McWilliams v. McNamara

• Citation: 81 Conn. 310,70 A. 1043
• Parties: McWILLIAMS et al. v. McNAMARA.
• Decision Date: 29 October 1908
• Court: Connecticut Supreme Court

70 A. 1043

81 Conn. 310

McWILLIAMS et al.

v. McNAMARA.

Supreme Court of Errors of Connecticut.

Oct. 29, 1908.

Appeal from Court of Common Pleas, New London County; Walter C. Noyes, Judge.

Action in the nature of a trespass by John McWilliams and others against John R. McNamara. From a judgment for plaintiffs, defendant appeals. Affirmed.

William H. Shields and Donald G. Perkins, for appellant.

Gardiner Greene, for appellees.

THAYER, J. An application to rectify the appeal under Gen. St. 1902, § 801, by striking certain words from, and by adding certain words and paragraphs to, the court's finding of facts has been filed in this court by the appellant. An affidavit of counsel that all the facts stated in the application are true is annexed to the application. No answer to the application, as required by section 14, page 270, of the Practice Book, has been filed. The appellant insists that the appeal should therefore, as a matter of course, be rectified in accordance with the application under Rule 14. The appellant claims that the application should not be entertained, but should be dismissed, for several reasons. The first is because it shows no previous application to the trial judge to rectify. The statute is explicit that an application of this kind shall not be entertained by this court, unless the party making it has, previous to the notice thereof to the opposite party, requested the court or judge allowing the appeal to make the correction applied for. It is important that this should be done, as the correction asked lor, if proper, would presumably be made by the trial judge on such request, and a trial of the question of fact in this court would thus he avoided. As such request of the trial judge does not appear to have been made, the application cannot be entertained, and is dismissed upon the first ground stated by the appellees. It is unnecessary to consider the others.

The parties are agreed as to the following facts: In 1850 one Daniel B. Miner was the owner of a lot of land in the city of Norwich, on the southeast corner of Main and Ferry streets, with a brick block of two buildings standing thereon. The main floor of said block was adapted for, and has always been used for, stores fronting on Main street. Under said Main street floor there was a basement, and beneath the basement a cellar, each of which extended under the whole block. A brick wall extended through the cellar from north to south, and a stone wall extended through it from east to west. In these walls there were openings, permitting access from one part of the cellar to the others. The basement was divided into three parts fronting on Ferry street, called the north, middle, and south basements, respectively. This division was made by a brick wall, in which there were no openings, standing upon said stone wall through the cellar, and by a board partition 19 feet northerly of the brick partition. As Ferry street runs southerly from Main street, the level of the ground falls away, the street level at the south end of the block being considerably lower than at the street corner. The basement floor at the southwest corner was on a level with Ferry street. On December 25, 1850, said D. B. Miner conveyed to his brother Erastus P. Miner the western half of said block, with such reservations and privileges as are herein stated. The description of the premises, so far as this case is affected thereby, was as follows: "Beginning at the corner of said brick building on the corner of said Main and Ferry streets; thence south 85° east twenty-four feet abutting northerly on said Main street, to the center of the front of the brick block of buildings lately erected by E. P. Miner & Co.; thence south 1° east along the center of the dividing wall in the cellar of said brick block of buildings, abutting easterly on my remaining part of said brick block of buildings, fifty-one feet and four incites to land of David Congdon; thence south 89° west twenty-four feet abutting southerly on said Congdon's land to said Ferry street; thence north 1° west fifty-four feet abutting westerly on said Ferry street to the place of beginning. And it is hereby understood and agreed that the said Erastus I*. Miner his heirs and assigns forever shall have the sole use, occupancy and improvement of so much of the basement and cellar under it, of the remaining part of mine, the said Daniel B. Miner's said brick block of buildings, as is contained in the following description, viz.: Beginning at a point on the easterly side of said Ferry street twenty-two feet southerly from the northwest corner of these conveyed premises; thence easterly at right angles with said Ferry street as the wood partition in said basement now stands, to the easterly basement wall of my remaining part of said brick block of buildings; thence southerly by said basement wall nineteen feet to a brick partition wall; thence westerly by said brick partition wall to sd. Ferry street; thence northerly by the easterly line of said Ferry street nineteen feet to the place of beginning. And it is also further understood and agreed that I the said Daniel B. Miner do hereby reserve to myself my heirs and assigns forever, the sole use, occupancy and improvement of so much of the basement and cellar under it, of these conveyed premises as is contained in the following description, viz.: Beginning at the northwest corner of these conveyed premises at the corner of said Main & Ferry streets; thence easterly on the line of the north basement wall twenty-four feet to the dividing wall before mentioned; thence southerly on the line of this said dividing wall to the wood partition in said basement, before mentioned thence westerly on the line of sd. wood partition twenty-four feet to said Ferry street; thence northerly on the easterly line of said Ferry street twenty-two feet to the place of beginning. And it is also...