Putnam, Coffin & Burr, Inc. v. Halpern

• Decision Date: 15 February 1967
• Citation: 227 A.2d 83,154 Conn. 507
• Court: Connecticut Supreme Court
• Parties: PUTNAM, COFFIN AND BURR, INC. v. Stephen HALPERN et al.

Page 83

227 A.2d 83

154 Conn. 507

PUTNAM, COFFIN AND BURR, INC. v. Stephen HALPERN et al.

Supreme Court of Connecticut.

Feb. 15, 1967.

H. David Leventhal, Hartford, with whom was Herbert A. Krasow, Hartford, for appellants (defendants).

Bradley B. Bates, Hartford, with whom was Raymond B. Green, Hartford, for appellee (plaintiff).

Before KING, C.J., and COTTER, THIM, RYAN and SHEA, JJ.

SHEA, Acting Justice.

Since 1913 the plaintiff and its predecessors in title have owned an office building at 6 Central Row in Hartford where they have conducted a stock brokerage business. This property is bounded on the west by a lot at the southeast corner of Main Street and Central Row on which is situated a seventeen-story bank building, known as 750-760 Main Street, owned by the defendants. A doorway through the west wall of 6 Central Row and the east wall of the bank building on the ground floor affords a passageway from one building to the other. For forty years or more, employees and customers of the plaintiff and its predecessors have walked through the lobby of the bank building and this doorway in order to enter or leave the plaintiff's premises by the bank building or by Main Street, to which the lobby leads. In 1962 the defendants purchased the building from the bank. Several months later they informed the plaintiff of their intention of terminating the use of the doorway.

The site at 750-760 Main Street was occupied by an earlier bank building, and a bridge connected the second floors of this structure and of 6 Central Row. In 1920 plans were drawn for the present bank building to replace the old one. An agreement dated November 13, 1920, was entered into which defined the boundary line between the two properties and resolved previous discrepancies. Another agreement of the same date created certain mutual restrictions on each property and also allowed several encroachments, such as sills and cornices, to project over the land of the plaintiff from the east wall of the bank building when it was constructed. The doorway in the east wall of the bank building is shown on some of the construction drawings and was included in the building as completed in 1922 or 1923. An opening in the west wall of the plaintiff's building was made to join this doorway. A swinging door was installed within the portion of the doorway on the plaintiff's land and a sliding fire door within the bank building portion. In 1945 the swinging door was reconstructed at the expense of the plaintiff so as to be operated by an electric eye from posts in the lobby of the bank building. Further renovations of the door were made in 1951.

The plaintiff was a customer of the bank, there were daily business contacts between them, and their relationship was cordial. The use of the doorway was mutually beneficial. The plaintiff has exercised control of the doorway exclusively, the door being unlocked during its business hours and locked at other times, even when the bank building was open.

No written agreement about the passageway was ever made, and the title examination made in behalf of the defendants at the time of their purchase disclosed nothing relating to it. Before the purchase, however, the defendants knew of the use being made of the doorway. The electric eye posts and the door were also visible.

The complaint, in four counts, alleged that the plaintiff had an easement to use the doorway and the lobby of the bank building as a passageway by virtue of a grant, prescriptive right, agreement, or by necessity. The trial court rejected the count claiming an easement by necessity, but it found in favor of the plaintiff on the remainder of the complaint. The defendants were enjoined from interfering with the use of the doorway or with passage through the lobby of the bank building during the plaintiff's normal business hours so long as either building might remain standing. It was found that William H. Putnam, senior partner of the plaintiff or its predecessor, and Nathan D. Prince, president of the bank, had agreed orally to create, for the benefit of both principals, a mutual right of way between the buildings which extended through the bank building lobby to Main Street.

Testimony concerning the agreement was elicited from three witnesses, F. Norman Coles, William D. Holman, and Clarence Ambach. In each case the testimony related to conversations of the witness with Putnam, who was deceased at the time of the trial. When Coles was first questioned about the content of his conversations with Putnam, objection was made on the ground of hearsay. The court was persuaded that this testimony fell within the boundary dispute exception to the hearsay rule, and it overruled the objection. It was not claimed, nor is it now urged, that any of the statutory exceptions for admitting declarations of a deceased person are applicable. General Statutes § 52-172. The defendants excepted to this ruling and asked the court to note an objection 'to this whole line of questioning,' as well as an 'overall exception,' a request which the court granted. Coles then testified that Putnam had indicated his close relationship with the bank officers and that the door was of great value to both parties. During the course of the trial, considerable testimony of like purport, not subject to the hearsay infirmity, was furnished. Apparently from his own observations, Coles testified, without objection and before allowance of the running objection, that there was a friendly relationship between the plaintiff and the bank and also that the doorway facilitated the transaction of business between them. Several other witnesses, without reference to any conversation, testified similarly. The ruling, therefore, was harmless. Mirando v. Mirando, 104 Conn. 318, 322, 132 A. 910; Maltbie, Conn.App.Proc. § 31.

Holman, after a general objection and exception by the defendants, said that Putnam had told him that the bank offered to provide a passageway from its building in return for being over the boundary line to a slight extent. A survey made in 1962 revealed a small encroachment by a coping of the bank building which was not mentioned in the written agreement of November 13, 1920. The plaintiff claimed that the statement attributed to Putnam referred to this enroachment.

Ambach, an employee of the plaintiff, after a general objection and exception by the defendants, also testified with respect to his conversations with Putnam. According to him, Putnam said that the door was constructed under a gentlemen's agreement, that there were no papers and that none were necessary, and that, when the door would be in operation, both parties would be so well satisfied that there never would be any objection.

Although the failure to specify the ground of objection to the testimony of Holman and Ambach would ordinarily preclude review of the rulings involved, their consideration is necessary because the trial court unfortunately allowed a running or general objection to all testimony of this general nature. Practice Book § 226. The ground of objection was stated adequately at the time of the objection to Coles' testimony, when the running objection was permitted.

'A declaration as to boundaries between individual proprietors is hearsay, but it is one of the recognized exceptions to the hearsay rule whenever the legal conditions of its admission are present.' Turgeon v. Woodward, 83 Conn. 537, 540, 78 A. 577, 579. 'The difficulty of proving private boundaries furnished the indispensable and urgent necessity for the admission of declarations of the deceased with respect to these. Very many conveyances of agricultural land, and especially of woodland, do not describe the premises conveyed by courses and distances, nor even by fixed bounds. Lines cannot be run from them alone. When the private bounds are designated by landmarks they are usually perishable in character, and liable to soon disappear through decay and neglect, or in the further improvement and settlement of the country, so that the next generation has either forgotten, or never knew them, or cannot find them.' Id., 541, 78 A. 579.

The scope of the exception must reasonably be confined within the limits of the necessity from which it arose. The declarations admitted by the trial court cannot fairly be said to relate to boundaries. They pertained to the existence of an oral agreement for an easement. There was no dispute between the parties as to the location of the boundary line between their properties. The written agreements of November 13, 1920, appear to have resolved any such differences. The reference, in one of the statements attributed to Putnam, to an encroachment not contemplated by these...