Perry v. Pratt , 31 Conn. 433 ( 1863 )

Butler, J.

We do not concur in the construction of the statute claimed upon the argument.

The statute in terms gives a general power to the superior court “ as a court of equity,” in case boundaries between two or more adjoining proprietors have been lost or become obscure or uncertain, and a “ petition in equity ” is brought, to order such lost or uncertain bounds to be erected and established. This grant of power is followed by a permissive authority to appoint a committee of freeholders for that purpose, and a form of oath to be taken by the committee, with a provision that they report “ the facts,” and “ their doings ” relative to the bounds, to the court, who may disapprove, or approve and confirm by a decree, «fee.

We find, therefore, a grant of equity jurisdiction in respect to boundaries between two or more adjoining proprietors, and a provision requiring that the committee be freeholders, but nothing which confers any special power upon the committee which they would not possess if appointed under the general power of the court as in other cases.

“ The issuing of commissions to ascertain boundaries,” says Judge Story, (1 Eq. Jur., § 610,) “ is certainly a very ancient branch of equity jurisprudence ; ” and there can be no doubt that our statute conferring equity jurisdiction upon the superior court, (Rev. Stat., tit. 5, sec. 20,) is broad enough to embrace that branch, as well as every other. But that branch of equity jurisdiction was necessarily limited in extent by the rule that equity will not interfere where there is adequate remedy at law. It is limited therefore by a course of decisions to cases where there is some peculiar equity attached to the controversy respecting the lost bounds, arising out of the fraudulent or negligent misconduct of the respondent, where it is his duty to preserve or protect the boundaries, and they can not otherwise be found or restored ; to cases where a resort to equity is necessary to prevent a multiplicity of suits; and to cases where the power is necessarily exercised, incidentally, in furtherance of another equity. Controversies not presenting any peculiar equity, like the one in question, have been left to be settled by proceedings at law. But where, under the limitations established by the decisions, the jurisdiction of equity attached, the proceedings were substantially like those provided for in this statute, and in effect it is nothing more than an extension of jurisdiction to a class of cases not before embraced within that jurisdiction, because there was remedy at law.

This view is confirmed by a reference to the history and purpose of the law. The importance of having fixed bounds between adjoining proprietors was recognized early in the history of the state. In 1719, when all equity power remained in the General Assembly, and when every adjoining proprietor was required to bound every parcel of his land “ with sufficient mere stones, at least eighteen inches long, whereof six inches should be above ground,” under a penalty of one dollar and sixty-seven cents per month, and perambulate his lines once a year if requested by the adjoining proprietor, under a penalty of eighty-four cents per day for every day he should refuse, an act was passed providing for the “ fixing ” of “ lost bounds ” between adjoining proprietors by freeholders appointed by an assistant or justice of the peace. But that act transferred no title or possession, and prevented no proceedings at law, and unless acquiesced in, the only effect was to make a prima facie case in favor of the plaintiff. That statute was practically of little use, for the want of force and finality in the proceedings, and was omitted in the revision of 1821. In 1832 another statute was passed of substantially the same character, with a provision that if the parties did not abide the action of the freeholders, and litigation ensued, the plaintiff, if unsuccessful, should pay double cost. That statute was also found to be of little practical importance, for the same reason, and in 1859 the statute in question was passed, placing the power in the superior court “ as a court of equity,” for the obvious and necessary purpose of making its decree final and conclusive upon the parties, and giving it all the effect of a decree in equity. We think it entirely clear, therefore, that the parties stand before the court as in any other case where the facts have been found by a committee, and the report is accepted establishing them as the facts of the case on which the court is to act; and that it is competent for the court to disapprove the doings of the committee and dismiss the petition, or approve, confirm and establish them by a suitable decree ; and that the question whether the facts will justify the erection of the bounds fixed by the committee, and their establishment by this court, is now legitimately before this court.

