Cartenovitz v. Conti

Wheeler, J. The first question for decision is the plaintiffs’ motion that the evidence be expunged from the record, on the ground that the trial court viewed the premises. Its decision controls the correction of the finding asked for. The motion is based upon § 11, Practice Book (1908) page 269. It proceeds upon the theory that the case is one where it is impossible to certify up material evidence obtained upon such view, and. hence, under a proper interpretation of the rule, none of the evidence will be so certified or considered upon appeal. The essential condition for the non- *549 certification of the evidence under the rule is the finding of the trial court of the impossibility of certifying to the things seen upon the view. No statement of this character appears in the finding, nor do we understand how it could have been placed there. None but the exceptional case will fall within the rule. In the absence of a definite finding by the trial court that it is impossible to certify what he has seen on the view, we shall assume the contrary. The interpretation of the rule as sought by the plaintiffs, would make obligatory upon all litigants their refusal to consent to a view of the premises. Such view is occasionally helpful to a proper understanding of a complicated situation, or of a fact difficult of explanation by word of mouth alone. The two rulings on evidence relate to the same class -of testimony. The former attorney of the plaintiffs had, in their behalf, written the defendant relative to certain claimed encroachments upon the plaintiffs’ premises. As a consequence, the defendant came to the attorney’s office, and together they discussed the subject of these claimed encroachments with a view to an amicable settlement of the differences. The plaintiffs offered in evidence certain statements of the defendant, made in the course of this interview, as tending to prove that the defendant did not then claim any rights other than such as were determined by the regular boundary. The evidence of these statements was objected to, upon the ground that they were “offers of compromise.” They were a part of the discussion relative to the subject of encroachments, and were as much a part of the effort at an amicable adjustment as any other part of the interview. As such they appear to have been inadmissible. But this evidence, if admitted, did not prove or tend to prove, as the court has found, that “the defendant disclaimed any right, title or interest in or to any land lying immediately north of *550 said boundary line.” In the course of the interview the plaintiffs claimed that the area-ways were encroachments, to which the defendant replied that he knew nothing as to that, because they were there when he first acquired the property. This position does not tend to prove a disclaimer, but, as we understand the evidence, the reverse. With this evidence out, we know of no evidence which would justify the finding of the disclaimer as stated in paragraph thirteen of the finding. The evidence is undisputed that the defendant had been in undisputed possession ever since his purchase of the premises of that part of the air occupied by the fire-escape and of the space occupied by the swinging of the blinds. He was entitled to this finding as he requested, and, had he requested it, to the further finding that this possession was without the license or consent of the owners. With these findings, the conclusion would follow that the defendant had acquired the right by adverse possession to maintain the fire-escapes where they were, and to have the blinds swing as they had been accustomed to. Upon these facts, read in connection with the finding, the ouster as to the fire-escapes and blinds was not of the possession of the soil, but only of the space above the soil. Goodwin v. Bragaw, 87 Conn. 31, 35, 86 Atl. 668. The finding as to the area-way shows an exclusive possession of a part of it for over fifteen years, but how much this is does not appear. The clear weight of the evidence was that the area-ways had existed as they were ever since the defendant had owned the premises. The correction asked for in paragraph nine of the draft-finding, so far as it relates to the area-way, is granted, to correspond with the evidence. The finding does not cover as to these encroachments *551 the facts constituting the elements of adverse possession, nor do the corrections asked for cover these. Carney v. Hennessey, 74 Conn. 107, 111, 49 Atl. 910. Inasmuch as there must be a new trial, we do not at this time consider the corrections in the finding asked for relating to the conductor pipes and the flag walk. There is error and a new trial is ordered. In this opinion the other judges concurred.