La Chappelle v. Borough of Jewett City

• Decision Date: 14 May 1936
• Court: Connecticut Supreme Court
• Parties: LA CHAPPELLE v. BOROUGH OF JEWETT CITY. MASSE v. SAME.

185 A. 175

121 Conn. 381

LA CHAPPELLE v. BOROUGH OF JEWETT CITY.

MASSE v. SAME.

Supreme Court of Errors of Connecticut.

May 14, 1936

Appeal from Superior Court, New London County; Earnest C. Simpson Judge.

Actions by Emma La Chappelle, administratrix of the estate of Wilfred J. La Chappelle, and by Leontine Masse, administratrix of the estate of Louis J. Masse, against the Borough of Jewett City to recover damages for the death of plaintiffs' intestates, alleged to have been caused by the lack of a fence on a highway. Judgment for the defendant in each case and plaintiffs appeal.

No error.

Arthur T. Keefe, of New London (Harry E. Back, of Danielson, and Joseph P. Smith, of Moosup, on the brief), for appellants.

John T. Barry and Richard J. Dudkowski, both of Norwich, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS AVERY, and BROWN, JJ.

BANKS Judge.

The plaintiffs' intestates were drowned by reason of an automobile, in which they were riding on Water street in the borough of Jewett City, becoming stalled and rolling backward into Slater Mill Pond. The action is based upon the alleged failure of the defendant to maintain a sufficient railing on the side of the road under the provisions of section 1419 of the General Statutes, giving to one suffering damage by reason of the want of such railing a right of action against the party bound to maintain the road. The complaint alleged that Water street was a public road which the defendant was bound to keep in repair. This the defendant denied. The only question upon this appeal is whether this was a public road created by dedication and acceptance by the public, as claimed by the plaintiffs, or whether, as held by the trial court, there had never been such dedication and acceptance as to constitute it a public road.

The following facts relevant to this issue appear from the finding: Water street, so called, is a strip of land which, prior to 1896, extended easterly from Slater avenue. Except near Slater avenue and where it widened out at the easterly end, it was between 40 and 50 feet wide. It was owned, together with other land fronting on Slater avenue, by the Slater Mills from 1824 to 1925, when it was sold to the Fisk Rubber Company, and by the latter company to the Fisk Realty Company in 1933. Some years prior to 1891, the Slaters had caused houses to be built along the northerly side of the strip for the use of their employees, and left the way open for their convenience in going to and from work. In 1891 there were three of these tenement houses, two sheds, and a barn on the north side of the strip. None of these were in existence at the time of the accident. In 1896 the then owner of the Slater Mills conveyed to the Twelfth School District of the town of Griswold a parcel of land at the east end of Water Street, " together with a right of way from the herein conveyed premises to Slater Avenue through Water Street, so called." The conveyance was upon condition that the premises be used for school purposes only with a right of reverter and re-entry upon breach of the condition. In 1903 the then owner of the premises conveyed to the defendant a strip of land at the easterly end of the way, together with a right of way " over the remaining land of the releasor and Water Street, so called, from said strip *** to Slater Avenue."

Upon this property the defendant erected an electric power plant. It built a substantial fence from the corner of this building across the traveled portion of the way, which remained in position from about 1906 until 1909 or 1910. After the defendant acquired this property, School street was opened up east of the power station substantially in the same location as a lane which had previously existed.

During the course of time a traveled way was made upon Water street. Whatever repairs were done on this were done by the Slater Mills putting on cinders from their engine house, except that some street cleanings were dumped by the defendant's employees in front of the power plant and, at the request of the owner, in front of a blacksmith shop which was located on the north side of Water street. At the westerly entrance to Water street there was a sign " Water Street," which was put up by an employee of the defendant, but there was none at the other end of the street. For several years, up to within two or three years of the accident, there had been " private way" signs at each end of the street. Prior to 1896 Water street was used almost entirely by employees of the Slaters in going to and from their work, by persons visiting them, and by trades people delivering goods to them. After 1896 it was used for the same purposes as long as the tenement houses remained and by the school children and people going to and from the blacksmith shop. It was seldom used for any other purpose, but was used from time to time by persons as a short cut going to church or fishing and for pleasure. Upon these subordinate facts the trial court found that the owners of Water street never by any act or deed dedicated it as and for a highway, that the unorganized public had not accepted it as such, and that it was not a public highway. These findings are conclusive unless they are legally or logically inconsistent with the subordinate facts found, or involve the application of some erroneous rule of law material to the case. Davis v. Margolis, 107 Conn. 417, 422, 140 A. 823.

The plaintiffs contend that the conveyance by the owners of a parcel of land at the end of this strip to the school district for school purposes and of another parcel,...