Opinion
No. FST CV 03-0193111 S
June 2, 2008
Memorandum of Decision
This litigation initially arose when the plaintiff, Louise Washer, sought to achieve control of a small triangle of land owned by her neighbor, Mary Anne Case ("Case"). The plaintiff and Case own adjacent residential properties in the Silvermine area of Norwalk. The plaintiff's property, 280 Silvermine Avenue, is a 1.132-acre lot improved with a house and a detached garage. Her property has limited highway frontage. The westerly side of the plaintiff's property has frontage of 37.08 feet on Silvermine Avenue. A short driveway runs from Silvermine Avenue to the plaintiff's garage which has doors on both the front and back. The back doors are old and now inoperable. In times past vehicles could be driven through the garage to reach the plaintiff's house which is located some distance to the south and east of the garage. The northerly side of the plaintiff's property has frontage of 19.40 feet on the tract of land known as "Old Highway," which is presently the sole remaining subject of the litigation.
After purchasing her property in 2001 the plaintiff attempted to gain access to the rear portion of her property over a dirt driveway which runs from "Old Highway" to the interior of her property. Access over the dirt driveway was impeded by trees, rocks and a wall. Plaintiff tried, unsuccessfully, to acquire title to a small triangle of land, approximately eleven square feet in area, owned by Case adjacent to the intersection of the dirt driveway with "Old Highway." Case's property, 191 Perry Avenue, is located to the north of the plaintiff's property with extensive frontage on both Perry Avenue and "Old Highway." Perry Avenue runs in an easterly direction from Silvermine Avenue to narrow bridge crossing the Silvermine River. On the east side of the river, Perry Avenue continues south parallel to the river.
Possession of the small triangular piece of Case's land would have eliminated or, at least, alleviated the plaintiff's problem of access to her property from "Old Highway." In December 2002 after Case had refused to either sell the triangle or to swap land with the plaintiff, the plaintiff brought an action against Case claiming that she either owned the triangle by adverse possession or had acquired a right of way over the triangle by prescription. Case filed a counterclaim seeking an injunction prohibiting the plaintiff from trespassing on her property.
On January 30, 2003 other neighbors, Judith Cornier and Michael Cornier (the "Corniers"), who own property at 187 Perry Avenue, filed notices on the Norwalk Land Records pursuant to General Statutes § 47-36 claiming that they either owned 1) a portion of "Old Highway" at the intersection of the plaintiff's dirt driveway and "Old Highway"; or 2) all of "Old Highway." The second notice, claiming ownership of all of "Old Highway," acknowledged that Nan Lower ("Lower"), who owns property at 189 Perry Avenue, had a right of way over "Old Highway." Neither notice acknowledged that either the plaintiff or Case had any interest in or right to use "Old Highway."
On May 5, 2003, the Court (Karazin, J.) granted the plaintiff's motion to amend her complaint to add a fifth count citing in the Corniers, Lower and the City of Norwalk as additional defendants. The fifth count was an action to quiet title to "Old Highway" brought pursuant to General Statutes § 47-31.
On March 15, 2005, the Court (Lewis, J.T.R.) issued a memorandum of decision on Case's application for a temporary injunction against the plaintiff. The court found it likely that Case would prevail on the merits and issued a temporary injunction, without bond, prohibiting the plaintiff from entering Case's eleven-square-foot triangular piece of property. Thereafter the plaintiff withdrew the first four counts of her complaint and Case withdrew her counterclaim and thereafter was no longer a party to the action.
From April 25, 2007 to April 27, 2007 the court heard evidence from the remaining parties on the fifth count of the plaintiff's complaint, the action to quiet title to "Old Highway." During the course of the trial the court expressed concern that Case, as the owner of property abutting "Old Highway" was potentially a necessary or indispensable party to the action. In response to the court's concern the plaintiff filed a motion to amend her complaint to cite in Case as a defendant and to recite her potential interest in "Old Highway." The court granted that motion. Thereafter Case appeared, pro se, and filed an answer to the amended complaint. The remaining defendants, the Corniers, Lower and the City of Norwalk each filed answers to the amended complaint.
