Robinson v. Clapp

• Decision Date: 08 January 1895
• Citation: 32 A. 939,65 Conn. 365
• Court: Connecticut Supreme Court
• Parties: ROBINSON v. CLAPP.

32 A. 939

65 Conn. 365

ROBINSON

v. CLAPP.

Supreme Court of Errors of Connecticut.

Jan. 8, 1895.

Appeal from court of common pleas, New Haven county; Cable, Judge.

Suit by John A. Robinson against John W. Clapp to enjoin defendant from erecting a certain house. There was judgment for plaintiff, and defendant appeals. Reversed.

Henry G. Newton and J. Birney Tuttle, for appellant.

Earlliss P. Arvine, for appellee.

FENN, J. Upon the complaint of the plaintiff, claiming an injunction to restrain the defendant from doing certain acts on the defendant's own land, adjacent to land of the plaintiff, the court of common pleas for New Haven county found the following facts:

On September 21, 1883, one William Waite was, and for a long time had been, the owner in fee of certain premises on the northerly side of Bradley street in the city of New Haven, 6l feet front on said street, and 98 feet deep. A dwelling house stood on the westerly part of said lot. On said day said William Waite, through a third person, conveyed to his wife, Elizabeth, the westerly part of said lot, 40 feet front, on which said dwelling house stood. On August 23, 1888, the said 40-foot lot was, by warranty deed, conveyed to the plaintiff by an agent of Mr. and Mrs. Waite, to whom it had been previously conveyed for that purpose. On October 6, 1888, William Waite quitclaimed his right, title, and interest in the remaining 21 feet of the original lot to the defendant. On the boundary line between the premises of the plaintiff and the defendant there stands a maple tree of about 40 years' growth, about 16 inches in diameter, and with a branch extension of from 40 to 50 feet. This tree is a valuable one to the plaintiff as a shade tree and ornament, and shades a part of the plaintiff's premises. The boundary line runs substantially through the middle of the trunk of said tree. At the time that said William Waite erected said dwelling house,—which was more than 20 years previous to the plaintiff's purchase,—he dug and connected with said dwelling house, by pipes, a well, and used said well of water as appurtenant to said house during the period of his ownership, up to and within a short time previous to said purchase. For some five years previous to the plaintiff's purchase, and up to the time when said Waite ceased to use said well, such use was by means of a curb and bucket. The plaintiff has never used said well, which has been covered up ever since he has owned the premises. The defendant does not intend to destroy the well. At the time of the plaintiff's purchase, the well was connected with the house by means of pipes, and there was a concrete walk leading from the house to the well, across said boundary line, and continuing into that part of the premises owned by the defendant, along the extent of the flagstone that crowns the well. This stone, which is about 5 1/2 feet in length, extends some 3 1/2 feet upon the defendant's land. The well is 2 1/2 feet in diameter, and adjoins the line, but is practically all of it upon the land of the defendant. On the trial the plaintiff and said William Waite both testified that a few days previous to the plaintiff's purchase, and while negotiations were pending, said Waite told the plaintiff that said well went with the bouse, and would be sold to him; and this statement was a substantial inducement to the plaintiff in making said purchase. To the admission of this evidence the defendant objected, but the court overruled the objection, and admitted the evidence, the defendant duly excepting, and the court found the facts to be as testified. The plaintiff's principal sitting room and the room over it, the dressing room, are on the east side of the house, and derive their light solely from a bay window, having its windows on the easterly, northeasterly, and southeasterly sides thereof. Said rooms are so inclosed on all sides by other parts of the structure that no other means of light than from the east side is possible, without a substantial reconstruction of that part of the building. The east face of said bay window is between five and six feet beyond the line of the side wall of the house from which such window projects, and is five feet from said boundary line. The stairway and hall of the dwelling house is lighted by a stained glass window in the easterly side of the house, and has also a glass in the south door. The defendant threatens and intends to build, and has made a contract for the building of, a dwelling house to extend down along the boundary line for a distance of 58 feet from a point about 6 feet from said Bradley street, the wall of which is to be about 20 feet high, and threatens to remove so much of the tree as is on his side of said boundary line. The construction of a dwelling house on the line, as the defendant intends to construct it, would cover the well, and that portion of the premises on his side of the line on which said tree stands; and the removal of that portion of the tree which the defendant threatens to remove would destroy the life of the whole tree. Such construction would also deprive the plaintiff of the supply off light which has come across said 21 feet now owned by the defendant, and would make it necessary for the plaintiff to light his sitting room and dressing room with gas, or some other light, in the daytime, in order to obtain sufficient light for the reasonable use of the rooms. At the time of purchase by the plaintiff, and at the time of the purchase by the defendant, there was no fence or other visible sign of demarcation marking said boundary line. And said original tract of land owned by William Waite was, at the time of the erection of said dwelling house thereon, and ever afterwards until the execution of the deeds above mentioned, an undivided tract of land. The defendant, previous to his purchase, had lived within 100 feet of the premises, and was fully acquainted with the same. Upon these facts the court, overruling the claims of the defendant, rendered judgment for the plaintiff, enjoining and restraining the defendant "from such interference with the tree mentioned in the complaint as will destroy or injure the same, and such interference with the well mentioned in the complaint as will deprive the plaintiff of the use of the same; also from erecting any building upon the premises described as the property of the defendant, so near as to exclude the light from the plaintiff's dwelling house." The defendant's appeal assigns 11 reasons, some of which are not important. Taken as a whole, however, they present, in substance, four alleged grounds of error which we deem it necessary to consider. First, in restraining the defendant from interference with the tree; second, with the well, including the admission of evidence; third, from excluding the light; fourth, that the judgment rendered is uncertain. We will examine each of these, and in the order above indicated.

