Town of Kent v. Pratt

• Decision Date: 08 March 1901
• Citation: 48 A. 418,73 Conn. 573
• Court: Connecticut Supreme Court
• Parties: TOWN OF KENT v. PRATT.

48 A. 418

73 Conn. 573

TOWN OF KENT

v. PRATT.

Supreme Court of Errors of Connecticut.

March 8, 1901.

Appeal from superior court, Litchfield county; Milton A. Shumway, Judge.

Action by the town of Kent against Birdsey G. Pratt to restrain defendant from building a fence within the limits of a highway. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Leonard J. Nickerson and J. Henry Rorabaek, for appellant.

Arthur D. Warner and James Huntington, for appellee.

HALL, J. A highway running north and south in the town of Kent, and called the "Bull's Bridge Highway," intersects a highway running east and west, called "East and West Street." The defendant owns property on the southeast corner of these streets. The question in dispute is whether a triangular strip of land in front of the defendant's premises, on the east side of Bull's Bridge highway, about 17 feet in width at East and West street, and extending southerly to a point, is or not a part of the highway. In 1895 the selectmen of the town, upon the written application of the defendant, undertook to establish the east line of this street, under the belief that they were authorized to do so by the provisions of section 5, c. 286, Pub. Acts 1895, p. 633, and for that purpose placed iron bounds, as provided by said act, along the line of a fence then standing, and apparently marking the street line, and which, as hereinafter stated, was erected by one Conn in 1868. The defendant, after said bounds had been so placed by the selectmen, claiming that said fence and bounds did not mark the east line of the highway as established by a lawful layout made in 1828, and hereinafter described, and that the line so established in 1828 was the true line of the highway, took up said fence, and moved it further to the west, and so that the northerly end of the same at East and West street was about 17 feet further west. The selectmen moved the fence back to its former position, and the present action is for the purpose of preventing the defendant from again placing the fence upon what the plaintiff claims is a part of the highway.

There were three questions to be decided by the trial court: (1) Was the east line of the highway conclusively determined by the action of the selectmen to be the line so marked by them by the iron bounds? (2) If not, was the line so marked by the selectmen the east line of the highway as laid out in 1828? (3) If not, had the line so marked by the selectmen become the east line of the highway by the acts of the owners of the adjoining land and by public use?

The trial court rightly held that the line of the highway was not finally determined by the action of the selectmen. The purpose of the provisions of section 5, c. 286, Pub. Acts 1895, was not to constitute the selectmen of the town judges to determine the location of disputed street lines, but to enable the owners of land upon highways to have the public authorities place such enduring bounds upon undisputed street lines as would permanently mark their location. Chapter 142, Pub. Acts 1895, p. 517, which was in force at the time the bounds in question were placed, provided a method for procuring lost and uncertain bounds to be established by complaint to the superior court and the appointment of a committee. This act was repealed by chapter 115, Pub. Acts 1899, p. 1047, which provides for an application to the selectmen, with a right of appeal from their decision to the superior court.

The second question, as one of fact, the trial court decided against the contention of the plaintiff, and sustained the defendant's claim that the fence, when moved by him, was placed substantially upon the east line of the highway as established by the layout of 1828.

Upon the third question the court ruled adversely to the plaintiffs claim, possibly upon a mistaken opinion that it was not raised by the pleadings, and that the determination of the second question was decisive of the case. That such was his view seems to be Indicated by the language of the memorandum of decision, that "the issues in the case are really narrowed to that joined upon paragraph 5 of the complaint," and also by the rulings of the court that the facts assumed in certain of the plaintiff's claims of law were not proven by the facts found. While some support for that view may be found in the fact that the complaint alleges that by the proceedings had in the county court in 1828 the Bull's Bridge highway was "laid out and opened to the public," that the defendant owns land bounded westerly by the highway before mentioned as laid out by the county court, and by the allegations of paragraph 5, which are denied by the answer, that the bounds were placed by the selectmen on the correct east line of said highway, we think the allegations of the complaint in the subsequent paragraphs, which are also denied by the answer, sufficiently allege an unlawful encroachment by the defendant upon the highway used by the public, and that therefore the question whether the strip of land in dispute had become a part of the highway by dedication was within the issues framed by the pleadings. City of Hartford v. New York & N. E. R. Co., 59 Conn. 250, 22 Atl. 37. The claim of a public right of way by dedication of the owner was sufficiently made by the plaintiff in his claims of law in the trial court, among which are these: "If the highway was laid out and the eastern line thereof was where claimed by the defendant, then such layout had never been opened or used, and the limits of such highway became and were as used by the public, and the fences marking the lines thereof for over fifteen years became and were the lawful lines and boundaries of said highway." "That if the boundaries of the highway as laid out in 1828 had been changed, and such changes had been acquiesced in by the adjoining owners for fifteen or more years, such acts established a new line, and the old one could not be restored." Upon the latter of these, as upon certain other of the plaintiff's claims, the court did not specifically rule, upon the ground that the facts assumed therein had not been proved. It follows, then, that, if the facts found show a title by dedication, the judgment of the trial court was erroneous.

Before discussing those facts, we ought to refer to certain exceptions in the appeal, and to the refusal of the trial judge to correct the finding of facts, the evidence bearing upon which has been certified to this court.

Upon the undisputed facts appearing in the record, we think the plaintiff was entitled to a finding that the fence erected, as hereinafter stated, by one McCoy, on the west side of the highway, after the layout of 1828, and prior to 1834, and which remained until 1898, was calculated to lead the public to believe that it marked, and s"o was designed to...