Opinion
No. CV 08 5007481
July 21, 2009
MEMORANDUM OF DECISION
This is a declaratory judgment action brought by the plaintiffs seeking a declaration from the court that Perry Road in Lebanon, Connecticut, was statutorily discontinued on December 9, 2002, and, as owners of real property bounding on Perry Road, they are entitled under C.G.S. § 13a-55 to "a right-of-way for all purposes for which a public highway may be now and hereafter be used over such discontinued or abandoned highway." The defendant claims that Perry Road was discontinued by actions of the Town of Lebanon in July 1937, under the provisions of the predecessor to C.G.S. § 13a-49, and any claims asserted by the plaintiff are invalid.
The facts in this case are not in dispute. The parties have filed a stipulation of facts and claims of law, which includes the following pertinent facts. The plaintiffs own property abutting Perry Road, a highway owned by the Town of Lebanon. Perry Road was used by the plaintiffs' predecessors on a regular basis to gain access to their property, which is otherwise landlocked.
On July 21, 1937, a written notice of a special meeting, signed by three selectmen of the Town of Lebanon, was issued by the selectmen warning of a special town meeting to be held on July 29, 1937, to "take action on the following proposals (4) To see if the Town wishes to close the so-called Perry Road leading from the four corners near the residence of Stanley Yorczyk to the Colchester Town Line." On or about July 28, 1937, pursuant to such notice, a special town meeting of the Town of Lebanon was held which took the following action: "IV Motion — that the Perry Road from Stanley Yorczyk four corners to Colchester Town Line be closed. Seconded-Voted-Declared Carried."
On December 9, 2002, a Special Town Meeting of the Town of Lebanon voted "that the action of the Lebanon Town Meeting on March 8, 1974 is hereby ratified and Perry Road is acknowledged to be and hereby is declared abandoned and discontinued."
Based on the above facts, the plaintiffs claim that they have the right to use Perry Road because it was discontinued on December 9, 2002, and, under C.G.S. § 13a-55, as abutting owners, they have a right-of-way over Perry Road. The defendant claims that Perry Road was discontinued on July 28, 1937, and, at that time, prior to the enactment of Sec. 1442, the predecessor of § 13a-55, the abutting owners did not acquire any right-of-way in a discontinued road.
The issue before the court is whether the Town of Lebanon legally discontinued Perry Road in 1937. In 1937, Section 1442 provided, in part:
Sec. 1442. Discontinuance of highways and private ways.
The selectmen of any town may, with its approbation, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, therein.
The general principles as to the discontinuance or abandonment of a road are well-established:
There is no doubt that the two methods of terminating a town's responsibility for a road differ. A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued; or by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned. The statutory method of discontinuing a highway must be strictly pursued. In discontinuing a highway the selectmen act as agents of the law, and can exercise no powers except such as are conferred by statute. Their action, and the action of the town approving it, therefore, should be formal and definite, so as to give parties who may be aggrieved an opportunity to apply to the court for the relief which is provided by statute. Doolittle v. Preston, 5 Conn.App. 448, 451 (1985). (Citations and internal quotation marks omitted.)
In the present case, the three selectmen warned the special town meeting to take action "To see if the Town wishes to close the so-called Perry Road" and, pursuant to the warning and notice, the Town Meeting voted "that Perry Road . . . be closed." Therefore, there is compliance with the procedural dictates of § 1442. However, the selectmen and the Town Meeting used the word "closed" and did not use the word "discontinued" in taking their action. The plaintiff claims that "closed" is not the equivalent of "discontinued" and the action is invalid.
In Clark v. Cornwall, 93 Conn. 374, 376 (1919), the selectmen of the Town of Cornwall warned a special meeting of the Town to take action to discontinue portions of a highway and a "vote upon closing the road or highway" was passed by the Town Meeting. The trial court upheld the action, but the Supreme Court held that the action did not become final because the eight months appeal period had not expired and the action could be rescinded. Neither the trial court nor the Supreme Court mentioned the use in the town meeting's vote of the word "closing" rather than "discontinuing."
In Doolittle v. Preston, supra, the selectmen voted to recommend to a town meeting that certain roads be abandoned and the town meeting voted the abandonment of such roads. The trial court held that the use of the word "abandon" rather than the word "discontinue" was of no matter. The Appellate Court cited the Clarke v. Cornwall case and upheld the trial court, stating at page 448:
This case makes it crystal clear that the incantation of a legal "abracadabra" is not necessary to terminate a town road. The essence of the thing accomplished controls.
In Chaput v. Clarke, 26 Conn.App. 785 (1992), the town voted "to close" a portion of a road. In discussing the closing of the road, the Appellate Court used the words "closed," "discontinued" and "abandoned" interchangeably throughout its opinion. In upholding the discontinuance of the road, at no time did the Appellate Court note any problem with the use of the word "close" rather than the word "discontinue."
In Mackie v. Hull, 69 Conn.App. 538 (2002), there was no evidence that the selectmen of the Town of Morris recommended discontinuance of a highway which the town meeting voted to "close." Because of the lack of such evidence, the Appellate Court reversed the trial court's determination that the highway had been discontinued by government action. The Appellate Court made no mention of the use of the word "close" rather than "discontinued."
Based on the above cases, the court finds that Perry Road was discontinued on or about July 28, 1937, and that the actions of the Lebanon Town Meeting on December 9, 2002, were without effect. Accordingly, the plaintiffs have no right to the use of Perry Road and the court enters judgment for the defendant.