Raughtigan v. Norwich Nickel & Brass Co.

• Decision Date: 19 December 1912
• Citation: 86 Conn. 281,85 A. 517
• Court: Connecticut Supreme Court
• Parties: RAUGHTIGAN v. NORWICH NICKEL & BRASS CO.

85 A. 517

86 Conn. 281

RAUGHTIGAN

v. NORWICH NICKEL & BRASS CO.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Action by Emma J. Raughtigan against the Norwich Nickel & Brass Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint was in two counts. Each alleged the plaintiff's ownership of a described piece of real estate, with a right of way over an adjoining lane which gave access to a nearby street. The first count averred the construction and maintenance of a building upon this lane by the defendant, and a consequent interference with the plaintiff's right of passage. The second count charged the same effect upon the plaintiff's right from a fence erected and maintained across the lane by the defendant. The main disputed question upon the trial was as to the precise location of the land directly involved, which was a small rectangular block of about 12 feet by 20 feet in size. If the land was located to the west of the fence described in the second count, the obstruction barred the plaintiff's passage to the street; but, if it lay to the east of the fence, then the plaintiff was in no way affected in her rights by the maintenance of the fence.

The plaintiff claimed title from her deceased father-in-law, and in support of her claim offered his last will. This instrument disposed of specifically described real estate in its second clause, not embracing the piece involved here. A third clause of the will devised "all the rest and residue of my real estate, namely, all the land * * * situated on the * * * northerly side" of the lane involved. The small piece with which this action is concerned lies south and outside of these described limits. The seventh clause of the will was this: "All the rest and residue of my estate, I hereby give, devise, and bequeath absolutely unto the said Emma J. Raughtigan (the plaintiff) to be hers forever." The plaintiff claimed that the small piece of land referred to was disposed of by this clause. For the same purpose—of showing title—and for the further purpose of locating the precise position of the land, and of other land in the immediate locality, and also for the purpose of defining the actual limits and course of the lane, the position of which had changed in the course of years, certain deeds were offered by the plaintiff. One of these conveyances, essential to the chain of title, although purporting to be given by the administrator de bonis non of a certain deceased person's estate, was in fact not in form an administrator's, but the usual warranty deed. This transfer took place in 1882.

Certain probate records of a period shortly prior to the execution of the last-named instrument were offered to show the due removal of the executor who preceded in office the administrator just referred to, and the latter's appointment. They were also offered to show the doings of the administrator with reference to the sale of the property involved, and his receipt of and accounting for the purchase price. It appeared that the removal of the executor by the court of probate was not preceded by the complaint in writing of an interested person, and the notice to appear, as required by the statute then in force. All the papers so offered were admitted over the defendant's objection, and an exception noted in each instance.

In its charge to the jury, the court, after referring briefly to the deeds and the will, said: "These are the papers under which the plaintiff claims title, and I say they are sufficient to give her title to the land described, although there appears to be defect in the title of Thresher (the administrator de bonis non already referred to) to John Raughtigan, but this defect I think was cured in act of Legislature in 1909. That is purely a question of law, and nothing you have anything to do with further than to apply to the facts in this case." The court also charged the jury in effect that the property directly involved passed to the plaintiff by the seventh clause of the will. The defendant had moved the court to direct a verdict for it. This was done as to the first count only, and the jury returned a verdict finding "the issues in favor of the defendant" on that count, and "the issues in favor of the plaintiff on the second count." In making up his finding, the trial judge found the facts in the form...