Opinion
File No. 82
Argued June 15, 1976 —
Decided September 24, 1976
Action for an injunction and for damages, brought to the Circuit Court in the fifteenth circuit, consolidated by stipulation with an action by the defendants against the plaintiffs and referred to Hon. Max M. Savitt, state referee, who heard the facts and made his report which was accepted by the court, Corrigan, J.; judgment for the defendants (Nocera) in this action and for the plaintiffs (Nocera) in the consolidated action, and appeal by the plaintiffs (Jackiw). Error in part; judgment directed.
Maurice W. Rosenberg, for the appellants (plaintiffs).
Kalmen London, for the appellees (defendants).
In June, 1972, Walter and Mary Jackiw, hereinafter referred to as the plaintiffs, instituted an action against Louise M. and Michael J. Nocera and claimed that the Noceras had appropriated certain land on the rear or westerly boundary of their property and were using that property as a driveway. These plaintiffs sought monetary damages as well as an injunction ordering the Noceras to remove the driveway and to cease from trespassing on their land.
In November, 1972, Louise M. and Michael J. Nocera, hereinafter referred to as the defendants, instituted an action against Walter and Mary Jackiw and claimed that they had either title to the strip of land in question or an easement over it. They sought an injunction preventing Walter and Mary Jackiw from trespassing over that land or from interfering with their use of the driveway.
By stipulation of the parties both actions were consolidated and referred to a referee who was to hear the facts and report his findings to the court. Pursuant to 354 of the Practice Book the referee filed his report in which he found that "there is no proof that the plaintiff had absolute title" to the disputed piece of land. The referee concluded that the plaintiffs had failed to prove by a preponderance of the evidence their title to the strip of land in question. He, therefore, recommended that judgment be rendered against the complaints in each action. The plaintiffs did not move to correct the report or the finding as provided by 358 of the Practice Book. If such a motion to correct is not filed there is no proper foundation for an attack on the report. Harbor Construction Corporation v. D. V. Frione Co., 158 Conn. 14.
In taking their appeal the appellants treated the case as an appeal from a single judgment in a consolidated action. In subsequent pleadings there seems to be some confusion in the record in this respect. The parties, however, have made no issue of the confusion, and we also treat the case as though both judgments are before us in this appeal. Nikitiuk v. Pishtey, 153 Conn. 545, 549 n.
The plaintiffs filed a motion to reject the recommendation of the state referee and that motion properly was denied by the court. Section 363 of the Practice Book provides that "[t]he court shall render such judgment as the law requires upon the facts in the report as it may be corrected." That section also provides that if the court finds that the committee has materially erred or that there are other sufficient reasons why the report should not be accepted "the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court."
The court accepted the referee's report without any correction and then proceeded to render judgment which was inconsistent with the referee's finding of facts and conclusion. The referee concluded from the facts found that none of the parties should prevail since they had not proven their allegations, namely, title to the disputed land. The court erred in rendering judgment in favor of Louise M. and Michael J. Nocera on their complaint against Walter and Mary Jackiw but was correct in rendering judgment for the defendants on the complaint of Walter and Mary Jackiw.
Although the plaintiffs have filed several assignments of error, a determination of the above issue is dispositive of this appeal.