Town of Fairfield v. Town of Easton , 73 Conn. 735 ( 1901 )

Upon the facts found it is clear that prior to July 1st, 1895, Stillson had no settlement in Easton. The ultimate question in the case is whether he acquired one by commorancy there, after that time. The burden of proving that he did is upon the plaintiff, and unless the facts found show that he did, judgment must be advised for the defendant.

The statute (General Statutes, § 3288) under which the questions in the case arise, provides that "no inhabitant of any town . . . in this State shall gain a legal settlement in any other town unless he shall have resided . . . four years continuously in such town." We think the fair import of the finding, taken as a whole, is that after July 1st, 1895, Stillson's fixed and permanent residence, his home, was at his sister's house at Easton. He went there, and resided there, intending to make it his home so long as his sister would keep him; he had no intention of returning to his former home, nor of making any other place his home. An actual residence in his sister's house with such an intent, made that house his domicil, his home, his fixed and permanent residence. "It is true, there is a wide difference between domicil and mere residence. Of course they may be, and usually are, at the same place, and it is quite obvious that they may be at different places. But domicil is but the established, fixed, permanent, and may therefore be said to be the ordinary, dwelling-place or place of residence of a party, as distinguished from his temporary and transient though actual place of residence."Salem v. Lyme, 29 Conn. 74, 79.

It is true that after going to his sister's in July, 1895, Stillson made short visits yearly to Newtown, and voted there twice, and kept a few of his belongings at the old homestead, and claimed a residence in that town for certain purposes; but these facts, in and of themselves, and in view of the other facts found, do not as matter of law establish his residence and domicil in Newtown; at most they were evidential facts tending to prove such residence and domicil, and the court, taking into consideration all the facts proved, rightly decided that his domicil and residence were in Easton after July 1st, 1895.

The trial court has thus found that in July, 1895, Stillson began such residence in Easton as would, had it remained "continuous" thereafter for four years, have given him a settlement in that town, all the other statutory provisions being complied with; Reading v. Westport, 19 Conn. 561;New Milford v. Sherman, 21 id. 101; Salem v. Lyme, 29 id. 74; New Hartford v. Canaan, 54 id. 39; and the controlling question in the case narrows itself down to this, did such residence, in view of what took place in and after May, 1899, remain continuous for four years after it began?

We think that upon the facts found it did not. Up to May, 1899, Stillson had a home, a fixed and permanent place of residence, in Easton, and he in fact and in legal contemplation resided there. In that month he was deprived of that home, and as to him it ceased to exist in fact and in law. Thereafter he never had any fixed residence or place of abode in that town, nor did he attempt to acquire any other there. He had no property there, that was all in Newtown; and he himself was not thereafter in Easton, save for one day for a temporary purpose, until he visited his brother-in-law in November following. There are no facts found sufficient to show that after he was turned out of his home in Easton, he intended to go back and make some other place in that town his home; nor that his absence thereafter from Easton was for some temporary purpose merely; nor that he still regarded Easton as the town of his home; and, in short, there is nothing in the finding to show that after May, 1899, he had such continuous residence in Easton as the law requires in order to gain a settlement; his residence, begun there in July, 1895, was broken and interrupted in May, 1899, before the statutory four years had expired, and consequently he acquired no settlement in Easton.

The court below has found, in effect, that in what Stillson did after he was turned out of his sister's house he did not intend to change his Easton domicil. There may be a breach and interruption of "continuous" residence by acts which do not effect a change of domicil; Reading v. Westport, 19 Conn. 561;Washington v. Kent, 38 id. 249; and we think that the mere fact that Stillson did not intend to change his domicil, did not of itself continue to give him, after May, 1899, a "residence" in Easton, within the meaning of the statute under consideration. Upon the facts found that residence ceased in May, 1899, notwithstanding his want of intent to change his domicil.

The Court of Common Pleas is advised to render judgment for the defendant.

In this opinion the other judges concurred.