Waterbury Clock Co. v. Irion

Hall, J. The deeds referred to by the court in its finding of facts are made a part of that finding. The plaintiff was therefore not injured by the refusal of the court to change the language of the finding regarding the land conveyed by certain deeds, so as to conform to the descriptions in the deeds themselves. It is evident that the court did not intend the statements complained of to be taken as accurate descriptions of the land conveyed, inasmuch as the full and correct [259] descriptions were to be found in the exhibits which were referred to. In so far as the language of the court differs from that of the exhibits, we have adopted the latter, which is conceded to be correct. The plaintiff is not entitled to the other corrections asked for. The evidence before us does not show that the acts described in the motion to correct were the only acts of possession exercised by the defendant, and that evidence is certified only as “ some of the evidence introduced on the trial.” • The complaint is for a trespass to land. It alleges possession in the plaintiff, an act of trespass by the defendant, and claims damages. The answer is a general denial. This puts in issue but two questions: Did the defendant commit the act complained of? Was the plaintiff at the time of the alleged trespass in possession of the land in question ? The alleged act of trespass, namely, the erection and the maintenance by the defendant of the walls and platform upon the sides of and over the brook, having apparently heen conceded, the sole question was that of the plaintiff’s possession of the locus in quo at the time of the trespass; and the defendant not having pleaded title could not under a general denial prove title in himself as a defense. Mallett v. White, 52 Conn. 50; Fowler v. Fowler, ibid. 254; Sutton v. Lockwood, 40 id. 318. The burden of proving possession having by the general denial been thus imposed upon the plaintiff, two ways were open by either of which that fact might be established. The plaintiff might, by proof of acts of occupation, show an actual, exclusive possession of the locus in quo in itself at the time of the trespass, or show a constructive possession, by proving title in itself aud the absence of actual exclusive possession by another. Fitch v. New York, P. & B. R. Co., 59 Conn. 414, 422; Church v. Meeker, 34 id. 421, 422. From the record before us it does not appear that the plaintiff proved, or attempted to prove, any fact showing an actual possession in itself, at anytime, of any part of the locus. If it further appears from the record that the plaintiff failed to prove its title, or, if upon proof of title in the plaintiff, it appears that another was in the actual exclusive possession [260] of the locus, the plaintiff must fail, and the judgment as rendered must stand. The trial court finds that the plaintiff claimed title under a deed from A. J. Cameron, dated January 30th, 1890. This is a quitclaim deed conveying the right, title and interest of the releasor in and to that part of Great Brook and the banks of Great Brook north of Cherry street, “ being that part of the land set off to Cameron and Cass on execution against the Great Brook Company, July 13th, 1868.” What interest in Great Brook and its banks was set off to Cameron, or Cameron and Cass, on execution against the Great Brook Company in 1868, we are not informed, as the execution is not before us. From the reservation in the second deed of the Knitting Company to Potter, February 1st, 1861, it seems clear that the locus in quo was not conveyed to Potter by the first deed to him in 1853, and therefore that the legal title to the bed of the brook passed to the Waterbury Savings Bank in 1863, by the mortgage deed of Whittall, Le Fevre & Co., grantees of the Knitting Company, and the equitable title to the Great Brook Company by their deed from Whit-tall, Le Fevre & Co. in 1868. By the levy of their execution against the Great Brook Company, Cameron and Cass could not have taken a legal title to any part of the locus, nor any title which would enable them to maintain- this action against the mortgagees or their grantees. Assuming that the levy of such an execution was proved, it must have been made upon an equity of redemption in land subject to the $5,500 mortgage of the Waterbury Savings Bank, and which equity of redemption the court finds had already been exhausted by the levies of prior creditors of the Great Brook Company. But if Cameron by levy of execution in 1868 acquired any interest in the bed of the stream, that interest, as appears by the record,.was conveyed by him to either F. L. Curtiss, or to S. W. Kellogg, prior to his deed to the plaintiff. The first of these last named deeds, dated February 25th, 1870, purports to convey to Curtiss “ land lying easterly of Great Brook, including the brook and banks of Great Brook.” The two deeds from Cameron to Kellogg, dated respectively [261] July 16th, 1870, and November 6th, 1871, assume to convey: the first, land east of a line five feet east of the brook; and the second, a strip of land ten feet wide on the west, and five feet wide on the east bank of the brook, subject to any rights conveyed to Curtiss by the deed of February 25th, 1870. By these deeds the record title to the locus in quo became vested in either Curtiss or Kellogg, neither of whom, so far as we can discover from the record, has ever transferred his interest to the plaintiff, though we note a statement in the brief of counsel that the plaintiff derives title from Curtiss. But were it true that Cameron acquired title to the locus in quo through the levy of the execution of Cameron and Cass against the Great Brook Company in 1868, and that he had not conveyed the title thus obtained to either Curtiss or Kellogg prior to his deed to the plaintiff, the plaintiff gained no title under the deed of 1890. The trial court has found that at that time the plaintiff’s grantor was ousted by the possession of another. Unless, in reaching its conclusion that at the time the deed from Cameron to the plaintiff was executed the defendant was in possession of the locus, the court has committed some error of law, the deed under which the plaintiff claims, was void by § 2966 of the General Statutes. The court finds that for many years prior to the commencement of this action the défendant was in the undisputed possession of the brook and land on both sides thereof. The Superior Court has not adjudged the title to be in the defendant, as it could not properly do so under the pleadings. In its reasons of appeal the plaintiff alleges that the court erred in holding, contrary to the law and evidence, that the defendant and his grantors had undisputed possession of the locus in quo, and in holding as a matter of law that by the acts of maintaining the outhouses over the stream, and the steps from the bank into the brook, possession was taken of the whole locus in quo. The evidence from which the court found that the defendant was in possession, is not before us. It is not clear to us what law the plaintiff claims was violated by the trial court in finding the fact of possession. No objection appears to [262] have been made to evidence offered to prove possession. The finding does not disclose that any claim of law was made upon the argument, nor does it bear out the plaintiff’s claims that the court based its finding that the defendant’s grantors were in possession of the locus, upon the fact that they maintained the outhouses and steps. The facts found are ample to sustain the decision of the trial court, that the plaintiff was neither in the actual nor constructive possession of the land in question at the time of the commission of the act of alleged trespass. The very ground of this action is the alleged interference with the plaintiff’s possession by the entry of the defendant upon the locus and the erection and maintenance thereon and over the same, of a certain building. This structure was erected in 1881. In the absence of any evidence of actual possession by the plaintiff, the court was justified in holding that by the maintenance of this structure, under a claim of right, which is the trespass complained of, the defendant has been in the possession of the locus since the structure was erected. There is no error. In this opinion the other judges concurred.