Mad River Co. v. Pracney

• Decision Date: 01 March 1924
• Citation: 100 Conn. 466,123 A. 918
• Court: Connecticut Supreme Court
• Parties: MAD RIVER CO. v. PRACNEY. MAD RIVER CO. v. EQUINOX CLUB.

123 A. 918

100 Conn. 466

MAD RIVER CO. v. PRACNEY.

MAD RIVER CO. v. EQUINOX CLUB.

Supreme Court of Errors of Connecticut.

March 1, 1924

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Two actions by the Mad River Company against John Pracney and the Equinox Club, respectively, in the nature of ejectment and also claiming injunction. Judgment for defendants in each action, and plaintiff appeals. No error.

Each of the complaints in the above actions, which by agreement were tried together, contains an averment that the plaintiff was the owner of a certain tract described, in the town of Wolcott, which in fact was the land flowed by the erection of a dam and forming an artificial lake or pond used to furnish water to various factories in Waterbury; that upon said land on or about January 1, 1915, the defendant in each action unlawfully entered and without license or right erected a dock, which is still maintained, thereby dispossessing " the plaintiff of the portion of land occupied by said dock" and continuing such dispossession. Each complaint claims judgment for possession of the premises, and a mandatory injunction requiring each defendant " to demolish, and remove said dock from the land of the plaintiff." In each case a demurrer to the complaint was filed and overruled, and defendants answered over, denying all the allegations of the complaint.

The court in its finding of facts after describing the situation of the lake and the facts connected with its establishment further finds that the plaintiff, in support of his fee-simple title to the tract described in the first paragraph of the complaint, introduced numerous deeds, and that these showed that whatever title the plaintiff might have was derived from one Hobart Welton, the Scoville Manufacturing Company, and one Hitchcock, who had in turn acquired title from various prior grantors. In many of these deeds only the right of flowage was granted. By virtue of the series of deeds introduced, the plaintiff became entitled to flow the lands covered by the lake or lower pond, which lands are described in paragraph 1 of each complaint.

The court in particular further found:

" 13. The plaintiff introduced no evidence to identify the specific land described in these deeds or to locate old stone walls, trees, and other natural bounds and landmarks described in said deeds.

14. The plaintiff introduced no evidence to prove, and failed to prove, that the land described in paragraph 1 of the complaints was land, the fee to which was conveyed to it by any of the deeds placed in evidence."

Around the shores of the lake in question and the lake near by a large number of persons and associations had erected summer cottages and permanent homes, of which more than 50 have existed in the lower lake, some for more than 30 years, and their occupants have used the water of the lake without interruption or objection from the plaintiff, and approximately 30 docks similar to those of defendants have been built out into the water, and their owners or occupiers have used the same without objection or interruption by the plaintiff. The defendant, the Equinox Club, constructed a small dock in the water in front of its clubhouse in 1912 without objection from the plaintiff and under color of right, and its members have used the same uninterruptedly since. This dock was constructed by driving piles of 2x4 timber into the bed of the lake, as support for a frame on which was placed boarding. The boarded surface is 7 1/2 feet wide and 19 feet long, with 2 feet resting on the land and the rest extending over the water. The defendant Pracney in 1917 constructed a similar dock 5 feet wide by 26 feet long without objection and under color of right. Both of the defendants used the docks freely, openly, continuously, and without objection by the plaintiff under color of right from the date of their erection till the fall of 1922, when they were each notified to remove the same, and to cease making use of the water of the lake. The defendants did not observe the terms of this notice, and the present civil actions were instituted, and defendants then notified that they could continue the use of the docks and the water of the lake if they would sign an instrument acknowledging the superior rights of the plaintiff in the lake. The same notice was sent to other land and dock owners on the lake, the greater number of whom, including the defendants, refused to abide by this notice or to accept the privilege offered. The amount of water displaced by the piles is so small that the damages, if any, suffered by the plaintiff cannot be measured and determined.

A memorandum of decision filed in the cause is made part of the finding of facts, together with the exhibits introduced at the trial. The court reached the conclusions that the plaintiff in each action had failed to prove the allegations of paragraphs 1, 3, and 4 of the complaint, being all of the allegations above cited, except those of paragraph 2 which sets forth the construction of the dam and the furnishing to factories of the water impounded.

The court further found as follows:

" In the trial of the cause, at the conclusion of the evidence, the plaintiff's counsel made a brief oral argument, wherein it claimed that it had proved that it was the owner of the land described in paragraph 1 of this complaint, and was therefore entitled, as shown by the various deeds in evidence, to judgment as prayed for. It made no further or other claims of law. The defendant's counsel filed a written brief setting up claims of fact and law that the plaintiff had not proved the material allegations of its complaint, particularly paragraph 1 of the complaint. The plaintiff had the opportunity to file a reply brief and make claims of law and fact, but it refused and neglected so to do. The plaintiff did not raise the questions of law set forth in paragraphs 1, 2, and 3 of part III of the appellant's proposed draft of finding."

The plaintiff assigns certain errors as to the conclusions reached by the trial court and also in refusing to correct certain paragraphs of its finding.

Further facts appear in the opinion.

William W. Gager, of Waterbury, for appellant.

Vincent A. Scully, of Waterbury, for appellees.

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

Counsel who argued the case in this court for the appellant did not participate in the trial of the cause in the court below. In making up the appeal record, he stated that certain claims of law bearing upon the plaintiff's contention were made at the trial. That they were not so made is established by the part of the court's statement last above quoted in the finding of facts. Disregarding these claims and the reasons of appeal founded thereon, we find that the grounds of appeal are reduced in effect to one--that is, whether the facts found by the court, as matter of law, are ample to sustain its judgment. We may remark in passing that plaintiff is not at any serious disadvantage from this situation, since every material point arising under the rejected assignments of error can...