Alderman v. City of New Haven

70 A. 626, 81 Conn. 137

• Court: Supreme Court of Connecticut
• Decided: August 5, 1908
• Status: Published

Opinion

Prentice, J.

The relief sought in this action, whether legal or equitable, is asked by reason of a claimed invasion by the defendant of a legal right of the plaintiff. The right alleged to have been invaded is the plaintiff’s right of property in the lands described in the complaint. The claimed invasion results from the maintenance, past and present, of a sewer through and over these lands. The defendant in its behalf asserts its unqualified right to do what it has done.

The sewer in question is an underground trunk line. It was built in 1881. The route chosen for it by the city lay through land of Robert M. Burwell and of an adjoining owner named Tuttle. The city’s original plan was to obtain a right of way over these lands by laying out a street along the projected route, in extension of an existing street, and to build the sewer within it, and proceedings to that end had in 1881 been begun and were pending before the board of public works. At a public hearing appointed by that board upon the subject, Burwell, acting by his son Merritt, who had authority to act for -his father, together with Tuttle, appeared and opposed the opening of the proposed new street. Each then made the proposition that he would give to the city the right to construct and maintain the sewer over the proposed route, which is that of the existing sewer, if the project of laying out the street was abandoned, he be not assessed benefits for such construction, and be allowed to connect with the sewer. This proposition was thereupon referred to the common council, approved, the proceedings for the layout of the street discontinued, and the board of public works authorized to secure from the landowners the proposed right of way. It did not appear that any writing was ever executed by Burwell, but the minds of the parties met upon the proposition made by him, and the city proceeded to construct the sewer as proposed. All this was with the knowledge and assent of Burwell, who was present almost daily during the progress of the work and gave such directions as he wished as to branch-connection provisions, which were complied with; and in all things in relation to the construction of the sewer, the assessment of benefits, and the use of the sewer when built, the parties conformed to and acted in pursuance of the terms of Burwell’s proposition.

Burwell continued to own said land, and to make use of the sewer in connection therewith, until his death in 1888, leaving the land to his widow, who in 1895 conveyed a portion of it, being one of the pieces of land described in the complaint, to her son Robert, who in turn conveyed the same to one Stiles in 1898. Another son, Merritt, in 1897 conveyed another portion, being the other piece described in the complaint, to Stiles in 1897. The chain of title to this piece from Mrs. Burwell to Merritt is not given in the record. February 17th, 1905, Stiles quitclaimed both pieces to the plaintiff. Stiles at the time of the acquisition of his titles was fully advised by his grantor, Merritt, who was the son who represented his father in making the proposition recited, of the existence of the sewer, and during the whole period of its existence the visible and apparent building connections therewith and other outward manifestation of its presence have been such that its existence, location and character would become known to any person making such inspection of the premises as an ordinarily prudent person would make, and the city has from time to time by its employees entered upon the premises for the purposes of cleaning and repairing the sewer, which since its construction has been continuously in use by the city as a part of its general sewer system. The connections with the buildings on the plaintiff’s premises, which were made shortly after the sewer was built, have ever since continued, and said buildings have continued to be served by said sewer. It did not affirmatively appear that the owners of the property from Robert M. Burwell to Stiles, except Merritt Burwell, had actual knowledge of the location of the sewer. . It is found, however, that the visible indications of its location were such, and the acts of the city in connection therewith such, that they were all chargeable with knowledge of its existence, location and character, and of the claimed right of the city to its maintenance.

