Dekay v. Shorehaven Realty Co.

Keeler, J. In challenging the correctness of the finding of the trial court, the plaintiffs have annexed to their appeal a transcript of the entire evidence in aid of their claimed corrections, and also made a motion to'correct addresssed to the trial court. . No reasons for. correction appear in this motion, nor do any appear *45 *46 in the reasons of appeal. In some form the reasons for correction should appear. DeFeo v. Hindinger, 98 Conn. 578, 581, 120 Atl. 314. Passing over, however, this defect of form, we find from plaintiffs’ brief and argument that the reasons for correction consist in considerations of the weight of evidence, either as to actual facts proved or inferences therefrom. This practically is asking us to retry the cause, which we cannot do. The evidence is throughout contradictory. Where this is not the case, the corrections desired are in some cases as to matters of which the trial court might have taken judicial notice and probably did so, and as to which this court might also so take notice. Many of the corrections sought are not necessary for the full presentation of the points of law which are made by plaintiffs. This is particularly true of the desired addition of the words “as established in 1919,” after the words “mean high water mark,” to the eleventh paragraph of the finding. This provision was inserted in the contract after it had been prepared, by the express desire of the plaintiff deKay, evidently to safeguard beyond question the littoral rights appurtenant to the property to be conveyed, and this result is attained as well without the interpolation desired as with it. The excision of paragraphs seven and eight is claimed; these are conclusions, and are to be tested by consideration of the map in connection with the contract and deed and such other facts as are set forth in the finding. The motion to strike out paragraph seventeen amounts simply to a claim that the decision should have been the other way. So far as this finding is a direct finding of fact, it is not made without evidence, since it is a conclusion from the effect of the whole evidence, and its correction from that point of view involves a retrial of the cause upon its merits, which, *47 as we have above intimated, is the real aim of plaintiffs. If the finding be regarded as one of law, it stands unless contrary to and not supported by the various subordinate facts found. In Snelling v. Merritt, 85 Conn. 83, 100, 81 Atl. 1039, we said: “To warrant the reformation of a contract on the ground of mutual mistake, the mistake must have been common to both parties, and it must appear that by reason of it both have done what neither intended, and the evidence should be clear, substantial, and convincing as to both these facts.” This case has since been followed and cited in Reiner v. Maier, 96 Conn. 566, 567, 114 Atl. 657, and Back v. Peoples National Fire Ins. Co., 97 Conn. 336, 340, 116 Atl. 603. That the trial judge followed this authority as his ratio decidendi of the cause,'appears from his memorandum of decision, in which he quotes the passage above cited. The burden of proof to prove mutual mistake is on the plaintiff, and he sustains this burden by establishing his case by a fair preponderance of evidence, as in other civil cases; this standard never varies. Nevertheless, it is of such vital importance in the ordinary business life of the community that contracts reduced to writing, entered into by both parties with regard to that solemnity, should not lightly be disturbed, set aside and replaced, that the courts are solicitous that mutual mistakes shall be established only by the clear preponderance of evidence, and that in weighing the evidence the trial court should exercise great care in its consideration, and be satisfied that the proof is clear, substantial and convincing. And it is only when the trier is led by the observance of these conditions to a determination of the question of fair preponderance that his conclusion satisfies the requirements of law. *48 The plaintiffs’ reasons of appeal do not so correspond with the groupings of the points in their brief that we may directly correlate them. The points in the brief are enforced not only by claims properly arising under the finding, but are mingled with claims upon the finding as if it had been corrected as desired, and also with portions of testimony pure and simple. We have therefore to cull out such claims as are properly claims of law under the finding as made, and relate them to the various assignments of error as appear in the reasons of appeal. The first assignment of error is the holding of the trial court that the deed conveyed the property intended to be conveyed. The court has found, and an inspection of the exhibits made part of the finding of facts shows, that the deed follows the contract, both in regard to the wording Of the instruments, Exhibit A and Exhibit B, taken in connection with defendant’s Exhibits 1 and 2. In describing both tracts A and B, the words “Shorehaven Realty Company” are substituted for the word “seller” in the contract, and in the description of tract B, the word “northeasterly” in the contract is changed to “northwesterly” in the deed to correct -an obvious clerical error. Otherwise the contract and deed agree. It appears from the finding that deKay had the contract and map furnished therewith from September 4th, 1923; that there was forwarded to him by mail on or about September 24th, a