Town of Southington v. Francis

• Citation: 266 A.2d 387,159 Conn. 64
• Court: Supreme Court of Connecticut
• Decision Date: 15 January 1970
• Parties: TOWN OF SOUTHINGTON v. Florence J. FRANCIS et al.

Page 387

266 A.2d 387

159 Conn. 64

TOWN OF SOUTHINGTON v. Florence J. FRANCIS et al.

Supreme Court of Connecticut.

Jan. 15, 1970.

Vincent J. Giedraitis, Hartford, for the appellant (named defendant).

Joseph H. Thalberg, Southington, with whom was Alan I. Scheer, Southington, for the appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and LEVINE, JJ.

HOUSE, Associate Justice.

There is no dispute about the basic facts in this case. On August 19, 1960, the state highway commissioner took by condemnation 13.8 acres of a thirty-five-acre tract in Southington owed by Florence J. Francis and occupied by her and her husband. See Francis v. Ives, 155 Conn. 570, 236 A.2d 894. A junk business had been conducted on the property, and tons of personal property, mostly junk merchandise, were on the land when the commissioner acquired title. In April, 1961, the personal property not having been removed, the commissioner, acting pursuant to § 48-23 of the General Statutes, obtained from the Superior Court an order that he be put in peaceable possession of the condemned acreage. In June, 1961, a deputy sheriff for Hartford County, acting by virtue of executions issued by the Superior Court, proceeded to remove from the land acquired by the commissioner the mass of junk merchandise. He placed it along the shoulders of the adjoining highway for a distance of about two miles on both sides. Thereafter, a resident in front of whose home some of the property had been placed brought an action in the Superior Court against the selectmen of the town of Southington seeking an order that they forthwith remove the property stored along the highway. In that action, to which the present defendants were not parties, a mandatory injunction was issued directing the selectmen 'to remove forthwith in accordance with the provisions of Section 52-549, the junk, scrap metals, scrap materials, trucks, machinery and all other personal property now stored on the Meriden-Waterbury Road (also known as Route 6-A) in the Town of Southington, provided the same has been upon the highway for at least twenty-four hours.' In accordance with that order, the selectmen caused the property to be removed from the highway and stored, and, when the defendants did not call for it within fifteen days after the removal, it was sold at public auction.

The town thereupon brought the present action against the defendants claiming $28,410.80 as the cost of the removal and storage less the proceeds of the sale. The defendants' demurrers to the complaint and substituted complaint were overruled, and the case was tried to a jury. Mrs. Francis testified that she had been the owner of the real estate taken by eminent domain, that she was the owner of all the articles removed therefrom and stored upon the highway, and that the articles were on the highway for more than twenty-four hours before they were removed therefrom. The court directed a verdict in favor of Mr. Francis, and with that directed verdict the jury also returned a verdict in favor of the plaintiff against Mrs. Francis for $28,410.80 plus interest. The court denied a motion by Mrs. Francis to set aside the verdict against her and for judgment notwithstanding that verdict, and judgment was rendered on the verdicts as returned. It is from that judgment that Mrs. Francis has taken this appeal, and, except as otherwise indicated, we will hereinafter refer to her as the defendant.

The defendant has abandoned many of her assignments of error which have not been briefed. Nowell v. Nowell, 157 Conn. 470, 484, 254 A.2d 889. Although raised variously by claims of error in the overruling of her demurrers and by asserted error in the court's charge and in the denial of her motion for a directed verdict, the basic claim of the defendant is that § 52-549 ¹ of the General Statutes is not applicable to the facts of this case because operation of that statute is limited to cases of eviction by summary process, because she was not a 'tenant' within the meaning of that word as used in § 52-549 and because § 52-549 does not authorize the plaintiff to recover from her the reasonable cost of removing, storing and selling her personal property. As the defendant stated in her brief: 'Each point of the defendant's brief attempts to show that the legislature intended that Section 52-549 apply only to actions brought under the Summary Process chapter.'

In short, it is the contention of the defendant that the General Assembly intended that § 52-549 apply only to evicted lessees wrongfully holding over after their lease has terminated, that the defendant was not an 'ejected tenant' as that term is used in § 52-549, that the plaintiff submitted to the jury 'no evidence of a tenancy,' that the court erred in excluding evidence to rebut the plaintiff's evidence that the defendant refused to vacate the property, and that the court erred in withdrawing from consideration by the jury a special defense filed by the defendant.

