35 Conn. App. 398 | Conn. App. Ct. | 1994
In this action to quiet title, the plaintiff appeals from the judgment quieting title in the defendants. The plaintiff claims that the trial court improperly (1) rendered an inconsistent judgment by
The following facts are necessary to a disposition of this appeal. The genesis of this action is a dispute over ownership of a road in Litchfield that is alleged to be no longer in use. The plaintiff claimed title to the disputed property or, in the alternative, a statutory easement upon discontinuance of a public highway pursuant to General Statutes § lSa-55.
The Appellate Court granted review of this articulation and ordered the trial court to supplement it, specifically in regard to ownership of the record title. The plaintiffs motion for articulation expressly posed the question: “Did the plaintiffs predecessor in title, George Vandewater, own title to the disputed property prior to being ousted by the defendants.” The trial court tersely replied, “He did not,” and then went on to explain that “Arthur and Elizabeth French were the record owners of a parcel of real estate which abutted the former highway on its northerly side. Upon its discontinuance, they were presumed to be the owners of the northerly one-half, or thirty-three feet of the road, and they commenced to use and possess the area. On April 11,1975, the defendant Spearow took title to the French’s property and continued to use and occupy the disputed property to the present time.”
For the purposes of this appeal, it is not necessary that we review the correctness of the trial court’s appli
I
The plaintiff first claims that the memorandum of decision and first articulation are inherently inconsistent and irreconcilable with the supplemental articulation. DeVita v. Esposito, 13 Conn. App. 101, 105, 535 A.2d 364, cert. denied, 207 Conn. 807, 540 A.2d 375 (1988), is directly on point. DeVita recognizes that a party may plead alternative and even inconsistent theories in the same action. See Practice Book §§94 and 137;
In DeVita, the Appellate Court sharply and clearly disabused the defendants of the notion that their argument had any merit. “A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. . . . Although a party may plead, in good faith, inconsistent facts and theories, a court may not award a judgment on inconsistent facts and conclusions. A judgment, read in its entirety, must admit of a consistent construction. . . . Where a party is entitled to only a single right to recover, it is the responsibility of the trial court to determine which of the inapposite sets of facts the party has proved, and then to render judgment accordingly.” (Citations omitted.) Id., 107.
“A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Loewenberg v. Wallace, 147 Conn. 689, 698, 166 A.2d 150 (1960). Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn. App. 119, 120, 468 A.2d 1272 (1983).” Id., 106. “The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title.” Id., 108.
In the present case, the trial court expressly declined in its memorandum of decision to find who owned record title and upon being pressed through articulation
The defendant relies on Loewenberg v. Wallace, 151 Conn. 355, 197 A.2d 634 (1964). Loewenberg holds that a claim of adverse possession will not be defeated even though the claimants, in exercising dominion and control over property were motivated by an honest although mistaken belief that the area in question was included in the description of the property conveyed to them. Id., 357-58. In Loewenberg, the claimants clearly did not have record title to the property, but thought that they did. Here, the trial court found that the defendants had record title but also had acquired title to the same property by adverse possession. Loewenberg is inapposite to the present case.
When a trial court has rendered a judgment containing inconsistencies, we must vacate the judgment and remand the case for a new trial. DeVita v. Esposito, supra, 13 Conn. App. 112.
II
Because our analysis of the plaintiffs first claim requires a new trial, we do not reach the other claims except for the issue of whether the road was properly discontinued because that issue raises a question of law that is likely to arise again on retrial.
The plaintiff alleged that the road in question was not properly discontinued, and the defendants by special defense alleged that the road had been abandoned. The trial court found that the road “was properly discontinued in 1973, and that it had not been used as a public highway for many years prior to that date, nor since.”
“Discontinuance” and “abandonment” are not synonymous terms as applied to highways. “A highway
General Statutes § 13a-49 empowers town selectmen to discontinue highways unless the highway was laid out by a court or the general assembly.
On February 21,1973, the town of Litchfield passed a resolution purporting to discontinue the road. The evidence, however, shows that the road was laid out by the Superior Court for Litchfield county in 1865. Accordingly, only the Superior Court had jurisdiction to discontinue it. “[A] municipality is not permitted to discontinue a highway laid out by a court.” General Dynamics Corp. v. Groton, 184 Conn. 483, 486, 440 A.2d 185 (1981). An attempt by a town to discontinue a road that it did not lay out is void. Meriden v. Bennett, 76 Conn. 58, 70, 55 A. 564 (1903); Simmons v. Eastford, 30 Conn. 286, 288-89 (1861); see R. Fuller, 9 Connecticut Practice Series, Land Use Law and Prac
Turning now to abandonment, we note that the trial court’s finding was limited to the fact that “it had not been used as a public highway for many years [prior to Litchfield’s discontinuance] nor since.” This is not sufficient. Mere nonuse is not enough. The case law requires an intent to abandon together with the nonuse. See E. Sostman & J. Anderson, “The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment,” 61 Conn. B.J. 299-98 (1987).
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
General Statutes § 13a-55 provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”
General Statutes § 52-575 provides: “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry after-wards; and no such entry shall be sufficient, unless an action is commenced thereupon and prosecuted to effect within one year next after such entry; but, if any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, bring such action or make such entry at any time within five years next after full age, coming of sound mind or enlargement out of prison, or his heirs shall, within five
Whether the road was properly discontinued, however, will be discussed in part II of this opinion.
Practice Book § 94 provides: “Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.”
Practice Book § 137 provides: “The plaintiff may claim alternative relief, based upon an alternative construction of his cause of action.”
General Statutes § 13a-49 provides in pertinent part: “The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the general assembly, and except where such highway is within a city, or within a borough having control of highways within its limits. . . .” (Emphasis added.)
General Statutes § 13a-50 provides in pertinent part: “The superior court, on the application of any person, may discontinue any highway in the judicial district where it is held, which cannot be discontinued by the selectmen . . . .” (Emphasis added.)