Rochester v. Barney

• Decision Date: 07 November 1933
• Court: Connecticut Supreme Court
• Parties: ROCHESTER v. BARNEY.

169 A. 45

117 Conn. 462

ROCHESTER v. BARNEY.

Supreme Court of Errors of Connecticut.

November 7, 1933

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Junius C. Rochester against Nora Stanton Barney for an injunction and for a judgment declaratory of the riparian rights of the parties, brought to the superior court and tried to the court. Judgment for the plaintiff, and appeal by the defendant.

Warren F. Cressy, of Stamford, for appellant.

Raymond E. Hackett, of Stamford, and Mark C. Candee, of Greenwich, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

AVERY Judge.

The two parties to this action are owners of adjoining estates bordering upon the waters of Long Island Sound in the vicinity of Mead's Point in Greenwich, Conn. Originally both properties were owned by the Maremont Corporation. The defendant derives title through a conveyance by that corporation to her predecessor December 22, 1924. In the description of the deed, the boundary line ran along the high-water line of Long Island Sound " Easterly, Southerly, Northeasterly and Northerly" ; the (Image Omitted) defendant's land being lot No. 1 on the map of the property, and shown on the annexed sketch, by reference to which it will appear that it is on a point projecting into Long Island Sound in a southerly direction at an acute angle so that it has water front upon its southeast and southwest sides:

(Image Omitted)

The plaintiff's lots, Nos. 2 and 3 on the map of the Maremont Corporation and lying immediately west of the defendant's land, were conveyed to the plaintiff's predecessor in title at a somewhat later date. The deeds describing the line bound the lots as running " westerly along the high-water mark of Long Island Sound as the same winds and turns." As will appear from the sketch, they form, with the defendant's land, a small bay and face the Sound to the southwest. Some years later, both the plaintiff and the defendant received conveyances from the corporation of all littoral and riparian rights, privileges, and franchises appurtenant to the upland belonging to the respective parties. Southerly, and in front of plaintiff's property between it and the main body of water of Long Island Sound, is Horse Island (owned by a third party), some 650 feet long and 200 feet wide, which is about 400 feet distant from the mainland with which it is connected by a causeway leading to a roadway next adjoining plaintiff's land on the southwest. Southeasterly and in front of defendant's property, is Saw Island (owned by a third party), some 600 feet long and 100 feet wide, which is about 400 feet distant from the mainland at its southerly end and 250 feet at its northerly end, and is also connected to the mainland by a causeway which is the continuation of a private road constituting the northerly boundary of both estates. Horse Island is about 250 feet distant from and southwesterly of Saw Island, and the space between is the natural entranceway to the waters in front of both pieces of property. The low-water mark in front of plaintiff's land is located between these islands, and is beyond and easterly of the nearest connecting point of the plaintiff's property and Horse Island, and at low tide the space intervening between the defendant's property and Horse Island consists of entirely exposed mud flats. Practically the entire area covered by the waters in front of these estates and within Horse and Saw Islands and the causeways from the mainland to them is above the line of mean low water, so that the bottom is uncovered at average low tide; the mean low-water mark coming slightly within the entranceway between the islands in front of and approximately 350 feet distant from defendant's property. There are no navigable channels between high and low water mark in front of plaintiff's land. The general trend of the shore line of the mainland, of which the littoral boundary lines of the parties form a part, taking a considerable distance into account and omitting to notice small indentations and projections, is a broad concave curve facing Long Island Sound. This curve is flanked by and lies between two headlands approximately 2800 feet apart, one being located west of the mouth of Cos Cob Harbor, north of Goose Island, and the other southwest of Horse Island. The north shore of Long Island Sound, taking a very great distance into account, such as from New Rochelle to a point considerably easterly of Mead's Point and Greenwich Point, and omitting to notice small indentations and projections, is a straight line running approximately from the southwest to the northeast and is substantially parallel to a base line connecting the headlands described.

The present action was brought by the plaintiff to restrain the defendant from interfering with plaintiff's riparian rights by building a sod dyke and filling in below mean high-water mark upon the southwest shore front of her property, and for determination of the rights and privileges of the parties to the land under water appurtenant to the upland belonging to them respectively.

The trial court has found that for the purpose of locating and establishing a base line to be used in determining the division line between the respective properties below mean high-water mark, the selection of the two headlands mentioned was reasonable and proper; and that no evidence was offered to the contrary or that any other base line should be selected for that purpose. Thereupon, the trial court proceeded to determine the respective rights of the parties to the land appurtenant to their properties below mean high-water mark by running perpendiculars from the base line so established to the intersection of the respective boundaries with the line of mean high water, with a slight exception. Had the divisional line been projected in a straight line from the monument perpendicular to the base line, it would have intersected a strip of rock about 25 feet in length and varying in width from 6 feet to zero. This strip of rock is barren of soil or growth and slopes gradually to the waters at that point. The trial court, however, in an effort to avoid running the divisional line across this rock, dropped the perpendicular from the intersection of the upland dividing line of the parties with the mean high-water mark to the point where the perpendicular intersected the narrow strip of rock. From that point on, the trial court followed the mean high-water mark around the narrow strip of rock until it reached a point where the perpendicular, if projected across the rock, would again cross the mean high-water mark. From that point on the trial court followed the perpendicular in its southeasterly course. The line of division established by the court gave to each of the parties means of access between the two islands lying off the shore and the waters outside.

Upon this appeal, the defendant makes two general claims: First that the method...