Lowndes v. Wicks

Baldwin, J. The only matter in dispute in this action is the proper division of the riparian rights appurtenant to two adjoining wharf-lots, lying on the west side of Main street in Rowayton, with a water front on Five Mile river harbor. These lots, so far as the upland is concerned, extend for a distance of about twenty feet from Main street, and.the boundary between them on this upland is the south line of Crockett avenue extended, which line crosses Main street substantially at right angles. Crockett avenue formerly was a driftway, and it would appear from the conveyances under which the defendants claim, that this driftway was regarded by some of the grantors as extending across Main street and making the soil under it common land. The upland division line was continued in the same line by a board fence for a distance of a few feet below high-water mark. In 1892 the plaintiff’s grantor built a row of piles from a point thirty-five feet below high-water mark.in what was an extension of this line, running a little north of such extension to within about forty feet of a harbor line which had been established, a few weeks before, by the United States, near the channel of the river. Until that time, the water front immediately north of the fence line had been used by the public as a common landing place. After that time, such use ceased. The plaintiff’s grantor, after that time, also fas — 24 — tened a number of floating piles to the row of standing piles, on its north side, which he brought together for the purpose of building a dock there. In 1894, while the defendants were in possession of their wharf-lot, the plaintiff received a conveyance from his grantor, and immediately took up all the piles in this row except the end ones, and replaced them by others, set on the same line; at the same time extending the row towards the channel about forty feet, to a point where it met the dock of a third party, and so cut off the defendants’ upland from any access to the harbor. The defendants thereupon cut the capping on some of these piles, and the Court of Common Pleas has found that the plaintiff was at the time so far in possession as the facts specially found indicate. Those facts appear to us to indicate and establish his possession of the flats below high-water mark as far south as the row of piles. That row constituted the dividing line of possession, and the defendants committed a trespass upon it, unless their defense of title has been made out. They pleaded title to the loeus in quo, setting up in their second defense, that their northerly boundary was a line drawn at right angles to the harbor line from the northerly extremity of their frontage on Main street, and in their third defense that it was a line drawn from the latter point at right angles to the general course of the channel of the river. The first conveyance in the chain of title of either party which describes the northerly boundary line of the defendants’ tract with any attempt at precision, is that to the defendants from the City National Bank, in' December, 1893, of a triangular parcel, the base of which was the Main street frontage of about sixty-seven feet, the apex of which was a point ninety-one. feet nprth of E. Thornes’ coal dock, “.being spiles of John Lowndes, as now set,” and which was bounded “ westerly by land of John H. Lowndes.” A few days after-wards, these premises were released to the bank by a deed containing similar words of description, except that an obvious error was corrected by substituting “ northerly” for “westerly ” as the direction of the land of John H. Lowndes. The bank immediately executed to the defendants another convey — 25 — anee of a quadrilateral tract, with a frontage of about seventy-two feet on Main street, a southerly boundary precisely ascertained, a northerly boundary described- simply as on land of John H. Lowndes, and a westerly boundary on the harbor. This description of the northerly boundary must be taken to refer to the same boundary described in the release deed from the defendants, of the same date, so far as the latter extended from Main street to ’that point in the row of piles which formed the apex of the triangle particularly identified in the former conveyance to them; for this last deed of the bank conveys whatever it had to convey north of the tract which it retained; and its original purchase from Sands Selleck, as well as the lot so released, was bounded in that direction by the land of John H. Lowndes. The established harbor line is found to correspond in direction with the general course of the channel of the river, as well as with the general trend of the shore line. The plaintiff, therefore, was called upon, by the second and third defenses alike, to meet a claim of title on the part of the defendants to the lands and flats south of a line drawn from the northerly end of their frontage on Main street (which was a well ascertained point), at right angles to the harbor line, and so also to the shore line. Such a line runs north of the row of piles; and as the shore line at the place in question is shown by the maps, which form part of the finding, to be part of a broad, concave curve, embracing the harbor, would constitute the northerly side of a triangular parcel of land and flats, of which the lines of the piling and upland fence formed the southerly side, and the base was upon the channel of the river. The burden of supporting this defense of title was on the defendants, and they failed to establish it unless it is made out as matter of law, from the conveyances which are spread upon the record. The Court of Common Pleas was of opinion that it was so made out from the original conveyances by Robert Godfrey, who at one time owned the entire tract now divided between the parties. This position was based upon the legal operation of the description in Godfrey’s deed — 26 — to the defendants’ predecessor in title, of the premises conveyed, as “bounded northerly by Henry M. Hoyt and Peter Decker,” who were