153 A. 301 | Conn. | 1931
As this case comes to us the only question presented is whether the trial court was in error in adjudging that two of the plaintiffs, Pasquale Merino and Carmelo Merino his wife, had a right to the use of a certain proposed street appearing upon a map of land in Hamden and running across a tract now owned by the defendant. In April, 1905, the land was owned by John H. Davis and he then caused a survey of it to be made and a map prepared upon which it was subdivided into lots for development and sale. The land constituted a tract about two hundred and thirty-five *559 feet wide running from State Street to Ridge Road. Upon the map a strip thirty-five feet wide through the center was marked off and the remainder was divided into lots. Ten of these fronted on State Street and ten on Ridge Road, and the rest lay on each side of the strip through the center of the tract and fronted upon it. The map was filed in the town clerk's office June 6th, 1908. Davis caused the lots fronting upon State Street and those fronting upon the strip to a distance of fourteen hundred and sixty feet from the street upon the north and about thirteen hundred and eighty-five feet upon the south to be staked out and he sold them to various purchasers. The deeds of all lots fronting upon the strip each contained a grant of a right of way over it, designating it as a "proposed street," but the deeds of the lots fronting upon State Street contained no such grant, except one which conveyed both lots on that street and also lots fronting upon the proposed street. Davis retained all the tract westerly of the lots staked out by the surveyor and used it in connection with his homestead which stood upon it. From the point where the surveyor ceased to stake out lots upon the south of the proposed street a driveway had run for a long time to Ridge Road, not following the direct route of the proposed street, but curving somewhat to the south.
In 1918 the Merinos bought of Davis a tract consisting of two contiguous lots fronting upon State Street and lying next to the proposed street. This purchase was made from a map of the tract shown them at the time by Davis' agents and attorneys, which was a duplicate of the map on file except that the strip through the center was marked "Hubbard Street." The deed described the land as a certain parcel in Hamden, "known as lots numbers 172 and 173 on `Map of Hubbard Place, Hamden, Conn., owned by *560 John H. Davis' on file in the Hamden town clerk's office," and bounded it "southerly by Hubbard Place, as laid out on said map, one hundred feet more or less." Later they acquired by mesne conveyances five lots lying directly back of these and fronting upon the proposed street, with the right of way over it annexed to the grants of land fronting upon it. As occasion required and at not infrequent intervals the Merinos have used the proposed street and driveway to get from their property to Ridge Road; the nearest public way between State Street and Ridge Road to the north is about thirty-one hundred feet away, and to the south, twenty-three hundred feet away; and the proposed street and driveway furnished them a convenient means of access to Ridge Road.
The judgment of the trial court that the Merinos had the right to use this way was based upon a cross-complaint filed by the defendant in which it sought a declaratory judgment, among other things, as to whether or not the plaintiffs had any right to use any portion of its land; and the judgment is not open to the objection that it is not supported by the pleadings. In Whitton v. Clark,
It is true that in April, 1905, there was in effect a statute which provided that "no person, company, or corporation, excepting municipal corporations, shall lay out any street or highway in this State less than three rods in width, unless with the prior written approval of a majority of the selectmen of the town, or of the burgesses of the borough, or of the common *562
council of the city, wherein such street or highway is located"; and which went on to forbid the opening of any street or highway to the public until the grade, width and improvements had received the written approval of the municipal authorities mentioned and such approval had been filed in the office of the clerk of such town, city or borough. General Statutes, 1902, § 2050 (now, in an amended form, General Statutes, 1930, § 1436). "The statute has to do with the layout and improvement of roads or streets by individuals or private corporations, and the approval of the selectmen is an approval of the layout and opening of private ways and not of public highways; it looks to the possibility of their becoming public highways, but does not constitute an acceptance of them as such." Stratford
v. Fidelity Casualty Co.,
While the circumstances of a particular case might perhaps negative an intention of the parties to create a right annexed to a lot conveyed upon the basis of a map to use the streets marked upon it, nothing appears in this case which would have that effect; there is nothing to show that the Merinos knew of the provision in the prior deeds of lots fronting upon the proposed street which the trial court held to restrict the rights of the owners of those lots to the portion of the street within fourteen hundred and sixty feet of State Street; and mortgages made by Davis of the land retained by him after the conveyance to the Merinos, without mention of any rights they might have to pass over it certainly could not affect the transaction out of which their rights arose.
There is no error.
In this opinion the other judges concurred.