Summary
referring to deeds or other conveyances and probate records
Summary of this case from HOFF v. DRUENER REALTY MANAGEMENTOpinion
Where the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record. A right of way created by grant is to be construed as broad enough to permit any use reasonably connected with the reasonable use of the land to which it is appurtenant. In the case of a right of way by prescription, however, the common and ordinary use which establishes the right also limits it. By his counterclaim the named defendant claimed a right of way by grant and by prescription. The way by grant had its origin in 1794 in a distribution of an estate. In that distribution, one piece was set out to a daughter of the decedent, subject to a right of way, and an adjoining piece, together with the right of way, was set out to a son. The proof by the defendant of the chain of title from then until 1955, when he acquired a tract claimed by him to be the same as one included in the distribution to the son, was limited to the testimony of a title searcher, admitted over objection, as to what he found on a search of the title. No documents in the chain of title, other than the distribution and the deed to the defendant, were offered. The use made by the defendant of the right of way, including the operation of trucks and earth-moving equipment over it, far exceeded any prescriptive rights acquired prior to his ownership. Held: 1. The court committed error in permitting the defendant to prove his chain of title without production of the documents. 2. The judgment that the defendant had a right of way for any purpose reasonably connected with the reasonable use of his land gave a right greater in extent than any which could, upon the facts in this case, have been based on prescription.
Argued October 4, 1957
Decided November 26, 1957
Action to enjoin the named defendant et al. from trespassing on the plaintiff's land, brought to the Superior Court in Fairfield County, where the named defendant filed a counterclaim for a declaratory judgment determining whether he has a right of way over the plaintiff's land and the issues were tried to the court, Thim, J.; judgment in favor of the named defendants et al. on the complaint and the named defendant on the counterclaim, and appeal by the plaintiff. Error; new trial.
Morgan P. Ames, with whom, on the brief, were Edward R. McPherson, Jr., and Raymond T. Benedict, for the appellant (plaintiff).
William R. Curtis, with whom was Dale Van Winkle, for the appellees (named defendant et al.).
The plaintiff has appealed from a judgment declaring that the defendant Rayward has a right of way by grant and prescription across the plaintiff's property for any purpose which is reasonably connected with the reasonable use of his residential property and that the right of way is to be found on a certain map recorded in the office of the town clerk in New Canaan in 1941.
The facts found by the trial court which are material to the determination of this appeal in the limited aspect in which we treat it are as follows: The plaintiff is the owner of about 172 acres on Ponus Street and Frogtown Road upon which it operates a school. Ten acres adjoin Frogtown Road. The defendant Rayward, hereinafter called the defendant, owns ten acres which do not abut on any highway. Three and four-tenths acres of his property, called the Taub tract, are adjacent to the plaintiff's ten-acre tract. Over the latter, the defendant claims a right of way having its origin in a distribution by distributors in the estate of Gideon Leeds in 1794. The distribution set out to Leeds's daughter, Lydia, seven acres, "reserving liberty for . . . [his son] Gideon to pass and repass through . . . Lydia's land to the highway in some convenient place." Seven acres and one rood were set out to the son Gideon, "with liberty to pass and repass through . . . Lydia's land to the highway in some convenient place." The Taub tract was part of the land set out to the son Gideon, and it devolved to the defendant by mesne conveyances and descent. The property set out to Lydia was situated between that set out to Gideon and the highway, which is now known as Frogtown Road. The portion of the plaintiff's property across which the defendant claims a right of way came out of the land set out to Lydia. The right of way created in the distribution of the estate of the elder Gideon Leeds was appurtenant to the Taub tract and runs across the plaintiff's land to Frogtown Road.
In proof of his claimed right of way, the defendant relied upon the testimony of Frank Deschene, a title searcher of long experience. On the voir dire, the witness stated that he was not an attorney but was employed as a title searcher by Lovejoy and Cuneo, attorneys for the defendant. The plaintiff objected to the witness testifying on the ground that canon 19 of the canons of professional ethics would be violated. The court correctly overruled the objection. Deschene was not an attorney nor a member of the firm handling the litigation. See Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491; 497, 141 A. 866.
Deschene was asked to trace the chain of title from the time of the distribution of the estate of Gideon Leeds in 1794 to the time of the conveyance to the defendant. The plaintiff objected to the testimony unless it was to be based upon a series of certified copies of deeds offered in evidence. After the objection was overruled and an exception taken, the witness was permitted to testify from his notes as to the various documents which established the chain of title from 1794 to 1955, when the defendant acquired the Taub tract. No deeds or other conveyances and no probate records, apart from the distribution in 1794, were offered in evidence to establish title in the defendant. Reliance was placed solely upon the recital by Deschene of what his search disclosed and his opinion thereon. The court committed error in allowing such a method of proof. It was not the best evidence. Where the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record. Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792; Dawson v. Orange, 78 Conn. 96, 110, 61 A. 101; Mathews v. Livingston, 86 Conn. 263, 273, 85 A. 529.
Besides a right of way by so-called grant, the trial court found that the defendant had a right of way by reason of the continuous and uninterrupted user of a passway by his predecessors in title for a period exceeding fifteen years. Whether there was sufficient evidence to sustain this finding we are not called upon to decide. Some years ago, the passway into the Taub tract was mainly used for hauling wood from the tract in horse-drawn vehicles. Members of the then owner's family also walked and picnicked on the tract. Later, motor vehicles were driven over it. The defendant, after acquiring the tract in 1955, began the construction of a large dwelling on it. His contractor has operated heavy earth-moving equipment and trucks over the passway. The use by the defendant far exceeds any prescriptive rights acquired prior to his ownership. A right of way created by grant is to be construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant; Birdsey v. Kosienski, 140 Conn. 403, 413, 101 A.2d 274; but it is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. It does not extend beyond the user in which the servient owner has acquiesced. Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192. The extent of the right of way decreed by the trial court is much greater than that claimed to have been established by prescription.