227 A.2d 809 | Conn. Super. Ct. | 1967
In the instant plea in abatement, the defendant claims that this court does not have jurisdiction in personam of him because of the failure of the service in this cause to be made in accordance with General Statutes §
The file contains a stipulation of the parties dated November 30, 1966, which includes facts relative to the purported service, locus of the accident involved, and the traffic controls in that area. The defendant, a resident of this state on the date of the collision complained of, moved to Yonkers, New York, prior to the institution of this suit against him on February 17, 1966. Service of process was made on the motor vehicle commissioner of Connecticut, and a true and attested copy of the original writ, summons and complaint was sent by registered mail to Yonkers, New York. The return of the officer, Francis J. Chilone, deputy sheriff for Hartford County, annexed to that which was returned to this court, does not contain a certification by the officer that he made diligent search to obtain service on the defendant at his last address on file in the motor vehicle department. A further stipulation in open court gave the last pertinent addresses of the defendant to be 138 Dix Road, Wethersfield, and 166 Woodycrest Road, East Hartford. The return fails also in that it does not recite that the officer was unable to make such service as required.
The statute, §
In the brief of the plaintiff The Reymond Baking Company, owner of the vehicle which was damaged and which the named plaintiff was operating, it is contended that service was made in accordance with §
Apart from the admitted service upon the motor vehicle commissioner, the requirements of §
The constitutionality of such statutes as §
Though the foregoing is considered to include sufficient reason for sustaining the plea in abatement, consideration is now given to the request by counsel that there also be a determination made as to plaintiffs' claim that the accident took place on a public highway. The defendant contends that the statutes herein referred to are inapplicable for the reason that operation on a public highway is not involved and that therefore another ground exists for his position that the service as made was a nullity. He relies on the stipulated fact concerning the locus of the collision and that it was in what he claims to be the private parking lot of the Colonial Shopping Plaza in Waterbury.
The plaintiffs argue that the road upon which the motor vehicle collision complained of took place was provided for, was open to and was used by the customers of the many stores and business establishments located in the Colonial Shopping Plaza. Further, the plaintiffs say that the posted speed *513
limits within the plaza area were established by the city of Waterbury pursuant to authorization by the state traffic commission and that an operator violating certain motor vehicle statutes within the area could be prosecuted therefor. There is little question as to these facts. It must be kept in mind, however, that §
The plaintiffs claim that the road in question had been dedicated to public use, that in a real sense it constituted a public highway, and that the fact that it may have been privately owned is of no relevance. It has not here been demonstrated that the area where the road is located is a place, as is a public highway, to which the public has a right to go and the use of which the public has the right to have, under reasonable restrictions at all times. As to the claimed lack of relevance of the private ownership of the area, it follows from that ownership that the control and operation of the road, with all the pertinent rights and privileges incident to private ownership, including a right to bar anyone from the use of the road or to forbid its use entirely, if *514 such a course is found desirable by the owners or parties in possession, cannot be disturbed or interfered with except by agreement or by justifiable and constitutional statutory enactment.
The situation in New York was formerly precisely the same as here in that, in statutes similar to those here, the limiting words were "on such a public highway," and those words constituted the basic reason for the result in that state, which was the same as is here indicated. Finn v. Schreiber,
It appears to this court that, as to the road within the Colonial Shopping Plaza where the collision occurred, there are absent vital indicia as to its being a "public highway" within the meaning of §
Though it has not been suggested, it may be assumed that the vehicle operated by the defendant was operated on at least one public highway before coming onto the plaza parking area. Such a concession, however, gives no aid in the direction of compliance with either our nonresident or our unfound motorist substituted service of process statutes.
The attention of the court has been directed toBertrand v. Wilds,
This court concludes that the road as mentioned in the stipulation and therein declared to be "within the Colonial Plaza, a large, privately owned shopping center within the City of Waterbury," is not to be considered as a "public highway."
As previously indicated, and for the reasons stated, the instant plea in abatement is sustained. Judgment may enter accordingly.