TOWN OF GRANBY v. FRED B. FEINS
(AC 35746)
DiPentima, C. J., and Alvord and Bear, Js.
Argued October 29—officially released December 23, 2014
(Appeal from Superior Court, judicial district of Hartford, Hon. Richard M. Rittenband, judge trial referee.)
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Michael L. Moscowitz, for the appellant (defendant).
Kevin M. Deneen, with whom, on the brief, was Donald R. Holtman, for the appellee (plaintiff).
Opinion
The court‘s memorandum of decision and the record reflect the following facts and procedural history. The defendant and his wife, Barbara A. Healy, reside in Granby in their home located on lot 12 in an approved subdivision known as Harvey Heights. Healy acquired the property by warranty deed in 1992. The legal description of lot 12, which refers to a map on file in the Office of the Town Clerk, provides that the lot is bounded on its southwesterly and westerly sides by a “50 foot right-of-way” to Lee Cemetery. In 1994, Robert H. Schultz, as “Secretary and Director of The Hill Realty Corporation, formerly a Connecticut Corporation,” conveyed the adjacent fifty foot right-of-way to the defendant by quitclaim deed.2 At or around the time of the 1994 conveyance, the defendant obstructed passage over the right-of-way by erecting a fence “to keep people from trespassing” on his property. Sometime in 2000, the defendant removed the fence and placed a large cargo container in the path of the right-of-way. He removed the container in 2007, and then placed a gate across the right-of-way.
The plaintiff commenced the present action on November 7, 2011. In its complaint, the plaintiff alleged that the defendant‘s fifty foot right-of-way had been dedicated, or its existence confirmed, in June, 1960, as a public right-of-way to an ancient burial ground known as Lee Cemetery. The complaint alleged that, for many years, employees of the plaintiff had accessed the cemetery to maintain the grounds, and that members of the public had accessed the cemetery to commemorate the deceased. The plaintiff further alleged that it was authorized to maintain the cemetery pursuant to
The defendant filed special defenses and a counter-claim. The matter was tried before the court on April 3 and 4, 2013. During the trial, the plaintiff submitted exhibits to demonstrate that the fifty foot right-of-way to the cemetery had been dedicated to public use by The Hill Realty Corporation, the developer of the Harvey Heights subdivision. The plaintiff presented the approved subdivision map, showing the cemetery right-of-way, which had been recorded in the Granby land records in June, 1960.4 The plaintiff also submitted copies of the deeds to purchasers of various lots in the subdivision, which expressly referenced the cemetery right-of-way, in further support of its claim of public dedication.
The plaintiff called several witnesses to testify as to the use made of the cemetery right-of-way from the time of its dedication to the time of trial. Those witnesses included employees of the plaintiff‘s Public Works Department, the plaintiff‘s town planner, a member of the American Legion who placed flags on the Revolutionary War graves in the cemetery, a former owner of property abutting the cemetery, and an individual who served as the curator, archivist, and genealogist of the Salmon Brook Historical Society. After the plaintiff rested, the defendant testified and submitted copies of various deeds and maps, along with photographs of the disputed property. Following the completion of the trial, the parties submitted posttrial briefs and reply briefs.
On May 31, 2013, the court issued its memorandum of decision. The court determined that the fifty foot right-of-way to the cemetery, as shown on the 1960 approved subdivision map and as referenced in Healy‘s deed to lot 12, was a valid and enforceable right-of-way in favor of the general public. The court noted that aerial maps dating from the 1930s showed the existence of the right-of-way as a trail or path or wood road that reached Lee Cemetery. The court further determined that the right-of-way had been accepted by the general public, as evidenced by testimony at trial that town employees and the general public traversed it on their way to the cemetery. The court rejected the defendant‘s argument that the 1994 conveyance to him of the fee under the right-of-way affected the existence or validity of the cemetery right-of-way. Finally, the court concluded that the defendant was not entitled to block or in any way to interfere with the use of the right-of-way by the plaintiff or the public.
The court rendered judgment in favor of the plaintiff on the complaint and the counterclaim. The court declared the right-of-way to be valid and enforceable in all respects, enjoined the defendant from interfering with or blocking the right-of-way, and ordered the defendant to remove any obstructions that he had placed in the right-of-way. This appeal followed.
