Lew v. Brat

• Decision Date: 03 August 1908
• Parties: LEW et ux. v. BRAT.
• Court: Connecticut Supreme Court

70 A. 628

81 Conn. 213

LEW et ux.

v. BRAT.

Supreme Court of Errors of Connecticut.

Aug. 3, 1908.

Appeal from Court of Common Pleas, New Haven County; William L. Bennett, Judge.

Action in the nature of ejectment by John Lew and wife against Thomas M. Bray. From a judgment for plaintiffs, defendant appeals. Affirmed.

The plaintiffs and the defendant own adjoining lots, which were purchased by them from the same grantor. The defendant's lot is located north of that of the plaintiffs. The land in dispute is a triangular strip about 110 feet long and 1 foot and 9 1/2 inches wide on the westerly end extending to a point at a street at the easterly end. The plaintiffs claim the northerly line of this triangular strip as their north line, and the defendant claims the southerly line of the triangle as his south line. The point in dispute between the parties is the location of the northerly terminus of the plaintiffs' westerly boundary line. Their deed calls for a line 168 feet long measuring northerly from a street, which is their southerly boundary. They were the earlier purchasers. Before their deed was given, the westerly boundary was measured by them and a representative of the grantor, and a stake driven at a point 168 feet north of the street. The land over which the measurement was made is rough and uncultivated, and the surface at a point intermediate between the two ends of the boundary line is about 12 feet below the level of the ground at the ends. After their purchase the plaintiffs and their grantor, before the defendant had purchased his lot, erected a fence extending from the stake to the northeasterly corner of the plaintiffs' lot. The defendant claims that in making the measurement the parties followed the surface of the ground, and that this brought the point at which the stake was driven at the southwesterly corner of the triangular strip in question. By measurement on a horizontal line the northwesterly corner of the strip is the point 163 feet from the plaintiffs' front line. The defendant, having removed the fence and erected a stone retaining wall along the southerly line of the triangle, claims that the wall is upon the line occupied by the fence. The court found that the measurement was made on a horizontal line through the air and sustained the plaintiffs' claim as to the location of their northwesterly corner. From this finding, and from the court's action in taxing full costs, the defendant appeals.

Talcott H. Russell and Harry W. Doollttle, for appellant.

E. P. Arviue, Henry G. Newton, and Frank J. Kinney, for appellees.

THAYER, J. (after stating the facts as above). We perceive no reason why the finding of the trial court should be corrected. The case turned upon the location of the northwesterly corner of the plaintiffs' land. The parties derive title from the same grantor; the plaintiffs' being the earlier purchase. By the terms of their deed, their northwesterly corner would be 168 feet, measured along their westerly boundary line, from a street on the south of their lot. Just before the deed was given, the plaintiffs and their grantor measured said westerly line and drove a stake at the northerly end of the line as thus fixed. Shortly after the deed was given, they jointly erected a fence from the point so fixed easterly along the plaintiffs' northerly line to a street upon the east of their lot. This was before the defendant purchased. It is agreed by the parties that, if the defendant's present wall stands upon the site of the fence thus erected, the judgment below was erroneous. There was conflicting evidence as to the precise location of this fence when erected, and the court has found that it did not stand upon the line now occupied by the defendant's wall, but that the defendant some time prior to building said wall took up a portion of the fence at the eastern end and replaced the same, setting it over upon the premises of the plaintiffs, and that when he built his wall he took up the westerly end of the fence and placed the westerly end of his wall 1 foot 9 1/2 inches southerly of the fence line. The court also finds that the original measurement, made before the plaintiffs' deed was given, was made horizontally through the air, and did not follow the...