On March 18, 2008 the parties appeared before the court and agreed that the evidence which the court heard at the trial held from April 25, 2007 to April 27, 2007 could be considered with respect to all parties. The court ascertained that Case had been provided with transcripts of all testimony heard by the court and with copies of all exhibits admitted as evidence. Pursuant to the parties' agreement, Case proceeded to make a presentation to the court which included a statement as well as exhibits which were received into evidence without objection. Case's presentation included an extensive analysis of deeds and historical records concerning the Silvermine neighborhood, the various branches of the Norwalk River and the identity and location of the "Old Highway."
DISCUSSION
Based on the evidence the court finds that "Old Highway," the parcel of land in dispute is an irregularly shaped tract. The northerly side of the tract is 41.84 feet wide consisting entirely of frontage on Perry Avenue. The southerly end of the parcel is 20.8 wide and is bounded by residential property owned by defendant, Nan Lower. On the east "Old Highway" is bounded by residential property owned by defendants Michel and Judy Hill Cornier. The Cornier's frontage on "Old Highway" is approximately 72 feet. On the west, "Old Highway" is bounded by property of Mary Anne Case for 35.22 feet, the 19.40 feet of the plaintiff's frontage and by 26.03 feet of the defendant Lower's property. Mary Anne Case enjoys a substantial frontage on Perry Avenue and does not maintain a driveway leading to "Old Highway."
The plaintiff claims that "Old Highway" is a public highway and that she is entitled to use her frontage on "Old Highway" for access to her property. Case claims that "Old Highway" is not a public highway and is owned by the adjacent property owners. Case concedes that Lower has a right of way over "Old Highway" to reach Perry Avenue. Case denies that the plaintiff has any rights to use any portion of "Old Highway."
Without such a right of way, Lower's property would be, for all practical purposes, landlocked.
The Corniers claim to have acquired title to all or a portion of "Old Highway" by adverse possession. They claim that if "Old Highway" was ever a public highway, it has been abandoned by the City. They also claim that they have parked automobiles on the west side of "Old Highway" opposite their property for more than twenty years. The Corniers' property is tiny, consisting of .096 acres with frontages of 38.07 feet on Perry Avenue and 72 feet on "Old Highway." The property is bounded on the east by the Silvermine River. Because of the approaches to the Perry Avenue Bridge, the frontage on Perry Avenue does not provide the Corniers with practical access to a public highway. The Cornier lot is almost entirely occupied by an nineteenth century farmhouse. The Corniers have no driveway or parking area, nor do they have room for either on their small lot. The area used by the Corniers for parking is in front of a stone wall which is located on and in front of a portion of Lower's frontage and in front of the plaintiff's frontage on "Old Highway."
The City of Norwalk (the "City") agrees that "Old Highway" is a public right of way and denies that the Corniers could acquire title to any portion of "Old Highway" by adverse possession.
Lower's position is in substantial agreement with that of the plaintiff and the City. She believes that "Old Highway" is a public highway that has not been abandoned and/or adversely possessed. Her evidence showed that, in addition to vehicular access, all of her utility services run over or under "Old Highway." She concedes that the plaintiff most likely has the right to use "Old Highway" for access to the rear portion of her property.
If either of the Corniers' claims of adverse possession is upheld, the plaintiff may well be precluded from using her frontage on "Old Highway" for vehicular access. On the other hand, if the Corniers do not prevail on their claim, the plaintiff may be entitled to remove the portion of the stone wall in front of her property and gain access to her property over "Old Highway." If this were to occur, the Corniers might be deprived of the ability to park at least one of their automobiles in the portion of "Old Highway" where they have become accustomed to parking. Although there was no expert testimony on the issue, the parties apparently assume that the plaintiff will be able to subdivide her property if her right to access over "Old Highway" is confirmed, but that otherwise a subdivision will not be possible.
