Opinion
Thе defendants, AspetuckLandTrust, Inc. (Aspetuck), and the town of Wilton, appeal from the judgments of the trial court in favor of the plaintiffs, Laurie Ann Deilus and Christopher Montanaro, and the intervening plaintiffs, Thomas T. Adams, William L. Sachs and David F. Clune, the trustees of the Elizabeth Raymond Ambler Trust (Ambler trustees). The defendants claim that the court improperly (1) found that Old 2 Rod Highway properly was accepted as a public highway and was not abandoned subsequently, (2) determined the location of the alleged highway in violation of General Statutes § 13a-39 and (3) granted both an easement by necessity and a prescriptive easement to the plaintiffs. We affirm the court’s judgment that Old 2 Rod Highway properly was accepted and not abandoned and its determination that § 13a-39 does not apply to this case, but reverse the judgment with respect to the granting of an easement by necessity to the plaintiffs.
In the same deed, the proprietors conveyed parcels of land abutting the highway to the predecessors in title to the land now owned by Deilus and the Ambler trustees. The property owned by Deilus lies in Wilton and consists of 9.838 acres bounded on the easterly side by the highway (Deilus property). Montanaro is the contract purchaser of that parcel of land. The Ambler trustees own a six and one-half acre parcel north of the Deilus property that also abuts the highway. Aspetuck owns three adjoining parcels to the south of the Deilus property that likewise abut the highway.
Although originally part of Norwalk, in 1802, with the approval of the legislature, Wilton became a town separate from Norwalk. Subsequently, the proprietors of Norwalk conveyed all remaining land owned by them in Norwalk to the town of Norwalk, including the fee title to the highway.
Prior to this litigation, Aspetuck blocked access to the highway with a chain. In 2006, the plaintiffs commenced two separate actions. They filed a five count amended complaint dated October 7, 2008, against Aspetuck and the town of Wilton (first action). In count one, the plaintiffs sought a permanent injunction enjoining Aspetuck from blocking and interfering with their right-of-way over the highway. In count two, the plaintiffs sought a declaratory judgment that the highway was a public highway and further claimed that they were entitled to a zoning permit for residential construction on the property.
On October 6, 2006, the plaintiffs brought a second action against Wilton in which they sought a declaratory judgment against Wilton that the highway was a public highway (second action). On November 22, 2006, the court granted Aspetuck’s motion to intervene in the second action. The first and second actions were consolidated for trial on October 16, 2007. On March 25, 2008, the court granted the Ambler trustees’ motion to intervene in the second action. On December 1, 2008,
In its answers to the amended complaint and the intervenor complaint, Aspetuck asserted three special defenses: (1) that the designation and location of the highway on maps is erroneous, (2) that any rights that the plaintiffs might have to a right-of-way across its land were extinguished by reason of nonuse and (3) that such rights also were extinguished by the Marketable Title Act, General Statutes § 47-33b et seq.
In October, 2009, the defendants moved to dismiss the plaintiffs’ and the Ambler trustees’ complaints for lack of subject matter jurisdiction on the ground that General Statutes § 13a-39
The consolidated actions were tried to the court in October and December, 2009. On August 6, 2010, the court issued its memorandum of decision. The court determined that the highway was a public road and that it was located in and owned by Wilton. It further determined that the plaintiffs and the Ambler trustees have an easement by convenience and necessity over the highway to Wampum Hill Road. Additionally, the court ruled that the plaintiffs have a prescriptive easement over the wood road located on Aspetuck’s property.
On October 26, 2010, the defendants moved for an articulation of the court’s memorandum of decision. The defendants requested that the court (1) rule on their claim that the court lacked jurisdiction to determine the location of the highway under § 13a-39, (2) articulate the legal standard and principles relied upon by the court to determine whether the highway had been accepted and (3) make a finding as to whether the plaintiffs and the Ambler trustees have alternate access to their properties from Georgetown Road, and, if so, how the access affects the court’s conclusions with respect to the acceptance of the highway and the granting of easements. On December 9,2010, the court issued an articulation. On February 23,2011, this court granted the defendants’ motion for review of the trial court’s articulation but denied the relief requested. Additional factual and procedural history will be set forth as necessary.