copy of the deed; and that the latter was executed September 29th. He had for about three weeks a copy of the contract and map, and for three or four days a copy of the deed for comparison therewith. He was a lawyer and an expert reader of maps. It would appear that he had ample time to judge whether he was getting the land for which he bargained. There was no mutual mistake as to the *49 fact that the deed conveyed the property described in the contract. Hence it appears from what has just been said that the contention of the plaintiffs goes one step back and what they virtually claim is in effect a reformation of the contract, that is, that there was not inserted in the contract the description of the property intended to be conveyed as a result of the prior negotiation between the parties. Plaintiffs sustain this claim upon two grounds: first, that the tract conveyed did not give the convenient access to the road which was clearly intended to be given to tract B, and so carry into effect the purpose of the contracting parties; and second, that as regards both tracts, the boundary lines do not actually carry the line adjacent to Shorehaven Road to the real road, and so that plaintiffs get no access thereto by the terms of the conveyance, and it could not have been the intent of the parties to convey this tract. Taking up the first claim just mentioned, it appears from the finding that after the execution and delivery of the deed deKay complained that as ,regards parcel B there was only eight feet on the road for an opening into the land for a drive to the contemplated garage. Defendant then offered to convey an additional strip ten feet wide further up the road, which offer deKay refused to accept. Defendant then shortened up the bridge and filled in a roadway for a distance of fourteen feet so that there was a direct opening of twenty-two feet from the road to the land. Neither of the parties knew the exact location of this property, tract B, upon the ground, except that there was to be about twenty-five feet along the Shorehaven Road, and that the tract was to be used for a garage, and Skofield did not realize that the monuments would come so near to the end of the bridge, and Skofield stated that the intent of the parties was that the plaintiffs should *50 have a driveway to the garage, and Skofield further stated that he did not visualize the bridge as coming so far over the land as it does, and hence shortened the bridge to provide an entrance to the land. When due weight is given to the considerations just mentioned, it by no means follows that there was any mutual mistake as to the tract to be conveyed. There was nothing in the admissions and conduct of defendant from which the court might say that the negotiation of the parties contemplated a bargain for another, distinct tract. There was a mistake as to the facilities afforded to the tract, having regard to the purpose for which it was to be used. The remedy of the plaintiffs was not that sought in the present action, but some relief upon a proper case upon the facts, if under all the circumstances attending the transaction such a case could be established, to compel defendant to construct a proper road. And the court finds that the defendant had remedied the defect, had done just what probably it could have been compelled to do, or to respond in damages perhaps for not doing. At the time of the hearing it stood in a position entirely equitable. Passing to the plaintiffs’ second ground, which is that the tract B described in the contract and deed does not so conform to the boundary lines as indicated in the instruments and the maps accompanying the same and made part thereof, as to make it reasonable that the parties intended to convey such a tract. It is claimed that the measurements indicated for the boundary lines appearing on the map do not carry the land sought to be conveyed to the line of Shore-haven Road, in that this road is to be taken as actually constructed and laid out. The court finds that this is a correct statement of law, but does not give it the decisive effect claimed by plaintiffs. The *51 conclusion of the court may have been based upon a holding that the plaintiffs had by the terms of the deed a right of way by necessity from the line of the road as laid out to its line as constructed, or that the filling up of the road subsequent to the passing of title obviated the effect of the rule, in that the way as laid out became coincident with the way constructed. We do not think that the rule of law above quoted is properly applicable in the instant case. This rule is recognized, and has been applied in this State in Falls Village Water Power Co. v. Tibbetts, 31 Conn. 165, 167, and in Bristol Mfg. Co. v. Barnes, 54 Conn. 53, 55, 5 Atl. 593. In the former case, decided in 1862, it appeared that the plaintiffs were in possession of land fronting on a road long used as a public highway, which crossed a tongue of land thrown open to the public and dedicated to public use, and that the western part of it was immediately occupied by the public as a highway, which highway was a part of the apparent highway running from Sharon to Sheffield; plaintiffs alleged a trespass by defendant, who in turn claimed that plaintiffs had encroached on the land originally dedicated. The court held that “in the absence of any evidence to the contrary, they [the parties to a certain deed] must be presumed to have intended the then apparent and traveled, and the