DISCUSSION
The plaintiff's fifth count asks the court to quiet and settle title to Old Highway pursuant to General Statutes § 47-31(a). That statute provides:
An action may be brought by any person claiming title to, or any interest in, real or personal property or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.
The plaintiff is the owner of property which abuts "Old Highway" and she claims to have the right to use "Old Highway" in order to obtain access to Perry Avenue. The court finds that the plaintiff has standing to bring this action. The plaintiff does not claim to have acquired title to or rights in "Old Highway" by either adverse possession or by prescription. Accordingly, her burden of proof is the normal civil standard of a fair preponderance of the evidence. Loeb v. Al-Mar Corp., 42 Conn.Sup. 279, 287 (1991), aff'd, 224 Conn. 6 (1992).
The Corniers claim ownership interests in "Old Highway" by adverse possession. At common law it was not possible to obtain title to a public highway by adverse possession. Newkirk v. Sherwood, 89 Conn. 598, 604 (1915). However, that doctrine has been modified to permit adverse possession of a public highway if the highway has been abandoned. Id. Pursuant to the provisions of General Statutes § 13a-55, if the abandonment occurred after the effective date of the statute in 1959, all property owners bounding the highway would have a right of way to reach the nearest or most accessible public highway. However, if the abandonment took place prior to enactment of the statute the owners of property abutting the abandoned highway would take title to the fee to the center line, but would not have rights of way to use other portions of the abandoned highway. Rudewicz v. Gagne, 22 Conn.App. 285, 289 (1990). In order to evaluate the respective claims of the parties the court must determine whether "Old Highway" was, at any time, a public highway and, if so, whether and when its use as a public highway has been abandoned.
PUBLIC HIGHWAY
The plaintiff claims that "Old Highway" is a public highway. "A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle. In every highway the King and his subjects may pass and repass at pleasure." Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488 (1897). The essential feature of a highway is that it is a way over which the public at large has the right to pass. Yale University v. New Haven, 104 Conn. 610, 616 (1926); CT Page 9062 Newton v. New York, N.H.H.R. Co., 72 Conn. 420, 426 (1899); Peck v. Smith, 1 Conn. 103, 132. Stavola v. Palmer, 136 Conn. 670, 683 (1950).
In Stavola v. Palmer, supra, the court stated that "`public highway' is tautology" and approved the dictionary definition of a highway as "[a] main road or thoroughfare; hence, a road or way open to the use of the public." 136 Conn. at 684. In Laufer v. Bridgeport Traction Co., supra, 68 Conn. at 488, the court held, "A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle." From early times, under the common law, highways have been established in Connecticut by dedication and acceptance by the public. State v. Taff, 37 Conn. 392, 400 (1870). No particular formality is required. Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271 (1958). In Whippoorwill Crest Co., the court discussed the concept of dedication.
Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public. No particular formality is required in order to dedicate land to a public use. A dedication may be express, as where the intention to dedicate is expressly manifested by an explicit oral or written declaration or deed of the owner, or it may be implied from acts and conduct of the owner of the land from which the law will imply such an intent.
Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public. Johnson v. Watertown, 131 Conn. 84, 89 (1944); LaChappelle v. Jewett City, 121 Conn. 318, 386 (1936); New London v. Pequot Beach Co., 112 Conn. 340, 344 (1930). Dedication may be implied by a long period of use. Ventres v. Town of Farmington, 192 Conn. 663 (1984). Acceptance may be implied by the actions of governmental authority in exercising control over the passageway over a period of time. Ruggiero v. Town of East Hartford, 2 Conn.App. 89 (1984). In this case there was no evidence produced of a formal dedication of "Old Highway" nor was there any evidence of a formal acceptance of "Old Highway" by the Town/City of Norwalk. However, there is ample evidence from which such dedication and acceptance can be inferred.
