Hurlburt v. Bussemey

The plaintiffs seek a correction of the finding in many particulars, both by substituting a large number of the statements contained in their draft-finding for those contained in the finding by the court, and by adding thereto other paragraphs. Many of the statements of facts thus sought to be now incorporated in the finding are covered by the finding and its amendment, and many are not admitted or undisputed facts. Also a very large number of the paragraphs of the draft-finding sought to be incorporated in the finding set forth many of the deeds in the defendants' chain of title to the locus. Inasmuch as the plaintiffs must recover, if at all, by the strength of their own title, and not by the weakness of the defendants' title, as will be discussed more in detail hereinafter, it is not necessary to correct the finding by the addition of these paragraphs. A careful examination of the evidence and of the finding and its amendment leads us to the conclusion that the finding and its amendment contain all material facts, either admitted or undisputed, which are necessary for the determination of all questions of law arising in this action.

As has been said above, the plaintiffs in order to recover in an action in the nature of ejectment must rely upon the strength of their own title, and not upon the weakness of the defendants' title to the premises in question. This has been repeatedly decided in this court and does not admit of question. "In an action in the nature of ejectment, the plaintiff must rely on the strength of his own title and not the weakness of the defendant's." Mad River Co. v. Pracney, 100 Conn. 466,123 A. 918; Center Bridge Co. v. Wheeler HowesCo., 86 Conn. 585, 86 A. 11; Moran v. Denison,79 Conn. 325, 65 A. 291; Cahill v. Cahill, 75 Conn. 522,54 A. 201.

In this action the plaintiffs now claim title by deed and also by adverse possession. The deeds offered in the plaintiffs' chain of title begin with a quitclaim deed from the heirs of Morris Woodruff in 1885, describing the property therein as "a piece of land containing about four acres, called the bar, connecting Deer Island in the Great Pond [Bantam Lake] with the mainland and bounded: West on highway, North and South on Great Pond, East on said Island." By mesne conveyances this property came into the hands of the plaintiffs, and it is claimed by them includes the land in question. It was the duty of the court therefore to determine the extent of this bar, and it relied not only on the evidence produced, but also on its view of the premises with counsel. No clear or accurate testimony was offered by anyone on the part of the plaintiffs showing the exact boundaries or dimensions of the bar, or that it necessarily included these premises in question, and the court must have relied to a considerable extent upon its view of the premises to determine whether or not the plaintiffs had established their claim that the land in question was a part of the bar described in the deeds. The court has found that the plaintiffs have no title by deed to the premises in dispute, and from a careful examination of the evidence and taking into consideration the court's own view of the premises, we cannot hold that it was in error in coming to this conclusion.

The evidence of Gideon H. Welch, the immediate grantor of the plaintiffs, who held the title to the bar from 1896 to 1899, must also have had much influence in determining the strength of the plaintiffs' title to the premises in question. The description of the property conveyed in 1899 by this witness to Watson M. Hurlburt, of the W. M. Hurlburt Company, included "Deer Island bounded north, east and south by Bantam Lake and west partly by said lake and partly by a bar connecting said island with the mainland; also said bar bounded north by Bantam Lake, east by said island, south by Bantam Lake, west by highway." This witness also testified that during his three years of ownership he never "did anything to claim ownership over or concerning that piece of property now claimed by the defendant Bussemey," and further, "it was never the intention that bar should be held to include any land on the west side. There was never a word about it, and not a word about it put into the deeds that were drawn."

The plaintiffs in this court also claimed title to these premises by adverse possession. The general rule concerning title by adverse possession is clearly expressed in Stevens v. Smoker, 84 Conn. 569, 574,80 A. 788: "The essential elements of an adverse possession sufficient to create a title to the land in the adverse possessor are that the owner shall be ousted of possession and kept out uninterruptedly for a period of fifteen years, by an open, visible, and exclusive possession by the adverse possessor, without the license or consent of the owner." "The open, notorious, uninterrupted, continuous, undisputed, peaceable and adverse possession of land for the requisite period under a claim of right will give title." Rheinfort v. Able, 80 A. 1059 (N.J.). "The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof." Huntington v. Whaley, 29 Conn. 391.

The evidence discloses no tenable ground for any such claim of title by adverse possession in these plaintiffs. In fact, it discloses that in 1908 one John H. Morrow claimed title to and made use of these premises until 1911, when he gave a deed thereof to one Edward Croft, who also occupied and used this property until 1921, and then quitclaimed the same to the defendant Bussemey, whom these plaintiffs are now seeking to oust from possession by this action of ejectment. These facts alone show clearly that there was not an open, visible and exclusive possession by the plaintiffs for fifteen years prior to the institution of this action. Indeed, the evidence discloses that the defendants, with their predecessors in title, have had adverse possession of these premises for nearly the statutory period, without considering their claimed title by deed. The court was not in error in holding that the plaintiffs had not established a title to these premises by adverse possession.

