Powell v. Town of Westport
Powell v. Town of Westport
Opinion of the Court
This action was brought in two counts, praying for (1) judgment for possession of real property, being a portion of Melwood Lane, also known as Sturges Common, in Westport; (2) an injunction directing the defendant town of Westport to remove the roadway to another location; (3) an injunction restraining the defendant Covina from using real property which the plaintiffs claimed as their own; and (4) damages. At issue is the claim that the continuance of a town road over the plaintiffs’ premises was a taking by the town of the plaintiffs’ land without right, that the defendant Covina was using a portion of the plaintiffs’ lot as her own, and that the defendant Fortuna was liable to the plaintiffs by virtue of his warranty deed of the premises to the plaintiffs’ immediate predecessor in title. The court found the issues on both counts for the defendants, and from this judgment the plaintiffs have appealed, assigning as error (1) the failure to correct the finding; (2) that the court’s conclusions are not supported by the finding; and (3) that the judgment is not supported by the conclusions. By virtue of the power granted us in § 985 of the Practice Book, a supplemental finding was ordered and filed by the trial judge.
The road shown on the survey map of the defendant Fortuna’s real estate development was accepted as a town road by the Westport town meeting. An
Our review of the finding and supplemental finding, both lengthy, indicates that a basic principle of appellate procedure, namely, that the subordinate facts found by the trial court shall support the conclusions drawn by it, and that the conclusions so drawn shall support the judgment, has not been complied with. Fairfield County Trust Co. v. Thompson, 152 Conn. 718, 719. A judgment rendered on facts found will be reversed or set aside if “ ‘some erroneous rule of law material to the case has been applied, or . . . [if] a conclusion has been reached, or an inference drawn, from a fact, many facts, or the facts found, which affects the judgment rendered in material degree and is legally or logically incon
The plaintiffs filed a supplementary assignment of errors directed solely to the supplemental finding ordered by the Appellate Division, as they had a right to do. Ordinarily another hearing by the Appellate Division would have been required on the added assignments of error. Since, however, the plaintiffs failed to file a motion addressed to the trial court for correction of the finding, an appellate hearing would have availed them nothing. A motion to correct the finding is required, so that the trial judge may act upon the motion, before we can consider the claimed error in the supplemental finding.
There is error, the judgment is set aside and a new trial is ordered.
Dearington, Jacobs and Levine, Js., participated in this decision.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.