the predecessors in title of the plaintiff; the view taken being that the generality of this description left the precise location of the northerly boundary to be determined by the rules of law, and that these rules made it a line drawn at right angles to the general trend of the shore. The deed from Robert Godfrey to Hoyt and Decker, in 1867, bounded their land on the east of Main street “southerly by a driftway,” which was the way afterwards known as Crockett avenue; and when Oliver Cook, who had acquired title to the southerly wharf-lot, as “ bounded northerly by Henry M. Hoyt and Peter Decker,”—after running a fence from Main street to a point several feet below high-water mark, on the south line of Crockett avenue extended, —gave his release deed to Raymond, the plaintiff’s predecessor in title, in 1876, and described the premises released as bounded northerly by Five Mile River harbor, and southerly on his own land, it is found that both parties understood the latter boundary, so far as the upland west of Main street was concerned, to be this south line of Crockett avenue extended. It is also found that when Raymond, a few days afterwards, conveyed to John H. Lowndes, he described the wharf-lot as being “ directly in front of ” the latter’s land, that is, the land of Lowndes on the east side of Main street, bordering on the driftway or Crockett avenue. The Cook fence, also, was pointed out to the defendants as the northerly boundary of the upland to be conveyed to them, at the time of their purchase from Thornes, in 1891. In view of this long established upland boundary between the lots of the parties west of Main street, it is obvious that no straight line can be run from Main street towards the channel to limit the riparian privileges of the plaintiff, which does not coincide with the southerly line of Crockett avenue extended; for the latter is a straight line beginning at the northernmost point in the Main street frontage of the defendants’ lot, and the Cook fence followed it precisely to the shore. Neither ■ of the lines claimed by the defendants’ — 27 — answer, therefore* can be supported; for each is a perpendicular beginning on Main street, at a point in the south line of Crockett avenue extended, and running out into the harbor, north of the latter line. Notwithstanding this, however, their claim of title would be maintained, if they have made out their northerly boundary to be a perpendicular from the point where the upland division line between the parties meets the water, which runs northerly of the locus in quo, and yet falls within the perpendicular described in their answer. Their position would then be simply that of one claiming more than it is necessary to prove. The trial court finds that three such perpendiculars may be run. But the initial point from which they are made to proceed does not appear on the proofs to be the proper center of radiation. The fence to which reference has been made, built in 1875 by Oliver Cook (under whom each party claims), in the south line of Crockett avenue, extended not only to high-water mark, but “ a board’s length ” beyond. This fence continued in position until 1889, and some of the posts until 1891. It marked the line of possession of all the defendants’ predecessors in title, and was pointed out to them in 1891 as the boundary line of the wharf-lot, by their immediate grantor, before he made his conveyance. Two months later, they had an extension of this line to the channel mapped out by a surveyor, as marking the limit of their riparian privileges. Clearly, under these circumstances, no perpendicular could be run from any point east of that which was “ a board’s length” west of high-water mark. To that extent, the south line of Crockett avenue extended, by the acts of Cook and the acquiescence of all concerned, had become the dividing line both of possession and title. The plaintiff’s lot is described in his deed as about thirty-four feet wide. In 1894, when he acquired title, its southerly boundary was determined by the southerly line of Crockett avenue extended to a point thirty-five feet below high-water mark, and thence by the row of piles set in 1892, — 28 — so far as they ran out. If his grantor originally owned the flats south of this row of piles, to the line of Crockett avenue extended, he did not, because he could not, convey them; since the defendants were in possession up to the row of piles. General Statutes, § 2966. A division fence run into tide-water by a riparian proprietor, on a certain line, prima facie indicates a claim of title to the land under water on his side of the line as far out as the fence extends. When John H. Lowndes in 1892 set the pile in the line of the fence thirty-five feet below low-water mark, he thereby claimed title to that point; and when he ran out the row of piles thence in a line deflecting southerly, he thereby claimed title to the new line thus marked, and no farther. The subsequent conveyances of the adjoining tract showed an acquiescence on the part of its owners in the boundary thus established. That of August, 1892, from the defendants and Julia L. Crockett to Sands Selleck, bounded the premises “ north by common land, which is a continuation of Crockett avenue (so-called), to Five Mile river harbor.” This evidently did not purport to convey anything north of the south line of Crockett avenue extended. In the deed of December 27th, 1893, from the bank to the defendants, the row of piles is not only expressly named in defining the boundary upon land of John H. Lowndes, but named in a way that indicates that the outer end of the row was the outer limit of the granted premises. Such, also, would appear to be the case from the maps which are sent up as part of the record. When a boundary between adjoining proprietors depends upon conveyances the legal effect of which is uncertain, the acquiescence of one in a line claimed by the other is presumptive evidence that it is the true one. French v. Pearce, 8 Conn. 439. Nor is it of any consequence