Certain rulings upon evidence by the court during the trial are also claimed by the plaintiffs as grounds of error, as set forth in the 6th, 7th and 8th reasons of appeal.

Inasmuch as the same principles are applicable to the 6th and 7th reasons of appeal concerning the rulings of the court upon the admission of a certain atlas of Litchfield County, exhibit JJ for identification, and to its ruling rejecting a map of the town of Litchfield, exhibit II for identification, these rulings will be taken up together.

Wheaton F. Dowd, clerk of the Superior Court for Litchfield County, was called as a witness for the defendants. Upon cross-examination he identified an atlas of Litchfield County, exhibit JJ for identification, as having been thirty years in the office of the clerk, and further testified that a map in this atlas delineated generally the location of Deer Island, the bar and roadway thereon, the highway and general surroundings. No further evidence was offered by the plaintiffs as to whether or not the details of the map were accurately measured and drawn to a scale. This atlas was admitted by the court for the limited purpose of showing the general conditions there, the location of the lake, the island, and the bar, but excluded for the second purpose of the offer, that of showing the scale and dimensions of the island and bar, the plaintiffs duly excepting to the latter part of this ruling. This same witness also testified that a map drawn by one E. M. Woodford in 1862, exhibit II for identification, had been in the office of the clerk for more than thirty years and showed the locus and the lake, highway and bar, but further testified that it was not an accurate representation of the bar and the island. No other evidence was offered by the plaintiffs as to the accuracy of the representation of the bar and the island.

"The use of maps, models, diagrams, and photographs as testimony to the objects represented rests fundamentally on the theory that they are the pictorial communications of a qualified witness who uses this method of communication instead of or in addition to some other method. It follows, then, that the map or photograph must first, to be admissible, be made a part of some qualified person's testimony. Some one must stand forth as its testimonial sponsor; in other words (as commonly said), it must be verified." 2 Wigmore on Ev. (2d Ed.) § 793. "The true rule as to receiving documents, ancient or otherwise, in evidence is conceived to be this: the party offering the paper must make out a prima facie case for its reception; he must show the paper is apparently as he contends."Lawrence v. Tennant, 64 N. H. 532, 539, 15 A. 543. In this State the case of Free v. James, 27 Conn. 77, is quite in point with the question now considered. In that case the plaintiffs claimed title to the land in question from their grandfather, and the question pertained wholly to the location of the dividing line between the land of the plaintiffs and that of the defendant. The plaintiffs offered in evidence a survey of the lot made by one of the distributors of the grandfather's estate thirty years prior to trial of the cause. The court says: "The sketch or map, offered in evidence by the defendant, was properly rejected by the court. It is true that it appears to have been made by a competent surveyor, judging from the fact it was signed by him; but for what purpose, and on what occasion, does not appear; and whether it was made from any actual survey of the land, or the facts contained in it were collected from the contents of deeds and other documents, cannot be known . . . it is enough to say that it was in no way authenticated as a correct map of the land; and it would be going further than we have any authority for doing to receive it as evidence in the case." There was no error in admitting for a limited purpose only the atlas offered, nor in rejecting the Woodford map.

The plaintiffs offered in rebuttal certain portions of the land records of the town of Litchfield, purporting to be a report of the committee on laying out certain lands therein to the proprietors, and a record of a deed of the original proprietors of the town, in which town the land in question was located before the separation of the town of Morris. These records were offered for the purpose of showing what the original owners and the original proprietors of the town of Litchfield regarded as a portion of the bar, and as showing the dimensions of the same. The defendants objected to the admission of these records as not proper rebuttal, and they were excluded by the court upon this ground.

It is quite clear that these records appertained to the plaintiffs' case in chief, and were so considered by plaintiffs' counsel (record p. 64), although they were also claimed as rebutting evidence offered by the defendants. From our earliest decisions the time and order of admitting evidence in the trial of a cause are subject to the discretion of the court; and the exercise of such discretion cannot be reviewed in this court.Doane v. Cummins, 11 Conn. 152; State v. Alford,31 Conn. 40; Stirling v. Buckingham, 46 Conn. 461; Dubuque v. Coman, 64 Conn. 475, 30 A. 777; MechanicsBank v. Woodward, 73 Conn. 470, 51 A. 1084; McAllin v. McAllin, 77 Conn. 398, 59 A. 413; State v. Buonomo,88 Conn. 177, 90 A. 225; Dimon v. Romeo, 99 Conn. 197,121 A. 332. See elsewhere: 1 Greenleaf's Evidence, § 431; Commonwealth v. Eastman, 55 Mass. (1 Cush.) 189, 217; Howard v. Norton, 65 Barb. (N.Y.) 161; Snook v. Lord, 56 N.Y. 605.

There is no error.

In this opinion the other judges concurred.