Mosman v. Sanford

Park, C. J. This action is brought to recover damages lor the removal by the defendant of a fence standing on — 30 — what the plaintiff claims to have been the dividing line between a piece of land occupied- by him as tenant of Ebenezer and Hannah Hill and a piece of land belonging to the wife of the defendant. The defendant admits removing the fence, but claims that it had been erected by the Hills wholly upon the land of his wife, and that he removed it under her authority; claiming also, and the fact is so found, that he did no unnecessary injury to the fence in removing it. It is agreed that for many years prior to 1868 the line between the two tracts of land was marked by a stone wall, which was wholly removed by the defendant in that year; and that from 1868 to 1878, when the Hills erected the fence in question, there was no fence along the divisional line. The defendant also claimed that for more than fifteen years prior to the removal of the wall in 1868 the grantors of his wife had occupied adversely up to the stone wall. As the defendant now claimed title for his wife by adverse possession up to the site of that wall, it became an important question where that wall stood. It appears that in the year 1878, the Hills, who then as now owned the land occupied by the plaintiff, brought a petition to the Superior Court in Fairfield County, under General Statutes, p. 355, sec. 1, alleging that the boundary line between the lands in question was formerly marked by certain bounds which had become lost and uncertain, and that they could not agree with the adjoining owners as to a re-location of them, and praying that the lost bounds might be established by the court. The present defendant and liis wife were made parties respondent. The court, under the statute, appointed a committee who heard the parties and made their report to the court, establishing bounds upon the line on which the Hills soon after erected the fence in question j which report was accepted by the court and the bounds established by the committee decreed to be the bounds between the lands in question. The defendant now claimed that the adverse possession by which his wife acquired title to a strip of the land now claimed by the Hills, extended beyond the boundary line — 31 — fixed by the committee, and that the stone wall, which he admitted was the limit of the adverse possession, was not on the line of the bounds so fixed, but further north, leaving a strip between, which he claimed to have been covered by the adverse possession. The plaintiff objected to any evidence to prove that the stone wall was not where the bounds were now established, claiming that the defendant and his wife were concluded on that point by the decree of the court, and for the purpose of showing that the bounds established by the committee were along the site of the old wall, he called a member of the committee, who testified that they established the bounds on what they decided on the evidence to be the line of the wall. The court also charged the jury, upon the request of the plaintiff, that the defendant was concluded by that judgment as to the location of the wall. The defendant objected to the evidence as to the establishment of the bounds on the line of the wall, and to the request of the plaintiff for the instructions of the court as to the effect of the judgment, on several grounds:—1st. That the judgment, even if conclusive upon the parties in certain respects, yet coirld not conclude them upon a question of title. 2d. That if the judgment would have been conclusive if the fact had been found that the bounds were established on the site of the wall, yet as it was not so found, parol evidence as to what the committee did in that respect was inadmissible. 3d. That the report of the committee was insufficient to base a judgment upon, because it did not state the facts in detail, the statute requiring that they should “report the facts and their doings to the court.” It is very clear that the statute did not intend to conclude the parties to a proceeding under it upon a question of title. It does not assume to deal with title. Its whole object is the restoration of lost boundaries. The effect of the proceeding is in no manner different from that of the discovery and restoration of a lost boundary in any other mode, except as the bound restored under the statute is legally determined to be the bound. In other cases the question whether — 32 — a discovered bound was the original one would be open to dispute. But except in this particular the restoration of the bound by the proceeding has no more effect than its restoration by being dug up after it had sunk out of sight in the ground. If an adjoining owner has by an encroaching adverse possession gained title to a strip of his neighbor's land, that title is just as good after the legal restoration of the lost bounds as before. West Hartford Eccl. Society v. First Baptist Church, 35 Conn., 117. But the defendant wholly misapprehends his case when he considers the question here as properly one of title. If he were claiming title to a strip of land beyond the line of bounds established by the judgment, he would be allowed to make proof of it. Suppose he claimed up to a rock or to certain trees, he would still be allowed to prove that the adverse possession extended up to that line. But here he claims no adverse possession, and no title on any ground, beyond the place where the old stone wall stood. The whole question therefore is narrowed down to this—where did that wall stand ? That was the precise question