Montanaro v. Aspetuck Land Trust, Inc., 137 Conn. App. 1

Old 2 Rod Highway was laid out by Norwalk proprietors in 1730, on the westerly side of the Weston–Wilton divide, and parcels abutting it were conveyed to the Deilus and Ambler trustees; the 1802 deed transferred remaining Norwalk land including the highway and Wilton acquired title.
Aspetuck blocked access to the highway with a chain; plaintiffs filed two actions in 2006 seeking injunction, declaratory judgment, and various easements (by implication, by necessity, and prescriptive over a wood road), with Ambler trustees joining as intervenors.
The two actions were consolidated for trial; Ambler trustees later intervened in the other action and the case was heard in 2007–2009.
In 2009, Aspetuck moved to dismiss for lack of subject matter jurisdiction under § 13a-39, which the court denied.
In 2010, the trial court found the highway to be a public road owned by Wilton, granted easements by convenience and necessity, and a prescriptive easement over the wood road; the court denied reconsideration.
The appellate court affirmed the public Highway finding and § 13a-39 ruling but reversed the easement by necessity, ultimately concluding that a prescriptive easement exists over the wood road and Wilton holds title to the highway.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Old 2 Rod Highway was properly accepted as a public highway and not abandoned	Deilus/Montanaro: highway accepted by public use; not abandoned	Aspetuck/Wilton: acceptance here lacked statutory basis; may have been abandoned	Highway accepted and not abandoned
Whether § 13a-39 applies to determining the highway's location	§ 13a-39 does not require exhaustion of administrative remedies for status	§ 13a-39 governs boundaries after establishment; applies here	§ 13a-39 does not apply to this case
Whether the court erred in granting an easement by necessity over the highway	Easement by necessity is justified by access to properties	Prescriptive easement over wood road suffices; no need for necessity	Easement by necessity reversed; prescriptive easement suffices
Whether the court properly granted a prescriptive easement over the wood road	Continuous use by abutting owners supported prescriptive easement	Use was insufficient or not proven; alternative access may exist	Prescriptive easement granted over the wood road

Guthrie v. New Haven, 31 Conn. 308 (Conn. 1863) (principal evidence is actual public use; maps and deeds are probative)
Meshberg v. Bridgeport City Trust Co., 180 Conn. 274 (Conn. 1980) (use as highway and municipal actions support acceptance)
Pizzuto v. Newington, 174 Conn. 282 (Conn. 1978) (abandonment and acceptance questions; burden of proof on abandonment)
Drabik v. East Lyme, 234 Conn. 390 (Conn. 1995) (development of dedication and acceptance concepts)
State v. Merrit, 35 Conn. 314 (Conn. 1868) (proprietors’ dedication to public highways historically recognized)
Brownell v. Palmer, 22 Conn. 107 (Conn. 1852) (early framework for highway laying out and notice/damages)
Makepeace v. Waterbury, 74 Conn. 360 (Conn. 1902) (precedent on methods of highway establishment)
Hamaan v. Newtown, 14 Conn. App. 521 (Conn. App. 1988) (limits of § 13a-39 authority for status vs. boundaries)
Marchesi v. Board of Selectmen, 131 Conn. App. 24 (Conn. App. 2011) (statutory interpretation in highway matters)
Newkirk v. Sherwood, 89 Conn. 598 (Conn. 1915) (abandonment considerations and intent)
Christensen v. Reed, 105 Conn. App. 578 (Conn. App. 2008) (necessity standard for easements (reasonableness))
Guthrie v. New Haven, 31 Conn. 308 (Conn. 1863) (foundational on public acceptance evidence)
Mount Vernon Fire Ins. Co. v. Morris, 90 Conn. App. 525 (Conn. App. 2005) (final judgment Curdo analysis when part counts unresolved)