Cone v. Town of Waterford

• Decision Date: 03 June 1969
• Citation: 259 A.2d 615,158 Conn. 276
• Court: Connecticut Supreme Court
• Parties: Charles R. CONE et al. v. TOWN OF WATERFORD.

Page 615

259 A.2d 615

158 Conn. 276

Charles R. CONE et al. v. TOWN OF WATERFORD.

Supreme Court of Connecticut.

June 3, 1969.

Donald O'Brien, New London, for appellant (defendant).

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

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

The plaintiffs, husband and wife, have owned and occupied since 1938 a tract of land in the town of Waterford on the west side of Pilgrim Road near its northerly end. A dwelling house on the land burned in 1960 and has not been rebuilt.

The plaintiffs and others, apparently acting under the provisions of § 2127 of the Revision of 1949 (now, in changed form, General Statutes (Rev. to 1966) § 13a-103), sought to compel the town of Waterford to repair a portion of Pilgrim Road extending, in a general northerly direction, for a distance of slightly over one mile from a point opposite the residence of Moses Hirth to a point opposite the dwelling house of the plaintiffs. On November 8, 1957, after notice and hearing, an order to repair was entered against the town.

On November 19, 1957, the selectmen of Waterford, pursuant to the provisions of Public Acts 1957, No. 13 § 72 (now § 13a-49 of the General Statutes (Rev. to 1966)) discontinued the portion of Pilgrim Road which had been ordered repaired, and on November 25, 1957, at a town meeting duly warned and held, it was voted to approve the action of the selectmen in discontinuing that portion of Pilgrim Road. Pursuant to the provisions of what are now §§ 13a-49 and 13a-62 of the General Statutes (Rev. to 1966), the plaintiffs appealed from the discontinuance to the Court of Common Pleas, and on August 22, 1963, the action of discontinuance was affirmed by that court. From that judgment no appeal was taken. ¹

On August 20, 1964, the plaintiffs instituted the present action in the Superior Court, seeking damages for the diminution in value of their property as a result of the valid discontinuance by the defendant of the portion of Pilgrim Road referred to above.

Since the defendant has never complied with the order to repair the road, presumably because of the discontinuance, its condition has remained substantially unchanged up to the date of this action except for some additional growth of bushes along the sides. While no one as yet has placed bars across the road, photographs indicate that, at least in sections, it is barely passable for motor vehicles.

The Superior Court found that Pilgrim Road, prior to its discontinuance by the defendant, was a public highway. The defendant attacks this finding as unsupported and makes this claim one of the three basic issues in its brief. This finding, however, is not subject to correction and must stand.

This leaves but two basic claims in the defendant's brief. The first claim is that the town is immune from suit for damages resulting from a legal discontinuance of a public highway.

Towns, unlike the state, have no sovereign immunity from suit. Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596; Anselmo v. Cox, 135 Conn. 78, 81, 60 A.2d 767, cert. denied, 335 U.S. 859, 69 S.Ct. 132, 93 L.Ed. 405. But where they act in the performance of a governmental duty, they have a limited immunity from liability. See, for instance, cases such as Pope v. New Haven, 91 Conn. 79, 80, 99 A. 51, L.R.A.1917B, 1239; Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499, 75 A.L.R. 1191; Pluhowsky v. New Heaven, 151 Conn. 337, 345, 197 A.2d 645; and Micone v. Middletown, 110 Conn. 664, 667, 149 A. 408. The right and power to discontinue town roads is given to the selectmen and the town under what is now § 13a-49 of the General Statutes and the town, in exercising that power is engaged in the performance of its basic governmental duty to maintain highways. Thus, under ordinary circumstances, the only remedy available to a person aggrieved by a discontinuance, is the statutory right of appeal accorded by §§ 13a-49 and 13a-62. There is nothing in either of those statutes or in any other statute which confers any right to recover damages for a discontinuance.

Because of the limited liability imposed on towns for acts performed pursuant to governmental duty, there can be no right to recover damages from a town for the discontinuance of a highway under ordinary circumstances even though the discontinuance renders access to a public highway more inconvenient in that a more circuitous route must be taken in approaching or leaving the property. Warner v. New York, N. H. & H. R. Co., 86 Conn. 561, 564, 86 A. 23; see also Taylor v. Cooke, 113 Conn. 162, 167, 154 A. 349.

But where a town, even though it is carrying out the governmental duty of maintaining highways, discontinues a public highway which, as here, provides the abutting owner with his only practical access to the public highway system, it inflicts on that abutter 'a direct injury to his right of access-...