I
The defendants first claim that the court committed reversible error by holding that the highway properly was accepted as a public highway. We disagree, and conclude that the highway properly was accepted through public use and was not subsequently abandoned.
The questions of whether there have been dedication, acceptance and abandonment generally are recognized as questions of fact. See Drabik v. East Lyme,
A
We begin by reviewing our contemporary laws of highway establishment and their historical counterparts. Highways
Accordingly, we first review the genealogy of the third method of establishing highways. “[I]n 1698 . . . the [gjeneral [cjourt for the first time gave any special direction to towns in respect to laying out highways. It then directed that the selectmen in each town should take care that convenient highways ‘for the advantage of posts and other travelers in their journeying’ through the colony ‘be laid out through their several townships;’ and the next year the [g]eneral [c]ourt passed an [a]ct regulating the layout of highways; directing the [c]ounty [c]ourt to lay out new highways ‘from town to town,’ and the selectmen to lay out ‘particular and private ways’ for such town only; (‘particular way’ meaning a public highway not laid out from town to town).” Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 165,
In 1773, legislation was enacted providing that the town selectmen may lay out such public highways or private highways as deemed necessary. This statute was the first to require that the acts of the selectmen in laying out highways be approved by the town in order to bе valid.
The fourth method of creating highways is the common-law doctrine
B
Having reviewed the general methods of establishing highways, we turn to the laying out of highways by town proprietors generally. The plaintiffs contend that the proprietors’ highway in question was established pursuant to the third method, “namely the Norwalk proprietors as authorized agents of the municipality, who owned the land where the [highway] was located laid it out and dеdicated it to public use.”
“The history of the state . . . shows that in the early settlement of it, when the lands were usually granted to companies of individuals called the proprietors of lands, there being usually one such company in each town, these proprietors, acting as if they were corporate bodies, from time to time surveyed and set out to individual proprietors in severalty portions of the land thus held in common, and in connection with these allotments in severalty public ways were always surveyed, and the lands thus surveyed were reserved for public use as highways.”
The act of laying out a highway by the proprietors of a town is generally described as a dedication. See State v. Merrit, supra,
The plaintiffs have not prоvided, nor has our research revealed, any authority that demonstrates that highways laid out by proprietors in 1730 could be established by any method other than the common-law doctrine of dedication and acceptance. On the basis of the foregoing, we conclude that the only method by which the highway could have been established was pursuant to the common-law theory of dedication and acceptance.
C
We next address the court’s finding that the highway validly was accepted by the proper authorities. The defendants contend that under the doctrine of dedication and acceptance, actual use by the
The court determined that the 1730 deed made it clear that it was the proprietors’ intention to dedicate the highway to public use.
Today, a public highway can be accepted by the public or by the proper authorities pursuant to § 13a-48, which was enacted in 1927. That statute “gave specific authority to a municipality at any annual or special meeting held for that purpose to accept as a public highway any street or highway situated in the municipality.” Thompson v. Portland,
Prior to a statutory grant of authority to municipalities to accept highways, it was said that “acceptance must be by the ‘unorganized public,’ and not by formal action of a municipality. Neither town nor city has power to establish a highway by corporate vote, accepting land given for that purpose, when the legislature has not given it specific authority.” Makepeace v. Waterbury, supra,
On the basis of the foregoing, we conclude that the proprietors could not have been the proper authorities to accept the highway because they were not vested with such authority by statute. We agree with the defendants that, in 1730, acceptance of a dedicated highway could only be accomplished under the common law through actual use by the general public.
