Summary
In Ricci v. Naples, 108 Conn. 19, 22, 142 A. 452 (1928), however, our Supreme Court stated that a judgment is a "final judgment" as long as "all the issues were determined, except the amount of damages, and the court rendered a judgment after fully hearing the parties."
Summary of this case from Wilcox v. FerrainaOpinion
An adjudication by the trial court of the equitable issues in favor of the plaintiff is a final judgment, from which an appeal may be taken to this court, even though the assessment of damages remains for subsequent determination by the jury. The written exceptions annexed to a motion to correct the finding must be confined to one or more of the three grounds specified in § 11, p. 309 of the Practice Book; a refusal to find an admitted or undisputed material fact; a finding of a fact in language of doubtful meaning; and a finding of a material fact without any evidence. An exception to a finding on the ground that it is against the weight of the evidence is not permissible, for this court cannot retry the facts by considering and weighing the evidence, which is a function within the exclusive province of the trial court. It is the policy of our recording system that the title to all interests in land shall appear on the land records so that they may be accurately and easily traced; therefore, implied grants of land, or of easements, are recognized in this State to a much more limited degree than elsewhere. One who seeks to establish an easement by user is bound to exercise his claimed right so openly as to give the owner of the land knowledge and full opportunity to assert his own rights; and the owner is not bound to use reasonable diligence in discovering the fact of a concealed user which had not developed into an easement when he took possession of the premises. In 1921 and 1926, respectively, the defendant and plaintiff acquired title to their adjoining properties through mesne conveyances from a common grantor who, in 1894, had installed an underground sewer pipe running from the defendant's premises across the land of the plaintiff. The conveyances to both parties were by warranty deed which made no mention of an easement, nor was the use of the pipe so open, visible and apparent as to apprise the plaintiff of its existence. Held that the defendant's deed did not carry an implied grant of an easement to maintain the pipe upon the plaintiff's land; and that the plaintiff was entitled to injunctive relief.
Argued April 10th, 1928
Decided June 18th, 1928.
SUIT for an injunction ordering the defendant to remove certain connections with an underground sewer pipe located upon land of the plaintiff, and for other relief, brought to the City Court of Meriden and tried to the court, Dunne, J.; judgment rendered upon the equitable issues for the plaintiff, from which the defendant appealed. No error.
The appellee filed a motion to erase the appeal from the docket of this court. Motion denied.
On September 11th, 1894, John Salisbury was the owner in fee simple of a tract of land in Meriden, bounded southerly by West Main Street and easterly by a private way called Quinlan Avenue, on which were three houses fronting upon Quinlan Avenue. At this time, Salisbury, under a license and permit from the city of Meriden, installed an underground sewer pipe near the edge of Quinlan Avenue connecting with the public sewer pipe on West Main Street to serve the three dwellings on his property. On April 5th, 1900, Salisbury transferred the entire tract to George and Maria Angla Montemurro, husband and wife, at which time the three houses fronting on Quinlan Avenue were on the tract. Mr. and Mrs. Montemurro continued to be the owners of the entire tract of land from April 5th, 1900, to December 27th, 1921, when they sold that portion, having upon it the house furthest north from West Main Street, to Dominick Naples. On March 5th, 1925, they sold the tract of land. between the property bought by Naples and West Main Street, with the two houses thereon, to Giovanni Ricci. The deeds from the Montemurros to Naples and Ricci were warranty deeds containing the usual covenants of warranty and without any express words granting an easement. In February, 1926, Giovanni Ricci transferred to the plaintiff, by warranty deed containing the usual covenants of warranty and without any express words showing any easement, the property purchased by him from George and Maria Angla Montemurro. Neither Giovanni Ricci nor Patrick Ricci, the plaintiff, had any knowledge or notice, express or implied, that sewage from the premises of Naples or Cassidy or any other parties was passing through the underground sewer pipe on the Ricci land until the early part of March, 1926, when they were informed by an attorney that three properties were sewering through an underground pipe on the land. At no time has there been an open, visible or exclusive possession by Naples of this underground sewer pipe, and at no time has Giovanni Ricci or Patrick Ricci been ousted of possession of the land now standing in the plaintiff's name. The use of this underground sewer pipe is very convenient to Naples, but he has not made any attempt to arrange for the disposal of the sewage from his land and buildings either by way of Quinlan Avenue or over the properties adjoining. The buildings on both tracts were on the land when it was bought by John Salisbury from his predecessor in title; but there was no evidence as to the reason why Salisbury constructed the pipe line on his land, nor was there any evidence offered as to any regulations or ordinances of the city of Meriden.
Morris M. Wilder, for the appellant (defendant).
Daniel J. Danaher, for the appellee (plaintiff).
In this court, the appellee filed a motion to erase the case from the docket for lack of jurisdiction on the ground that the judgment of the City Court of Meriden, upon the equitable issues, was not a final judgment and that no final judgment could be rendered in the case until the damages had been assessed by a jury.
