Sargent & Co. v. New Haven Steamboat Co.

• Decision Date: 17 October 1894
• Citation: 31 A. 543,65 Conn. 116
• Court: Connecticut Supreme Court
• Parties: SARGENT & CO. v. NEW HAVEN STEAMBOAT CO.

31 A. 543

65 Conn. 116

SARGENT & CO.

v. NEW HAVEN STEAMBOAT CO.

Supreme Court of Errors of Connecticut.

Oct. 17, 1894.

Appeal from superior court, New Haven county; Hall, Judge.

Action by Sargent & Co. against the New Haven Steamboat Company for the possession of land. From a judgment for defendant, plaintiff appeals. Modified.

John W. Ailing and John K. Beach, for appellant.

Charles R. Ingersoll and Edward H. Rogers, for appellee.

HAMERSLEY, J. This la an action brought to the superior court to recover possession of a piece of land which was originally a portion of the flats of New Haven harbor, lying between high-water and low-water mark, and situated southerly of Water street where that street is intersected by East street Sargent & Co., the plaintiff corporation, alleges title to the demanded premises, with all the water privileges and rights of wharfage belonging thereto, and a wrongful entry and dispossession by the defendant. The answer of the defendant, the steamboat company, contains two defenses. The first defense is a general denial. The second defense, in the nature of a plea in bar, alleges the defendant's possession of so much of the demanded premises as lie easterly of the east line of East street extended; that the right of possession and title to the same were adjudicated to be in the defendant, and that the right of possession and title to the remainder of the demanded premises were adjudicated not to be in the plaintiff, by a judgment of the court of common pleas in an action between the same parties, in which action the parties were at issue upon these questions. The plaintiff denies the adjudication set up in the second defense. By order of the superior court, the issues were separated, and the issues raised by the second defense were first tried. The court found these issues for the defendant, and that the judgment of the court of common pleas is a bar to any recovery by the plaintiff in this action, and rendered final judgment for the defendant. The plaintiff appeals from that judgment.

The main question involved in the appeal is, did the superior court err in holding that the right of possession to so much of the demanded premises as lie easterly of the east line of East street extended is res judicata by reason of the judgment in the former action between the parties? On this question we can entertain no doubt. The defendant claims that the identity of issues in this case and the former case is, under the circumstances disclosed by the record, a question of fact, upon which the finding of the superior court is conclusive. Without passing definitely upon this claim, we treat the question as one of law, because the question of the identity of issues has been fully argued as a question of law, and it seems clear to us that, in view of the circumstances of this case and the conclusions reached, we ought to express an opinion upon the error as assigned in the plaintiff's appeal, that "the court erred in finding that by the prior adjudication the title to so much of the demanded premises as lay east of the east line of East street was in the defendant." The former action was commenced by the New Haven Steamboat Company in 1881, and was nominally an action to recover from Sargent & Co. a sum due for wharfage. It was originally brought before a justice of the peace, and an appeal taken from his judgment, on demurrer, to the court of common pleas. In that court the case was referred to a committee to find and report the facts. The report of the committee was accepted. By consent of all the parties to the record, in pursuance of section 1114 of the General Statutes, the questions of law arising upon the facts so found by the court were reserved for the advice of the supreme court of errors. The supreme court advised judgment for the plaintiff, and in pursuance of that advice the court of common picas found the issues for the steamboat company, and rendered judgment in its favor. The record in that action, containing the complaint, the finding of facts by the court of common pleas, and its judgment thereon, was put in evidence in the present case by the steamboat company, in support of its second defense, and appears in full in the finding of facts by the superior court. The steamboat company claims that the real issue tried and decided by the court of common pleas, as conclusively shown by this record, was its asserted right to reclaim the flats and extend its wharf from the land already reclaimed by it to low-water mark, along the westerly line of the land so reclaimed, which is the easterly line of East street extended. It is clear, and is admitted, that, if such were the real issue decided in favor of the steamboat company, then the judgment is a bar to the recovery by Sargent & Co. of any portion of the demanded premises lying easterly of that line. The answer is not printed with the record. The legal presumption from that fact alone might be that the case was tried on the general issue. But the formal judgment shows that an answer was in fact filed. The report of the committee, which, when accepted by the court, became a part of the record, shows that the ownership, and not the mere possession of the wharf at the place where the ship liable for the amount of wharfage in question lay, was the main point contested under the pleadings; and the facts found by the court below in this case show that the learned counsel in the former action argued that case as if the question of ownership was involved under the pleadings, and treated that question as the main Issue contested, to which all other questions were subordinate. In view of these facts, and the admissions of counsel in their arguments before us that the ownership of that portion of the wharf indicated was undoubtedly adjudicated in the former action, and of their failure to question the fact that such ownership was, in law, a matter in issue under the pleadings, we feel bound to assume that the answer missing from the files was appropriately framed for putting in issue such question of ownership; and in view of the interests involved, and the gross miscarriage of justice that might otherwise be occasioned, we think the parties rightly considered themselves estopped from claiming that the missing answer did not in fact, as the finding of the court below assumes, legally put in issue in the former action the question of ownership, whose adjudication as a fact then in issue they have argued before us in this action. We refer to the subject only for the purpose of excluding any implication that we should consider the fact of ownership an issue presented by the pleadings, as distinguished from a mere evidential fact, did the record before us present the case of a trial upon the complaint and general issue alone. The question is not raised.