The issue of who holds the title to the highway is a distinct question from whether the highway is accepted as a public highway. “The town can own the roadbed without it being a public highway. On the other hand there can still be a public highway without public ownership of a fee simple interest in the highway strip.” 9B R. Fuller, supra, § 49:2, p. 99. As we have concluded in part IB of this opinion, public use was the only method to accept a highway in 1730. The acceptance of a deed by a town, standing alone, was not public acceptance of a highway.
D
We turn next to the court’s finding that the highway was accepted by the public through public use. The defendants claim that the court committed reversible error by finding that the highway was accepted by the public. We disagree.
The principles of acceptance of a highway under the common law “authorize the gift, estop the giver from recalling it, and presume an acceptance by the public where it is shown to be of common convenience and necessity, and therefore beneficial to them. For the purpose of showing that it is beneficial, an express acceptance by the town, or other corporation within whose limits it is situate, and who are hable for its repair, the reparation of it by the officers of such corporation, or a tacit acquiescence in the open public use of it, are important; and so are the acts of individuals, such as giving it a name by which it becomes generally known, recognizing it upon maps and in directions, using it as a descriptive boundary in deeds of the adjoining land, or as a reference for locality in advertisements of property . . . and any other acts which recognize its usefulness and tend to show an approval of the gifts by the members of the community immediately cognizant of it; but the principal evidence of its beneficial character will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose.” (Emphasis
To determine whether the public has accepted a highway through actual use, the “use need not necessarily be constant or by large numbers of thе public” but it “must continue over a significant period of time . . . and be of such a character as to justify a conclusion that the way is of common convenience and necessity.” (Citation omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co.,
Our precedent dictates that although exemption from taxation, recognition on maps and descriptions in deeds may be probative of public acceptance, the “principal evidence . . . will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose.” Guthrie v. New Haven, supra, 31 Conn. 321; see also Meshberg v. Bridgeport City Trust Co., supra,
In addition to that particular factual finding regarding the easement and the court’s conclusion that the easement indicated a public use, the court found additional evidence of public acceptance. The court first found that the 1802 deed conveyed the fee of the highway to Wilton and that no one has ever claimed title to the thirty-three foot width of the highway. The court also found that, since the 1800s, numerous maps and deeds have been recorded showing the highway as the easterly boundary, and Wilton had itself acquired property described as being bounded by the highway. It found that lots on the westerly side of the highway have public use of the highway and demonstrated such by several conveyances of the lots in the 1700s that referred to the easterly boundaries of the properties as the highway. In addition, the court noted that taxes never have been levied on the highway.
While the principal evidence of public acceptance is actual use, recognizing the highway in maps and using it as a descriptive boundary in deeds of the adjoining land are relevant considerations. Guthrie v. New Haven, supra,
E
The defendants claim that, even if the court сorrectly found that the highway had been accepted, it improperly determined that the highway had not been abandoned due to nonuse. We disagree.
Once a highway is shown to be a public highway, it remains so unless the highway is either abandoned or discontinued pursuant to General Statutes § 13a-49.
“The burden of proof is on him who seeks to establish the abandonment of a highway, and the continuance of the street will be presumed until satisfactory evidence is produced to rebut it.” Appeal of St. John’s Church,
We reiterate that abandonment is a question of fact. Pizzuto v. Newington, supra,
II
The defendants next claim that the court lacked subject matter jurisdiction to determine the location of the highway because § 13a-39 vests primary jurisdiction in the town selectmen to make that determination. We disagree and conclude that the court properly determined that § 13a-39 does not apply to the facts of the present case.
