Dewire v. Hanley

Reed, J. On November 12th, 1888, Samuel Brooker deeded to the plaintiff a piece of land in Torrington, containing about 75 square rods, and the southerly boundary of this land was on the grantor’s own land, on a line running parallel with the northerly side of a stone-wall and thirty feet northerly therefrom.- This stone-wall was substantially three and a half feet thick, and formed the boundary between said Brooker’s land on the north and the defendant’s land and land of John Looby on the south, the defendant’s land being easterly of said Looby’s. The defendant acquired his land in 1874, by a warranty deed, and that was bounded northerly on this wall. In the deed from Brooker to the plaintiff is this clause, following the covenant of warranty: “ Said grantor further sells, conveys, and transfers to said Mary A. Dewire, her heirs and assigns forever, a right of way and passway over the land of said Brooker between the lands of said Hanley and John Looby on the south and the land above described on the north over and upon any portion of said Brooker’s land situate as aforesaid, in common with said Brooker, his heirs and assigns.” About six years ago the defendant commenced to remove said wall, and has since entirely removed the same, and the place where it stood has been leveled. The plaintiff, since she received her deed from Brooker in 1883, has always treated her grant of passway rights in said deed as though the land over which she was granted a right of way was in fact hounded north by her own land, on the south line of which she had built and maintained a fence, so as to give her a passway to and from a street to the easterly, called High Street, and she has continuously exercised that right as her necessity and convenience required ever since. This passway is said in the finding to he known as “ French Street,” and it is a little narrower at its easterly end on account of a piece of land of Doughty *456 and Brooker, which bounds the plaintiff’s land on the east, approaching nearer to the defendant’s land than does that of the plaintiff; so that the land available to plaintiff for a passway is narrower at its easterly end, where it opens into High Street, than it is where lands of plaintiff'and defendant are opposite, being at High Street only about twenty feet wide. While the old stone-wall remained standing, no part of the land on which it stood could be traveled over by the plaintiff, and since its removal the defendant has set posts in that portion of the land originally covered by said stonewall which was north of its middle line, and built a fence, and this is the encroachment complained cf. The trial judge, at the request of the parties, and in the presence of their attorneys, viewed the premises, and from the oral and documentary evidence and his observation, found that the north line of the defendant’s land was the middle line of the old stone-wall, and located that line. It also found that the plaintiff did not show on the trial that she had suffered any specific pecuniary, loss or expense on account of the acts of the defendant in constructing and maintaining the fence, but did find that should the plaintiff and others be deprived of the use for passway purposes of the strip of land formerly covered by the old stone-wall and lying north of the middle line thereof, the value of the plaintiff’s rights in said passway would be substantially less than they would be with the right and opportunity to use said strip, and rendered judgment for $10 damages, and an injunction. The first reason of appeal is that the court erred in overruling the defendant’s claim that since no part of the land occupied by the wall was used as a passway by the plaintiff or others for more than fifteen years after 1883, that therefore, if the plaintiff ever had a right to use any of the ground under said wall, that right was lost by the operation of the statute of limitations. There was no error in this ruling. If such issue was raised by the pleadings, it is enough to say that, for aught *457 that appears, the stone-wall was, when erected, a proper form of division fence for that place. The party erecting it had, therefore, a right to put it where it was, and no claim of adverse possession could result in his favor therefrom, as to any part of the ground covered by it. If, however, such issue was not raised by the pleadings, it could not be the basis of a judgment. Greenthal v. Lincoln, Seyms Co., 67 Conn. 372, 35 Atl. 266; Stein v. Coleman, 73 Conn. 524, 48 Atl. 206; New Idea Pattern Co. v. Whelan, 75 Conn. 455, 53 Atl. 953. The second reason of appeal is that the court erred in overruling the defendant’s claim that inasmuch as the plaintiff, after coming into possession of her property, selected and used for a passway only a narrow strip of the land between the plaintiff’s and defendant’s land, no part of which covered any of the land on which the old stonewall was located, and inasmuch as the plaintiff once elected to use and occupy a certain portion of the land over which she had an easement, she could not now alter or enlarge her right of way. This is practically a claim that the plaintiff had abandoned a part of her right of way by not at first locating and using it. There was no error in overruling this claim. The plaintiff’s deed gave her a right of way over all this strip of land under the north half of this wall. The fact that while the stone-wall remained she could not and did not use the land under it for a- part of her passway, did not constitute an abandonment. She did not lose thereby any part of the way actually granted. Quigley v. Baker, 169 Mass. 303, 47 N. E; 1007; Bannon v. Angier, 2 Allen (Mass.) 128; Arnold v. Stevens, 24 Pick. (Mass.) 106; Butterfield v. Meed, 160 Mass. 361, 35 N. E. 1128; Washburn on Easements (4th Ed.) 717. There is nothing in the claim that the plaintiff was entitled to anything more than a convenient use of the pass-way, and as she had that she could not be damaged by this 'obstruction. Where a passway is clearly defined, the owner is entitled to the whole way and is not confined to *458 a reasonable and convenient way within its limits. Nash v. New England M. L. Ins. Co., 127 Mass. 91. The claim that the court erred in granting the injunction because the plaintiff had adequate remedy at law, cannot be maintained. It is well settled that an obstruction to a private way forms one of the classes of cases in which an injunction may be sought. 23 Amer. & Eng. Ency. of Law (2d Ed.) 38 ; Gerrish, v. Shattuck, 128 Mass. 571; Tucker v. Howard, ibid. 361; Cadigan v. Brown, 120 id. 493; Tucker v. Howard, 122 id. 529. The court committed no error in holding that the rights of the parties were not too uncertain to warrant an injunction. It found from the evidence and a view of the premises that the middle of the old wall was the boundary line, and located that line, and found that the defendant had built the fence north of it. These are questions of fact which we cannot review, and we find no error of' law on the part of the trial court in arriving at them. This sufficiently disposes of all the reasons of appeal except the question of damages. Plaintiff’s rights were invaded and she was entitled to some damage. Watson v. New Milford Water Co., 71 Conn. 442, 42 Atl. 265. The court committed no error in awarding $10 damages. There is no error. In this opinion the other judges concurred.