that the parties acted under a misapprehension of their legal rights. Rathbun v. Geer, 64 Conn. 421, 424. Considerations of this character have especial weight in the determination of controversies between riparian proprietors of business property on tide-water. The shore line is liable to constant changes from the construction of new — 29 — embankments and wharves, as well as from the dumping of rubbish with no other purpose than to get rid of it. Lands reclaimed, if the State interposes no objection, are treated as additions to the original upland, and as affording a similar point of departure for further extensions. Harbor lines maybe established and altered by public authority, in view of the apparent conditions existing at the time, with respect to wharves and docks or other monuments. It is a matter of common knowledge that in a period of time far less than that necessary for the establishment of a title by adverse possession, the whole face of a harbor front may be so changed by riparian improvements or encroachments as to make it almost impossible to trace out the lines of the original shore. The row of piles which John H. Lowndes ran out in February, 1892, was a structure of a permanent and somewhat expensive character. For nearly two years it stood with the knowledge of the defendants or their grantors, and without objection. It was referred to as constituting a bound in two of the deeds forming part of their chain of title. It was too late for them, after his conveyance to a third party of the narrow strip of land adjoining it on the north, to assert, for the first time, a paramount title, under which they could wharf out over this strip in such a way as to cut it off from access to the channel; and such would be the effect of either of the lines claimed in their answer. It does not, however, follow that the defendants were trespassers to the extent alleged in the complaint. A boundary resting so largely on acquiescence and consequent estoppel ought not to be extended further than such acquiescence clearly requires. The division line between the parties has been established by their acts and those of their predecessors in title, as far towards the channel as the end of the row of piles set by John H. Lowndes in 1892. Beyond that point, no actual possession was taken by any one, prior to the acts of the plaintiff in resetting and extending the piling, in 1894, to.which prompt objection.was made. The dividing line thence to the channel has been left to be established by the rules of law. It is the aim of these rules, as applied to the rights of — 30 — adjoining riparian proprietors on an irregular shore, to give each, as far as may be, a fair and reasonable opportunity of access to the channel. For a convex shofe, the proper rule was stated in Morris v. Beardsley, 54 Conn. 338, 341. The converse of this rule, for similar reasons, governs the case of a concave shore. A straight line must be drawn across the mouth of the bend or cove, and a perpendicular line run from this to the point where the row of piles ended which was set in 1892. The riparian privileges attached to the flats lying next north of this perpendicular belong to the plaintiff; those attaching to the flats lying next south of it belong to the defendants. An inspection of the government map shows that this line is coincident with the harbor line. The division line, therefore, is one perpendicular to the harbor line.* The defendants have contended that the plaintiff, unless he has made out a title by adverse possession, can claim nothing south of such a line as the law marked out between the original grantees of Robert Godfrey, when he divided his wharf-lot with its riparian privileges into two parcels, and bounded each simply on the other. We have no occasion to inquire whether such a rule would have necessarily governed the case, when originally tried before the justice of the peace. On the appeal to the Court of Common Pleas the controversy came before a tribunal having equitable as well as legal jurisdiction, and bound to prefer the rules of equity to those of the common law, should they be found in conflict with reference to the title of either party. General Statutes, § 877. The equitable doctrine of acquiescence applies in full force to this case. It has been well defined as quiescence under such circumstances that assent may be reasonably inferred from it. 2 Pomeroy’s Equity Jurisprudence, § 965, and note. Assent thus given is as irrevocable as if expressly stated in words. Such, in equity, was the assent given by the defendants and their predecessors in title to the successive acts by which the plaintiff’s predecessors in title had marked — 31 — in part the boundary in question. Assent is a necessary inference from acquiescence, and estoppel was the necessary consequence of assent. The Court of Common Pleas therefore erred in overruling altogether the fourth and sixth claims made by the plaintiff — 32 — upon the trial. They were correct so far as they asserted that the south line of Crockett avenue, extended, had, by the acts of the parties, been fixed as the true line of division, to the point where the row of piles commenced which was set in 1892, and that the defendants were estopped from setting up title to the flats lying next north of that piling. One of the acts complained of was committed in cutting the capping of these piles; the other in cutting the capping of the new piling, between these and the harbor line, set by the plaintiff, himself, in 1894. The former was a trespass. The latter was not; for the locus in quo was south of á perpendicular drawn from the end of the old row of piles to the harbor line. There is error in the judgment appealed from, and it is reversed, and the cause remanded, with instructions to enter judgment for five dollars damages in favor of the plaintiff on the first count, and for the defendants on the second count. In this opinion the other judges concurred. Footnotes [*] The sketch on p. 31 will make the position of this line plain.