The record shows the following facts: Prior to bringing the action, the steamboat company was in possession of a portion of the flats bounded northerly by Water street, easterly by the flats in possession of such company, southerly by the flats upon which it claimed the right to wharf out, and westerly by the flats included between the lines of East street extended,—being about 83 feet on Water street and on the flats to the south, and 231 feet on the easterly line of East street extended and on the flats to the east in possession of the company,—and Sargent & Co. was in possession of a portion of the flats bounded north by Water street 132 feet, and east, by the flats lying within the lines of East street extended, 165 feet. The deeds purporting to convey the title to these two pieces of flats were from the authorities of the town of New Haven; the first, to the steamboat company's predecessor in title, being in 1807, and to that of Sargent & Co. In 1772. The flats in possession of Sargent & Co., as well as those in possession of the steamboat company, had been reclaimed by filling in out to the southerly boundary lines. Sargent & Co. also owned a piece of land lying north of Water street, bounded east by East street and south by Water street, title to which was derived originally from a deed from the authorities of the town of New Haven in 1771. In 1872 the city of New Haven completed the construction of the East street sewer, extending from the southerly line of Water street, and nearly at right angles to that line, beyond the low-water mark, and covered this sewer, partly as a protection, by a structure known as the "East Street Sewer Wharf," extending beyond the southerly line of the steamboat company's reclaimed flats about 325 feet, to a point about 75 feet northerly of the low-water mark. In building the sewer the city occupied a portion of the flats lying between the lines of East street extended; also, a portion of the flats reclaimed by the steamboat company, and a portion of the flats lying southerly of the land so reclaimed. The city of New Haven claimed rights in the city and town to some control of these flats, and especially of East street sewer wharf, but no attempt to ascertain or enforce such rights had been made, beyond an application by the city to the legislature for permission to extend the wharf, which was denied. In 1881 Sargent & Co. collected wharfage, amounting to five dollars, for the use of the East street sewer wharf at a point marked S on the map, as indicating the position of the ship on account of which the wharfage was collected, which point is about 60 feet from the southerly end of the wharf structure, and opposite the intersection of its westerly line with the east line of East street extended. The action of the steamboat company was brought to recover the sum so collected, and the right to the ownership and possession of the wharf at such point was claimed by both parties. The following map shows the situation:

Line A to B—East line of East street extended, being line claimed by Steamboat Co. Line C to D—West line of East street extended. Line H, E, F,...