Schroeder v. Taylor

• Decision Date: 03 July 1926
• Citation: 134 A. 63,104 Conn. 596
• Court: Connecticut Supreme Court
• Parties: SCHROEDER v. TAYLOR ET AL.

134 A. 63

104 Conn. 596

SCHROEDER v. TAYLOR ET AL.

Supreme Court of Errors of Connecticut.

July 3, 1926

Appeal from Court of Common Pleas, Fairfield County; John J. Walsh Judge.

Suit by Theodore Schroeder against Samuel W. Taylor and others to quiet and determine title to a right of way, tried to the court. Judgment for plaintiff, defendants appeal, and plaintiff appeals as to limitations in the judgment as to the width and purpose of use of the right of way. No error on defendants' appeal. Error in part, and cause remanded on plaintiff's appeal.

Theodore Schroeder, of Greenwich, and Thomas J. Ryle, of Stamford, for appellant.

Raymond E. Hackett, of Stamford, for appellee Taylor.

HINMAN, J.

The plaintiff's action is to quiet title to a right of way which he claims to be three rods wide and to be appurtenant to a tract of land owned by him. This the defendant denies, and further pleads that if the plaintiff's predecessors ever had such a right of way it has been lost by abandonment or by adverse possession. The principal facts as found by the trial court may be summarized as follows: The plaintiff owns, in fee simple, a piece of land in Greenwich, containing 2 1/2 acres, more or less, having obtained title by deed from John E. Knapp, dated June 1, 1921, and by a series of later conveyances from Knapp heirs and two decrees in actions to settle title. The right of way was specifically granted as appurtenant to a 10-acre tract, by a deed from James and Robert Nichols to Charles Knapp, dated March 23, 1757, which deed is further referred to and quoted from hereafter. This 10-acre tract included what is now the plaintiff's land, a tract of 2 acres adjoining plaintiff's land on the north, which was owned by Clarence Jessup from 1901 until 1921, and then conveyed by him to and now owned by the defendant Taylor, and adjoining that, northerly, another tract of 4 acres, more or less, last owned, so far as appears, by Margaret Cruise.

The grant from Nichols to Knapp remained unquestioned until about 1863, and the way was used at intervals by the Knapps and their successors and assigns. In 1864 and once thereafter one Roberts claimed that Knapp's right of way was located further north than the one he was using, but the Knapps persisted in ignoring his protest, maintaining a legal right to the use of the way. From 1863 to about 1895 timber and firewood was cut from the land, which was a wood lot; when all the wood was removed the Knapps had no further reason to use the way, but at no time did they relinquish or abandon their right to do so. Except as above stated, when the Knapps used this right of way no protest appears to have been made by any one; no predecessor of the defendant Taylor ever denied the right of the predecessors of the plaintiff to an easement, the only claim being that it was located elsewhere than where the Knapps and Jessup and his predecessors actually used it.

When the original 10-acre tract became divided among three or more owners, each exercised his right by passing from his individual tract in an easterly and southeasterly direction until all the rights of way, so created, converged into one road. There was also evidence that there were rights of way down to the main right of way from other land to the north.

In 1901 Jessup purchased his 2-acre tract from William M. Smith, and at once started to build a dwelling house and to use the right of way from the highway for hauling in building material and produce. Thereupon the defendant Floevke, who owned land just north of where the way entered the highway, protested against Jessup's use, but Jessup persisted and removed bars which Floevke placed upon it. Jessup used this right of way under a claim of right and title, and not by permission.

In 1902 the defendant Taylor obtained title by warranty deed from Carrie M. Palmer to a tract of 60 acres, more or less, adjoining the 10-acre tract on the east; this deed described the premises conveyed as bounded " west by land of * * * Delvin, land of the estate of Charles William Knapp, land of Clarence Jessup and land known as undivided land, * * * said above described premises being subject however to a certain right of way in favor of said Clarence Jessup and in favor of the owners of said undivided land."

