Perkins v. Town of Colebrook

• Citation: 68 Conn. 113,35 A. 772
• Court: Connecticut Supreme Court
• Decision Date: 25 June 1896
• Parties: PERKINS v. TOWN OF COLEBROOK et al.

35 A. 772

68 Conn. 113

PERKINS

v. TOWN OF COLEBROOK et al.

Supreme Court of Errors of Connecticut.

June 25, 1896.

Appeal from superior court, Litchfield county; Prentice, Judge.

Application by Augustus M. Perkins to lay out a private way. The committee reported adversely to the application, and from a judgment accepting the report over petitioner's remonstrance, and denying the application, he appeals. Affirmed.

George P. McLean and Donald T. Warner, for appellant.

Samuel A. Herman, for appellees.

TORRANCE, J. The plaintiff applied to the selectmen of the town of Colebrook for the layout of a private way in said town over the land of one Horace M. Phelps, to the land of the plaintiff. The selectmen neglected to lay out said way, and the plaintiff then brought his application for said layout to the superior court. That court, after due hearing, appointed a committee to hear said application, and the committee, after due notice and hearing, made a report adverse to the plaintiff. To this report the plaintiff filed a remonstrance, which the court overruled. The court accepted the report, and denied the plaintiff's application, and from that judgment the plaintiff, took the present appeal.

Both the town and Horace M. Phelps were made parties defendant in the superior court, but Phelps died before the committee was appointed, and Julia E. Phelps, who appears to have succeeded Horace M. Phelps in the occupancy and ownership of the Phelps land, was afterwards duly made a party, and appeared, and was heard in the proceedings subsequent to the appointment of the committee. In the application to the superior court the way prayed for was thus described: "Commencing in the center of said highway (previously described in the application) at a point 41 links south from the southwest corner of a large rock being near the entrance to the 'Old Boat Landing,' so called; thence N., 77 1/2° W., 230 links; thence S., 74° W., 100 links, to the current at the outlet of 'Baker Pond,' so called; thence following the channel of said Baker pond to the inlet of said pond, about SO rods; thence following up the inlet of said pond to the said land of said petitioner; said private way being three rods in width." The application alleged that the plaintiff's land was bounded on all sides by lands of Horace M. Phelps; that it was not contiguous to any public highway; that there was no means o£ access to it except by crossing the Phelps land; that plaintiff had been unable to obtain a right of way over the land of Phelps by purchase or otherwise; that the right of way prayed for was a necessary and convenient one, and that the selectmen had at all times refused to lay it out. The superior court found that the selectmen had neglected and refused to lay out the way prayed for, and thereupon appointed a committee "to hear and decide said application and report their doings to said court." The committee, in their report, found the following facts: "The petitioner owns 30 acres of land in said town of Colebrook, bounded on all sides by lands formerly occupied and owned, or claimed to be owned, by Horace M. Phelps, deceased, and now occupied and owned, or claimed to be owned, by said Julia E. Phelps, and the plaintiff has no means of access to his said land except by crossing such surrounding lands of said Julia E. Phelps. The land of the plaintiff is situated west of the brook running into 'Baker Pond,' so called, and is bounded on the east by the west bank of said brook; and the land on each side of said brook is swampy for several rods, and is impassable, except in very dry weather or when the ground is frozen. Said Baker pond is surrounded by said lands of said Julia E. Phelps, and covers about 12 or 15 acres of land, and is posted as a private fish pond by said Julia E. Phelps, and is claimed to be of considerable value as such pond, and the value of the farm of Mrs. Phelps is largely dependent on the keeping of said pond under the control of the owner of the farm. If the prayer of the petitioner should be granted, and a right of way be laid out as asked for in the plaintiff's application, from a certain point on the outlet of said pond up said outlet, across said pond and up the inlet to the land of the petitioner, the damage to the property of said Julia E. Phelps would largely exceed the value of the land of the plaintiff. The committee find that for all purposes for which the land of the plaintiff can be utilized, another way more desirable and of less damage to the property of Mrs. Phelps can be found. The committee find that the way prayed for is not of such convenience or necessity that it ought to be granted, and they therefore refuse to survey and lay out the same, and have, therefore, made no estimate of damages. The committee also find that the selectmen of the town of Colebrook ever have been, and now are, ready and willing to lay out a private way for the plaintiff, in a reasonable and convenient place to give the plaintiff access to his land." The objections to the acceptance of the report, set up in the remonstrance, may be summarized as follows: (1) The committee found all the substantial allegations of the complaint to be true, and yet refused to lay out the way prayed for. (2) The finding "that the way prayed for is not of such convenience or necessity that it ought to be granted" is based upon the fact that such way wall injuriously affect the right of Mrs. Phelps in Baker pond, and yet it is not found that she owns said pond, nor how her rights therein would be injuriously affected. (3) It is not found whether Baker pond is a public or private pond. (4) Baker pond is a public pond, used by the public from time immemorial for floating and hauling lumber, timber and wood, "and no exclusive rights therein are owned by said Julia E. Phelps." (5). "It did not appear in evidence before said committee, and is not the fact," that the selectmen of Colebrook ever have been ready and willing to lay out a private way for the plaintiff in a reasonable and convenient place, "and it is not found as a fact that said town ever laid out such way, or actually offered to lay out such way." (6) Because the committee considered the damages to Mrs. Phelps as an element in determining the question of the necessity of the way prayed for. (7) "Because it appears from the facts in detail, as reported by the committee, that a private way to the plaintiff's land was necessary, yet the committee do not find whether or not it was necessary, but only find that, in view of the damage to Julia E. Phelps, it 'is not of such convenience and necessity that it ought to be granted.' (8) Because the committee do not find what part of the land adjacent to Baker pond is actually owned by said Julia E. Phelps." The ninth and last paragraph of the remonstrance prayed that the report be not accepted, but be recommitted to the committee, to ascertain and report upon the matters which in the preceding paragraphs it was alleged the committee had not found. An amendment to the remonstrance set up certain other objections to the acceptance of the report, but, as the reasons of appeal cover only the action of the court upon the remonstrance as originally filed, it becomes unnecessary to state or consider the matters alleged in the amendment.

The errors assigned upon this appeal are 11 in number. The third, fourth, and tenth reasons allege that the court erred in not recommitting the report to the committee to find certain facts which the remonstrance alleged had not been found, namely, whether Baker pond is a public or a private pond, whether or not the public had such rights in it as the remonstrance alleged, whether or not Mrs. Phelps had the exclusive right to said pond, and what part of the land adjacent to said pond was actually owned by Mrs. Phelps. There is no foundation in fact for these assignments of error, for we are of opinion that the report...