Dowd v. Ensign , 68 Conn. 318 ( 1896 )

EeníT, J.

The finding of the trial court leaves indefinite and undecided the very matters on which the briefs and oral arguments of the respective parties depend.

On the part of the plaintiffs it is contended that the structure in question cannot be treated as an incumbrance existing by license of either party, because if this were so, it lay in the power of the licensor, at any time after the work was completed, to order its removal and to eject the owner of the wall as a trespasser. It is said, “ this evidently was not contemplated, from the very nature of the structure and the purposes it has answered for the period of more than thirty-eight years.” If this be true, it was for the trial court to so find as a fact. But it did not, and we cannot. Brady v. Barnes, 42 Conn. 512; Staples’ Appeal from Probate, 52 id. 425 ; Rockwell’s Appeal from Prolate, 54 id. 119; White v. Beckwith, 62 id. 79, 82.

Again, the defendants urge, first, “ that the facts as found show abundant evidence to support the defense of title by adverse user; ” and second, that “ if the facts as found do not show an original entry under claim of right, they show an entry and occupation by license.” They argue that, in either view, the property in the materials belongs to them.

The court found that the wall “served and was designed to protect the ferry-slip of Col. Colt from the action of the river, especially in freshets, which otherwise would have filled the slip with earth. It also protected the land of Mrs. Dowd.” But that it was “ designed ” for the latter purpose, as for the former, the court does not state.

Again, it is stated that the structure “ served as a division wall between the parties, and took the place of the former division fence.” But here also, there is no statement or indication that what it thus in fact served to do, there was any design or purpose, as a reason of its erection, that it should do.

Finally, it is said: “ It was a substantial structure for the benefit of both parties, and built with the knowledge and assent of Mr. and Mrs. Dowd.” That it was indeed beneficial to both parties,' is further clearly evident. That it was so to Mrs. Dowd, because it furnished a breakwater and protection to her land, is certain. But there is nothing here that answers the perhaps vital and pivotal question, in this particular case, namely, whether the assent of Mrs. Dowd to the building of this wall partly upon her land, was based upon any agreement or understanding that such structure, which would serve as a protection and a benefit to her property while it remained, should so remain permanently, whether it continued or whether it ceased to benefit him at whose sole expense it was constructed.

- It may be said that it appears from the record that it would have been impossible for the trial court to have made any more definite finding concerning the matter last suggested, since it is stated that “there was no direct evidence to show what, if any, was the agreement or understanding.” But we cannot say, nor did the court below consider, that it was essential the evidence should be direct, to justify proper inferences or conclusions of fact.

The question fully discussed by the plaintiffs in their brief, whether the case is one in which an injunction might be granted, appears to us pretty largely to turn upon the further inquiry—which the present finding does not enable us to answer—whether the threatened acts complained of would, as the plaintiffs claim, affect the inheritance and cause irreparable injury, on the assumption that they are entitled to the continuance of the wall and the protection it affords 'to their land; or whether, as the defendants assert, their only wrongful act would be “ a mere stepping upon the soil” to remove materials belonging to them.

That the facts upon which both legal and equitable relief are sought may, under the Practice Act, be presented in the same suit, and by a single count, has not been1 questioned, and cannot be. Trowbridge v. True, 52 Conn. 190.

The case is remanded to the Court of Common Pleas for further hearing, if necessary, and a further and more explicit finding, if the advice of this court is desired.

In this opinion the other judges concurred. . •