Layton v. Bailey

Hamersley, J. It is admitted by the pleadings that the plaintiff is the owner in fee of the piece of land called the Benger tract, as it appears in map 2 of the statement. The plaintiff alleges that he is also owner of the triangular piece of land in dispute, as it appears in the same map, and this allegation is denied by the defendants. It is patent from the pleadings, as well as from the finding of the court, that the plaintiff’s action is founded on his alleged ownership in fee of this disputed piece of land, the boundaries of which are clearly defined in the pleadings. The defendants not only deny the plaintiff’s allegation of ownership, but allege a title, in themselves by adverse possession, and this allegation is denied by the plaintiff. At the time of the conveyance of both these pieces of land the plaintiff’s grantors were in possession of the first piece, and, as found by the court, were not in possession of the second piece, which was in possession of the defendants, claiming title thereto adversely to the plaintiff’s grantors, and this was known to the plaintiff. The substance of the transaction is not affected by the fact that the deed is carefully drawn so as to include both pieces of land in one description. The defendants claim that the deed, or as much thereof as purports to convey the triangular piece of land in dispute, is clearly void by force of § 4042 of the General Statutes, prohibiting the sale of disputed titles; but the court founds its judgment not only upon the failure of the plaintiff to show a legal title in himself, but also upon its conclusion of fact that the defendants have established a title in themselves by adverse possession for more than fifteen years; and unless the court in reaching this conclusion adopted some erroneous principle of law, or has found some material fact necessarily inconsistent with the conclusion reached, the judgment must stand. The plaintiff urged in argument that the finding suggests some doubt whether the adverse possession found by the court covered the whole of the triangular piece of land in dispute. We do not so read the finding. The title of the *28 defendants, by adverse possession, to this triangular piece of land, its apex being at the intersection of Ann Street with the public highway called Water Street, bounded on one side by the Benger fence and on the other by this public highway, is distinctly put in issue by the pleadings, and the judgment finds this issue for the defendants; and in its finding the court states that this piece of land, thus bounded, has since 1884 been continuously in the adverse possession-of the defendants and of their predecessors in title. As we are satisfied there is no error in this finding, the errors assigned in the appeal, in respect to the finding of the court that the plaintiff had failed to establish a legal title in himself to this land, become immaterial. The errors assigned which call for any special notice relate mainly to certain evidential facts which the court, at the request of the plaintiff, has incorporated in the finding, and which the plaintiff claims are legally inconsistent with the fact of continuous adverse possession by the defendants for more than fifteen years, which was found by the court and upon which its judgment rests. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are, legally or logically necessarily inconsistent with that conclusion. The evidential facts relied on by the plaintiff are not of this character. The fact that the defendants, while occupying the land as a lumber-yard, piled the lumber so high as to be an annoyance to Mrs. Benger, then occupying the Benger house, and at her request piled the lumber so as to avoid that annoyance, is not necessarily inconsistent with the continuous adverse possession. The fact that one of the defendants, while testifying in the trial, was asked upon cross-examination if in occupying the land he had the intention of holding adversely to and so acquiring title against the person to whom the land rightfully belonged, and answered that he did not, but that he occupied claiming that his father’s deed gave title to the property, did not determine the question of adverse user, nor conclude the defendants from setting *29 up title to the land through adverse possession. The fact that the defendants, in using the land of which they had taken possession as a lumber-yard, have not actually used that portion lying north of the small gate mentioned, by depositing lumber thereon, or, so far as appears, in any other way — the space between the road and the Benger fence being too narrow to make such use practicable — and that one of the plaintiff’s grantors stored his row boat thereon without objection in the winter for many years since the entry of the defendants, is not necessarily inconsistent with the defendants’ adverse possession of the whole piece of land as found by the court. The fact that the small gate was used as a means of ingress and egress to the rear of the Benger house, and other facts relied on by the plaintiff, are evidential and not necessarily conclusive against the actual, continuous, and adverse possession found by the court. Whether or not the plaintiff has a right of way of any kind from his small gate to Water Street, is a question not passed upon by the court nor concluded by the judgment. It appears that William H. Benger died in 1870, leaving two sons (the plaintiff’s grantors), a daughter and a widow; that the daughter died unmarried and without issue in 1889; that the widow died in 1901; that no administration upon Benger’s estate was taken out; that one of the sons resided elsewhere, and the widow continued to reside in the Benger house until her death; that the land lying westerly of the Benger fence has been in the possession of William H. Benger and his family continuously from 1856 until deeded to the plaintiff. It does not appear that there was ever any family settlement or distribution of Benger’s estate. Section 1109 of the General Statutes, limiting a right of entry to fifteen years, provides “ that the limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.” The plaintiff claimed that the possession of the defendants could not, under the provisions of the statute, *30 ripen into a title by adverse possession as against the children of William H. Benger, prior to the death of his widow. Upon the facts above stated, this claim is obviously without merit. The complaint in this action, which is in substance an action of ejectment brought by an alleged owner out of possession against the person in possession, is framed in pursuance of the provisions of § 4053 of the General Statutes. This section was first enacted in 1893. Public Acts of 1893, p. 237, Chap. 66. The language used is very broad, and may include legal claims proper to be tried to a jury as well as equitable claims proper to be tried by a court of equity. But in proceedings under the' Act, such legal claims must be tried and determined under the laws and practice of this State, as in other cases. Miles v. Strong, 68 Conn. 273, 277, 287. Whether or not a cause of action which is in substance an action of ejectment, and nothing more, is properly stated in a complaint framed to meet the requirements of the special equitable remedy provided by this Act, is a question the parties have not raised in this case. But if such a cause of action can properly be tried under cover of this proceeding, it must, when its real nature is disclosed and defined by the pleadings, be substantially tried and determined as an action of ejectment. The parties are entitled to a jury trial, and the plaintiff, alleging an ownership in fee, must prevail on the strength of his own title and not merely on the weakness of the defendant’s title. Miles v. Strong, 68 Conn. 273; Cahill v. Cahill, 75 id. 522, 523; 76 id. 542, 546, 548. If, therefore, the plaintiff’s action is maintainable under this statute, the Superior Court did not err in ruling that in cases brought “by'aperson out of possession against a person in possession, there being no other parties of record, if the plaintiff fails to show that he has any title or interest in the property the defendant is entitled to judgment, although he fail to show title in himself.” There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.