First, in reference to the tree. Upon the subject of the rights of the parties in a tree situated as this is it is said in 1 Washb. Real Prop. § 7a: "The law as to growing trees may be regarded so far peculiar as to call for a more extended statement of its rules as laid down by different courts. * * * In the first place, trees which stand wholly within the boundary line of one's land belong to him, although their roots and branches may extend into the adjacent owner's land. * * * But the adjacent owner may lop off the branches or roots of such trees up to the line of his land. If the tree stand so nearly upon the dividing line between the lands that portions of its body extend into each, the same is the property in common of the landowners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree." This is the doctrine of our own court in Lyman v. Hale, 11 Conn. 177, cited by Washburn. See, also, 26 Am. & Eng. Enc. Law, p. 558. We may therefore limit our investigation to the inquiry as to the logical application of the principles of that case to the present one. In that case the tree stood upon the plaintiff's land, but its branches extended some distance across the line, and some of its roots ran into the defendant's ground. The action was trespass quare clausum fregit for entering upon the plaintiff's land and picking up pears, the fruit of the tree. The defendant claimed to be either tenant in common or joint owner with the plaintiff, or exclusive owner of the pears gathered, which fell on his own land from overhanging branches. The claim of joint ownership urged rested on the fact that the roots extended into the defendant's ground, and that the tree derived a part of its nourishment from his soil. In reviewing and disapproving the authorities cited in support of such claim, this court said: "Is it the doctrine of these cases that whenever a tree growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the lands of another, they therefore become tenants in common of the tree? We think not; and, if it were, we cannot assent to it. Because, in the first place, there would be insurmountable difficulties in reducing the principle to practice; and, in the next place, we think the weight of authorities is clearly the other way. How, it may be asked, is the principle to be reduced to practice? And here it should be remembered that nothing depends upon the question whether the branches do or do not overhang the lands of the adjoining proprietor. All is made to depend solely upon the inquiry whether any portion of the roots extend into his land. It is this fact alone which creates the tenancy in common. And how is the fact to be ascertained? Again, if such tenancy in common exist, it is diffused over the whole tree. Each owns a certain proportion of the whole. In what proportions do the...