Wambeck v. Lovetri

• Decision Date: 03 August 1954
• Citation: 107 A.2d 395,141 Conn. 558
• Parties: WAMBECK et al. v. LOVETRI. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 395

107 A.2d 395

141 Conn. 558

WAMBECK et al. v. LOVETRI.

Supreme Court of Errors of Connecticut.

Aug. 3, 1954.

James A. Dougherty and Walter A. Hayes, Greenwich, for appellants (plaintiffs).

William L. Beers, New Haven, for appellee (defendant).

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

DALY, Associate Justice.

The plaintiffs brought this action for an injunction and damages. The court rendered judgment for the defendant, and the plaintiffs have appealed.

The material facts found are the following: Prior to May 22, 1916, George Boles, then the owner of land bounded on the east by Sherwood Place, in the town of Greenwich, laid out a roadway through the tract to the property west of it, now owned by the defendant. The roadway, which extended 190 feet westerly from Sherwood Place, is known as Putnam Court. Boles divided his property on the north and south sides of the roadway into lots and sold one, situated on the southerly side, to the plaintiff Frederick Wambeck, 'with the right in common with others to pass over and along said right of way [Putnam Court] to the highway Sherwood Place so-called.' By May 22, 1916, Boles had sold all the lots. Each purchaser was granted an easement similar to that of Frederick. The plaintiffs Frederick and Mary Wambeck now own the land originally purchased by Frederick. The defendant's property, which is bounded on the west by Church Street and on the east by the original Boles tract, was never owned by George Boles. Since 1916 a fence had divided the property now owned by the defendant from the original Boles tract. At a town meeting in Greenwich on October 18, 1943, it was voted that certain private roads, including Putnam Court, be accepted as public highways 'on proper dedication by the owners * * *; the final acceptance of any designated road to take effect on certificate of the Commissioner of Public Works.' On December 28, 1948, the commissioner of public works signed and recorded a certificate stating that he accepted Putnam Court as a public highway. At that time, however, he had not received a proper dedication by the owner or owners. Putnam Court is not a public road. It is a private right of way.

In April, 1951, the defendant removed a portion of the fence at the westerly end of Putnam Court, and he and his agents, guests and visitors now use the roadway as a means of access to his property from Sherwood Place. On June 1, 1951, the administrator c. t. a. of the estate of George Boles purported to convey the fee in Putnam Court to the defendant by a quitclaim deed which has not been recorded. After the conclusion of the trial and the receipt of briefs the plaintiffs filed a written motion to amend the complaint to allege that they and others own Putnam Court. The motion was denied by the trial court 'because it sought to import into the case a new claim after the matter had been fully tried.' The court concluded that, as the plaintiffs had enjoyed and were enjoying the full use of their easement, they had no right to prevent other from using Putnam Court; that for the purposes of this case and under the pleadings there was no occasion to decide whether Putnam Court was a public highway by presumed dedication and express acceptance or whether it was a private way, title to which was in the defendant; that the claim of the plaintiffs that they and others owned Putnam Court was not within the scope of the pleadings and that they needed no equitable relief to protect the full use of their easement. In addition, the court deduced, as stated above, that Putnam Court is a private road or right of way, not a public road. A deduction from other facts found, whether or not it is called a conclusion, and in whatever part of the finding it is placed, is a conclusion. See Siller v. Philip, 107 Conn. 612, 614, 141 A. 872; Hackett v. City of New Haven, 103 Conn. 157, 164, 130 A. 121; Maltbie, Conn.App.Proc., p. 128.

In their assignment of errors the plaintiffs assert that the court erred in denying their motion to amend the complaint without a hearing. In the motion, they alleged that their proposed amendment was 'not at all essential' to their case. It is difficult, therefore, to comprehend this claim of error. In addition, the motion was not filed until after the trial was concluded and briefs had been received. By the proposed amendment the plaintiffs sought to change their alleged status from that of owners of adjacent land, having the right to use Putnam Court in common with others, to that of being, with others, the owners of Putnam Court. The granting of the motion would have required repleading by the defendant and might have resulted in the taking of additional evidence. We cannot hold that the court abused its discretion in denying the motion. Steinecke v. Medalie, 139 Conn. 152, 155, 90 A.2d 875; Benson v. Morey, 129 Conn. 390, 391, 28 A.2d 843; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 620, 7 A.2d 847.

The plaintiffs also assign as error the court's ruling in admitting in evidence the unrecorded deed upon which the defendant relied to prove that he owned the fee of the roadway. As the court concluded that there was no occasion to determine whether the defendant had such ownership, the admission of the deed did not touch the issue upon which the case was decided. The ruling was not harmful to the plaintiffs. Lusas v. St. Patrick's Roman Catholic Church Corporation, 125 Conn. 206, 209, 4 A.2d 333; Maltbie, Conn.App.Proc., § 14.

The plaintiffs claim that they, as the owners of land adjoining Putnam Court, have a special interest in it and the right to object to its use by the defendant. Because of the presumption that owners of land abutting on a public highway own the fee to the center of it, they do, ordinarily, possess special and peculiar rights in the highway. Allen v. Mussen, 129 Conn. 151, 155, 26 A.2d 776; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 483, 138 A. 483, 54 A.L.R. 361; Knothe v. Zinzer, 96 Conn. 709, 714, 115 A. 477; Peck v. Smith, 1 Conn. 103, 132. However, Putnam Court, as was alleged by the plaintiffs in their complaint and determined by the court, was not a public road or highway. We are not...