Opinion
The court found on conflicting evidence that the plaintiff's user of the strip in dispute did not commence until 1947 and terminated in 1958 when the defendant erected a fence across the strip. Since the finding was not subject to correction, the conclusion that the plaintiff had not established title by adverse possession could not be disturbed.
Argued December 5, 1963
Decided March 3, 1964
Action for an injunction requiring the defendant to remove obstructions from a passway used by the plaintiff, and for other relief, brought to the Court of Common Pleas in Hartford County and tried to the court, Radin, J.; judgment for the defendant and appeal by the plaintiff. No error.
Frederic E. Mascolo, with whom, on the brief, were Robert L. Brooks and Stephen K. Elliott, for the appellant (plaintiff).
Joseph H. Thalberg, with whom, on the brief, was Thomas J. Galick, for the appellee (defendant).
The plaintiff seeks an injunction to restrain the defendant from interfering with his use, as a part of his driveway, of a small, triangular strip of land located between their adjoining lots on South Main Street in Southington. The plaintiff claims more than an easement by prescription; he asserts full title by adverse possession.
The court found that the plaintiff's user of the strip as part of his driveway did not commence until 1947 and that the user terminated in 1958, when the defendant erected a fence across the strip. The court therefore concluded that the plaintiff had not established adverse possession for the requisite period of fifteen years. The plaintiff attacks this finding and calls attention to evidence offered by him that his user has been continuous since 1929. This evidence was in direct conflict with the evidence offered by the defendant which fully supports the court's finding. We cannot retry the facts or pass upon the credibility of witnesses. Zeller v. Kugell, 145 Conn. 729, 730, 141 A.2d 240; Bridgeport-City Trust Co. v. Buchtenkirk, 143 Conn. 531, 537, 124 A.2d 231. Since no correction of the finding can be made, the plaintiff's appeal must fail.