Moran v. Denison , 79 Conn. 325 ( 1906 )

The plaintiffs are seeking to recover the possession of a small triangular strip of land recently reclaimed by the defendants from the sea. They contend that the defendants in reclaiming this strip of land have invaded that portion of land covered by the sea which the plaintiffs, as upland owners bordering upon the sea, were, in the exercise of their littoral rights, entitled to reclaim. They rest their rights upon no other foundation than this. The upland, by virtue of the ownership of which it is claimed that the plaintiffs are entitled to the asserted littoral rights, is that piece of reclaimed land upon or over which their opera house building rests and which is separated by the sea from the land in controversy.

The plaintiffs must recover, if at all, upon the strength of their own title shown. Cahill v. Cahill, 75 Conn. 522,54 A. 201, 732. The burden thus cast upon them is in this case emphasized by the fact that the westerly line, which has marked the limit of the reclamations by the defendants and their predecessors in title, is one to which, for its full length, the conditions in respect to the shore, the upland ownership, and the location of deep water, as they originally were, would have justified a reclamation by the owners of the defendants' upland. Had the filling which the defendants have made been made years ago by the then owners of their upland, no objection could have been made by any one to whose rights the plaintiffs have succeeded. This we understand the plaintiffs to concede.Lowndes v. Wicks, 69 Conn. 15, 30, 36 A. 1072. The plaintiffs' contention, therefore, has no other foundation than in changed conditions whose consequence has been to give the plaintiffs rights not enjoyed by their predecessors in title, and to deprive the defendants of rights which their predecessors in title once had, at least as against the plaintiffs and their predecessors. This contention rests upon the legal premise that littoral rights are to be determined by conditions as they exist at the time, and not as they may have been at some time in the past. It is unnecessary to stop to analyze this proposition to discover what of truth it expresses or to mark the bounds of the truth which doubtless lies within it. Certain it is, that the rights of reclamation and wharfing out which are incident to ownership of land upon the sea do not shift with every passing change in conditions, and that those new conditions which accomplish changes in these rights must at least be definite and substantial in their character, possess the appearance of stability and permanence, produce an essentially new situation and require a new adjustment of rights in order that a fair and reasonable access to the sea may be afforded to all. Lowndes v. Wicks, 69 Conn. 15, 30, 36 A. 1072. Accepting, therefore, the plaintiffs' proposition with this qualification, let us examine the facts disclosed by this record.

Into the determination of problems such as are here presented certain factors invariably enter, to wit, the location of the shore line, the location and limits of location of upland ownership as it touches the shore line, and the location of the channel or deep water. Other factors oftentimes have to be taken into account. These, however, are constant. The location of the shore line assumes a double importance, in that it enables its configuration and general trend to be ascertained, and the limits of upland ownership as they touch it to be determined. Upon the trial of this case a former shore line, which would not serve the plaintiffs' present purpose, was shown. It was shown that subsequent to that time and prior to the defendants' extension of their property which has resulted in this action, the process of reclamation had been going on at the pleasure of the upland owners, and that as the result of that process Bank Street had been passed at every point, and the outer line of reclamation along the whole frontage in the vicinity of the locus had been carried beyond that highway to greater or less distance seaward. The plaintiffs claimed that in this situation the highway marked the shore line. This contention is not in accord with the facts just recited. Looking further for the shore line at the time when the defendants reclaimed the land in question, it cannot be discovered from either the finding or the maps, unless it be said that the tortuous and transient resultant of individual caprice which for the moment marked the outer line of fill is to be regarded as it. If this be assumed, it is clear that the location of it and the situation surrounding it, whether attention be confined to the limited frontage detailed upon the map herewith printed, or extended to comprehend what little is otherwise revealed beyond its limits, is neither such nor so certainly known as to justify a court in accepting it as satisfying the conditions demanding such a readjustment of the littoral rights of the upland owners as would make the defendants' reclamation of the land in controversy an encroachment upon the plaintiffs' filed of development. This is equally true, whether an appeal is made, as here, for the application of one of the general rules which have been accepted as applicable to ordinary conditions, or whether the situation be regarded as one demanding a study of the special features and needs of the situation, and of the conflicting interests of the upland owners, to the end that an adjustment may be made so that to each and all a fair and reasonable access to the sea under all the circumstances may be made. To hold otherwise might, under the existing conditions, lead to some very unequal and unjust consequences.

The plaintiffs suggest, in aid of their contention, that the narrow basin between the Higgins and Ladd wharves, which have for some years extended to the harbor line on either side of the locus, ought to be considered as a concave shore with the two wharves as the promontories marking its limits, and the general rule for concave shores applied thereto, giving a line from promontory to promontory across the basin, perpendiculars to which should indicate the direction in which reclamations might be made. This suggestion is one which takes an altogether too narrow view of the shore situation, and attaches too much importance to the temporary accidents of artificial construction.

The trial court decided against the plaintiffs upon the ground that they had no title other than by prescription to the triangle M. N.Y., and that the next easterly owner and his predecessors in title, against whom the prescriptive title to the triangle had been acquired, have ever retained and now retain a substantial upland frontage and an opportunity to make available all the wharfage rights originally belonging to it. Upon these facts found, the court held that the plaintiffs had not gained by adverse possession any rights beyond the limits of the ground actually occupied. As upon the plaintiffs' own claim their failure to establish the rights thus denied them was fatal to their right to recovery, judgment was rendered against them. Our views as to the broader aspects of the case render it unnecessary for us to examine the soundness of the conclusions, whether of fact or law, upon which the court relied in its rendition of judgment upon the narrower ground stated. It is also unnecessary to consider other objections to the plaintiffs' right of recovery which the defendants have urged.

There is no error.

In this opinion the other judges concurred.