Turner v. Selectmen of Hebron

• Decision Date: 26 October 1891
• Citation: 22 A. 951,61 Conn. 175
• Parties: TURNER v. SELECTMEN OF HEBRON.
• Court: Connecticut Supreme Court

22 A. 951

61 Conn. 175

TURNER

v. SELECTMEN OF HEBRON.

Supreme Court of Errors of Connecticut.

Oct. 26, 1891.

Appeal from superior court, Tolland county; F. B. Hall, Judge.

Proceeding by the selectmen of Hebron to lay out a highway. From a judgment affirming action of selectmen, Phineas W. Turner appeals. Reversed.

C. E. Perkins and T. Lucas, for appellant.

J. R. Buck and A. F. Eggleston, for appellees.

ANDREWS, C. J. On the 10th day of May, 1888, the selectmen of the town of Hebron laid out a public highway in that town over the land of Phineas W. Turner, which lay-out was accepted by the town at a town meeting holden on the 6th day of June following. On the 2d day of July Mr. Turner made application for relief in the nature of an appeal from the doings of the selectmen in laying out said highway to the superior court in Tolland county, alleging as a reason for said application that the said highway was not of common convenience and necessity. In the superior court a committee was appointed pursuant to the statute (section 2701, Gen. St.) to hear and determine said application, and to make report thereon. The committee heard the parties, and made their report to the court. Mr. Turner remonstrated against the acceptance of the report, but the court overruled the remonstrance, accepted the report, and dismissed the application of Mr. Turner, with costs. From that judgment he now appeals to this court, and assigns various reasons of appeal.

The statute above cited provides that, "if said committee shall find that the highway is not a common convenience and necessity, * * * said court shall set aside such lay-out thereof; but if they shall find that such highway is of common convenience and necessity * * * the application shall be dismissed, with costs." The said committee, after setting forth the facts at some length, concluded their report in these words: "These are the essential facts in the case; and if on these facts the law is so that all members of the unorganized public have the right as against the plaintiff to fish in North pond, except the part owned by the plaintiff as aforesaid, then the committee are of opinion and find that the laid out way is of common convenience and necessity; but if on these facts the law is otherwise, then the committee are of opinion and find that the laid-out way is not of common convenience and necessity."

The only question we purpose-to consider is whether or not the law is so on the facts stated that all members of the unorganized public have the right, as against Mr. Turner, to fish in said pond. North pond is a natural pond, situated in the towns of Hebron and Lebanon. By deeds which were confirmed by the colonial legislature the title to said pond and the soil beneath it become vested in the proprietors of said towns,—much the larger part in the proprietors of the town of Lebanon. This part, by sundry conveyances, came to Abigail Bosworth in the year 1773. There is no record on the town records or probate records or other record that the title to said land ever passed from said Abigail; and so the committee find that the title to said land "never passed from said Abigail Bosworth to any party or parties, but the same has become lost and abandoned." Of that part which once belonged to the proprietors of Hebron a portion has come to and now belongs to Mr. Turner, and the remainder, so far as the records disclose the title, still belongs to that town. In 1865 the plaintiff became the owner of all the land surrounding the pond. He raised the dam at the outlet so much that he thereby raised the water of the pond 7 1/2 feet. The present area of the pond is 188 acres, of which more than one-fourth is caused by such raising of its waters. The plaintiff applied the water of the pond to manufacturing, in which he employs 120 persons. Prior to the time when the plaintiff so became owner, and "from time immemorial, all members of the great unorganized public, both near the pond and remote from it, whenever and wherever disposed so to do, fished in North pond as a matter of right at all seasons of the year; in boats during the spring, summer, and fall, and through the ice during the winter. This was done without objection from any source whatever down to the time when the plaintiff bought all the land adjoining the pond." "When the plaintiff became the owner of all the land surrounding and adjoining the pond, he posted notices forbidding all persons fishing in the same, and on one occasion he drove a party with force and arms from the pond, whom he found fishing there. He sought to prevent all persons fishing in the pond without his leave, and did so as far as it was within his power." "At one time he spent the sum of one hundred dollars stocking the pond with fish. His objection to fishing was not on account of the value of the fish, for he freely gave permission to fish whenever requested, but through fear that the public might acquire the right by prescription to fish there." These facts, while they may not be sufficient to show that the plaintiff has acquired title to the soil under the original pond, do show that he has acquired the right to keep that soil covered with water. The easement of flowing he owns, and so he owns the water. Manufacturing Co. v. Smith, 34...