The evidence in this case does not reveal who may have been the owner of "Old Highway" when it was first used by the public. The only title expert to testify was Attorney Dennis Anderson who was retained by the plaintiff to search the Norwalk public records and determine the status of "Old Highway." Anderson testified that he spent many hours searching municipal and historic records regarding the Silvermine area of Norwalk and the "Old Highway." His report (ex. 25) includes title searches for the properties now owned by the plaintiff, Case, Lower and the Corniers. Those title searches do not indicate that any of the parties to this litigation or their predecessors in title held record title to any portion of "Old Highway." In the deeds comprising the parties' chains of title "Old Highway" is variously referred to as "highway," "driftway" or "old highway."
Anderson further testified that he had searched the land records back to the early 18th century and found a 1814 deed from the Selectmen of Norwalk to Andrew Aiken (ex. 28). That deed conveyed approximately two acres on the east side of the river to Aiken, reserving to the "Town of Norwalk" rights in a "road to from the fording place also ground for a sufficient road over a bridge to be built over the river near the Cotton factory . . ." Anderson was of the opinion that the significance of the 1814 deed was that the Town was reserving rights to the continuation of "Old Highway" on the opposite side of the ford. Anderson also relied on a 1827 deed in which the selectmen of Norwalk granted to Aiken land on the west bank of the river (opposite the land granted in the 1814 deed) "sufficient to build a Dam . . . anywhere between the Bridge now over said River and the Cartway a few rods below said Bridge . . ." The deed obligated Aiken "not to injure said Cartway or Bridge nor to flow the river so as to injure the Factory above where said Dam is contemplated to be built." Anderson testified that he believed that in 1827, the "Cartway" led from Perry Avenue along "Old Highway" to the ford and continued on the east side of the river. He believed that by stipulating that the "Cartway" was not to be injured the Town was affirming its rights to the entire road, including "Old Highway." Other evidence established that for many years a dam has been located between the Perry Avenue Bridge and the area where Anderson placed the ford.
Anderson's research showed that in 1917 the Norwalk Common Council abandoned a portion of the "Old Highway." A 1917 map on file in the Norwalk Department of public works (ex. 16) shows the abandoned portion to be 115 feet in length running from a point parallel to a dam northeasterly to within a few feet of the residence now owned by the Corniers. Exhibit 16 also shows, with dotted lines an "abandoned road" and an "abandoned ford," once the continuation of "Old Highway." The portions of "Old Highway" apparently abandoned prior to 1917 led to a ford in the Silvermine River, continued over a small bridge spanning an "Old Mill Race," and terminated at an intersection with the continuation of Perry Avenue on the east side of the Silvermine River. The portion of "Old Highway" abandoned in 1917 is now owned by defendant Lower. A second 1917 map, prepared by the Norwalk City Engineer for the Common Council, (ex. 17) shows the length of portion of "Old Highway" abandoned in 1917 to be 113 feet in length.
Anderson also submitted evidence that in 1965 the Norwalk Common Council rejected a proposal to abandon the remaining portion of "Old Highway." In a committee report, which the Common Council voted unanimously to receive (ex. 33), it was stated:
That portion of "Old Highway" is the subject of this action.
It has been found that three property owners about (sic) the road and two other property owners have water lines located in the said portion. In view of the rights of the several owners it is apparent that the abandonment would create difficulties to the affected properties. It is therefore the recommendation of your committee that the City retain this portion . . .
The 1827 deed protecting "Old Highway," the 1917 abandonment of a portion of "Old Highway" and the rejection of the 1965 proposal to abandon the remainder of "Old Highway, represent compelling evidence of dedication and acceptance of "Old Highway," and the City/Town's exercise of control over it.
In response to Anderson's title report and testimony, Case submitted her research into Norwalk historical records which she claims supports her position that "Old Highway" is not now and never has been a public highway. (Ex. 120.) Case's report is in large measure an attack upon the inferences drawn by Anderson and the conclusions he reached based upon his examinations. Case claims that Anderson's report is deficient because he did not go back far enough in time nor did he "look for answers beyond the parameters of the properties involved in the lawsuit."
