New Canaan Country School, Inc. v. Rayward

17 Citing cases

  1. Simonds v. Boyd

    2008 Ct. Sup. 17129 (Conn. Super. Ct. 2008)

    "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." Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements § 415; 5 Restatement, Property §§ 477, 478. "The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699; see Aksomitas v. South End Realty Co., supra. "Ordinarily when [judicial] opinions speak of the `use' of an easement, it arises in right of way cases.

  2. Somers v. LeVasseur

    230 Conn. 560 (Conn. 1994)   Cited 37 times
    Concluding that defendant seeking to extend right-of-way obtained by prescriptive easement beyond prior use had "burden to persuade the court that installation of the electrical utility lines was reasonably necessary for the continued enjoyment of the right-of-way, and would not unreasonably burden the plaintiffs' property"

    We have recently reviewed the standard for determining when a proposed enlargement of a prescriptive right-of-way is permissible. "`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.' Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements 415; 5 Restatement, Property 477, 478. `"The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit."' Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) 427, p. 699 . . . ."

  3. Kuras v. Kope

    205 Conn. 332 (Conn. 1987)   Cited 75 times
    Finding prescriptive easement did not include underground utility lines

    "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." Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements 415; 5 Restatement, Property 477, 478. "`The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.'" Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) 427, p. 699; see Aksomitas v. South End Realty Co., supra. "Ordinarily when [judicial] opinions speak of the `use' of an easement, it arises in right-of-way cases.

  4. Cote v. Eldeen

    119 N.H. 491 (N.H. 1979)   Cited 14 times
    Holding that daily commercial use of easement by large trucks exceeded scope of prescriptive easement since prior use was occasional and non-commercial

    On the record before it, the trial court could reasonably conclude that daily commercial use of the easement by large gravel trucks exceeded the scope of any easement obtained by prescription, and could impose restrictions necessary to limit exercise of the easement to its proper scope. New Canaan Country School v. Rayward, 144 Conn. 637, 136 A.2d 742 (1957). [2, 3] Alternatively, if we assume that the plaintiffs' easement arose because their land abutted a discontinued public highway, the exercise of that easement would also be limited to reasonable use.

  5. Bond v. Benning

    175 Conn. 308 (Conn. 1978)   Cited 16 times
    In Bond v. Benning, 175 Conn. 308, 398 A.2d 1158 (1975), a trial court's finding of ownership by record title was upheld in a case where the trial court also concluded that even if record title had not been proven, the party held title by adverse possession.

    The proper way to prove title is to submit into evidence original documents or, as did the plaintiffs in this case, certified copies from the records. Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725; New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640, 136 A.2d 742. The deeds in question adequately reveal that from 1828, when the original ten acres were acquired by the plaintiffs' predecessor in title, until 1914, several plots were added on to the original acreage making the full area about twenty-two acres. That acreage fairly coincides with the area found by the plaintiffs' surveyor to be within their boundaries. Any discrepancy between the actual measurement of 21.287 acres made by the surveyor and the twenty-two acres "more or less" designated in the deeds can be, as the court found, explained by the fact that many old deeds contain imprecise measurements.

  6. Velsmid v. Nelson

    175 Conn. 221 (Conn. 1978)   Cited 44 times
    Relying on fixed monuments of adjoining property owner to establish boundary line

    The testimony of one who has done a complete title search does not, however, generally establish title. As this court stated in New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640, 136 A.2d 742, "[w]here 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." This is so unless a sufficient foundation is laid for the production of secondary evidence.

  7. Low v. Sanger

    478 P.2d 60 (Wyo. 1970)   Cited 14 times

    Ownership as to these parties was broached only by their own statements in answer to interrogatories and it is well settled that where the title to real estate is in issue such title cannot be proved by mere declaration. New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 136 A.2d 742, 743; Bercot v. Velkoff, 111 Ind. App. 323, 41 N.E.2d 686, 693; 32A C.J.S. Evidence § 794. Hearsay and conclusions of that nature, being inadmissible in evidence, are insufficient of employment by a court in determining the lack of genuine issue as to material fact under Rule 56(c), W.R.C.P. We called attention to this in Newton v. Misner, Wyo., 423 P.2d 648, 650, as it relates to affidavits; and answers to interrogatories are also subject to such infirmities.

  8. Curtin v. Franchetti

    156 Conn. 387 (Conn. 1968)   Cited 33 times
    Adhering to common-law principle that easement may become legally attached to dominant estate "only if the same person has unity of title to both the way and the dominant estate"

    2 Thompson, Real Property (1961 Repl.) 322, p. 76. The plaintiff to prove that she, as the owner of Goddard Meadow, was entitled to utilize a way appurtenant across the defendant's property, had to prove that Wood owned Goddard Meadow when the way was reserved in his conveyance to Vonnoh on December 2, 1924. The proper way to prove title is by the production of the original documents or certified copies from the records; New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640, 136 A.2d 742; unless a sufficient foundation is laid for the production of secondary evidence. See Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792; 29 Am.Jur.2d 534, Evidence, 476; 32A C.J.S. 127, Evidence, 794.

  9. Barry v. Thomas

    273 Ala. 527 (Ala. 1962)   Cited 34 times

    Such testimony is hearsay and violative of the best evidence rule. Jones v. Melindy, 62 Ark. 203, 36 S.W. 22; Green v. Baker, 66 Mont. 568, 214 P. 88; City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712; New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 136 A.2d 742. The suit property was included as Lot 6 of Block 5 in a plat made and recorded in 1939 by one Otto Neese, which plat is known as "Neese's First Addition to Whistler."

  10. Loewenberg v. Wallace

    147 Conn. 689 (Conn. 1960)   Cited 95 times
    Concluding that mere fact that fence had been in place for more than fifteen years did not, in and of itself, as matter of law, require finding of acquisition of title by adverse possession

    They were therefore required to produce their deed of acquisition or show its loss, and to prove, by at least one of the subscribing witnesses, unless both witnesses were shown to be unavailable, the due execution of the deed. Kelsey v. Hanmer, 18 Conn. 311, 317; O'Sullivan v. Overton, 56 Conn. 102, 105, 14 A. 300; Pepe v. Aceto, 119 Conn. 282, 287, 175 A. 775; New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640, 136 A.2d 742. Under our recording acts, deeds in a chain of title prior to the deed of acquisition may be proved by certified copies of record; these are not only evidence of the contents of the originals but prima facie evidence of their existence as valid instruments, executed in the manner indicated by the copies. Lomas Nettleton Co. v. Waterbury, 122 Conn. 228, 234, 188 A. 433; Bolton v. Cummings, 25 Conn. 410, 422; Kelsey v. Hanmer, supra, 318.