La Voie v. Marshall

• Decision Date: 23 November 1954
• Court: Connecticut Supreme Court
• Parties: Roland E. LA VOIE v. George MARSHALL et al. Supreme Court of Errors of Connecticut

Page 508

109 A.2d 508

141 Conn. 681

Roland E. LA VOIE v. George MARSHALL et al.

Supreme Court of Errors of Connecticut.

Nov. 23, 1954.

Raphael Korff, Bridgeport, for appellants (named defendant and others).

David R. Lessler, Bridgeport, for appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN and WYNNE, JJ.

O'SULLIVAN, Associate Justice.

The following facts found by the court will be ample to serve the purpose of this appeal. In the early 1940's, Lester B. and Opal Shelton became the owners of approximately 200 acres of land. That part which is involved in this litigation lies in the town of Shelton. On the west, the tract abuts a public highway known as Booth's Hill Road. The property was, when acquired, uncultivated pasture and woodland. Visible on its were traces of paths made by cattle and by vehicles used in hauling wood. Two entrances through barways led from the highway, one near the northwest corner and the other about 150 feet south of that corner.

On January 12, 1949, the Sheltons conveyed an interior lot to the defendants George and Bernice Marshall. The westerly line was described as 150 feet in length and as being 300 feet from the highway. The conveyance contained this clause: 'Also granting a right of way over the land of the grantors to Booth's Hill Road.' Sometime before the delivery of the deed the parties had gone upon the property and had staked off the lot. On that occasion, as well as at the time of the execution of the deed in an attorney's office, the Marshalls had been told that the right of way to be granted would run westerly to the highway in a straight line from a point at the southerly line of their lot--a distance of 300 feet--and the deed was accepted upon that understanding. Such a way would lead to the more southerly of the two barways mentioned above.

During the spring of 1949, the Marshalls commenced work on the foundation of a home upon their lot. The granted right of way was then grown to brush and, until cleared and improved, would not be readily adapted for use by trucks carrying building materials. At that time there was a pathway running diagonally from a point near the southwest corner of the Marshall lot toward the more northerly of the two barways. Since this pathway was less obstructed and on higher ground than the right of way, the Marshalls sought and obtained oral permission to use it temporarily in delivering building supplies to their lot.

In the fall of 1949, the Sheltons conveyed another interior lot to the defendant Guest and, later on, still another to Edna A. Sanford, through whom the defendant Wells subsequently derived title. Guest has joined the named defendant in this appeal, but Wells has refrained from doing so. The northerly boundary of the Guest lot was described as fifty feet south of the southerly line of the Marshall property, the fifty-foot strip being reserved by the Sheltons as a possible location for a future public highway. Similar reference appears in the deed to Wells' predecessor in title, whose lot, lying just north of the strip, was some distance to the east of the Marshall property. Both the Guest and the Sanford conveyances contained the grant of 'a right of way over land of the said Lester B. Shelton and Opal A. Shelton * * * to Booth's Hill Road.' One of the Sheltons had indicated to Guest the same location for his right of way as had been pointed out to the Marshalls for theirs.

On November 1, 1949, the Sheltons conveyed to the plaintiff the lot lying between the Marshall property and the highway. As a neighborly gesture the plaintiff allowed the Marshalls and the other defendants to continue to make temporary use of the diagonal pathway upon his land. In the meantime the defendants worked on the right of way leading to the southerly barway, clearing brush and smoothing out the surface. Although this right of way has been and can be used by vehicles, the defendants eventually became dissatisfied with it because of an outcropping of rock. To blast the rock would cost a substantial sum.

After the defendants had used the diagonal path over the land of the plaintiff for about a year, he inclosed his lot and erected a gate across the path. When the defendants threatened to remove it, he instituted the present action. The court granted the injunction sought by him and restrained the defendants from using the diagonal path and from removing the fences.

The defendants are not entitled to have the finding corrected by adding facts which they insist are admitted or undisputed. Section 447 of the Practice Book requires that '[i]f a party claims that a fact should be found on the ground that it is material and either admitted or undisputed, the evidence or transcript of proceedings upon which the claim is based should be printed.' The failure of the defendants to print an appendix renders impossibly any addition to the finding. State v. Reddick, 139 Conn. 398, 401, 94 A.2d 613. Nor can the defendants have the finding corrected by striking out certain paragraphs to which they object, since there is ample evidence appearing in the appendix to the plaintiff's brief to support each of the challenged paragraphs.

The basic claim of the defendants is that, being purchasers of interior land acquired by a deed which granted a right of way but failed to describe its location, they are entitled, as a matter of law, to use the diagonal way over ...