City of Derby v. Di Yanno

• Decision Date: 08 November 1955
• Citation: 142 Conn. 708,118 A.2d 308
• Parties: The CITY OF DERBY et al. v. Domenic DI YANNO. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 308

118 A.2d 308

142 Conn. 708

The CITY OF DERBY et al. v. Domenic DI YANNO.

Supreme Court of Errors of Connecticut.

Nov. 8, 1955.

Roslyn Z. P. Montlick, New Haven, for appellant (defendant).

George J. Yudkin, Derby, with whom, on the brief, was Harold B. Yudkin, Derby, for appellees (plaintiffs Bottachiari et al.).

Before INGLIS, C. J., BALDWIN, WYNNE and DALY, JJ., and MELLITZ, Superior Court Judge.

DALY, Justice.

This action was brought by the city of Derby and nineteen individual plaintiffs, seeking an injunction restraining the defendant from interfering with the right of the plaintiffs and the public to use a right of way, and a mandatory injunction directing the defendant to restore the grade of the right of way. In the complaint it is alleged that the individuals named as plaintiffs are the owners of certain parcels of land in the section of the city of Derby known as Camptown, which 'land has appurtenant to it a right of way' over land owned by the defendant. The city of Derby, as a party plaintiff, acted on behalf of the public and on its own behalf. Twelve of the individual plaintiffs were permitted to withdraw. Judgment was rendered directing the defendant to restore the grade of the passway along the easterly boundary of his property, enjoining him from interfering with the rights of the remaining individual plaintiffs, hereinafter called the plaintiffs, to use the passway for vehicular and foot passage, for them to recover their costs, and in favor of the defendant against the city of Derby without costs. 19 Conn.Sup. 218, 111 A.2d 23. The defendant has appealed. In his first four assignments of error he claims that the court erred in finding certain facts and in refusing to find other facts.

The court found, and was warranted in finding, the following facts: The defendant is the owner of land abutting on Roosevelt Drive, formerly known as Housatonic Avenue and formerly Sugar Street, in the city of Derby. The area in which the premises of the defendant and those of the plaintiffs are located is commonly known as Camptown. The defendant acquired title to a portion of the property over which the passway exists by warranty deed from Salvatore Papale and Samuel and Mary Musto on August 30, 1934, 'subject, however, to such rights of way as may exist and belong to the public, the City of Derby or adjoining property owners across the southeasterly side of said property next adjoining said land formerly of Bridgett Carey as the road or passway is now laid out and used.'

A passway for ingress and egress between Roosevelt Drive and Camptown exists, and has existed for many years, on the easterly portion of the land of the defendant which abuts on Roosevelt Drive and adjoins property known as the Esposito bakery. This passway is the one referred to in the warranty deed from Salvatore Papale and Samuel and Mary Musto to the defendant. Since 1919 or 1920, a sewer of the city of Derby has existed beneath the passway, a sewer easement map having been made in November, 1920, by the city of Derby. Prior to 1926, the passway had been used for many years by the owners and occupants of the land in Camptown without resort to permission or license from the defendant or his predecessors in title, such use being similar in manner to the use of the passway subsequent to 1926. In 1926, Samuel Musto, one of the defendant's grantors, leveled off the passway to make a good road of it. Since 1926, the passway has Leen used by the landowners of Camptown, their tenants, their friends, peddlers, salesmen, doctors, delivery trucks, furniture movers, police cars, fire trucks, and the public in general as a means of ingress to and egress from Camptown by foot and vehicular traffic.

In 1935, the defendant erected a sign on his property near the passway reading 'Private Road, No Trespassing,' and since that time the sign has remained near the passway except when it was being repainted. On two or three occasions, the defendant refused the city of Derby permission to maintain, sand or shovel the passway. He did nothing more to hinder or stop the traffic over the passway until April 1, 1954, although he knew of its use by the owners of land located in Camptown and by others. On April 1, 1954, he excavated the end of the passway nearest to Roosevelt Drive, making it impassable, erected a barrier and replaced the sign. Until the defendant, on April 1, 1954, made the passway impassable, it had been in open, visible, continuous and uninterrupted use for more than twenty-eight years by the owners and occupants of land in Camptown without resort to permission or license from the defendant or his predecessors in title and in complete disregard of the defendant's 'Private Road, No Trespassing' sign.

The defendant had notice of the existence of the easement and the right of way from the deed of August 30, 1934, by which he acquired title to a portion of the property over which the passway exists. On a map prepared in 1920, and on another prepared in 1927, the passway was shown as being fifteen feet wide and running northerly from Housatonic Avenue, as Roosevelt Drive was then called. The delineations of the passway shown on these maps are practically identical with those shown on a map prepared in 1954. The use of the prescriptive rights was over this passway, which was, and is, fifteen feet wide. The plaintiffs have title to land in Camptown to which ingress and egress is made over the passway from Roosevelt Drive.

The trial court concluded that prior to April 1, 1954, the passway had been in open, visible, continuous and...