Vennard v. Morrison

• Decision Date: 14 December 1964
• Docket Number: No. CV,CV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Thomas W. VENNARD v. Mae E. MORRISON. 12-6304-2893.

Page 202

209 A.2d 202

3 Conn.Cir.Ct. 120

Thomas W. VENNARD v. Mae E. MORRISON.

No. CV 12-6304-2893.

Circuit Court of Connecticut, Appellate Division.

Argued June 1, 1964.

Decided Dec. 14, 1964.

Jules A. Karp, Manchester, for appellant (defendant).

Anthony J. Gryk, Manchester, for appellee (plaintiff).

KOSICKI, Judge.

This is a suit for damages and for the restoration of lateral support to the plaintiff's land. On the pleadings and the evidence adduced at the trial, the essential issues concerned the settlement of a boundary line dispute and the determination of the rights of the parties in a strip of land, title to which was in controversy, the resolution of this dispute being necessary in order to establish the boundary common to both parties. The court fixed the boundary line, awarded damages and issued an injunction compelling the defendant to construct a wall, replacing a wall removed by her, in order to restore support to the plaintiff's adjacent land in its natural state. From this judgment the defendant has appealed.

The material facts found by the court and not subject to correction are as follows: The plaintiff and defendant are the present owners of adjoining lots of land, lying southerly of Lilley Street in Manchester, that prior to 1912 were part of a larger tract owned by James Trotter. On January 9, 1912, Trotter conveyed to one McCann a lot of land described as follows: North on Lilley Street, 140 feet; east on Summit Street, 70 feet; south on James Trotter land, 110 feet; and west on James Trotter land, 50 feet. In November of the same year, Trotter recorded a map of lots which included not only the lot conveyed to McCann but other lots south of Lilley Street and west of Summity Street on the map, hereinafter referred to as the Trotter map. The McCann lot was designated as lot 33. McCann was a predecessor in title of the defendant. By deed dated March 1, 1915, Trotter conveyed the lot next westerly of the McCann lot to the plaintiff. The deed designated this lot as No. 37 on the Trotter map and described it as follows: Northerly by Lilley Street, Seventy-one and 5/10 (71.5) feet; east by lands of Thomas McCann and James Trotter, Ninety-five and 7/10 (95.7) feet, partly by each; south by land of John Graham, Fifty-three and 4/10 (53.4) feet; and west by land of Joseph McLean. The plaintiff has owned lot 37 continuously to the present time.

In 1915 and at all times thereafter, lot 37 was elevated above lot 33, the natural slope of the land being downward from west to east. In 1918, a successor in title to McCann, one Van Dyke, in the course of constructing a garage and driveway to Lilley Street, next to his west boundary line, which was the plaintiff's east boundary line, excavated and removed part of the slope and then constructed in the excavated area and along or near the common boundary line a retaining wall which furnished support to the higher ground of the plaintiff west of the retaining wall. This wall ran southerly from Lilley Street for a distance of about 50 feet, with the northerly 25 to 30 feet exposed. The garage was set back from Lilley Street about 30 feet, with its northwest corner resting on the retaining wall and its southwest corner about one foot easterly of the southwest corner about one of which the front of the garage faced slightly toward the retaining wall. By deed dated November 20, 1924, Van Dyke conveyed to the town of Manchester a portion of the northeast corner of his lot, thereby rounding out the corner and reducing his frontage by 19.87 feet and leaving, by arithmetical subtraction from his original frontage of 140 feet on Lilley Street, a remainder of 120.13 feet.