From 1901 to 1921 Jessup, the members of his family, his guests, and merchants going to and from his house were in almost daily use of the right of way, and the defendants knowingly tolerated this use. Jessup's claimed right was identical in origin with the plaintiff's right, and during this time he was cotenant with the plaintiff and the plaintiff's predecessors in title in the right of way, and used the right of way as the same is now marked and defined by such use. During this period and up to the time the plaintiff obtained possession of his 2 1/2-acre tract, there is no evidence to show that the Knapps attempted to use the right of way; there was no apparent reason for them to do so, and there would not have been until they either built upon the place or the wood grew to be of sufficient value to be removed. The defendant Taylor never prohibited any of the Knapps from using this right of way or gave any of them notice that he was holding the same adversely to them. Neither did any of the Knapps have such notice from any other source.

In 1921 Jessup conveyed his 2-acre tract to Taylor in exchange for other property, by a deed which described the tract, " together with all the right, title and interest of the grantor in and to any and all ways or rights of way appurtenant to the premises above described and subject to existing rights in said rights of way." The defendant Taylor moved to correct the finding in numerous respects, and the reason of appeal which relates to the denial of his motion is first considered. As Taylor is the only appealing defendant, he is hereinafter referred to as the defendant.

Paragraph 8 of defendant's draft finding sets forth, in substance, that land lying between the plaintiff's land and the highway known as Cognewaugh road is now owned by the wife of the plaintiff. The defendant seeks to have this paragraph added to the finding for the purpose of controverting the court's conclusion that the right of way in question is the plaintiff's only means of access from his property to the public highway. The facts stated in this paragraph appear to be undisputed, but neither they nor the conclusion against which they are directed are material to the result. The plaintiff does not rely upon a claimed right of way by necessity, and the other conclusions, if they stand, are sufficient to sustain the judgment rendered.

The defendant seeks to add a finding that " no right of way or right to use the so-called right of way was granted to Jessup by William M. Smith." The facts regarding the conveyance from Smith to Jessup are set forth in paragraph 23 of the finding, which is not attacked. Furthermore, the mention, in this and the other deeds in Jessup's chain of title, of privileges and appurtenances, is sufficient to carry an appurtenant right of way. Alling Realty Co. v. Olderman, 90 Conn. 242, 251, 96 A. 944; Blanchard v. Maxson, 84 Conn. 429, 433, 80 A. 206.

Paragraph 26 of the draft finding, to the extent that during Jessup's use of the right of way he blasted some rock therefrom and obtained Taylor's permission to do so, is undisputed, and this statement is added to the finding. However, this circumstance is regarded as having little, and certainly not controlling effect upon the basis and manner of use of the way by Jessup. It conclusively appears from such of Taylor's own testimony as is printed and from his own request for finding (paragraph 28) that he never questioned Jessup's right to use the way. The other insertions requested are statements of facts which are not admitted or undisputed, and the evidence, if there was such, supporting some of them is not before us.

Seven paragraphs of the finding are sought to be stricken out on the ground that they are found without evidence. Since the evidence certified and printed consists, only, of a few brief excerpts from testimony, it is entirely insufficient to a determination as to whether there was evidence supporting the findings in question, and we might very properly dismiss this portion of the appeal upon the principle that, when the evidence essential for a correction of the finding is not before us, we are entitled to assume that the facts are properly found. Standard Co. v. Young, 90 Conn. 133, 96 A. 932; West v. H. J. Lewis Oyster Co., 99 Conn. 55, 121 A. 462; Twining v. Goodwin, 83 Conn. 500, 77 A. 953, Ann.Cas. 1912A, 845. However, we consider, further, such of the claims made as are not entirely dependent upon a more complete record.

As to paragraph 5, it is admitted that the plaintiff's predecessors in title made no use of the way since Jessup's purchase of the adjoining 2-acre tract in 1901, so this paragraph should be corrected to read:

" The plaintiff's predecessors in title used said right of way as appurtenant to said land for carting purposes, as cotenants with the predecessors in title of said Jessup."

That Jessup was cotenant with the plaintiff and his predecessors in title from 1901 until 1921 in the right of way is found in paragraph 4. Paragraph 15 is corrected, consistently with other and controlling facts found, to read:

" In 1757 the primeval forests and the original rocks made it impossible to cart wood from said 10-acre tract without going back and forth over a width of three rods."

Recognition, by the defendant, of the right of way as appurtenant to the land conveyed, stated in paragraph 28, follows from acceptance of the deed from Jessup, as found in paragraph 27. Morrison v....