As far as appears from the record, no objection was made to the action of the City Court of Meriden in proceeding to the trial of the equitable issues before the question of damages claimed for trial to the jury was tried. In the trial to the court, all the issues were determined, except the amount of damages, and the court rendered a judgment after fully hearing the parties. This judgment, by its terms, disposes finally of all the issues in the case except the amount of damages and was a final judgment, as to the issues adjudicated, from which an appeal lay immediately to this court. "A `final judgment,' within the meaning of our statute of appeal, may include any judgment in its nature final and separable from any other judgment that may be rendered in the action, although not finally disposing of the action." Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37, 33 A. 533. "In the course of an action on the equity side of the court in which a receiver is appointed, it is often necessary for the court to make an order which constitutes an adjudication by a judicial finding, separable from the main action, affecting in some instances persons who are parties to the action only for the purposes of that proceeding, and which cannot be reviewed unless by an appeal from that order. Orders of such a character which are in fact a final adjudication of the rights involved, may generally be reviewed by an appellate court." Guarantee Trust Safe Deposit Co. v. Philadelphia, R. N.E. R. Co., 69 Conn. 709, 714, 38 A. 792. "A final judgment may be followed, in cases of certain kinds, by a further judgment." New Milford Water Co. v. Watson, 75 Conn. 237, 243, 52 A. 947, 53 id. 57; Bristol v. Bristol Water Co., 85 Conn. 663, 670, 84 A. 314; Barber v. International Co., 74 Conn. 652, 657, 51 A. 857; Wardell v. Killingly, 96 Conn. 718, 722, 115 A. 539; Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 31, 78 A. 587. The motion to erase the appeal is denied.
The defendant moved the trial court to expunge certain paragraphs of the finding as made and to correct and add to the finding by substituting in place of the paragraphs found, certain paragraphs of his request for a finding. The written exceptions which the defendant annexed to his motion to correct did not contain any grounds for expunging or adding to the finding provided by our Practice Book. Practice Book, p. 309, § 11. Our rules provide that written exception to a finding may be for one or more of the following grounds: (1) A refusal by the court to find a material fact, which was an admitted or undisputed fact; (2) a finding of a fact in language of doubtful meaning, so that its real significance may not clearly appear, and (3) a finding of a material fact without any evidence. As there is no reference in the exceptions or reasons of appeal directly, or by reference to the motion to correct, to the grounds for expunging a fact found or adding a fact to the finding as set forth in the rules above, the motion to correct was properly denied by the trial court and cannot be considered by us. Moreover, an examination of the entire evidence certified in connection with the motion to correct shows that the matters contained in the finding were supported by evidence, and that the real purpose of the motion is to ask this court to weigh the evidence adduced pro and con, and retry the facts found by the trial court. It is not a permissible ground of exception that a fact was found against the weight of evidence. This court cannot retry the facts by considering and weighing the evidence; that is the exclusive province of the trial court. De Feo v. Hindinger, 98 Conn. 578, 581, 120 A. 314.
Upon the finding as made, the correctness of the judgment of the court below cannot be questioned successfully. If the defendant has any right to maintain his connection with the sewer, it must be by reason of a grant of an easement to do so, implied in the deed of his premises. The underground sewer pipe, in this case, had no outlet onto the surface and was not visible at the time that the plaintiff purchased his land in 1926 or at the time his predecessor in title, Giovanni Ricci, purchased from the Montemurros on March 5th, 1925. The deeds in each case were warranty deeds with the usual covenants of warranty and contained no words of restriction and no mention of any easement affecting the property conveyed. In the leading case of Whiting v. Gaylord, 66 Conn. 337, 345, 348, 349, 34 A. 85, attention was called to the fact that it has always been the policy in this State under our recording system to require that the title to all interests in land shall appear on the land records, so that they may be easily and accurately traced. As we said in that case: "When a right or privilege is claimed as being annexed to one's land to use the adjacent land of another for a special purpose, whether arising from prescription (a prescription supposes a lost grant) or from an implied grant, or reservation, the existence of the alleged easement will, in general, depend upon an affirmative answer to the inquiry, is it open, visible, continuous and necessary. . . . In this State the rule of construction, settled by a series of decisions, is that the subject-matter of a deed is to be ascertained from its premises, and that by a deed of land, described as such, nothing passes except what is fairly included in the premises; that an easement not naturally and necessarily belonging to the premises, will not pass. . . . Implied grants of land, or of easements, or of any interest in land, are allowed here when allowed at all, to a very much more limited degree than in the other States."
In Exley v. Gallivan, 96 Conn. 676, 679, 115 A. 482, referring to the establishment of an easement by adverse user, we said: "The defendant was under no legal duty to use reasonable diligence in discovering the fact of a concealed user which had not developed into an easement when he took possession of the premises. It is for the party who seeks to establish an easement by user to exercise his claimed right so openly as to give the owner knowledge and full opportunity to assert his own rights." As we there pointed out, the cases of Alderman v. New Haven, 81 Conn. 137, 70 A. 626, and New York, N. H. H. R. Co. v. Russell, 83 Conn. 581, 78 A. 324, were not in point in that case and they are not in point in this case because in those cases the user was open, visible and apparent, while in this there was nothing to apprise the plaintiff when he purchased the property that the concealed subterranean sewer was running from the defendant's property and across his into the main sewer on West Main Street.
As the rulings upon evidence were not pursued in appellant's brief, and, in the argument, any claims of error, based thereon, were abandoned, discussion of them is unnecessary.