Sachs v. Toquet

• Citation: 121 Conn. 60,183 A. 22
• Court: Supreme Court of Connecticut
• Decision Date: 15 January 1936
• Parties: SACHS v. TOQUET et al.

183 A. 22

121 Conn. 60

SACHS v. TOQUET et al.

Supreme Court of Errors of Connecticut.

January 15, 1936

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

Action by David Sachs against Benjamin L. Toquet and others for an injunction to restrain defendants from obstructing or interfering with a claimed easement, and for a declaratory judgment. From an unsatisfactory judgment declaring the rights of the parties, plaintiff appeals.

Error in part, and cause remanded, with direction.

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

William Reeves, of Bridgeport, Earl H. Jagoe, of Westport, and J. Kenneth Bradley, of Bridgeport, for appellant.

Earle W. Smith, of Bridgeport, for appellees.

BANKS Judge.

The parties are the owners of adjoining parcels of land located on the south side of State street in the town of Westport the property of the plaintiff being bounded on the east by that of the defendants. These properties are subject to a way created in 1891 in the distribution of the estate of Mary N. Bradley, who had owned both pieces, in which it was agreed that the distributees, predecessors in title to the parties to this action, would each maintain 5 feet of the premises for a passway from the street to the rear of the property now owned by the plaintiff. There are buildings upon both lots which are 10 feet apart and are separated by the 10-foot driveway created in the certificate of distribution. The plaintiff's building has been used as a general grocery store by the plaintiff and his predecessors in title since prior to 1891. In 1891, and for many years prior thereto, there was a set of double doors on the east side of the building at which goods were loaded and unloaded. Shortly after 1891, a double door was cut into the rear of the building and was used for loading and unloading goods for the store, and in 1917 the plaintiff discontinued using the side doors for such purpose, but has continued to use the rear doors. During all this period, while the side doors were in use, vehicles loading or unloading merchandise through them stood in the driveway while so engaged, and vehicles which have used the rear doors for such purpose have stood wholly or in part upon the driveway. The right of the plaintiff to make use of the driveway for such purpose is the principal question in issue.

Other issues raised in the complaint and the cross-complaint as to which each party claimed injunctive relief appear to be no longer contested. The plaintiff, in an amendment to his prayer for relief, asked a declaratory judgment as to whether he had the right to permit vehicles to stand upon the common right of way or any portion thereof for such period of time as might reasonably be necessary to load and unload merchandise in connection with his business. The plaintiff appeals from the judgment declaring that he has no right to park on the driveway beyond what would constitute a reasonable opportunity to turn into his own land west of the driveway and south of his building.

The certificate of distribution to the predecessors in title of the parties created a right of way by deed in each over a 5-foot strip of land of the other; the land of each being at the same time the servient estate as to one 5-foot strip and the dominant estate as to the other. Thus each owner acquired the right to use the common 10-foot driveway without interference by the other. The plaintiff's claim of the right to permit vehicles to stand upon the driveway for purposes of loading and unloading is based, first, on the original grant creating the common driveway, and, second, upon a claimed adverse user for more than fifteen years by which his rights in the driveway were extended and increased. The complaint alleges the existence of the respective rights of way over the two 5-foot strips, and an open, notorious, and adverse use of the driveway by the plaintiff for loading and unloading since 1912. It is at least doubtful whether the complaint furnishes any basis for a claim of the right to such use under the original grant.

If we assume that the respective rights of the parties to the use of the common driveway under the original grant creating it are in issue under the pleadings it is clear that the plaintiff did not acquire, under that grant, the broad right, now claimed by him, to permit vehicles to stand upon the common right of way so long as necessary to load and unload merchandise at his store, even though such use of the driveway interfered with its use by the defendants. The distribution contained no provision as to the use which the parties owning the adjoining premises might make of the passway, but the land is set aside simply " for a passway or driveway." In determining what is a reasonable use, the grant is to be construed in the light of the situation of the property and the surrounding circumstances, for the purpose of ascertaining and giving effect to the intention of the parties. Peck v. Mackowsky, 85 Conn. 190, 194, 82 A. 199. The long-continued use of the passway for the purpose of loading and unloading merchandise at the store upon the plaintiff's property indicated an intention of the parties that it might be used for that purpose. But the plaintiff has, under the grant, no right to make any use of the passway which would unreasonably interfere with its use by the defendants. The parking of vehicles upon...