Russo v. Corideo

Keeler, J. The discussion of the points raised in this case, as the appellant states in his brief, is principally concerned with the construction of the clause in the deed from Gaffney to Albert which describes the passway. A careful consideration of the facts found as *671 above stated, having reference to the sketch or diagram given in connection therewith, will render unnecessary any extended discussion of the same in the opinion. It is conceded, as it must be by all the parties, that the task before us is to discover the intent of Gaffney in his use of the words in question. At the time of passing title he was the owner of property including both the dominant and servient estates, as they were to come into being. He had a free hand as to easements, to make them of such nature and extent as he chose. His intent is evidenced by the deed which he gave, taken in connection with the property which he sought to convey and the adjoining property on the south, ownership of which he retained. The court has found that previous to the conveyance, he had made use of a pass-way substantially fifteen feet in width, situated for most of its extent on his own land, but that at its northern end, in view of the high bank walls on the right of the way, he had used land of his abutting neighbor on the west across its corner where this land fronted on Rock Street, and — so far as appears — without objection, from the adjoining owner, but nothing appears of record to show that he had ever acquired any rights therein either by permission, or adversely. He had been using a way of about fifteen feet in width; that was what he wished to continue to enjoy, being ample for both foot and vehicular passage. So long as he could still make use of the Kramer property he had no occasion to remove the obstructions at the farther end of the passway; but when he should no longer be able to pass over the corner of the Kramer land, he quite naturally desired to be safeguarded with a right of way, which could be made passable by the removal and relocation of the bank walls at that point. He had no other way of access to the back land which he retained. To attribute to him an intent to act in the *672 manner just indicated, is merely to state what any man under similar circumstances would be likely to do. This leads to the principal issue in the case, whether there is anything in the phraseology employed in his deed, which would negative such an intent, or which would compel us to some other conclusion in the way of interpretation of the instrument, since the final rule of interpretation is what he meant by what he said. It is contended by the appellant that since he used the words “more or less” and used them in connection with the words “and at present distinguished and bounded by stone and wood fence,” the extent of the passway is to be determined solely by the situation of the stone wall running in a general southerly direction through the land conveyed by Gaffney, and the situation of the board fence running along the east side of the Kramer property, in other words, that these fences are monuments which control a location ambiguously ' described in preference to the indicated width of fifteen feet, more or less. The appellant, in support of this claim, relies upon the well-settled rule that in cases of contradictory or uncertain description known and fixed monuments will control courses and distances, and cites a number of Connecticut cases as authority. The case first cited, Belden v. Seymour, 8 Conn. 19, 25, also gives the principle or reason lying back of the rule: “The least certainty must yield to that which is most certain, if they cannot be reconciled.” This last observation marks the rule as one of construction and not of law, not imperative and exclusive, but as an aid in determining the intent of the grantor. If the inflexible application of the rule just noted does not clarify his intent, but yields a result utterly at variance with the manifest reason for the existence of the passway, then it is to be laid aside, if the application of the measurements given yields a reasonable and logical result, taken *673 in connection with surrounding circumstances, especially the physical condition of the property under consideration, its situation and the uses to which it might be put. The defendant’s claimed construction of the reservation is that having regard to the fact that the dimensions of the passway are stated with the qualification of the words, “more or less,” and since the actual measurements show that at the northerly end of the passway it is open to the extent of two or three feet, there is nothing in the reservation which would entitle Gaffney and his successors in title to any greater width of pass-way at or beyond that point. The words “more or less” in their ordinary use are to be taken in connection with all other features in any given transaction, they are words of caution, denoting some uncertainty in the mind of one using them and a desire not to misrepresent. “The words ‘more or less’ and the word ‘about,’ used in connection with quantity or distances, are words of safety and precaution. They are intended merely to cover some slight or unimportant inaccuracy, and, while enabling an adjustment to the imperative demands of fixed monuments, they do not weaken or destroy the statements of distance and quantity when no other guides are furnished.” 