Wooding v. Michael

The defendant acquired by deed a right to use a five-foot strip of the plaintiff’s land adjoining his own, as a common passway, so long as he abstained from building a fence between the two properties. Held that the erection of a fence by the defendant between his house and barn for the purpose of preventing the plaintiff’s tenants from going upon the defendant’s land, terminated the defendant’s passway privileges, although the fence was not located exactly upon, nor did it extend the whole length of, the dividing line.

Action to recover damages for breaking down and removing a fence, brought by appeal of the defendant, from an adverse judgment of a justice of the peace, to the Court of Common Pleas in Hartford County and tried to the court, Smith, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant. The following facts are found: The plaintiff and defendant are adjoining owners, on North Main Street in the city of Bristol, of land which formerly belonged to the plaintiff’s father, who, in 1874, conveyed the lot now owned by the defendant to one Hart by a warranty deed containing the following lease of passway privileges over the grantor’s land: "I also lease to said Hart five feet of land next north of said piece of land for his use in common with myself and heirs as a pass-way until the said Hart shall get ready to build a fence between him and me, which is not to be a high fence.” Hart built a house on the front part of the lot near the division line between himself and Wooding, and a barn still nearer the line on the rear part of the lot at some distance from the house. The premises were in this condition when they came by mesne assignments to the defendant. The plaintiff and his father before him used a strip of land about seventeen feet in width next north of the Hart lot as a driveway for passage to the back of their lot and to the buildings erected on it. For more than twenty years the tenants and occupants of the defendant’s land have used this driveway in common with the plaintiff as a passway to the barn and to the rear of the defendant’s dwelling-house, but have claimed no right therein except by virtue of the lease contained in the Wooding deed of 1874. In 1912, for the purpose of keeping the tenants of the plaintiff from going on the land of the defendant, the defendant’s son built a fence between the defendant’s barn and the house, which fence was twenty-eight inches from the division line at the northwest comer of the bam and diverged slightly from the division line until it nearly reached a point opposite the northeast comer of the dwelling-house, when it turned sharply toward the house. The plaintiff notified the defendant that the erection of this fence had, under the terms of the Wooding deed of 1874, put an end to the defendant’s lease of passway privileges over the plaintiff’s land, and the defendant took no steps to remove the fence until after this suit was brought. Plaintiff then obstructed the entrance to the driveway by building a fence along North Main Street. Defendant tore down this fence to the extent of five feet and no more next north of his land, and the plaintiff brought this action which resulted in his obtaining a judgment for damages.