It thus appears that the defendant did not construct, and for the seven years of Robert M. Burwell’s life and ownership of the property after 1881, maintain, the sewer under a mere naked license from him, that is, under an authority or power to do so uncoupled with an interest in the subject. Foot v. New Haven & N. Co., 23 Conn. 214, 223. It acted under an agreement, or the assumption, shared by both parties, of an agreement, entered into between it and Burwell, for a valuable consideration, whereby, in return for certain concessions and privileges, it was to have the right to build the sewer where it was placed and now is, and to there perpetually maintain it. Such an agreement, reduced to writing, signed and duly recorded, would have constituted an enforceable one as against Bur-well and his successors in title. None such having, as far as appears, been embodied in a writing, there was nothing which of itself would create obligations which the law would enforce; but when the parties acted as they did in the situation which had developed, conditions arose which equity would not ignore. The finding is to the effect that there was an agreement of the minds — an agreement in form. It matters little whether or not this was so. It was at least true that the city assumed the existence of such an agreement and acted in. reliance upon that assumption, and that Burwell must have known that such was the fact. When, therefore, with this knowledge, he stood by and not only saw the city expend its funds in the belief it held, but also actively assented to, encouraged and participated in its action, — when he saw the city conforming in all things to the terms of his proposition, and accepted all his days the benefits which were to come to him by its terms, — he placed himself in a position where, agreement in form or no such agreement, equity and good conscience would impose upon him obligations as effective as ■those of any'contract.

We have, then, for these seven years, however the situation is viewed, all the elements of a user by the city adverse to Burwell. An easement will in this State be acquired by an adverse use of fifteen years. Coe v. Wolcottville Mfg. Co., 35 Conn. 175, 177; Legg v. Horn, 45 id. 409, 415. The user of the city was actual, continuous, known to Burwell, and exclusive of and adverse to him. It was none the less adverse for having been begun under a contract in form, or the assumption of the existence of such a contract, since there was a claim of right resulting therefrom and the attending circumstances, or from the circumstances themselves. Comins v. Comins, 21 Conn. 413, 416; Legg v. Horn, 45 id. 409, 415. The claim of right was no less effective to create an adverse holding for the reason that its foundation was in equity. So it was in the case last cited, and here, as there, it was one which a court of equity would have enforced. Williams v. Morris, 95 U. S. 444; Legg v. Horn, 45 Conn. 409, 415. It is sufficient for the creation of an adverse possession that the possessor enters and possesses as if the land were his own. Johnson v. Gorham, 38 Conn. 513, 520; Carney v. Hennessey, 74 id. 107, 111, 49 Atl. 910.

Passing now to the seventeen years which immediately followed Robert M. Burwell’s death and bring us'down to the plaintiff’s acquisition of title, we find that essentially the same condition of things continued during this entire period. The defendant’s possession and use remained an actual and exclusive one. It was under a claim of right, the same claim as before Burwell’s death, and therefore adverse. French v. Pearce, 8 Conn. 439, 443. The possession. and use were so open, visible and apparent, and of such a nature, that in the absence of actual knowledge thereof, and of their adverse character on the part of the successive fee owners, such knowledge will be imputed to them. School District v. Lynch, 33 Conn. 330, 334; Carney v. Hennessey, 74 id. 107, 111, 49 Atl. 910; Clark v. Gilbert, 39 Conn. 94, 97. The continuity of these conditions was unbroken from the beginning.

Such conditions have, therefore, attended the maintenance by the defendant of this sewer along its present route, that a legal rig’ht to so maintain it was perfected and an easement therefor created by prescription long before the plaintiff became the owner of her land. Legg v. Horn, 45 Conn. 409.

The plaintiff objected to the testimony of Merritt Bur-well as to the proposition which he made on behalf of his father at the meeting of the board of public works, upon the ground that his authority to make the proposition, and enter into an agreement with the city was not sufficiently established by his statement that for a number of years prior to his father’s death he had had practical charge of the latter’s affairs and that his father told him to appear at the meeting and object to the layout of the sewer as proposed. The story of what occurred at the meeting was clearly admissible as a part of the history which led up to the construction of the sewer, and the authority of the son to fully represent the father in what he proposed, either originally or by ratification, is too apparent to admit of question.

The records of the court of common council, disclosing the report to it of the board of public works and its action thereon, were admissible to show its doings. 3 Wigm. on Ev., § 1661. The subject-matter was relevant, since it tended to show the city’s acceptance of the Burwell proposition and that it acted upon the strength of it.

Other rulings objected to are too unimportant to call for discussion, or the objections thereto have been waived.

There is no error.

In this opinion the other judges concurred.