McNamara v. Town of Watertown

• Decision Date: 31 March 1924
• Court: Connecticut Supreme Court
• Parties: MCNAMARA v. TOWN OF WATERTOWN ET AL.

124 A. 244

100 Conn. 575

MCNAMARA v. TOWN OF WATERTOWN ET AL.

Supreme Court of Errors of Connecticut.

March 31, 1924

Appeal from Superior Court, Litchfield County; John P. Kellogg Judge.

Action by Emeline McNamara against the town of Watertown and others in the nature of trespass qu. cl. fr., claiming damages and an injunction, brought to the superior court in Litchfield county and tried to the court, Kellogg, J. Judgment for $10 damages and for an injunction, and appeal by the defendants. No error.

Walter E. Monagan, of Waterbury, for appellants.

Ulysses G. Church, of Waterbury, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and BANKS JJ.

WHEELER, C.J.

The complaint contains three counts; as to the second and third the court found in favor of the defendants. The first count sets up the ownership and possession of a parcel of land, a trespass thereon by the defendants, and a threat by them to continue to enter upon this land and make it a part of the public highway. To this count the defendants pleaded a general denial, except as to paragraph 1, which alleged ownership and possession of this land in the plaintiff, and as to this paragraph it pleaded insufficient knowledge and information to form a belief. The court found in favor of the plaintiff upon this count, and its finding on appeal recites the following facts:

The plaintiff is the owner and in possession of a certain parcel of land at the intersection of Watertown road and Davis street in Watertown, the northerly boundary and the easterly boundary of which is south and west of a stone monument set at the intersection of these streets. This parcel lies between the curved lines shown on the northeasterly corner of this land on a map in the town clerk's office of Watertown and entitled, " A Map of the Davis Homestead, Located in the Village of Oakville, Watertown, Conn.," and the southerly line of the Watertown road and the westerly line of Davis street meeting at the monument. The defendant town has through its agents threatened on several occasions to take possession of this parcel of land; and prior to this action the first selectman of defendant town entered upon this land between the monument and the curved line, caused its surveyor to survey the same and place its stake along the curved line, and notified that plaintiff that such curved line was the highway line, and that the defendant would claim and occupy the same. If the defendant had carried out its threats it would have interfered with the access to the plaintiff's building and property located upon this land.

The three assignments of error in this appeal are based upon one ground, to wit, that the title to the land which the plaintiff has alleged and the court found to be owned by the plaintiff was not in issue, since the defendants have not pleaded title in themselves. The defendants rely upon the case of Orentlicherman v. Matarese, 99 Conn. 122, 121 A. 275. Their reliance arises from a misconception of this case. It was one of forcible entry. The court said:

" The complaint alleges that this land was then in possession of the plaintiff, sets forth entry and acts of trespass by force by the defendant, and claims damages and an injunction to prevent further threatened trespasses of the same kind. The answer to these allegations amounts to a general denial."

And we held that in an action under our forcible entry statute, General Statutes, § 6028, or one of trespass for forcible entry at common law, the plaintiff's cause of action was based upon his possession, and that defendant's denial of this did not put the title in issue, and it could not be put in issue by the defendants unless by plea " in such manner as to settle it conclusively." Hence upon the general denial we held the defendant had not put title in issue.

Waterbury Clock Co. v. Irion, 71 Conn. 254, 41 A. 827, was an action of trespass quare clausum fregit in which the plaintiff alleged actual possession of the locus and the defendant pleaded a general denial. We held that the defendant, not having pleaded title, could not under a general...