New York, N. H. H.R. Co. v. Cella , 88 Conn. 515 ( 1914 )

The plaintiff excepts to certain facts found by the court. Among them are several which have an important bearing upon the plaintiff's case. It has been found that, after the condemnation of the Thomas Noyes land by the railroad company in 1833, he continued in possession of the small parcel of land with the shop upon it; that the present location of the Cella building is substantially the same location as the blacksmith shop; that the occupation of it after it was so condemned was under the claim of Thomas Noyes and his successors in title; and that the defendant and predecessors in title have used and enjoyed this property adversely since 1800.

It is urged that these facts are found without any evidence to support them. Under certain well-known principles of law this difficulty of making proof receives constant recognition by the court. The actor in any case will be required and, within the limits of sound reasoning, permitted, to present to the court the best and fullest case that it is within his power to offer. In this respect the element of remoteness is an important one. It follows that where the fact in question comes to the tribunal from a time beyond living memory, placed at thirty years, there is an exception to the rule rejecting hearsay evidence, allowed in cases of ancient possession, and in favor of the admission of ancient documents in support of it. 2 Chamberlayne on Evidence, § 1195, and cases cited in notes 1 and 5, pages 1515 and 1516; 1 Greenleaf on Evidence (12th Ed.) p. 163. Ancient documents are admissible to prove ancient possession. They are evidence of acts of ownership and of facts tending to prove ownership, and, in many cases involving ancient possession, they are the only evidence that the nature of the case permits.Merwin v. Morris, 71 Conn. 555, 573, 575,42 A. 855. In Foote v. Brown, 81 Conn. 218, 70 A. 699, where the ownership and possession of land was the subject of discussion, this court said (p. 225): "A mere paper chain of title in the plaintiff does not establish his ownership of the land, unless his possession or that of his grantors is shown. But evidence of actual possession is unnecessary if the jury is satisfied, by documentary or other evidence, of ownership by the plaintiff's predecessors in title, since title thus established draws with it possession in the absence of any evidence to the contrary." See also 1 Wharton on Evidence (3d Ed.) § 194; Boston v. Richardson, 105 Mass. 351, 371.

It is noticeable that most of the transfers of this property, by deed and by distribution, were made more than thirty years prior to the trial of the case in the Superior Court. This state of facts amply justified the admission of this class of evidence as ancient documents, and the recitals made therein are admissible against the plaintiff.

The fact to be established was one of possession. The trial court has fairly found that the town records of the town of Stonington showed clear title to thelocus in quo in the defendant by an ancient line of conveyances commencing with the deed of Thomas Noyes in 1800. In this connection it is of importance to notice that the distribution of his real estate, made in 1844, recited that he died "seized and possessed" of this identical property. These conveyances defined the defendant's interest in the property; they were admissible to prove possession. They were evidence of acts of ownership and of facts to prove such ownership.

It appears that during all these years this property had a substantial market value. In 1850 the distributors of Henry Noyes' estate appraised the property at $200. Twenty years later Phebe N. Wells, the distributee of the estate of Henry Noyes, by warranty deed conveyed this parcel of land, with a blacksmith shop standing thereon, for a consideration, as expressed in the deed, of $800. None of these conveyances recognized any title in the property in the railroad company or companies. The user was open and of such a character as to give notice of the extent of it to the plaintiff company and others engaged in the operation and maintenance of the railroad. It was under claim of right, manifested by the deeds, recitals therein, and the records thereof. Parker v. Hotchkiss, 25 Conn. 321; WaterCommissioners v. Perry, 69 Conn. 461, 468, 37 A. 1059;Williams v. Wadsworth, 51 Conn. 277.

An examination of the land and probate records would have shown a clear title to the property in the predecessors in title of Cella. The railroad company's map of its layout, in the Secretary of State's office in Hartford, would not have furnished any satisfactory information as to the railroad company's right to this strip of land, as this exhibit was merely a map with a center line determined by courses.

At least three witnesses testified that the location of the defendant's business block is upon the same ground as that of the old blacksmith shop. These witnesses also described the changes which had taken place in the structures upon this land in later years.