In October, 2009, the defendants moved to dismiss the plaintiffs’ and the Ambler trustees’ complaints for lack of subject matter jurisdiction. The defendants argued that the plaintiffs and the Ambler trustees failed to exhaust their administrative remedies in requesting that the court determine the boundaries and legal status of the highway without first petitioning the board of selectmen pursuant to § 13a-39. The court denied the motion, stating: “The purpose of this case is to determine the public or private nature of [the highway], and the board of selectmen has power to do that. There are other issues too; easements of one kind or another. These issues are to be decided by the court. Thereafter, any issues of whether the board of selectmen play a role in any of this, the court will decide.” In its memorandum of decision, the court concluded that the highway is located in, and is owned in fee by, Wilton. It also concluded that the highway is thirty-three feet wide and runs from Wampum Hill Road in Wilton, north to its northerly termination, as depicted in the Gault map. In their motion for articulation, the defendants requested that the court rule on the question of its authority to determine the location of the highway in light of § 13a-39. The defendants argued in their motion that a determination of the location of the highway was essential before the court could reach any conclusion as to whether it constitutes a public highway. In its articulation, the court concluded that § 13a-39 was not applicable to the case, relying on Hamaan v. Newtown,
“[I]ssues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Marchesi v. Board of Selectmen,
We agree with the court’s reading of Hamaan and its conclusion that § 13a-39 did not require the plaintiffs to exhaust their administrative remedies before seeking a determination of the legal status of the highway. Section 13a-39 provides in relevant part: “Whenever the boundаries
In Hamaan, this court concluded that § 13a-39 does not empower boards of selectmen to establish the legal status of roads as public or private. “[Section] 13a-39 sets forth a procedure for defining the boundaries of a highway which have become lost or uncertain. ... A statutory proceeding for the survey and platting of an existing road does not operate to establish the road. Its purpose is merely to ascertain the courses and distances of one claimed already to be established. It estops the public from claiming that the road runs on a line different from that of the survey. . . . Recourse to § 13a-39 presupposes a prior determination that the road in question has been deemed a public highway. . . . The board is without authority under that section to determine the legal status of a road. The determination of the legal status of a road is distinct from a determination of the boundaries of a road.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hamaan v. Newtown, supra,
The second counts of the amended complaint and the intervenor complaint sought a determination of the legal status of the road. Because recourse to § 13a-39 is only available where the road in question already has been established as a public highway, we agree with the court that the statute does not apply to this case.
III
Having concluded that the highway properly was accepted as a public highway, we turn to the related, but distinct, matter of the easements granted by the court to the plaintiffs and the Ambler trustees. Because the highway is a public highway, the public, including the plaintiffs and the Ambler trustees, has an easement for travel over the road; Benham v. Potter,
The plaintiffs and the Ambler trustees claimed various easements,
The court determined that “when the proprietors laid out the highway in 1730 it was done to serve the convenience and necessity of the otherwise landlocked properties conveyed to the abutting owners.” The court found that Fred Deilus acquired the Deilus property in 1946, and during the period of his ownership and that of his successors in interest, the wood road was used to access his parcel. The court therefore found that the plaintiffs and the Ambler trustees had an easement by “convenience and necessity” over the highway and that the plaintiffs had a prescriptive easement over the wood road across Aspetuck’s property.
In their motion for articulation, the defendants requested a finding on their claim of alternate access. The defendants maintained that the plaintiffs and the Ambler trustees had “access to their property from Georgetown Road, along the existing wood road that intersects with the unimproved portion of Wampum Hill Road,” and that the issue related to whether the plaintiffs and the Ambler trustees had satisfied their burden of proof as to their easement by necessity.
The defendants contend that it was inconsistent to grant Deilus a prescriptive easement over the wood road and also to grant Deilus an easement by convenience and necessity over the highway.
The defendants’ claim raises an issue of law over which our review is plenary. See Kelley v. Tomas,
In their complaint, the plaintiffs alleged that without an easement by necessity over the highway, they would have no reasonable means of access to their property. However, the plaintiffs have a prescriptive easement over the wood road through Aspetuck’s property that provides a reasonable means of access. “[T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of wаy. The necessity need only be a reasonable one.” Hollywyle Assn., Inc. v. Hollister,
The judgment is reversed only as to the granting of an easement by necessity to the plaintiffs; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
Two rods measure thirty-three feet in width.
Though the conveyance of the property to Norwalk occurred subsequent to the establishment of the town of Wilton, the court viewed the deed as intending to convey the fee of the highway to Wilton.