It appears from the facts found that the ti’acts of the parties corner at a beach on Long Island Sound, where there was originally the mouth of a small creek, which was made the boundary between them; that the mouth, and the portion of the creek immediately connected with it, has been subject to sudden filling and change by violent southeast storms; and that by the operation of these storms, and the formation of new openings, natural or artificial, the mouth has been changed to the westward, away from the original line between the tracts. If this has been the result of imperceptible accretion, the petitioner must abide it, as an incident attached by law to the title of those who bound their lands on a stream which may thus imperceptibly change its direction or bed. But it is found that it has resulted from a series of avulsions, obliterating the mouth and bed for the time, and thus working it to the westward, as it worked a new bed for itself, or a channel was opened to let off the water, and incidentally and gradually working the creek in the same direction, and the question is open whether such a change presents a case of lost or obscure and uncertain boundary.

What then is a lost boundary ? It is a boundary which has lost its distinctive character as such, by removal, displacement, decay or change, so that it no longer answers the purpose of a bound in defining the true line between the tracts. And it is immaterial whether it be a natural object or an artificial one. A tree that has been turned over with its roots by a gale and is lying in the vicinity, but away from the corner or the line, has lost its place and its distinctive character as a bound. So if cut down, and the stump has decayed and become invisible. So of a stone which has been displaced, although remaining near the place. And so of the mouth of a stream which has been filled by a sudden avulsion, and has broken for itself a new mouth at a distance more or less remote from the line. It has lost, by a sudden removal from it > place, or a series of sudden removals from the line, its character as a bound, and although once certain has become uncertain and unreliable as a boundary.

But there is another kind of uncertainty in this case as in other cases. It was uncertain whether the boundary though changed had not been acquiesced in, so as to change the location of the line between the tracts. If the mouth of the creek, although changed by sudden avulsions on to the land of the petitioner, and away from the true line, involving as a consequence a change in the connected creek, had at anytime been acquiesced in with knowledge of the facts, as still the boundary, for the period of fifteen years, in any particular position, it would establish a new line between the parties at the place where it was so acquisced in ; (Jackson v. Mc Connell, 19 Wend., 175 ;) and if such fact had been found, unless it also appeared that the committee had fixed the bound on that line, we should advise that it be recommitted, or the petition dismissed. But from the facts found it does not appear that any new line has thus been established between the proprietors of the tracts, or that there ever was such acquiescence in any new position of the boundary for any considerable period. The mouth of the creek seems to have been a shifting boundary, often filled up, sometimes opening the old and sometimes a new channel for itself; sometimes opened by the owners; and when opened by them, usually but not always opened at the place where it was when then immediately filled up ; and the gradual changes in the creek seem to have been incidental to these changes of its mouth. It is obviously impossible, therefore, to say that any new or particular position of the boundary has been so acquiesced in by the former owners of the tract of the petitioner as to establish a new line of boundary between them, or that the position of the mouth at the time the petitioner bought had been acquiesced in at all, so as to conclude the petitioner respecting the boundary.

On the facts found the committee, so far as they had power to judge, did so correctly, and proceeded to fix a bound between the parties. They did not restore the old bound by opening the creek at the place where they thought the lina formerly was, but arbitrarily, as they say, substituted a different bound. In this we see nothing objectionable. The object of the statute, and of courts of equity, when they establish boundaries, is certainty and permanency in respect to the line between the parties. The experience of the past, as found by the committee, shows that neither could be obtained by restoring the mouth of the creek to its original position, and that if restored it would be liable to immediate removal. Owing to the position of the land and its exposure to storms, it was an improper boundary, and the committee properly substituted one which would be permanent and reliable, and the respondent has no just ground of complaint in that respect.

The committee further say that they are not certain that they have ascertained the exact line. But they also say that the mouth of the creek has probably been as far east within the last half century, and it is apparent that the change in the ci’eek resulted from the change of its mouth, and there is neither pretense nor possibility that the boundary could change otherwise than to the west. We think their doings in that respect also should be approved, and we advise that a decree be passed accordingly.

In this opinion the other judges concurred.