Our decision of this appeal is unnecessarily complicated by reason of the procedure adopted by the defendant. She has assigned and briefed claimed errors both in the court's charge and in its denial of the defendant's motion to set aside the verdict and for judgment notwithstanding the verdict because the verdict is not supported by the evidence. Assignments of error addressed to the charge are tested by the claims of proof as they appear in the finding. Practice Book § 635; Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 447, 254 A.2d 907; Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490. On the other hand a claim that a verdict is not supported by the evidence is tested by the evidence printed in the appendices to the briefs. Prystash v. Best Medium Publishing Co., 157 Conn. 507, 508, 254 A.2d 872; State v. Mortoro, 157 Conn. 392, 393, 254 A.2d 574; see Practice Book §§ 716-721. The defendant printed no appendix to her brief, and, in her attack on the court's rulings on the verdict, she improperly relies on her claims of proof in the finding rather than on the evidence.

We do not agree with the basic contention of the defendant that '(w)ithout evidence of a landlord-tenant relationship, created by the parties, there can be no recovery for the town's expenses' under General Statutes § 52-549. What is now § 52-549 was originally adopted as chapter 105 of the Public Acts of 1895 as a single act not in any way connected with the summary process statutes to which it made no reference. The summary process statutes had been in effect since 1806. See Lorch v. Page, 97 Conn. 66, 72, 115 A. 681, 24 A.L.R. 1204. It is of significance to note that in the same 1895 session, the General Assembly by another act entitled 'An Act concerning Summary Process' amended § 1355 of the Revision of 1888 (the predecessor of what is now General Statutes § 52-532) providing under what circumstances an action in summary process might be brought. See Public Acts, 1895, c. 124. Section 1355 originally and as amended in 1895 authorized summary process only in cases in which a 'lessee' was in possession of leased premises. ² On the other hand, the same legislature in adopting what is now § 52-549 enacted chapter 105 under the title 'An Act concerning the Removal, Storage and Sale of Personal Effects of Ejected Tenants.' That act not only made no reference to lessors or lessees or the limited statutory action of summary process but commenced '(w)henever an ejectment of a tenant of any tenement is made by legal process * * *.' In the Revision of 1902, this language was shortened to that now found in § 52-549: 'Whenever a tenant is ejected by legal process,' and the section was, by the revisers, printed at the end of the chapter providing for actions of summary process. See Rev.1902, § 1088. 'There is a presumption that a general revision of the statutes does not change the law'; Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444, 447; and in the absence of anything evincing a countrary intent, the meaning and the effect of the statute were unchanged. State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289; Bassett v. City Bank & Trust Co., 115 Conn. 393, 400, 161 A. 852.

There is merit to the contention of the plaintiff that the defendant as a matter of law became a tenant at sufferance when she continued to hold possession of the condemned land by occupying it after title and right to possession had passed to the highway commissioner. 'A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right has terminated.' Welk v. Bidwell, 136 Conn. 603, 608, 73 A.2d 295, 298; Lowell Housing Authority v. Save-Mor Furniture Stores, Inc., 346 Mass. 426, 193 N.E.2d 585. It is recognized in the common law as the least and lowest estate which can subsist in realty. 2 Blackstone, Commentaries, p. 150; see also 1 Swift, Digest, p. 90. Regardless of such a concept of technical tenancy, however, or the frequent use of the term in juxtaposition with the word landlord, the word 'tenant' is derived from the Latin 'teneo' meaning to hold and is defined generally as meaning anyone who holds or possesses land or tenements or who has the occupation or temporary possession of such property, the title to which is in another. Webster, Third New International Dictionary; Black, Law Dictionary (4th Ed.); 86 C.J.S. Tenant p. 553. Hence, in common usage in addition to tenants holding possession by agreement with landlords, there are joint tenants, life tenants, tenants in common and tenants by courtesy, all of whom are the holders of some interest in property although their status has no relationship to anyone standing in the position of a landlord or lessor.

We conclude that, since the General Assembly has used the word 'tenant' in § 52-549 without modification or restriction and without reference to any lessor or landlord...