Case's analysis of the deeds she submitted in evidence led her to the conclusion that the 1814 deed to Aiken, mentioned in Anderson's report, referred to a ford located far upstream from the properties owned by the parties to this litigation. Case's research did not establish a chain of title to show that any party to this litigation had fee title to the remaining portion of "Old Highway." She relies heavily on commercially prepared maps from the mid-19th century to early 20th century. These maps, (ex. 70, 71 and 80 through 88) depict the entire Town/City of Norwalk and show the Silvermine area only in small scale. In analyzing these maps along with public records Case reaches the conclusion that "Old Highway" never was a public highway, but was at best "an internal mill road and ford." Case's report also discusses at length issues that arose in the 1950s in the Town of Wilton regarding a road known as "Old King's Highway." That road or a portion of it connects with Perry Avenue on the east side of the Perry Avenue Bridge.
The court finds Case's analysis to be unpersuasive. Her analysis does not effectively address the actions of the Common Council in 1917 and 1965. In particular, she offers no explanation for the fact that the map prepared by the Norwalk Department of Public Works at the time of the 1917 abandonment reflects that, contrary to Case's assertions, "Old Highway" once extended all the way to Perry Avenue on the east bank of the Silvermine River.
Case does point out the General Statutes § 13a-49 allows municipalities to abandon any "private way" as well as any "highway." She proposes that the actions of the Common Council, might well relate to a "private way" rather than a "highway." The minutes of the common Council do not support such a proposition. Those minutes repeated refer to "Old Highway" as "the road," "such highway" or "the highway." There are no references in the minutes to "Old Highway" being a private way.
On the whole the court finds Anderson's analysis to be more persuasive and concludes that the portion of "Old Highway" was a public highway.
ABANDONMENT
General Statutes § 13a-49 sets forth the statutory process for discontinuing a public highway. "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 . . ." There was no evidence that the portion of "Old Highway" which is the subject of this litigation was ever discontinued in accordance with the procedure set forth in General Statutes § 13a-49. On the contrary, the evidence shows that the only attempt to discontinue that portion of "Old Highway" was rejected by the Common Council in 1965.
However, a public highway may also be abandoned under common law. "A highway may be extinguished [1] by direct action through governmental agencies, in which case it is said to be discontinued" or [2] 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." (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn.App. 538, 547 (2002), quoting Greist v. Amrhyn, 80 Conn. 280, 285 (1907). "Although the length of time during which nonuse on the part of the public must continue before the highway is presumed to be abandoned has not been determined, it must be substantial." Stohlts v. Gilkinson, 87 Conn.App. 634, 644 (2005).
Abandonment is a question of fact. Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622 (2005). Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, "the intent to abandon may be inferred as a fact from the circumstances . . ." The mere discontinuance of a use where there is not intent to abandon is not enough . . . Cummings v. Tripp, 204 Conn. 67, 93 (1987). "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, 83 Conn. 101, 105 (1910). The Corniers are the only parties to this litigation who assert that "Old Highway" has been abandoned as a public highway.
The testimony of employees of the Norwalk Department of Public Works established that the City of Norwalk had not plowed or repaved "Old Highway" for many years. However, the City has installed a catch basin within "Old Highway" and periodically maintains and cleans the catch basin. It is undisputed that since the Norwalk Common Council rejected the proposal to discontinue "Old Highway" in 1965, the owners of the Cornier and Lower properties and their guests had used "Old Highway" for access to the respective properties. The evidence also shows that the City has erected "No Parking" signs on "Old Highway" in order to keep a fire lane open for potential access to the Lower property. However, the evidence shows that the City erects such signs, even on private property, if necessary to establish fire lanes and keep them open. The court finds that evidence of "No Parking" is not relevant to the issues of this case.
Based on the evidence the court concludes that "Old Highway" has not been abandoned or discontinued either formally or informally and that it remains a public highway. Judgment may enter in favor of the plaintiff on the fifth count without costs taxed in favor or against any party.