McCusker v. Spier

• Decision Date: 04 April 1900
• Citation: McCusker v. Spier, 72 Conn. 628, 45 A. 1011 (Conn. 1900)
• Court: Connecticut Supreme Court
• Parties: McCUSKER et al. v. SPIER et al.

45 A. 1011

72 Conn. 628

McCUSKER et al.

v. SPIER et al.

Supreme Court of Errors of Connecticut.

April 4, 1900.

Appeal from superior court, New Haven county, Samuel O. Prentice and Milton M. Shumway, Judges.

Action by John P. McCusker and another against Moritz Spier and another.From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendantMax Straus appeals.Reversed.

Hobart L. Hotchkiss and Harry W. Asher, for appellant Straus.

Charles S. Hamilton, for appellees.

BALDWIN, J.The plaintiffs recovered judgment for substantial damages against Straus, one of the defendants, for the obstruction of a passway over his land.It was a way by grant, and at the time of the delivery to them of the deed of grant there were certain fences and buildings on the servient tenement which would have constituted obstructions to its use for a way, had this been attempted, and access to it from the dominant tenement was completely barred by a building standing upon that.The words of conveyance used in the deed, "give, grant, bargain, sell, confirm, remise, release, and forever quitclaim," did not import any covenant nor create any obligation on the part of the grantor to put the servient tenement in a condition suitable for its convenient use by the plaintiffs.That was their right, but not his duty.Nichols v. Peck, 70 Conn. 439, 441, 39 Atl. 803, 40 L. R. A. 81.Nor did the provision in the habendum clause, "so that neither I, the releasor, nor my heirs, nor any person under me or them, shall hereafter have any claim, right, or title in or to the premises, or any part thereof, but therefrom I and they are by these presents forever barred and secluded," effect anything more than to exclude the releasor and all claiming under him from any estate inconsistent with the right of way.Subject to that right, the title to the land remained as before.The jury were instructed that while the mere leaving of the existing fences or sheds upon the land, by which the reasonable use of the way by the plaintiffs might be obstructed, could give them no right of action, the defendant Straus would be liable by reason of their maintenance, if he had refused to allow their removal, or, by using them himself or any other act, led them reasonably to believe that he would prevent this should they attempt it.In the special finding of facts made for the purpose of the appeal, it is stated that the plaintiffs claimed and offered evidence to prove that the defendants had refused to allow them to remove these obstructions, and that in consequence of this refusal, and on account of the obstructions, they had been obliged to use a less convenient way over the land of another, to their great damage.An application to rectify this statement has been made, under Pub. Acts 1897, p. 890, § 11, on the ground that in fact no evidence was introduced of such a refusal.An inspection of all the evidence in the case shows that there was none, unless it could be inferred from a conversation between the parties, in which Straus was asked to open up the passway, and replied, "I shall not open it;" adding, when the plaintiffs then threatened to bring suit, "Go ahead."This had no legitimate tendency whatever to show that they had reason to believe that, should they proceed to remove the obstructions themselves, objection or opposition would be made.We therefore grant the application so far as to strike so much of the statement in question out of the finding as refers to a refusal to allow such removal.

This correction being made, error is well assigned upon the instructions given.The grantor of a right of way over a strip of land occupied by buildings has a right to continue their use until the grantee removes them or gives notice of his intention so to do.Prom lawful acts of such a nature no inference could reasonably be drawn that he would object to or resist their removal.No proof having been offered of any other act in the nature of obstruction on the part of Straus than that of continued user, nor of any words intimating a purpose to oppose any attempt by the plaintiffs to exercise their right of removing the buildings, the instructions to the jury were misleading and inapplicable to the case presented for their consideration.

The appellant has taken two separate appeals.In one he sets up, among other things, the error above noted.In the other he complains (under Pub. Acts 1897, p. 892, § 17) of the denial of the trial court of his motion for a new trial on the ground that the verdict was against the evidence.It was clearly against the evidence, for of that there was none that could justify the conclusion that Straus had obstructed the use of the granted way.Had the jury been informed in the charge of the court that evidence to that effect had been introduced, the only appropriate remedy would have been that by appeal for error in the instructions given.They were not, however, told this in terms, nor was their attention specifically directed to any particular testimony of that nature.We think, therefore, that the appellant was entitled to appeal from the refusal to set the verdict aside.It would have been proper and the better practice to unite all his causes of complaint in a single appeal.

From 1821 to 1893motions for a new trial in the superior court, on the ground of a verdict against evidence, were disposed of as matters of discretion.Bissell v. Dickerson, 64 Conn. 61, 73, 29 Atl. 226.If the trial court were of opinion that the motion was well grounded, it might report the evidence to this court, by which, if it took the same view of the case, a new trial could be granted.Gen. St. § 1127.In 1893 the mode of access to this court was changed, and the trial court was...