137 A. 13 | Conn. | 1927
The plaintiff brings this action to recover upon a certain bond in which it is named as obligee and which purports to be executed by the Bridgeport-Pacific Land Company as principal and by the defendant as surety. This bond is dated May 28th, 1917, and recites that the principal had agreed with the plaintiff that it would, on or before May *36 28th, 1918, at its own expense and without cost to the town, put certain streets and highways situated in the town, described in the agreement and in a map attached to it, into a condition satisfactory to the selectmen of the town as to grade, layout, location, width and improvement; and the condition of the bond was that the Land Company would perform its obligations under this agreement.
The bond was the outgrowth of a certain land development in the plaintiff town, a tract having been plotted into building lots, with the necessary streets to afford access to them. Learning of this, one Lally, then first selectman of the town, objected to the sale of any of the lots until the streets had been built. As a result a writing was drawn up covering the construction of a certain street in the tract, known as Rockland Avenue, the owner of the tract promising that, for a distance of twelve hundred feet, the street would be constructed thirty-two feet wide from gutter to gutter and have a gravel surface sixteen feet wide and four inches deep. The bond in suit was designed to ensure the performance of this undertaking.
At the time the bond was given the streets plotted in the tract were not highways. However much the owner might have desired to make them such, nothing done by him could bring that about in the absence of acceptance by the general public or action by the proper authorities. Riley v. Hammel,
The plaintiff also claims that Rockland Avenue has become an accepted highway by virtue of the acts of the selectmen in connection with the taking of the bond. It points particularly to a provision of a special charter granted to the town in 1913, and amended in 1917, which gives to its board of selectmen many of the powers ordinarily exercised by city councils, and, among others, the power to provide for the laying out, establishing, grading and making of highways and streets, and for repairing and keeping them open and safe for public use and travel, and also the power to prescribe the width of all highways, streets, sidewalks and gutters. Special Laws of 1913, p. 916; id. 1917, p. 1217. We have no need now to inquire into the scope of these sweeping provisions. The creation of a highway affects too many rights, individual and public, and imposes upon the town too heavy a responsibility for maintenance and too great a liability for injuries due to defective conditions, to permit it to be done by the board without formal action, duly recorded.Ray v. Huntington,
As a matter of fact, the evidence brought before us by the plaintiff in order to secure the corrections of the finding it seeks shows unmistakably that the selectmen did not assume to act under the provisions of the special charter. The only one who testified, Lally, repeatedly and positively stated that the action was taken under "the statute," and by the dates he gives in connection with it and the actions of the parties, this statute is identified as § 1436 of the General Statutes, Revision of 1918. It provides, as applied to towns, that no person, company or corporation, excepting municipal corporations, shall lay out any street or highway less than three rods in width, unless with the prior written approval of a majority of the selectmen of the town, and that no such street or highway shall be opened to the public until the grade, layout, location, width and improvement shall have received the written approval of the selectmen. The purpose of this statute is undoubtedly to meet the difficulty inherent in the doctrine of the dedication of highways, which permits acceptance by the general *39
public, and which makes it possible, where an individual or private corporation has laid out a street, that it shall become a highway through use by the public, no matter how narrow or tortuous it may be, and no matter whether or not it has been in any way improved.Green v. Canaan,
Rockland Avenue never having become a highway, the plaintiff is under no duty to build or maintain it, and is not liable for injuries suffered upon it. Whether it ever will become a public highway and, if so, when, is entirely problematical and could afford no basis for any present award of damages. Watson v. New MilfordWater Co.,
There is no error.
In this opinion the other judges concurred.