Whitton v. Clark

• Decision Date: 31 July 1930
• Citation: 151 A. 305,112 Conn. 28
• Court: Connecticut Supreme Court
• Parties: WHITTON v. CLARK et al.

151 A. 305

112 Conn. 28

WHITTON v. CLARK et al.

Supreme Court of Errors of Connecticut.

July 31, 1930

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Action by Harold Whitton, prosecuted by Nora Dodson Whitton executrix, against Emma Clark and others, to quiet and settle the title to real estate, tried to the court. Judgment for the plaintiff, subject to certain interests in the defendants, and appeal by the plaintiff.

Error and judgment for plaintiff directed.

This action was originally brought by Harold Whitton and, he having died, is now being prosecuted by his executrix. In 1866 Harold Whitton's father, Joseph M. B. Whitton, acquired title to a tract of about twenty acres at Glenbrook in the town of Stamford. He caused a map to be made of the property upon which were plotted certain numbered lots. Between October 2, 1868, and October 19, 1869, he executed to various grantees eight deeds of lots in the tract, covering in all ten lots, designating them by the numbers appearing on the map. The first of these deeds contained a provision as follows: " It is expressly stipulated to be a part of the consideration of this deed that the above premises are sold upon condition that a dwelling house shall be erected thereon to cost not less than Three Thousand Dollars and to be completed within eighteen months from the date hereof, and the further condition that no other building than a dwelling house and buildings appurtenant thereto shall be erected thereon; and if said conditions are not complied with said grantor, or his legal representatives may re-enter and repossess said premises." The other seven deeds contained substantially the same stipulation, except that in some of them the cost of the dwelling house to be erected was fixed at $3,500, and in all the number of months within which it was to be built was left blank.

On July 19, 1871, Whitton, in conjunction with the owner of some adjoining land, filed for record the map covering these lots and others in the tract he owned, fifty-four in all. Upon this map was also delineated certain streets on which the lots abutted. The tract is irregular in shape and is crossed by a railroad. At the north, westerly of the railroad right of way, appears an unnamed street which at its south end opens into an area into which also run two other streets; Union street running east and west, and Cottage avenue running north and south. Westerly of the unnamed street is a triangular tract running at the north nearly to a point, divided into nine lots, three of which face Union street and the others abut upon the unnamed street. The map contains no statement of any conditions or restrictions upon the lots. In August, 1871, Whitton made three more deeds to different grantees of lots in the tract, two of one lot each and the other of eight, and these deeds contained a stipulation as follows: " It is expressly stipulated to be a part of the consideration of this deed that the above premises are sold upon the condition that no dwelling-house shall be erected thereon to cost less than Thirty-five Hundred (3500) Dollars and the further condition that no other building than a dwelling house and buildings appurtenant thereto shall be erected thereon, and if such conditions are not complied with said grantor or his legal representatives may re-enter and repossess said premises." Beginning about a year later, Whitton made a deed of one lot by number; he and his wife made a similar deed of another lot; he, as executor of his wife, made two other similar deeds, one of three lots and one of one lot; Whitton also made a deed of land in the tract without reference to the map or lot numbers of about three quarters of an acre and another deed of about four acres, a part of which is apparently in the tract; and none of these deeds contained any restrictions or conditions. In 1885 Whitton, as executor of his wife, conveyed one lot by a deed stated to be upon an express condition that no building except for church purposes should be erected upon it within fifteen years, but without other condition or restriction, and in 1924 Harold Whitton conveyed three adjoining lots, without condition or restriction, to the church now claiming to own that lot.

Harold Whitton acquired title to all the lots in the triangular area westerly of the unnamed street except the most westerly of those abutting upon Union street. He also owned at his death four contiguous lots bounded easterly by the railroad, southerly by a street cailed New Hope street, westerly by Cottage avenue, and northerly by a lot now claimed by the estate of Franklin E. Randolph; and he also owned two other lots fronting on Cottage Avenue. Three of these lots had been conveyed by his father to the grantees under whom Whitton held title, subject to the stipulation in its first form, but no claim is made that in any conveyance of the other lots he owned they were subjected to the burden of a stipulation similar to either of those quoted.

The plaintiff seeks an adjudication against the defendants who claim to own other lots in the tract that he has an unincumbered title not merely to the lots in the triangular area but also to the land within the bounds of the unnamed street between them and the railroad right of way and to a portion of the area into which it opens on the south, which forms a continuation of Union street beyond the easterly boundary of Cottage avenue as far as that right of way, and also that none of the lands owned by him are burdened with restrictions upon their use arising out of the stipulations in the deeds to the lot owners of the tract.

James E. Brinckerhoff, of Stamford, for appellant.

Norris E. Pierson, of Stamford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

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

With reference to the first claim, the law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands. Town of Derby v. Alling, 40 Conn. 410, 432; Pierce v. Roberts, 57 Conn. 31, 38, 17 A. 275; Fisk v. Ley, 76 Conn. 295, 300, 56 A. 559; Street v. Leete, 79 Conn. 352, 358, 65 A. 373. The courts are in decided conflict as to the extent to which any lot owner can claim that the streets plotted upon the map must remain subject to be opened for use. Some courts hold that he has a right to require this as to all streets plotted on the map. 1 Elliott, Roads & Streets (4th Ed.) § 132. Others restrict his right to such streets or parts of streets as give him access to some other public way. Reis v. New York, 188 N.Y. 58, 73, 80 N.E. 573. In Town of Derby v. Alling, supra, we say at page 432: " Where the owner of village property makes and publishes a map of it, with streets distinctly delineated, and then sells lots bounded on these streets, he comes under obligation to his vendees to open the streets to the public; the precise extent of the obligation being dependent on the particular circumstances of the case." While thus we accept the principle that the right of a lot owner does not extend of necessity to all the streets in the tract delineated upon the map, we have not in that case or elsewhere attempted to fix the limits of his right. On the one hand, to restrict that right to such streets as will give him access to some other public way is to take too narrow a view, for it must fairly be assumed that he bought his lot in reliance upon the situation disclosed upon the map so far as it would be beneficial to him. On the other hand, to give to every lot owner in the tract the right to demand that every portion of a street delineated upon it shall be held subject to a future use for highway purposes, no matter how remote it may be from his premises, and how clear it may be that it will never be of any value to him, is to adopt a doctrine calculated to lay a dead hand upon the natural use development, and sale of property as the needs of a community may develop. This public policy...