In March, 1956, the defendant became the owner of lot 33, excluding the portion conveyed to the town of Manchester, the premises being described in her deed as follows: 'Northerly: By Lilley Street, 120.13 feet, more or less; Northeasterly: By an area with a radius of 10 feet and a delta angle of 126~ 34' connecting the southerly line of Lilley Street with the westerly line of Summit Street a distance of 22.09 feet; Easterly: By Summit Street 50.13 feet, more or less; Southerly: by lot No. 34 as shown on a map entitled 'Map of Land of James Trotter, So. Manchester, Conn. showing layout of Lilley Street Scale 1" = 60' Nov. 1912' which map is recorded in the town clerk's office in said Manchester, 110 feet, more or less; and Westerly: by land of Thomas W. Vennard 50 feet more or less. Said premises being the major portion of lot No. 33 as shown on said map of land of James Trotter.' Subsequent to the defendant's ownership, vehicles in exiting from her garage to Lilley Street were being damaged by contract with the retaining wall built by Van Dyke. As a consequence, the defendant, in 1957 and 1958, caused all but five feet of the exposed section of the retaining wall to be removed. Before doing this, she notified the plaintiff of her intention and he protested her doing it. After the wall was removed, the plaintiff requested the defendant to rebuild it, which she refused to do. The plaintiff's lot, on its northerly line, is above the grade of the sidewalk abutting his property on Lilley Street, and the plaintiff had built a wall two feet high across the front of his property next to the sidewalk and extending from the northwest corner of his lot to a point ten feet westerly of his northeast corner. The plaintiff has used as a drive an area lying along his east boundary line, with entrance and exit being made through the ten-foot section next to his northeast corner, where no wall exists. Because of the removal of the wall by the defendant, the land west of the wall began to subside to such an extent that the plaintiff's driveway became slanted downward to the east. A vehicle left standing by the plaintiff in the driveway area slid downward toward the defendant's garage anbd had to be extricated; and because of this the plaintiff no longer uses this area as a driveway.

The simple issues presented in this appeal are whether the soil subsidence occurred on the plaintiff's land or solely on the disputed strip of land which the defendant claimed to own. In resolving this issue, it became necessary to determine the location of the common boundary between the plaintiff's and the defendant's adjacent parcels and, subordinately, to adjudicate title. The burden was upon the plaintiff to prove the location of the boundary line. Simmons v. Addis, 141 Conn. 738, 741, 110 A.2d 457. In deciding these issues in favor of the plaintiff, the court based its conclusion upon the following facts found.

The Trotter map was not offered as an exhibit but was freely used, without objection, by the witnesses and the court in connection with testimony pertaining to the location of certain existing merestones, remnants of a fence and of the Van Dyke wall, lot measurements, and boundary lines between the various lots, including those now owned by the parties. This map showed the plaintiff's east boundary to be straight for its entire length of 95.7 feet, which would include the northerly 50 feet forming the common boundary between the plaintiff's and the defendant's land. The southwest corner of the plaintiff's land was marked by a merestone, the existence of which was known to both parties. There was a merestone marking the southeast corner of the plaintiff's lot. There was a merestone on the plaintiff's east line, at the southwest corner of the defendant's lot, which was in place when the defendant became the owner. About 1958, after the defendant removed the retaining wall, the plaintiff had his land surveyed, and the surveyor placed a merestone to mark the northeast corner of the plaintiff's lot at its junction with Lilley Street. All three merestones are points in a straight line which delineates the plaintiff's easterly boundary and marks the common boundary of the parties' properties where they adjoin. The plaintiff's property boundary lines have remained unchanged since 1915. He has, since before 1918, exercised complete, open and exclusive possession and control over the full width of the ten-foot driveway which adjoins the defendant's property and is west of the common boundary.

After the defendant acquired her property, she had it surveyed by a qualified and licensed civil engineer and surveyor. The results of this survey appear in a plan or map introduced as defendant's exhibit No. 1. In preparing the survey and plan, the surveyor did not refer to the Trotter map for the reason that the original deed from Trotter to McCann, defendant's predecessor in title, made no reference to such map. Exhibit No. 1 shows the northeast corner of the plaintiff's property to be 6.4 feet westerly of the merestone set by the plaintiff's surveyor on Lilley Street. This would reduce the plaintiff's frontage on Lilley Street by that amount and correspondingly add a triangular strip to the defendant's property, carved out of land which since 1915 had been west of the Van Dyke wall. It is the defendant's principal claim that the common boundary line shown on exhibit No. 1 is the correct boundary and therefore there has been no damage to the plaintiff's land because of deprivation of lateral support. Admittedly, the subsidence of the soil occurred within the triangular strip.

The defendant has moved to correct the finding by striking certain portions therefrom and by adding thereto seven additional paragraphs, all but three of which were not mentioned either in the assignment of errors or in the defendant's brief. We have examined the evidence and find no reason to correct the finding in any material respect which would be of advantage to the defendant. The further difficulty in which the defendant finds herself is that the court's finding and ultimate conclusions of fact are based on the Trotter map and the testimony pertaining thereto, and that map is not before us as an exhibit. All of the evidence having to do with...