West v. H.J. Lewis Oyster Co.

• Decision Date: 01 June 1923
• Citation: 121 A. 462,99 Conn. 55
• Court: Connecticut Supreme Court
• Parties: WEST v. H. J. LEWIS OYSTER CO.

121 A. 462

99 Conn. 55

WEST v. H. J. LEWIS OYSTER CO.

Supreme Court of Errors of Connecticut.

June 1, 1923

Appeal from Superior Court, Fairfield County; Frank D. Haines, John W. Banks, and Isaac Wolfe, Judges.

Action by Lucy T. West against the H. J. Lewis Oyster Company for a mandatory injunction to compel defendant to remove obstructions from a certain right of way; also to restrain the maintenance of obstructions interfering with plaintiff's use of said way, and for damages; also with a cross-complaint by defendant. Judgment for defendant, and plaintiff appeals. Defendant also appeals from the action of the court on two demurrers, prior to the trial. No error on either appeal.

The plaintiff's husband and predecessor in title, Pehr F West, on January 31, 1888, purchased of Henry J. Lewis defendant's predecessor in title, certain land in Bridgeport, bounded north by land of Henry J. Lewis, east by land of George Overton, south by the channel of Bridgeport harbor, and west by land of said Lewis, " together with a right of way for teams and foot passengers over the premises of said grantor, at such point as the said Lewis or his heirs and assigns may designate, to and from Pembroke street." Said Pehr F. West and later the plaintiff held the conveyed property up to the time of the beginning of this action. Lewis continued to own the property over which said way was granted until 1895, when he conveyed the same to the defendant company, which has continued to own the same. At the date of the aforesaid conveyance and previous thereto, as a tenant of Lewis for five years, said Pehr F. West had been conducting an oyster business on the premises, and continued to do so for some years thereafter. The servient property owned by Lewis consisted of upland and docks, with a slip adjoining the latter, which was partly bounded on the west by Pembroke street. This property of Lewis on Pembroke street consisted of an L-shaped tract of land, with a frontage on Pembroke street of 46.6 feet. Over practically the whole of this tract plaintiff claimed, in her complaint and on the trial, a right of way having a width on Pembroke street of 43.7 feet, by reason of the same having been used as a way during the five years West occupied the property, afterward sold him, under a lease. On January 31, 1888, the premises of Lewis just referred to were free from buildings or other obstructions excepting a fence running along the northerly line of the property conveyed to West, which fence still remains.

During the time West occupied the premises as lessee, and thereafter while he occupied the same as owner, until the year 1890 West passed to and from his premises across the part of the above-described portion of the Lewis premises lying between Pembroke street and the West premises, but said West never passed across any part of Lewis' premises lying north of West's premises. The soil over which West passed on Lewis' premises was in some places sandy and muddy, and shell and other materials were dumped on the latter premises by West, as well as by Lewis (who also passed over said part of his premises) for the purpose of hardening the same and making it passable for teams. This filling was done in a casual manner from time to time, as the work permitted.

The way thus used by said West extended along a line passing substantially through the house now on said claimed right of way, which house is hereinafter referred to. There was no definite location or designation of a right of way by Lewis, nor by the parties, up to the time of the moving of the building in 1890, hereinafter referred to. In the year 1890 said Lewis moved a building, thereafter used by him and the defendant company as an office, from the southern part of his premises to the part of his premises then being used as a way by said West, which building, with its steps, substantially obstructed the use of the way as it had been used up to that time. This building has been maintained in the same location up to the present year, and Lewis and the defendant company has since that time been in the open, continuous, and exclusive possession of the land covered by the building adversely to the plaintiff and her predecessor in title and under a claim of right.

About the year 1892 or 1893 a fence was built by the said Lewis along the east boundary line, between the Lewis premises and the West premises, which fence was maintained for more than 25 years, and which fence substantially obstructed the remainder of the claimed way south of said building, so that by the building and the fence all of the claimed way south of the north line of the building was substantially obstructed for the statutory period of limitation, and such obstruction was open, continuous, and exclusive, under a claim of right, and adverse to the plaintiff and her predecessor in title.

