Alling Realty Co. v. Olderman , 90 Conn. 241 ( 1916 )

The defendant owns two contiguous tracts in connection with which he claims the right to use the passway in question for purposes of access to and egress from his premises. One of these tracts came to him through the Beardsleys, who became its owners in 1881 and continued to own it, both or one of them, until 1910, when the title passed to the defendant. The conveyance of it to the Beardsleys was made when the surrounding property was in an undeveloped state, and before the passway was in existence. The deeds to them and to their predecessors in title contained no grant of a right of way over the land included in the passway, and by no subsequent deed or writing, in so far as appears, was any such right given to the Beardsleys, or to either of them, or to the defendant. Any right which may at present exist in favor of the defendant as the landowner must have been derived in some other way.

The finding upon this subject is that sometime between 1887, the year when the passway was laid out, and 1891, Beardsley began to use it to go to and from the rear of his land for various purposes in connection with his premises, similar in character to those for which it is now used; that from that time down to the bringing of this suit, he and his successors in title have continued in the actual and uninterrupted use of the passway for such purposes as of right; and that the use of the passway for the purposes stated was granted to Beardsley by the Allings sometime between those dates. By an obvious mistake the finding at this point makes use of the singular "Beardsley" instead of the plural "Beardsleys," due doubtless to momentary forgetfulness that William E. Beardsley was for a time an owner in common with George L. Beardsley, whose ownership covered the entire period from 1881 to 1910. For our purposes they may well and conveniently be treated, as the finding treats them, as one.

In this finding appear all the elements necessary for the acquisition of title by prescription. The use was necessarily open and visible; it was continuous and uninterrupted for fifteen years; and it was under a claim of right. School District v. Lynch, 33 Conn. 330,334. The fact that the use began as a result of a grant, whether one by parol or one otherwise ineffective or invalid, instead of militating against the adverse character of the use only emphasizes it. Such grant, although without legal validity, was not only entirely consistent with possession or enjoyment under a claim of right, but furnishes a natural basis for and prima facie evidence of such possession and enjoyment.Legg v. Horn, 45 Conn. 409, 415; Clark v. Gilbert,39 Conn. 94, 97; Spencer v. Howe, 26 Conn. 200, 202;Comins v. Comins, 21 Conn. 413, 416; South SchoolDistrict v. Blakeslee, 13 Conn. 227, 235; Griswold v.Butler, 3 Conn. 227, 246; Rogers v. Hillhouse, 3 Conn. 398,403.

The plaintiff, however, insists that this finding, that the adverse use was continuous and uninterrupted for the required period, was unwarranted and disproven by the fact, appearing, as it says, by the finding that there was a period when George L. Beardsley was executor of the last will and testament of Amos H. Alling, and that his possession at that time must be regarded as that of his testator and not his own, adverse to the interest of the estate he thus represented. This claim appears not to have been made below, and is not made the basis of a reason of appeal, unless it be very indirectly involved in the general language of one or two of them. Clearly the finding was not made with any relation to it. It is not even found that Beardsley ever was such executor, or when he became such. The only thing in the finding which this plaintiff can use to base its claim upon, is an incidental statement in the recital of the various conveyances made by or to the parties and their privies, that Beardsley, as executor of Amos H. Alling, made, under date of April 1st, 1905, a conveyance to the plaintiff of the interest of Alling in certain property.

That matter aside, the court's finding of a continuous adverse use and enjoyment for fifteen years and more would not necessarily be negatived by the exclusion of time from and after April 1st, 1905. Fifteen years prior to that time would carry the time back to April 1st, 1890, while the finding is that the grant to Beardsley was made sometime between 1887, when the passway was laid out, and 1891, about the time the gate was built in the fence, and that Beardsley's adverse use began between those dates. As more definitely fixing the precise date, the finding is that, before the gate was built, the passway having been then open about four years, Beardsley made use of it by removing a section of the fence on the boundary line between it and his land. We should not be justified in holding that the requisite period of uninterrupted adverse use had not run, in the face of the court's finding that it had, without more definite and certain information than the record furnishes, which the plaintiff should have supplied, or, by adequate notice of the question desired to be reviewed, prompted the court to supply.