The defendant challenges the court‘s determination that the fifty foot right-of-way, which was the property conveyed
“A valid dedication requires the presence of two elements: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public.” (Internal quotation marks omitted.) Meder v. Milford, 190 Conn. 72, 74, 458 A.2d 1158 (1983).6
“[T]he first prerequisite [is] satisfied by the filing of [a] subdivision plan with the town plan commission . . . .” Katz v. West Hartford, 191 Conn. 594, 596, 469 A.2d 410 (1983). See also Vernon v. Goff, 107 Conn. App. 552, 557, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008). In the present case, The Hill Realty Corporation, which was the developer of the Harvey Heights subdivision and the predecessor in title to both Healy‘s lot 12 and the defendant‘s property, manifested its intent to dedicate the fifty foot right-of-way to public use by filing the subdivision plan with the Granby Town Planning Commission (commission) in June, 1960. It further manifested that intent when it conveyed lot 12 together with “the right, in common with the Grantor and others, to pass and repass over a 50-foot right of way shown on said [subdivision] map as ‘50 [foot] Right of Way To Cemetery’ in the same manner as a public highway is normally used.” That conveyance was made by warranty deed recorded on August 20, 1963, in the Granby land records.7
In its memorandum of decision, the trial court stated that “[t]here was substantial testimony from town officials and others that this right-of-way was used frequently by the [plaintiff] and others as a public highway.” The court further found that the right-of-way had been accepted by the general public, as evidenced by “the substantial testimony that officials of the [plaintiff] and the general public have traversed the right-of-way on the way to the cemetery . . . .”
The court‘s factual findings are supported by the record. The following evidence was presented at trial: (1) Carol Laun, the curator, archivist, and genealogist of the Salmon Brook Historical Society, testified that she walked over the disputed right-of-way in the late 1960s and early 1970s when she was working on a project to make a note card for every gravestone in Granby; (2) Laun further testified that over the past thirty years, she has walked over the right-of-way and has directed interested persons to use the right-of-way to access Lee Cemetery; (3) three employees of the plaintiff‘s Public Works Department testified that they drove over the disputed right-of-way to access Lee Cemetery for maintenance purposes in the 1980s; (4) the plaintiff‘s town planner testified that he walked over the right-of-way to access the cemetery; (5) the town planner further testified that the plaintiff‘s Public Works Department cared for the cemetery for several years until the owner of the cemetery agreed to maintain it; (6) the owner of the cemetery conveyed it to the plaintiff in the summer of 2012; and (7) a member of the American Legion testified that he traversed the cemetery right-of-way beginning in the early 1960s to place flags on the Revolutionary War gravesites, and that he continued to use that right-of-way until approximately ten years prior to trial.
The defendant claims that the evidence of use was insufficient to establish acceptance of the fifty foot right-of-way by the general public. The defendant‘s claim requires
We first note, as previously discussed, that acceptance of property dedicated for public use may be established either by the public‘s actual use of the property or by the actions of the municipality. A & H Corp. v. Bridgeport, supra, 180 Conn. 440. Accordingly, the plaintiff‘s lack of improvements to the right-of-way does not defeat the dedication if members of the general public actually used the right-of-way to access the cemetery. Moreover, “actual use need not necessarily be constant or by large numbers of the public . . . .” (Citation omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 282, 429 A.2d 865 (1980).
The case of Phillips v. Stamford, 81 Conn. 408, 71 A. 361 (1908), is particularly instructive in the present case. In Phillips, a short strip of land leading from an existing highway to the seashore in a somewhat remote and sparsely settled portion of Stamford was at issue. Id., 411. The town had not worked on or repaired the land dedicated, and the use of the way had been in large part by pedestrians during the summer season. Id., 414. The plaintiff claimed that the use made of the property was insufficient to establish public acceptance of the disputed strip of land. Id., 411. Our Supreme Court disagreed and held: “The user of this locus as a highway does not appear to have been an extensive one, or one participated in by large numbers of the general public. But that fact is not one fatal to the court‘s conclusion. It is not essential to the creation of a highway by dedication and acceptance that large numbers of the public participate in the user, or that the user be one which results in a large volume of travel. Each situation must be judged in relation to its own surroundings and conditions, and with a regard for the number of persons who would have occasion to use the way. . . . It is only necessary that those who would be naturally expected to enjoy it have done so at their pleasure.” (Citation omitted.) Id., 413–14.
Under the circumstances of the present case, the court reasonably could have concluded that the evidence presented regarding the use by the public was sufficient to establish acceptance of the fifty foot cemetery right-of-way. Employees of the plaintiff used the right-of-way to access the cemetery whenever the grounds needed to be mowed or maintained. Members of the public visited the cemetery via the right-of-way for, inter alia, research and historical purposes. Flags were placed on the gravesites of Revolutionary War soldiers at appropriate times during the year. The use was not constant or by large numbers of people, but the use evidenced acceptance for the purpose for which the right-of-way had been dedicated. The subordinate facts, when subjected to these principles, are sufficient to justify the court‘s conclusion.
The judgment is affirmed.
In this opinion the other judges concurred.
ALVORD, J.