The reasons of appeal are numerous. There are several which involve the action of the trial court in finding that the plaintiff and its predecessors in title abandoned the locus in quo. This case was before us at the October term, 1912, when the judgment rendered upon a former trial was set aside. See 86 Conn. 275,85 A. 521. In the opinion after it was written at that time the word "not," in the twelfth line from the bottom of page 279, was inadvertently omitted. The opinion when it was written read, as it should now read, that "mere nonuser and lapse of time, unaccompanied by any other evidence showing an intention to abandon, may not be enough to constitute abandonment." It is almost unnecessary to call attention to this inadvertence, as the meaning of the court was too plain to be mistaken, and the general tenor of the opinion such that no one could be or has been mislead by this omission. The law is, as the plaintiff contends, that "mere nonuser and lapse of time" is not enough to constitute abandonment. But abandonment may be inferred from circumstances, or may be presumed from long continued neglect. Derby v. Alling, 40 Conn. 410,436; Hartford Bridge Co. v. East Hartford, 16 Conn. 149,173; New York, N. H. H.R. Co. v. Cella,86 Conn. 275, 279, 85 A. 521. Lapse of time and nonuser are competent evidence of an intent to abandon, and as such may be entitled to great weight when considered with other circumstances. Derby v. Alling, 40 Conn. 410,436.

The plaintiff contended, however, that there was no evidence to warrant a finding of such abandonment. The most important facts relating to this question were as follows: In 1833, when the land was condemned, and for a great many years thereafter, the railroad company had no use for it as a right of way. A wing-wall was so constructed as to clearly exclude this strip of land from the land of the plaintiff. In 1906 a letter was addressed to the plaintiff company which contained the following: "Stonington, February 20th, 1906. To the Land Agent, New York, New Haven and Hartford Railroad Company, New Haven, Conn. Dear Sir: — As a representative of William H. Talmadge, who is the owner of the property adjoining the railroad in Pawcatuck, I take the liberty to write you relative thereto. Mr. Talmadge has decided to sell the same and asked me to dispose of it for him for $1,500, with no intention to deviate from that price. The place is rented to Arthur R. Riley a plumber and he in turn sublets part of it to a shoemaker and the place brings in a rental of $12.50 per month. I spoke to a real estate agent in Pawcatuck to put a sign on it offering the place for sale and after I did so, it occurred to me that if the railroad company four-tracked its system it would be another piece of property that it should own and perhaps it would be just as well for me to write and see what you think of it. After this town voted for license last fall I was offered a rental of $70.00 per month for it, but Mr. Talmadge would not have a saloon there under any consideration. I have no doubt if other parties buy the place the company would want it in order to widen their road and for that reason I believe it would be policy to acquaint the company's representative before going further into the sale of it. In the meantime if I have an opportunity to dispose of it and in justice to the owner I shall do so. Very respectfully, John H. Ryan."

This letter was answered the following day requesting a sketch of the property. This was furnished. Later in 1906 another letter was written to the railroad company relating to the same subject-matter, and the company replied that it was not interested in any land upon that side of the railroad.

In 1907 the defendant, before making a purchase of the property, ascertained that the land records of the town of Stonington showed a perfect title in his prospective grantor. He had no notice of an existing easement, but was informed at this time that the plaintiff made no claim to any land upon that side of the railroad.

In a letter to the defendant, Cella, in 1909, the plaintiff, through its attorneys, stated to the defendant: "We are informed that you are making some improvements and expending money on the building owned by you, located on New York, New Haven and Hartford railroad property, at the corner of Mechanic Street and West Broad Street, in the village of Pawcatuck. The railroad company have use for this property now, and you will be obliged to remove your building. While the railroad company did not have actual use for the property they seem to have no objection to your building remaining on the ground, but now they will be obliged to use the ground, and they will have to ask you to remove your building. We are writing to you to save you any useless expense in repairing this building. Very respectfully, Hull, McGuire Hull."

For over seventy-five years the claim now made had been discarded, and it is quite clear that it would never have been revived except for the possibility of increasing the track facilities of the plaintiff's road. During that time the defendant and others, through whom he claims, obtained title to this property without any notice whatever of an existing right to use this land for railroad purposes.

