Merwin v. Backer

• Decision Date: 17 December 1907
• Citation: 68 A. 373,80 Conn. 338
• Court: Connecticut Supreme Court
• Parties: MERWIN v. BACKER.

68 A. 373

80 Conn. 338

MERWIN

v. BACKER.

Supreme Court of Errors of Connecticut.

Dec. 17, 1907.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Action by Nathan P. Merwin against Charles E. Backer. From a judgment for plaintiff, defendant appeals. Affirmed.

George E. Beers and Harry W. Doolittle, for appellant. William B. Stoddard, Omar W. Platt, and Robert C. Stoddard, for appellee.

HALL, J. This is one of three cases argued before us at the last term of court involving the question of the ownership of a strip of sandy beach land, some SCO feet in length, and from 100 to 200 feet in width, in the town of Milford, and bounded easterly by a highway called the "Gulf Road," westerly by Long Island Sound, and southerly by land of Dumond P. Merwin. See Spencer v. Merwin et al., 80 Conn. —, 68 Atl. 370, and Roberts v. Merwin, 80 Conn. —, 68 Atl. 377. The diagram on next page illustrates the situation described.

The present case relates to the ownership of a part of said strip at its southerly end, designated plot 2, on a map made a part of the finding, hounded easterly by said Gulf Road 219 feet, northerly by tract designated plot 1 on said map, and 135 feet westerly —on Long Island Sound 219 feet, and southerly on land of Dumond P. Merwin 135 feet. The complaint alleges that on the 1st of July, 1905, the plaintiff owned and possessed said tract, and also a part of said strip north of plot 2, and that on said day the defendant unlawfully entered upon plot 2 and erected a fence thereon. In his answer the defendant admits the erection of the fence, and alleges that he then owned said tract, and that he and his predecessors in title had for more than 15 years been in continuous adverse possession of it.

Upon the question of the ownership and possession of plot 2, the trial court from the evidence presented and from viewing the premises found these facts: The sandy strip in question, which is above high-water mark, is unfit for cultivation, and produces only rough grass not worth harvesting. The Gulf Road, forming its easterly boundary, has, from time immemorial, been maintained by the town of Milford as a public highway. Another highway, called "Old Field Lane," enters the Gulf Road at nearly right angles, at a point nearly opposite the northwesterly corner of plot 1. Prior to 1840 Gulf Road in front of plots 1 and 2 ran nearer the beach than it now does, and the plots 1, 2, 3, and 4 were then not more than half their present width, but have since become wider by accretion. The strip south of plot 2 and owned by D. P. Merwin is somewhat cultivated. Easterly of the Gulf Road, and at the foot of an embankment 10 or 15 feet high, is a line of ancient fence now out of repair. A tract at the top of the embankment, containing about five acres, and extending as far north as Old Field Lane, was known as the "bank lot." In 1660 the bank lot, together with said sandy strip westerly thereof, including, as the court finds, plot 2, and the others marked plots 1, 3, and 4 on said map, were embraced in a tract acquired by the town of Milford by a sale from the Indians to one Bryan, and by him assigned to the town, and was allotted in lots to the several inhabitants of the town, and confirmed by the Saltonstall patents of 1713 to the "Proprietors, Inhabitants of Conn.," May 22, 1713. There is no record of an allotment of plot 2 to any named person. In 1731 Andrew Sanford by warranty deed conveyed land, including, as the court finds, plot 2, to his son Samuel, bounding it "on ye west with the sea or highway." This was the first known deed after the patent. In 1765 Samuel Sanford, Jr., by warranty deed, conveyed to Andrew Sanford land including, as is found, plots 2, 1, and 4. A part of the description was, "Being bounded with the bank and highway northerly and westerly." In 1782 Martha Sanford, administrator of Andrew Sanford, conveyed to David Merwin, the plaintiff's grandfather, land including as the court finds, plot 2, and plot 1 bounding it "southwesterly on the beach and highway." In 1816 there was set out as dower to Eunice Merwin, the widow of David Merwin, "also bank lot, so called, containing 6 acres, 3 roods and 8 rods." This, it is found, included plots 2 and 1. In 1837, on the death of said widow, there was set out to her daughter Mehitable, wife of Samuel Porter and aunt of the plaintiff, said bank lot in two parcels, including, as is found, plots 2 and 1, one of which was bounded "westerly on bank of Long Island Sound" and the other "south and west on bank of Long Island Sound." After the death of Eunice, and during the lifetime of Mehitable, Mark Merwin, the plaintiff's father, and Merritt Merwin, Mark's twin brother, took possession of the bank lot, including plots 2 and 1, in connection with the farm of David Merwin, and occupied and claimed title thereto thereafter. Mehitable made no claim to said land while it was so occupied by her brothers, nor was it inventoried as a part of her estate upon her death in 1862, but no deed of said property from Mehitable to any one was presented in evidence. In 1861, the partnership theretofore existing between the brothers Mark and Merritt Merwin having been dissolved, Merritt, by quitclaim deed, conveyed to Mark the north part of the bank lot containing three acres, more or less, and bounded northerly on highway, which was the Old Field Lane, and westerly on highway; and Mark conveyed to Merritt, the grandfather of Dumond P. Merwin, the south part, bounding him westerly on highway. From that time until the death of Mark in 1882 these brothers were in the open, exclusive, continuous, adverse possession of the bank lot and of plots 2 and 1. By his will probated in 1882 Mark Merwin gave to his son Nathan P. Merwin, the plaintiff, "the bank lot adjoining the hill lot, containing three acres and a half more or less," and it was so distributed to the plaintiff, and since 1882 he has been in the open, exclusive, continuous, and adverse possession of said bank lot and of plot 2, and also of plot 1 until dispossessed of the latter by Edward A. Spencer in 1889, as hereinafter stated. The plaintiff and his predecessors above named have used plot 2 for such purposes as they have had occasion to, and for which it was suitable. They have stored sedge and seaweed and boats upon it, driven a plow through it, built a capstan upon it, used it in drawing nets, have given persons permission to use it, and prevented others from using it. The plaintiff has always claimed to own it, and since 1900 has placed this beach, including plots 2 and 1, in his tax list and paid taxes upon it. Before that time it did not appear in the tax lists as separate property. It did not appear that any one, except the plaintiff and his said claimed predecessors in title, was ever in possession of plot 2 under a claim of ownership, or that any one else ever claimed to own it until the attempted conveyance of it by Spencer in 1905. The said Edward A. Spencer at times occupied some...