before the committee. It appears that all parties agreed that that wall stood on the true line. It was therefore the one duty of the committee to find from the evidence where that wall stood, as restored bounds could be placed only along that line. The committee heard the evidence and decided that that wall stood exactly where they have located their line of bounds. Here then we have the committee, with full jurisdiction, and on a hearing of all parties, deciding where that wall stood. That finding must conclude the defendant. It only incidentally affects the question of title. It simply settles, for the parties, the question as to the site of the wall. It is to be observed that the court was acting, not in a special capacity for the purpose of a mere statutory proceeding, but was exercising a long established equity jurisdiction. Perry v. Pratt, 31 Conn., 433; 1 Story Eq. Jur., § 610. But the defendant claims, in the next place, that parol evidence was inadmissible to prove that the bounds were established on the line of the old wall, and that this fact — 33 — should have been specially fotind. But it is well settled that extrinsic evidence is admissible to show what was embraced in an adjudication in which the record does not clearly show it. Supples v. Cannon, 44 Conn., 424; Russell v. Place, 94 U. S. Reps., 606. The question has been made whether a judge or juror can be called upon to testify as to the precise matter decided in such a case. However this may be, there can be no question that such testimony is admissible where voluntarily given, as it was here, and we see no good reason why, in a matter of so much importance, and which in no manner affects the trier personally, such testimony cannot be compelled. If the matter is open to parol proof, it is clear that the best proof should be available. The authorities on this subject are collected in an elaborate note by the reporter in 44 Conn. R., 431. The defendant further claims that the report of the committee was insufficient to warrant any judgment upon it, because it does not state all the facts. The provision of the statute is, that the committee “shall report the facts and their doings to the court,” and the claim is that the committee in their report should have found that the bounds were established by them on the line of the old stone wall. But very clearly it was not necessary either to aver in the complaint or for the committee to find in their report what or precisely where located the old and lost bounds were; it is enough that they locate the new bounds according to the evidence before them and make report of the location of the same; it being presumed, since such was their duty, that they located the new bounds on the same line which they found to have been marked by the old bounds, and that fact being open to parol proof where the case seems to demand it. We are satisfied that the report of the committee in this case, finding the fact that the old bounds had become lost and uncertain, and designating by courses and distances the line established and bounds erected by them, was a sufficient report of “ the facts and their doings.” Post v. Williams, 33 Conn., 147. The defendant next claims that even if the new bounds — 34 — were located on the line of the old wall and the line thus marked was the true line between the lands, yet the Hills had no right to erect a fence the whole length of the line, but only for half the length, leaving the defendant and his wife to erect the fence along the other half; and that the fence thus built, having been unlawfully placed there, he had a right to remove it, doing no unnecessary damage. But even if the defendant had the right to build half the fence, and after the whole fence was built by the Hills had a right to a division of the line under the provisions of the statute and to an assignment to himself of half the fence on paying for it, yet he had never taken the steps for such a division, and had no right without it to assume that a particular half of the line belonged to him. He had as much right to pull down the other half as the one which he did. But there can be no question of the right'of the Hills in the circumstances to erect the whole fence. The defendant had done nothing towards it, and it is manifest, as he and his wife denied that the line designated by the committee was the true one, that he had no intention of doing anything. Besides this it appears that the land of his wife was open to the public highway, and that the Hills could protect their own land from the incursions of cattle in no other way. The act was in no possible way harmful to the defendant. It was, on the other hand, a positive benefit; that is, upon the supposition on which we are now proceeding, that the designated line was the true one. The statute clearly recognizes the right of a proprietor of land to enclose his land. Thus the second section of part first of the statute with regard to fences, (Gen. Statutes, p. 207,) provides for the compulsory payment for half the fence where “ one proprietor shall make the whole fence; ” while the third section provides for a division of the fence between the parties, “when a fence between adjoining proprietors has never been divided.” It is clear that in this case the defendant and his wife could have been compelled either to let the fence remain or to pay for half of it, and we cannot — 35 — therefore entertain a doubt of the legality in the circumstances of the act of the Hills in building it. There is no error in the judgment complained of. In this opinion the other judges concurred.