Such long continued neglect, with the other evidence presented by the defendant in support of his contention as to adverse user, was sufficient to justify the conclusion of the trial court as to abandonment. In Washburn on Easements (3d Ed.) p. 661, the author says: "The owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, especially if a third party become interested in the servient estate after such act of abandonment; and it would operate unjustly upon him if the exercise of the easement were resumed in favor of the dominant estate." See also Westcott v. New York N.E. R. Co., 152 Mass. 465-468, 25 N.E. 840; Bicknell v. New York N.E. R. Co., 161 Mass. 428-430, 37 N.E. 378; Snell v. Levitt, 110 N.Y. 595, 603,18 N.E. 370.

An examination of the record fails to disclose that any material fact has been found without evidence; the finding therefore must stand.

Some of the errors assigned relate to certain evidential facts which the court incorporated in the finding and which the plaintiff now claims are legally inconsistent with the ultimate conclusions of the court as to adverse possession and abandonment. It appears from the finding that there was always room on the locus for the railroad company to do all it had occasion to do in constructing and repairing its wing-walls and abutments, without interfering with the blacksmith shop or old building. The trial court has also found that the present building is constructed against the wing-wall and shuts off all access to it. The changes in the location of the abutments at different times, the location of the blacksmith shop and of the Cella building, in connection with other facts of which there was evidence, show that the finding is not materially inconsistent with the conclusions of the court upon the controlling questions in issue. A construction most favorable to the plaintiff upon this point would not be sufficient to substantiate its claim that it was entitled to claim possession of the entire lot in question. The evidence and claims of the plaintiff in this connection simply refer to a small strip of land back of the conceded location of the old blacksmith shop, which land it is said the railroad company could have used if it desired for the purpose of repairing or reconstructing its abutments and wing-walls. Neither the width nor length of this narrow piece of land is ascertainable from the pleadings, evidence, or finding, by means of which this small portion of the Cella lot might be identified or described if the plaintiff should now be allowed to recover possession of it.

The receipt of the letter of February 20th, 1906, from Ryan to the land agent of the defendant company, was acknowledged by a communication which reads as follows: "February 21, 1906. Dictated by A. C. Mr. John H. Ryan, Stonington, Conn. Dear Sir: — Yours of the 20th inst., offering for sale property owned by William H. Talmadge, at Pawcatuck, has been received and if you will send me a sketch showing the property with relation to the railroad, we will look into the matter. Yours truly, _________________________ Commissioner."

There was no error in admitting Ryan's letter in connection with the plaintiff's reply thereto. Beach v.Travelers Ins. Co., 73 Conn. 118, 120, 46 A. 867;Hoggson Pettis Mfg. Co. v. Sears, 77 Conn. 587, 594,60 A. 133. The trial court properly overruled the plaintiff's claim that "it does not appear that it was addressed to anybody authorized in any way to waive or give away the rights of the plaintiff." This letter was addressed to the land agent of the New York, New Haven and Hartford Railroad Company, and answered the day following by one assuming to act for the company. It should be presumed that this answer was made by one whose duty it was to act in this matter, until the contrary appears. State v. Main, 69 Conn. 123,140, 37 A. 80; 16 Cyc. pp. 1076, 1078. This letter tended to show that notice had been given to the railroad company that a third party was claiming the property at that time. For this purpose only it was properly received in evidence.

In its brief the plaintiff contends that the court erred in admitting evidence as to the contents of a letter said to have been lost, upon the ground that the loss of the letter had not been sufficiently proved. The finding does not disclose that this claim was made before the trial court. Had this claim been made at that time, undoubtedly further evidence would have been required upon that subject.

The defendant, against the objection of the plaintiff, was allowed to testify as to the length of time that he was engaged in the construction of the building upon this property, also that he had expended about $5,000 in the erection of the same. This evidence was plainly admissible under the issue raised upon the defendant's claim for improvements made upon the property before the commencement of this action.

There is no error.

In this opinion the other judges concurred.