Zavisza v. Hastings

• Decision Date: 29 November 1955
• Court: Connecticut Supreme Court
• Parties: Stanley ZAVISZA et al. v. George M. HASTINGS, Jr. Supreme Court of Errors of Connecticut

Page 902

118 A.2d 902

143 Conn. 40

Stanley ZAVISZA et al. v. George M. HASTINGS, Jr.

Supreme Court of Errors of Connecticut.

Nov. 29, 1955.

James S. Coburn, Suffield, for appellants (plaintiffs).

Charles Alfano, Suffield, for appellee (defendant).

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

DALY, Justice.

The plaintiffs brought this action to recover damages from the defendant. The latter claimed a right of way over the land of the plaintiffs and, in his counterclaim, sought an injunction restraining them from preventing his use and enjoyment of this way. The plaintiffs have appealed from the judgment rendered for the defendant on the complaint and the counterclaim.

In their assignments of error, the plaintiffs claim that the trial court erred in refusing to find facts set forth in twenty paragraphs of the draft finding and in finding the facts stated in twenty-two paragraphs of the finding. The finding is not subject to correction. The essential facts, which are supported by the evidence, are the following: Since April 5, 1952, the plaintiffs have been the owners and occupiers of land on Hill Street in the town of Suffield. The defendant is the owner of two parcels of land, herein referred to as the 'homestead lot' and the 'north lot.' He acquired them from his father, George M. Hastings, by warranty deed dated April 18, 1952. These two parcels have been owned by members of the defendant's family for a hundred years, more or less. The homestead lot fronts on Spruce Street and is separated from the north lot by two intervening parcels of land. The one immediately to the north of the homestead lot is owned by the plaintiffs, and the one immediately to the north of the plaintiffs' property and adjoining the north lot on the south is owned by Anthony Carney. A roadway runs in a northwesterly direction from the homestead lot over the plaintiffs' land and the land of Anthony Carney to the north lot. In May, 1952, and for many generations prior thereto, the defendant and his predecessors in title gained access to the north lot by this roadway. It is of hard surface with a gravel base and has well-defined wheel marks indicating its existence for many years. The defendant and his predecessors in title had placed many loads of stone and gravel on the roadway. They were the only persons who repaired and maintained it.

A divisional fence was constructed between the homestead lot and the plaintiffs' property by the defendant's predecessor in title and was maintained by him and, subsequently, by the defendant. An opening in the fence was left for the roadway at its entrance to the property now owned by the plaintiffs, and removable bars were placed there to prevent cows from leaving the property. The defendant and his predecessor in title removed the bars when they traveled on the roadway across the plaintiffs' property to the north lot. The roadway is plainly visible from a considerable distance, and it would have been visible to the plaintiffs if they had investigated their property prior to its purchase by them.

The cows of the defendant's grandfather, H. Dowd Hastings, were driven daily from the homestead lot over the roadway to the north lot. From 1872 on, the defendant's predecessors in title pastured cattle or raised crops on the north lot each year, continuously, and gained access to it solely by way of the roadway from the homestead lot across the properties now owned by the plaintiffs and Anthony Carney. The defendant does not have, and his predecessors in title never had, any means of access to the north lot except by way of the roadway running over the plaintiffs' property. The defendant's grantor, George M. Hastings, used the right of way under a claim of right continuously, openly and notoriously from April 3, 1914, to April 18, 1952, a period of thirty-eight years. In conveyances to former owners of the properties now owned by the plaintiffs and Anthony Carney, it was stated that the properties were subject to a right of way from the homestead lot to the north lot. In the deed transferring title to the plaintiffs, dated April 5, 1952, no mention of the right of way was made.

In May, 1952, the plaintiffs obstructed the defendant's use of the right of way. The defendant, in proceeding from the homestead lot to the north lot over the right of way, removed the obstruction and continued to use the right of way as he and his grantor had used it. On May 10, 1952, the plaintiffs notified the defendant, under the provisions of § 7131 of the General Statutes, that they disputed his claimed right of way over their property.

The court concluded that the defendant and his predecessors in title have used the roadway over the properties now owned by the plaintiffs and Anthony Carney openly, notoriously, adversely and continuously for a hundred years, more or less, under a claim of right.

Section 154 of the Practice...