Mad River Co. v. Pracney , 100 Conn. 466 ( 1924 )

Counsel who argued the case in this court for the appellant did not participate in the trial of the cause in the court below. In making up the appeal record he stated that certain claims of law bearing upon the plaintiff's contention were made at the trial. That they were not so made is established by the part of the court's statement last above quoted in the finding of facts. Disregarding these claims and the reasons of appeal founded thereon, we find that the grounds of appeal are reduced in effect to one, that is, whether the facts found by the court as matter of law are ample to sustain its judgment. We may remark in passing that plaintiff is not at any serious disadvantage from this situation, since every material point arising under the rejected assignments of error can reasonably be urged, upon the comprehensive ground just stated, and the principal contentions of plaintiff's argument and brief can thus be given such attention as they deserve.

The plaintiff seeks a correction of the finding in many particulars, both by substituting the statements of its draft-finding for those contained in the finding made by the court, by adding thereto certain additional paragraphs, and especially by eliminating paragraphs thirteen and fourteen thereof and in effect substituting therefor certain findings claimed by it. Unless the finding can in this last regard be corrected, the contentions of the plaintiff must fail. The other desired corrections comprehend largely statements of facts in accord with those found by the court but expressed more in extenso. As to these plaintiff claims "that its draft-finding sets forth more clearly the facts necessary for the proper consideration by this court" of the legal questions involved, and counsel states that he realizes "that there are different ways of stating the facts, yet the draft-finding should contain" a statement of facts sufficiently full. The court's finding contains such a statement. It is not required that the court's finding in any paragraph shall be in the identical language of the request, though the latter be sustained by evidence: it is sufficient that the fact itself is found. Olesen v. Beckanstin, 93 Conn. 614,107 A. 514. The composition of a finding is not a rhetorical effort. We advert to this because the plaintiff seeks to vary the finding of the court, containing twenty-three findings of fact, by adding to it thirty-one paragraphs out of the forty-one contained in the draft-finding. Most of these corrections, if made, would result in duplication of finding, a few in adding matter not necessary to the decision of the case, and still fewer in contradiction of the facts expressly found, where the change desired would result in the production of a finding requiring a judgment exactly opposed to that rendered. None of these facts of the finding by the court are found without evidence, and no material fact established by uncontradicted testimony has been omitted. If the additions requested were made to the finding, the result would be a statement of inconsistent repetitions and almost unintelligible facts. The examination of the evidence necessary to dispose of plaintiff's claims in this regard should not have been imposed on the court or opposing counsel.

The present action is in form one to recover possession of land together with injunctive relief against a continuing trespass thereon, and the pleadings are fully adapted to try the issue of title and other subordinate issues arising in the case, of which, as we shall see hereafter, the question of interference with flowage is not one. In the trial of the action defendants, as the memorandum of the trial court states, relied upon the fundamental legal principle that in an action of this sort the plaintiff must rely upon the strength of his own title in proving his case, and is not concerned with the weakness of that of defendant. The court found that plaintiff had not sustained the burden of proof imposed by law. This conclusion is justified by the facts found, and is principally based on paragraphs thirteen and fourteen of the finding as quoted in the statement of facts. Plaintiff claims that these paragraphs should be eliminated, and a finding made that the plaintiff owns in fee the submerged land in front of the premises of each defendant. In support of its motion to correct these paragraphs the plaintiff calls attention to two deeds, Exhibits G and H, and to the following testimony given by Finton J. Phelan, an attorney at law and expert examiner of titles, who had made an examination of title of the plaintiff to the land covered by the waters of the lake: "Q. Referring to Exhibits G and H, Humiston to Walton and Welton to Mad River Company, whether or not in your opinion and on the basis of knowledge that you have heretofore stated, the property conveyed in those deeds includes the lake fronting and adjoining on the property of The Equinox Club and John Pracney? Mr. Cassidy: I object to that question. The Witness: It does. The Court: Admitted. Mr. Cassidy: Note an exception."