only apparent and traveled highway between the points named, passing the land; and not a highway which existed of record, but had long been apparently abandoned by the public, and the existence and former use of which may not have been known to them.” The same doctrine was applied, and the last-named case cited, in Bristol Mfg. Co. v. Barnes, supra, where a person conveyed a “horse shed on the west side of the north and south highway, westerly of said store, together with the land covered by the same.” The plain *52 tiff claimed that, the land conveyed was restricted to the actual site covered by the shed, while defendant, a subsequent grantee, claimed that the real and legal highway line was west of the front, of 'the shed (since demolished) and ran through it,, and that he might take a plot thirty-six feet by eighteen feet (the dimensions of the shed) back from a line which a survey might show as the correct west line of the highway. The court held that there was conveyed by the deed only the land on which the shed actually stood, and that the parties to the deed mentioned contracted with reference to the apparent and actually used roadway. In the opinion in the case first cited, the court places its adoption of the rule as resting upon the fact of “absence of any evidence to the contrary.” It is very evident that in both of these cases the parties were acting in the absence of any evidence to the contrary, and, as the court remarks, that it is not to be supposed that the parties had anything else in mind. The exact opposite of this condition exists in the instant case. A map was furnished with the contract, a map was referred to and made part of the deed, and was to be filed therewith. It was an integral part of the instrument. This is stronger even than a reference to a public filed map. It, is not for one moment to be supposed that the parties did not have the map and every line thereon in mind and in contemplation as defining the land conveyed. They were not contracting with reference to a bridge line, but with reference to a street line; there was abundant “evidence to the contrary” of any claim that they looked only to the visible objects appearing on the land and road,/ The rule referred to in the cases in other jurisdictions where it is upheld, is always applied with the presupposition that no fact appears to *53 negative such an application. Cases in which the surveyed lines have been held to prevail, are Reid v. Klein, 138 Ind. 484, 37 N. E. 967; Andreu v. Watkins, 26 Fla. 390, 7 So. 876; and Harriman v. Whitney, 196 Mass. 466, 82 N. E. 671. In discussing the rule which we are now considering, it is observed in 9 Corpus Juris, page 198: “But it has been held that where the grant or conveyance refers to a map, the line of the way as actually surveyed is held to determine the boundary of the land.” See also 4 Thompson on Real Property, § 3214, p. 316. But even if we adopt plaintiffs’ claim that the extent of the bridge determines the street or road line and that on tract B the line one hundred and ten feet in length coming only to the surveyed line of the street does not reach the northerly street line, and that the plaintiffs had conveyed to them an inaccessible tract and hence one not in contemplation of the parties, there would clearly arise a way of necessity over the land lying between the plotted line and the bridge line to get upon the road. This is our application of elementary law universally recognized. Counsel refer to the fact that implied grants of way are favored to a more limited degree than in most other States (citing Whiting v. Gaylord, 66 Conn. 337, 34 Atl. 85, approved in Phoenix National Bank v. United States Security Trust Co., 100 Conn. 622, 636, 124 Atl. 540). But ways of necessity are approved where the necessity clearly appears. It has not been held in Connecticut that anyone is bound to accept a construction of a conveyance, which will render the conveyed tract accessible only by aircraft. If, as is claimed by plaintiffs, there was a mistake mutual as regards the parties, with respect to the description of the land to be conveyed, then, since the parties must have agreed on some tract the boun *54 daries of which correctly interpret their actual intent, the plaintiffs assumed the burden of showing what that tract actually was. This they attempt to do as set forth in the fourth paragraph of the complaint by amending the description “by substituting the figures 520 for 550 on the Shorehaven base line and the figures 520 for 563 on said line” wherever used in the deed. The proposed correction places the tract to be conveyed approximately thirty feet westerly of the tract described in the deed and located on Exhibit B, and necessitates a corresponding shifting of the line of mean high-water mark of 1919 to the westward, upon the claim that substantially all of the land easterly of the claimed high-water mark was beach formed by accretion between 1919 and 1923. The correct location of the mean high-water line of 1919 was the major feature of the cause as tried in the Superior Court. This location the trial court found in favor of the defendant as a question of fact, and there is nothing in the finding to "show that this conclusion was illegal, unreasonable or illogical. The discussion of the case as regards tract B disposes of the contentions of the parties as regards tract A, and the latter need no separate consideration. There is no error. In this opinion the other judges concurred.