The plaintiff further claims that the court erred in giving effect to Beardsley's use of the passway prior to April 1st, 1905, as adverse, because of an estoppel arising from the deed given by him as executor of Amos H. Alling's last will and testament already referred to. This deed was a quitclaim, and without warranty of title, of Alling's interest in several pieces of land. Included in one of them is the passway. The deed incidentally recites, in connection with this tract, that it embraces all rights and privileges appurtenant to it contained in a number of recorded deeds and agreements referred to specifically by date and volume and page of the record, and adds that the premises are conveyed subject to the incumbrances thereby created. Among the deeds thus referred to is one by the Allings to one Nettleton, of property adjoining the passway, including rights therein. This deed recites that the passway should be kept open, unincumbered and free, for the use in common of the owners and occupiers of land bordering on it and upon any continuation of the same that might be made southerly and westerly to Elizabeth Street. Doubtless Beardsley believed that his rights were recognized and sufficiently noticed by this provision, repeated in at least one other of the referred to deeds of property adjoining the passway. He professed to be giving the state of the title by recorded deeds. We fail to discover any sufficient basis for the asserted estoppel.

For the purpose of showing that Beardsley's use of the passway was under a license from the Allings, the plaintiff inquired of two witnesses concerning conversations had by them with Charles B. Alling as to how the gate came to be built, and concerning Alling's declarations made in those conversations. The court having, against the plaintiff's contention, ruled that, if the conversations were claimed as tending to establish a license, they were inadmissible as being declarations in the declarant's own favor, counsel for the plaintiff ineffectually urged their admission as part of theres gestae.

The evidence was rightfully excluded. It was hearsay testimony. The declarations sought to be shown were in the declarant's favor, since their tendency was to advance his interests and to defeat the claims of another adverse to them. Smith v. Martin, 17 Conn. 399,401. They were recitals of what had occurred, not declarations accompanying and characterizing an act, and, therefore, not a part of the res gestae. Pinney v. Jones, 64 Conn. 545, 549, 30 A. 762.

The remaining reason of appeal is to the effect that the court erred in rendering judgment in favor of the defendant, in spite of the fact established that the defendant had been and was making use of the passway, through the gate in the rear of the Beardsley lot, in connection with the tract south of that lot which he acquired from Kelly and in connection with the buildings thereon, and that he claimed the right to continue such use. The court has found that no claim was made below that the plaintiff was entitled to some judgment, even if the defendant succeeded in establishing his right to use the passway for the purposes of access to and egress from the Beardsley tract, and that might well end the matter here; but the judgment as rendered finds further justification in the facts found. Kelly acquired his title from the Allings, who, in 1893, deeded to him, his heirs and assigns, a lot thirty feet front, extending from Olivia Street to the passway, together with the right to use the passway in common with others. The easement thus granted was clearly not a personal one, but one appurtenant to the land conveyed. As such, it was appurtenant to the whole lot and to each and every part of it. Sweeney v. Landers,Frary Clark, 80 Conn. 575, 581, 69 A. 566; Blanchard v. Maxson, 84 Conn. 429, 433, 80 A. 206. The deed of Kelly to the defendant of the front part of the lot did not, either by virtue of the division or of its detachment from the portion adjoining the passway, destroy the easement as appurtenant to it, or deprive it of the benefit of the easement in so far as there might exist means for its enjoyment. In the present case such means existed through access to the way over the Beardsley lot. Kelly's deed to the defendant did not, in specific terms, convey the right of way, but it did expressly grant the land with its appurtenances, and, by the force of that language, the easement as appurtenant to the land conveyed passed to the defendant.Blanchard v. Maxson, 84 Conn. 429, 434,80 A. 206.

There is no error.

In this opinion the other judges concurred.