The zoning permit claim was included in the original two count complaint and dismissed by the trial court on the ground that the court lacked jurisdiction over such a claim. This court affirmed that judgment in Montanaro v. Aspetuck Land Trust, Inc.,
General Statutes § 13a-39 provides: “Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on such map such lines as in their judgment coincide with the lines of the highway as originally laid down. Such selectmen shall cause a notice to be printed for at least two days in a daily paper having a general circulation in the town in which such highway is located, and shall send a written or printed notice to each known adjoining proprietor on such highway, setting forth the name or location of the highway, a description of the portions to be reestablished, the place and time where such map may be seen, and the time, not less than two weeks from the date of the issue of such notice, when and place where all parties interested may be heard under oath in regard to such reestablishmеnt. Such selectmen may adjourn such hearing from time to time and, upon reaching a decision, shall cause the same to be published as aforesaid and a notice of the same to be sent to all known aborning proprietors. Such decision shall specifically define the line of such highway and the bounds thereof and shall be recorded in the records of the town in which such highway is located, and the lines and bounds so defined and established shall be the bounds of such highway unless changed by the Superior Court upon appeal from such decision of the selectmen.”
Notably, the court did not rule on count three of the amended complaint or the intervenor complaint, both of which sought an easement by implication. Practice Book § 61-3 provides in relevant part that “[a] judgment disposing of only part of a complaint, counterclaim, or cross complaint is a final judgment if that judgment disposes of all causes of action in that complaint, counterclaim, or cross complaint brought by or against a particular party or parties.” Though the court did not dispose of all counts against Aspetuck, we nevertheless conclude that the judgment was final. In Mount Vernon Fire Ins. Co. v. Morris,
Before 1773, “the selectmen were authorized to lay out highways, and the ancient statutes, empowering them to do so, did not require their proceedings to be reported to the town, or to be recorded. Statute, ed. 1750, p. 381. Ed. 1715, pp. 50, 51.” Brownell v. Palmer,
General Statutes § 13a-61 provides: “The selectmen of each town may lay out necessary highways therein, not being within a city or within a borough having, by virtue of its charter or by statute, control of and liability for the highways within its limits, first giving reasonable notice in writing to the owners of the land through which the same are to be laid out or leaving copies of such notices at their places of abode, if in this state, to be present at the laying out of any such highway; and the damage done to such owners by such laying out shall be paid by the town. A written survey, signed by the selectmen, particularly describing such highway, with a description of each piece or parcel of land taken from or annexed to the lands of adjoining proprietors, being accepted by the town and recorded in its land records, and satisfaction being made to the persons injured, or the money deposited in the town treasury for their use, according to the agreement or estimate made as hereinafter provided, such highway shall be and remain for the use for which it was laid out.”
General Statutes § 13a-48 provides: “Any municipality whose duty it is to maintain the highways within its limits may, at any annual or special meeting held for that purpose, accept as a public highway any proposed highway situated in such municipality, provided any municipality in which a town meeting is the legislative body may by ordinance or resolution delegate the power to accept public highways to the board of selectmen in accordance with such procedures as the municipality may establish in the ordinance or resolution, and any municipality may, by charter, provide an alternative means for the acceptance of public highways.”
The plaintiffs also argue that, under the fourth method, the Norwalk proprietors were the proper authorities to accept a highway. See part I C of this opinion.
We find further discussion of the custom of proprietors in the preamble to “An act for the better establishing and confirmation of the titles of land anciently obtained in townships, according to the manner or custom heretofore used; and for preventing contentions about the same,” enacted in May, 1723. See General Statutes (1808 Rev.) tit. XCVH, c. X. The preamble states in relevant part that “it was anciently customary for towns to be settled, and the lands in them contained, to be disposed of by division, or otherwise, to particular persons, or special uses by the inhabitants of the said towns in town-meeting assembled; after which custom or manner, particular persons obtained to themselves certain quantities of said land, which they held and disposed of as their own proper estate of inheritance; and other quantities, or parcels of the said land in such towns which remained common, without being divided or disposed of to any person or use whatsoever, werе still considered and allowed to be in the disposition of the said inhabitants assembled in such town-meetings, by the major vote of those present. . . .” General Statutes (1808 Rev.) üt. XCVH, c. X, preamble.