The instrument, Exhibit G, from Humiston to Welton, is a warranty deed and covers a number of pieces of land, some described by metes and bounds and others by lands of abutting owners; Exhibit H, quitclaim deed from Welton to the plaintiff, describes a large number of pieces of land, including those described in Exhibit G and other pieces derived from various owners, and the description is made up of references to certain deeds by parties thereto, the date thereof and date of record. The question is loosely framed, but we conceive it to mean, as it was interpreted by the trial judge, that all of the land included in description in Exhibit G, and that of the comprehensive deed, Exhibit H, was included in the flowage of the lake which adjoined the property of each of the defendants. The plaintiff's counsel seems to insist that this testimony, together with these deeds, concludes the question of title and is proof of a fee simple in the plaintiff in the lands described in these deeds; in other words, that this witness performed the function inhering only in the trial court of interpreting the deeds. Now some of the deeds, exhibits in the case, convey only a flowage right, and the lands described in these deeds are included by reference in Exhibit H, and taken by the witness as going to make up the land flowed by the waters of the lake. In other words, in forming a conclusion the court had testimony of what land was included in the deeds referred to, and that this land was flowed. In reaching the conclusion arrived at in paragraphs thirteen and fourteen of the finding, the trial court, in the memorandum of decision, states that there was no evidence from which it could find whether the land in front of the respective lands of the defendants was held in fee by plaintiff, or whether its interest therein was merely a right of flowage, and this court in examining the testimony for purpose of rectifying the finding is at the same disadvantage, and the finding must stand. It would have been entirely feasible (since it is a conceded fact in the case that title to the land covered by water and various adjoining pieces of land since conveyed to various owners and improved by buildings, derived from a common source) for plaintiff, by matching the deed of the upland proprietor with its own deed of flowed land adjoining, to have shown, if it was the case, that this last land was conveyed in fee. The course which the plaintiff took left the court in doubt in this respect, and compelled a finding that plaintiff had not sustained its burden of proof, and to render judgment for the defendants.

It will be observed that the trial court has found that as to all the land covered by the plaintiff's lake, it had at least a flowage right. This, however, does not assist a recovery in this action, since the complaint is not so framed as to justify a recovery by plaintiff except upon showing an ownership in fee, as pleaded, nor is there such completeness in the finding of facts as to justify a recovery for interference with a flowage right, did pleadings exist properly stating such a cause of action. If the plaintiff had shown an ownership in fee of the land under water, then upon the other facts found in the case, it was entitled to judgment for some amount of damages and a recovery of complete possession of its land. Had it showed merely a flowage right, then whether it could have had any recovery would have depended upon who had the reversionary title to the land flowed, whether the plaintiff's grantor, or the latter's grantee of the adjoining upland. If the deed to this latter grantee had clearly and explicitly gone only to the edge of the lake, then he would not have had a right to dock out, and if he had docked out would have been subject to proper actions on the part of the plaintiff and the reversioner. If, however, this latter grantee had taken by a deed bounding him simply by the lake, then he would have taken title to the bed of the lake as far as the thread of the original stream existing before the flooding of the land which established the lake, and would have been entitled to dock out with a structure not materially decreasing the area of flowage.

"Subject always to a manifest intention to the contrary, apparent on the face of the instrument, a grant or conveyance of land . . . will be construed as extending to the middle or thread of the original stream." 9 Corpus Juris, p. 191; Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462.

The various facts above indicated as necessary to the determination of the rights of the parties as regards flowage of the submerged land, as we here said, do not exist in the findings in the instant case. If it be objected that as to some of these facts the burden of proof would be upon a defendant, it is sufficient to say that with proper pleadings he would have known what he had to meet and would have been prepared to establish such facts, if the evidence justified it. The pleadings in the present case would give a defendant no notice of any requirement in this regard.

There is no error.

In this opinion the other judges concurred.