1 Jones on Real Property, § 407, p. 337. To the same effect and in the same words, is 4 Thompson on Real Property, § 3155, p. 255, both citing and practically quoting from the leading case of Oakes v. DeLancey, 133 N. Y. 227, 30 N. E. 974. There can be no- such margin of tolerance created by the use of these words, as to make them effective or controlling in the definition of a passway exceeding fifteen feet in width at its south end and narrowed down to not more than three feet at the north. Gaffney. *674 needed and evidently desired a passway for vehicles and pedestrians adequate to the ordinary uses of his back land; now, in view of the fact that he was the owner of the front land and could in conveying it provide for such an adequate easement, we must find something in the deed or surrounding circumstances to negative the idea that he did not succeed in his endeavor. It is clear that he designed to get from the back land to Rock Street, and to provide a proper way so to do. His purpose and intent are stated distinctly in the first clause of the reservation paragraph; he saves and reserves “a right of way running easterly in a direct line from Rock Street to my own land in the rear of the above described property;” he wished to get from his rear property to Rock Street, that is, to have an adequate way running northerly far enough to give him a clear entrance upon the eastern end of the cul-de-sac, which formed a part of the western line of the property which he conveyed to Albert. He needed and evidently strove to reserve a right of way of sufficient width for the purposes above indicated, not one ending in a bottle neck at the north end three feet wide and available only for pedestrians, and not for vehicles larger than a baby’s perambulator or a boy’s miniature express wagon. How little importance is to be attached to the second clause of this paragraph is made clear when we note that from the scaling of the map, Exhibit 1, of which the sketch hereinbefore given is a reduced reproduction, it appears that the width of the way at its southern end is about eighteen feet, that the distance from the post on the northeast comer of the Kramer land to the point in the stone wall where the latter turns abruptly westward .and runs to the line of the end of Rock Street is approximately thirteen feet, while the extent north and south which the Gaffney deed puts at fifty feet is in fact about sixty-eight feet, *675 and that the way to be effective and adequate would need an addition at the northern end of about eight feet, running- northerly, which was approximately the amount added by the judgment of the court. That Gaffney knew that in the use he was making of the passway, whereby he crossed a corner of the Kramer land, he did not use the whole of the way he intended to reserve, and that some readjustment of the way would be called for in the future, is evident by his use of the words “at present distinguished and bounded by stone and wood fence.” The foregoing considerations show how little significance can be given to this second clause as regards figures and distances. At best it was only a partial and incomplete boundary of the way in question. The only really significant idea is that of the temporary character of the way therein referred to. It is the first part of the paragraph which is significant and controlling; it reserves a right of way which was required for the proper use of the back land and it tells where it, is to begin — at Rock Street — and end — on the rear land. Here we have a degree of certainty, which is not properly to be modified by any measurements or references. Its beginning and end are fixed, and its westerly boundary also-, that is, by the fixed monument of the board fence between the property of Gaffney and the Kramer property. This is the first call in the reservation paragraph, and much more certain, material and important than the words in the second clause, forming the second call. The first call should therefore control. Clark v. Beloff, 71 Conn. 237, 41 Atl. 801. The action of the court in determining the intent and purpose manifested in the deed, and in fixing and defining the location of the passway, was correct. The only other claim of defendant requiring attention is that the plaintiffs were not entitled to an injunction in *676 the form granted by the court. Plaintffs claimed a mandatory injunction. This was denied by the court, on the ground that the defendant had not created the obstacles to passage over the northern end of the way established and defined by its judgment herein, but therefore since the plaintiffs had a right to clear away such part of the land as was included in the judgment, they had the right so to do without hindrance or molestation from defendant. It is to be noted that in this same judgment the court had quieted the title to the passway and established its boundary and limits. Any interference with the establishment in a shape necessary and proper of a passway over this additional land would be a trespass, and if the court from the evidence had reason to believe that a trespass was threatened, or was likely to occur, its action in restraining such a trespass was lawful and proper. For any damage resulting from the acts of plaintiffs in this regard, the defendant has adequate security in the bond required by the judgment to be given to him by plaintiffs, conditioned for the perfromance of the work in accordance with the judgment. There is no error. In this opinion the other judges concurred.