West did not, during the period he occupied the premises as a tenant, nor thereafter at any time, construct a way across the Lewis premises, as described in the complaint and claimed upon the trial. Upon the moving of the office building in 1890, as aforesaid, Lewis designated a right of way for West from 12 to 15 feet in width, which way passed north of the office building and south of the line drawn from the northwest corner of the West premises approximately in a straight line to Pembroke street; the south line of the way running within 1 or 2 feet of the northeast corner of the office building. From time to time Lewis and the defendant company had made slight changes in the location of the way, and the most material change was the shifting by defendant of the way to the north a few feet, partly over property later acquired by the defendant and its predecessor in title; but these changes have not materially affected the suitability of the way, which has always been an adequate right of way for the purposes set forth in the grant.

At the time of the moving of the office building West objected, on the ground that it would obstruct the way to his premises, whereupon Lewis stated that he would give West a suitable right of way, in accordance with the terms of the grant, and Lewis did thereupon give West a suitable right of way, in accordance with the terms of the grant, which was the right of way above described, passing north of the building, and thereafter, for many years, said West used the way without objection. Neither the defendant nor its predecessor in title has ever agreed with the plaintiff or her predecessor in title to give a right of way in any definite location, or of any definite width, except as stated; nor has the defendant or its predecessor in title made any agreement as to the right of way, except the agreement contained in the grant. Neither the defendant nor its predecessor in title ever gave the plaintiff or her predecessor in title the right of way claimed in the complaint; nor did the plaintiff ever acquire the right of way so claimed.

The property so conveyed to West on January 31, 1888, was at the time, and ever since has been, and now is suitable to be used for commercial purposes only, and with a wider right of way its rental value would be increased. From time to time since the year 1908 the premises have been used by tenants of the plaintiff for business in connection with which automobile trucks have been used on the right of way, and said premises are now being so used. The right of way used by the plaintiff passes, and has passed since 1890, within 10 feet of the office building of the defendant, and the use of the same by motor trucks causes noticeable jar and noise on the defendant's premises adjacent thereto.

The court concluded as matter of law that the use of practically the whole of the west part of the servient estate for the period of about seven years after the conveyance to West did not give to West a right of way over the whole of the same; that such use did not constitute such a designation as was contemplated in the deed either by recognition or acquiescence of the parties; that the designation by Lewis of a different way after the moving of the building was a legal and proper designation of a way under the provisions of the deed in that regard; that ever since 1893, when both building and fence had obstructed the way formerly used, it had been substantially obstructed; that said obstruction was adverse to the plaintiff and her said husband, open, continuous, and exclusive, and any title which they had ever had in said land was lost, and defendant had acquired absolute title thereto; that the way designated in 1890 was adequate and suitable, substantially 5 yards in width, and that slight changes since made have not materially diminished its suitability; that the present use of the way by the plaintiff by motor vehicles is within her legal right for a proper enjoyment of the same, and is not such an additional burden upon the land as to destroy the right of way.

In its cross-complaint the defendant claimed that the use of the way by motor vehicles imposed an additional and illegal incumbrance, and sought an injunction restraining such use. The court rendered judgment for the defendant upon the complaint, and for the plaintiff upon the cross-complaint. The plaintiff appealed, and also the defendant; the latter not upon the judgment upon the cross-complaint upon the facts, but because of the disposition of certain demurrers to the substituted complaint and to certain pleadings thereafter filed in the action. Further facts appear in the opinion.

Henry E. Shannon and James C. Shannon, both of Bridgeport, for plaintiff.

Sanford Stoddard, of Bridgeport, and Joseph F. Berry, of Hartford, for defendant.

KEELER, J. (after stating the facts as above).

From conclusions of the trial court upon...