before) by a fence as above described, leaving the small gore of upland adjoining the Pottery lot outside the fence, and that prior to if owners of the Pottery lot, at different times, under deeds bounding it northerly on the highway, occupied this gore of upland, and placed timber and lumber thereon, and also began to fill in the marsh in the angle of the highway. In 1884 they further filled in the marsh, and the highway (by what authority did not appear) was carried east to its present location, extending in a straight line from Ann street, at the northeast corner of the Benger lot, to the northeast corner of the Pottery lot, and forming a part of North Water street, as shown in map 2. In September, 1884, James S. Bailey, whose heirs are the present defendants, purchased the Pottery lot under a deed bounding it northerly on the highway. Since 1884 the owners of the Pottery lot have continuously and exclusively occupied as a lumber yard the land between the Benger fence and the present highway, now a public highway and a part of North Water street; being the triangular piece of land in dispute, as shown in map 2. Their possession was open, adverse, and under the claim that they were the owners of the land.

On October 27, 1902, the plaintiff bought the Benger lot of Henry and Otis Benger, who described themselves in the deed as the only persons having any interest in the estate of William H. Benger. The deed was a warranty deed, and bounded the land by Water street and by land of the Bailey heirs in such manner as to include in the land conveyed the triangular piece of land in dispute. It appears by the record that on July 19, 1902, the plaintiff and Henry and Otis Benger executed a deed of that date, recorded two days later, whereby the parties agreed and covenanted as follows: The Bengers agreed to sell and convey to the plaintiff the land described in said deed of October 27th for $2,500, $25 of which was paid before execution, and the balance to be paid as soon as a warranty deed can be prepared, and the grantor's title verified and approved by the purchaser. And it was further agreed by the parties that, in case the title to the land as described cannot be so verified and approved, the purchaser, at his option, should have a reasonable time within which he might attempt to remove and heal any defect in said title at his own expense. And the plaintiff covenanted to purchase and pay for said land upon said terms. The plaintiff acquired the only title he has to the land in dispute by said warranty deed of October 27th. At the time the plaintiff purchased the land and took this deed, he knew that the defendants were in possession of the triangular piece of land in dispute, holding title thereto adversely to the Bengers, and, three days after he received said deed, commenced this action, which is brought under section 4053 of the General Statutes (Revision of 1902).

John S. Pullman, J. Beiden Hurlbutt, and Leo Davis, for appellant.

John H. Light, for appellees.

HAMERSLEY, J. (after stating the facts). It is admitted by the pleadings that the plaintiff is the owner in fee of the piece of land called the "Benger Tract," as it appears in map 2 of the statement....