The defendants do not challenge the court’s finding that there was a valid dedication of the highway.
The defendants claim that the trial court impermissibly allowed Rossi to “establish the law of the case.” They argue that because no witness, expert or otherwise, can testify to a legal opinion, it was error for the court to allow Rossi’s testimony that the proprietor roads could be accepted by the proprietors themselves. The defendants did not object to the portion of Rossi’s testimony addressing how proprietors laid out highways and divided land, which was included in the court’s articulation as the testimony specifically credited. The defendants have therefore failed to preserve their eviden-tiary claim for appellate review.
The defendants contend that the 1802 deed could not constitute acceptance for two additional reasons. They contend that, even if ownership of the highway could constitute acceptance, the 1802 deed could not constitute acceptance because it was a nullity, as the proprietors divested themselves of title to the highway by laying it out and conveying abutting parcels, and therefore they could not convey title to the highway. See, e.g., Chatham, v. Brainerd,
The parties stipulated that the highway was not discontinued pursuant to § 13a-49.
The Ambler trustees filed a statement of alternate grounds to affirm the judgment pursuant to Practice Book § 63-4 (a) (1) (A). They presented as an alternate ground on which the judgment of the trial court may be affirmed that Wilton has title to the highway and the Ambler trustees have an easement by convenience and necessity to Wampum Hill Eoad in Wilton.
To provide context, we note the following. Aspetuck owns three parcels of undeveloped land. It acquired the first from Andre Beaumont in 1968 (Beaumont parcel). It obtained the second and third parcels from Howard Fromson and David Strassler in 2003. The second and third parcels are known as the Gault parcel and the Bailie parcel, respectively, named for the predecessors in title to Fromson and Strassler. The Bailie parcel abuts the Deilus property, the Gault parcel abuts the Bailie parcel and the Beaumont parcel abuts the Gault parcel.
The maps show an accessway, called the “Old Highway” in the Beaumont map, which travels over the Beaumont parcel and leads to Wampum Hill Road. The “Old Highway” diverges into two wood roads near the property line between the Beaumont and Gault parcels. One wood road continues into the Gault and Bailie parcels. The other continues in the opposite direction, and is shown on the Gault map as ultimately leading to Georgetown Road.
Old 2 Rod Highway abuts the easterly boundary of the Deilus property as well as the Bailie, Gault, and Beaumont parcels.
Paragraph 20 of counts three and four of the amended complaint states: “The defendant Aspetuck may also have acquired a fee interest in the Old Two Rod Highway as a result of a deed from Howard Fromson and David Strassler . . . which would be subject to any existing public or private easements of access.” The complaint claims easements over Aspetuck’s land, including the highway. The court determined that Wilton acquired fee title to the alleged highway by virtue of an 1802 deed from the Norwalk proprietors.
In their brief, the Ambler trusteеs claim that the defendants have confused the wood road that goes over Aspetuck’s property and to the Deilus property with a separate and distinct wood road that runs off Wampum Hill Road to Weston and Georgetown and over which neither the plaintiffs nor the Ambler trustees have any easement rights. We agree. The court’s articulation made clear that it believed the wood road referred to in the defendants' request for articulation referred to the wood road that continued in the opposite direction from the wood road through the Gault and Bailie parcels, and there was no evidence presented to support a finding that the plaintiffs have alternative access to their properties over the wood road that leads to Georgetown Road. See footnote 15 of this opinion.
The court also granted the Ambler trustees an easement by necessity. The defendants conceded at oral argument that the easement to the Ambler trustees was appropriate, and they do not challenge it.