Cone v. Darrow

• Decision Date: 24 January 1961
• Citation: 148 Conn. 109,167 A.2d 852
• Court: Connecticut Supreme Court
• Parties: Charles R. CONE et al. v. William L. DARROW et al., Selectmen of the Town of Waterford, et al. Supreme Court of Errors of Connecticut

Page 852

167 A.2d 852

148 Conn. 109

Charles R. CONE et al.

v.

William L. DARROW et al., Selectmen of the Town of Waterford, et al.

Supreme Court of Errors of Connecticut.

Jan. 24, 1961.

Richard F. Corkey, New London, for appellants (plaintiffs).

Edmund W. O'Brien, New London, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

KING, Associate Justice.

On November 19, 1957, the selectmen of the town of Waterford executed a writing, signed by all three selectmen, setting forth that they did 'discontinue and abandon that portion of a highway or private way known as Pilgrim Road which begins opposite the home of Moses Hirth and extends northerly for a distance of approximately one mile to the property owned by * * * [the plaintiffs].' On November 25, 1937, at a town meeting duly warned and held, it was voted that '[t]he action of the Board of Selectmen taken November 1957 in discontinuing that portion of Pilgrim Road running northerly from the home of Moses Hirth to the property of * * * [the plaintiffs] is hereby approved.'

The plaintiffs appealed to the Court of Common Pleas from the action of discontinuance of the road, alleging that they were aggrieved thereby. It should be noted at the outset that we are concerned solely with a discontinuance under General Statutes § 13-31. Common-law abandonment is not involved. Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521. Under §§ 13-23 and 13-31 of the General Statutes, a person aggrieved by a discontinuance may appeal to the Court of Common Pleas. The defendants, in accordance with the provisions of § 13-23, moved for the appointment of a committee of three disinterested persons to determine the issue of common convenience and necessity.

The plaintiffs claimed, and the unattacked finding of the court was, that the portion of the way discontinued was a public highway. We are therefore not concerned with the discontinuance of a private way, or the precise meaning of that term as used in the discontinuance statute. ¹ Arguendo, we may assume that the plaintiffs are correct in their claim that the term 'private way' has no reference to a private right of way, that is, an easement having its origin in grant, prescription or necessity, but embraces only such private ways as were laid out by the selectmen in accordance with the statutory procedure mentioned in the footnote.

In an appeal under the statutes, all questions as to the validity or legality of the action of discontinuance on the part of the selectmen or the town should be raised in, and determined by, the court prior to the appointment of a committee. Clark v. Town of Cornwall, 93 Conn. 374, 377, 106 A. 347. If the court finds that the proceedings are valid and legal, as against any attack properly made, it appoints a committee of three disinterested persons to determine whether the public highway sought to be discontinued is of 'common convenience and necessity.' If the committee is appointed and reports in the affirmative, the action of discontinuance is set aside. If the report is not in the affirmative, the action of discontinuance is sustained. All the claims of the plaintiffs were considered and passed upon by the court. From the judgment overruling the plaintiffs' claims of invalidity and illegality, and ordering the appointment of a committee to determine the issue of common convenience and necessity, the plaintiffs took the instant purported appeal to this court.

What the finding of the committee will be cannot be foretold at this time, since the taking of this purported appeal was treated by all concerned as a supersedeas, so that the committee held no hearings and made no report, if, indeed, its members were ever actually appointed. The judgment of the Court of Common Pleas ordering the...