Mentz v. Town of Greenwich

• Decision Date: 06 February 1934
• Court: Connecticut Supreme Court
• Parties: MENTZ v. TOWN OF GREENWICH.

171 A. 10

118 Conn. 137

MENTZ v. TOWN OF GREENWICH.

Supreme Court of Errors of Connecticut.

February 6, 1934

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin Judge.

Action by Albert V. Mentz against the town of Greenwich to quiet and settle the title to real estate, brought to the Superior Court and tried to the court. Judgment for the plaintiff, and appeal by the defendant.

Error and new trial ordered.

Mere paper chain of title does not establish ownership in one seeking to quiet his title unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in absence of evidence to the contrary.

Wilbur S. Wright, of Greenwich, for appellant.

Raymond E. Hackett, of Stamford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS Judge.

The plaintiff brought this action to quiet and settle the title to two adjoining tracts of land in Greenwich which are described in the complaint, the first tract being upland and the second tract a small triangular piece of lowland or beach lying between the first tract and tidal water. The defendant in its answer disclaimed any interest or estate in the first tract and in a small portion of the second tract, but denied that the plaintiff was the owner in fee simple of the remainder of the second tract, claimed that this was a portion of a public dock and landing place by immemorial usage and dedication, and that the defendant had acquired title to it by adverse possession, and further that the deed of the same to the plaintiff was made when his grantor was ousted of possession by the defendant, and was therefore void. The trial court found that the plaintiff was the owner in fee simple of the tract in dispute and that the defendant had no right title, or interest therein.

The defendant seeks numerous corrections in the finding. Those to which it is entitled, and which are material to the questions discussed, are incorporated in the statements of fact appearing herein.

The first tract of land described in the complaint, title to which is conceded to be in the plaintiff, is bounded on the west by Greenwich-Point road and on the south by Tomac lane which runs from Greenwich Point Road to Tomac Harbor, an inlet of Long Island Sound. The southeasterly boundary of this tract is a line running from a point in the northerly line of Tomac lane, 251 feet east of Greenwich Point road, in a northeasterly direction to a brook which empties into Tomac Harbor. Except for a few feet at the westerly end, where there is a Jog in the wall, this boundary is marked by a stone wall which crosses the brook. This wall is also a retaining wall which protects the upland of the first tract from the flow of the tidal waters. The tract in dispute is the beach between this wall and the waters of Tomac Harbor, with a frontage of about 90 feet on the harbor. It adjoins the public dock at the foot of Tomac lane and has for the past forty years been used by the general public as a landing place and a place for hauling out boats and laying them up for storage or repairs. The plaintiff contends that this strip of beach was included in the conveyance forming his chain of title to the upland, while the defendant denies this, and also claims that from time immemorial it has been a public landing place at the foot of Tomac lane, and used as such in connection with the dock which it adjoins.

The plaintiff traces his title to the upland back to 1838 through a chain of deeds which, he claims, and which the trial court found, conveyed also the title to the strip of beach in dispute. One of the deeds of 1838, that from Alexander Hendrie to Lockwood, conveyed a one-half interest in a 55-acre tract bounded South " by salt water, land of said Charles and a driftway" and lands of others, apparently farther to the west. The other deed of 1838 conveyed a tract of 45 acres bounding it on the south by land of Charles Hendrie, Tomac lane, and other lands apparently farther to the west; it also conveyed, after an intervening description of other lands, " all of the beach southeast of said 45 acre tract which belonged to Alexander Hendrie." The trial court found that this beach was the land in dispute, but there is nothing in the record to support that finding. The land which " belonged to Alexander Hendrie" evidently was not the land now owned by the plaintiff as is clear from a comparison of the descriptions of the two deeds; indeed the beach referred to is evidently upon the " salt water" mentioned in the first deed and the descriptions of the two taken together indicate pretty clearly that the land of Charles Hendrie referred to in both was the land to the east of the brook and the salt water was still further to the east, while the " driveway" was Tomac lane. To bring the land in dispute within the reference in the deed of 1838 is substantially to contradict the construction claimed for subsequent deeds of 1871 and 1872, which omit all reference to any beach but are claimed to include the land in dispute. This finding of the trial court cannot stand.

A deed in 1871 conveying 100 acres, and one in 1872 conveying 75 acres, each bounded the land conveyed on the south in part on " Tatamock Harbor and lane leading thereto," but nowhere in the evidence is the harbor referred to in these deeds identified as that portion of the tidal waters abutting the tract in dispute. That it was not this portion of the harbor is fairly apparent from the existence of the ancient stone wall which from time immemorial has been the southern boundary of the plaintiff's property, with its significant continuance to the east beyond the brook, and by the undisputed testimony as to the immemorial common use of the beach by the public without objection on the part of the former owners of the plaintiff's property. There is in the record no evidence that the tract in dispute was included in the deeds in the plaintiff's chain of title prior to 1897, and nothing in their terms or the circumstances surrounding them which affords ground for a reasonable inference to that effect. The finding of the trial court that the land in dispute was included in those conveyances lacks essential support.

The first deed in the plaintiff's chain of title, in which the upland now owned by him was conveyed as a separate and distinct parcel, was a deed executed by Joshua B. Hendrie March 9, 1887. In this deed, out of the 75-acre tract deeded to him in 1872, he conveyed by way of gift to his daughter Lucy H. H. Jennings, land described as follows: " All that certain lot of land situated in said Greenwhich and bounded northerly by my own land, easterly about one hundred and forty (140) feet by a brook running into Tomac Harbor, southerly by Tomac Lane, and westerly about one hundred and twenty (120) feet by the highway leading to Stamford." In September, 1900, Hendrie caused a survey to be made which the trial court found was a survey of the land conveyed to his daughter in 1897, and, this was received in evidence as Plaintiff's Exhibit 1. The survey includes both the upland and the triangular piece of beach which is in dispute. Upon the trial, the surveyor was permitted to testify over the defendant's objection, that Hendrie,...