Delinks v. McGowan

• Decision Date: 25 July 1961
• Citation: 173 A.2d 488,148 Conn. 614
• Court: Connecticut Supreme Court
• Parties: C. Edwin DELINKS et al. v. William McGOWAN et al. Supreme Court of Errors of Connecticut

Page 488

173 A.2d 488

148 Conn. 614

C. Edwin DELINKS et al. v. William McGOWAN et al.

Supreme Court of Errors of Connecticut.

July 25, 1961.

Richard F. Corkey, New London, with whom was Arthur Barrows, New London, for appellants (plaintiffs).

Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellees (defendants Ward and others); with him also were Ralph P. Dupont, New London, and, on the brief, Max M. Shapiro, New London, for appellees (named defendant and others).

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

BALDWIN, Chief Justice.

The plaintiffs are taxpayers and own land in the town of Old Lyme on the banks of the Blackhall River or in the immediate vicinity of the river. The defendants are the governor of the state, the state board of fisheries and game, hereinafter referred to as the board, and William and Mildred M. McGowan. The plaintiffs seek to enjoin the defendants from consummating a sale by the McGowans to the state of a tract of land, approximately three acres in area, on the easterly bank of Horse Neck Creek and the Blackhall River at their junction in Old Lyme. The trial court rendered judgment for the defendants, and the plaintiffs have appealed.

At its meeting on December 11, 1957, the board, purporting to act pursuant to General Statutes § 26-16, authorized the purchase of the McGowan land as a site for access by the public to the Blackhall River for the launching of boats as well as for the parking of automobiles while those who came in them are on the water. The pertinent portion of § 26-16 reads as follows: 'The board is authorized to acquire for the use of the state, by gift, lease, purchase or agreement, fishing, hunting, trapping or shooting rights or privileges on any land or water in this state, with necessary rights of ingress thereto and egress therefrom, or, with the approval of the governor, to purchase land or water for the purposes of such rights or privileges.' The plaintiffs claim that the statute gives the board only 'the power to acquire access to or from land or water in this state on which the Board has acquired by lease, purchase or agreement fishing, hunting, trapping or shooting rights or privileges, or which the Board has purchased for the purpose of such rights or privileges.'

The court found the following facts: The Blackhall River is a navigable tidal stream or estuary confluent with the Back River, which is a navigable tidal stream confluent with the Connecticut River, a navigable river flowing into Long Island Sound. The state, representing the public, owns the land between the high- and low-water marks of these rivers, and that land and the waters of the rivers are public. See Rowe v. Smith, 48 Conn. 444, 446; Rochester v. Barney, 117 Conn. 462, 468, 169 A. 45; State v. Knowles-Lombard Co., 122 Conn. 263, 265, 188 A. 275, 107 A.L.R. 1344. The state has acquired, for duckhunting, title to upwards of 200 acres of land on Great Island, which lies in the Connecticut River off the confluence of the Blackhall and Back Rivers with the Connecticut River. Great Island is approximately a mile distant, down the Blackhall River, from the McGowan property. The purpose of the board in acquiring the McGowan property is to provide access to the Blackhall River and a place where members of the public may leave their automobiles, launch their boats and, by descending the river, reach the hunting grounds on Great Island and other duckhunting and fishing areas in the Connecticut River and adjacent waters. Although the plaintiffs have assigned error in the last part of the finding just stated, it is amply supported by competent evidence. There is a boat livery on the Blackhall River a short distance south of the McGowan property. The general public, as well as those residing in the neighborhood of the river, use the river to reach hunting and fishing grounds.

The net effect of the plaintiffs' claim is that § 26-16 gives the board power to acquire access, by gift lease or purchase, to lands and waters in which the state has acquired hunting and fishing rights and privileges, but that the statute does not give the board power to acquire access to lands or public waters which the state has owned from its inception and in which therefore it was not necessary to acquire hunting and fishing rights and privileges for the public.

When the language of a statute appears to be ambiguous, the court looks beyond the literal meaning of the words and considers the history of the legislation, the circumstances surrounding its adoption, and its apparent policy and purpose. Lee v. Lee, 145 Conn. 355, 358, 143 A.2d 154; Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808. The first sentence of § 26-16 appears for the first time in substantially its present form in § 579g of the 1943 Supplement. Section 579g was apparently a combination of §§ 1096e and 1101e of the 1939 Cumulative Supplement. Section 1096e authorized the board to acquire for the use of the state 'hunting, trapping or shooting rights or privileges upon land in this state, with necessary rights of ingress and egress to or from such land, or, with the approval of the governor, to purchase land for the purposes of said rights or privileges or any of them.' Section 1101e dealt in substantially the same language with 'fishing rights and privileges in any stream, lake or pond in the state and upon land adjoining thereto.' The portion of the sentence which reads 'or, with the approval of the governor, to purchase land for the purposes of said rights or privileges' had its origin in 1933. Cum.Sup.1933, §§ 879b, 881b; Cum.Sup.1935, §§ 1309c, 1312c. The pertinent language of §§ 1309c, 1312c and 579g is set forth in the footnote. ¹ Prior to 1933, the statutes had authorized the board to acquire only hunting and fishing 'rights and privileges' and the necessary 'rights' of ingress and egress. Rev. 1930, §§ 3152, 3162. The obvious purpose of the 1933 amendments was to authorize the board to make outright purchases of land and waters for hunting and fishing purposes and for ingress and egress. The phrase 'said rights or privileges or any of them' indicates a clear intent that the board could acquire, by purchase, whatever land or water was needed for hunting and fishing purposes and ingress and egress. The approval of the governor for such action was substituted in 1937 for the approval of the board of finance and control which was formerly required. Cum.Sup.1939, §§ 1096e, 1101e. It should be noted that the phrase in §§ 1096e, 1101e, 'for the purposes of said rights or privileges or any of them,' was changed in 1943 to read 'for the purposes of such rights or privileges.' Sup. 1943, § 579g. Beginning in 1933, the board had authority to acquire land or waters for fishing or hunting, or for access to waters or lands where fishing and hunting rights cound be enjoyed.

The legislature is aware of the increasing interest of the public in hunting and fishing. It has responded in hunting years with larger appropriations for the propagation of game birds and fish and the acquisition of land and waters for hunting and fishing purposes. It can be presumed that the legislature has taken cognizance of the greater use of boats powered by outboard motors and transported on trialers to inland waters of the state and salt water, and the need for providing facilities for launching and parking purposes. See Waterbury Savings Bank v. Danaher, 128 Conn. 78, 81, 20 A.2d 455; Hartford Production Credit Ass'n v. Clark, 118 Conn. 341, 343, 172 A. 266; Peltom & King, Inc. v. Town of Bethlehem, 109 Conn. 547, 551 147 A. 144. It can also be presumed that the legislature was aware that although the public has the right to boat, hunt and fish below the high-water mark on the navigable waters of the state, the upland owner has the right to prevent the public from crossing the private lands which border on these public domains and are above the high-water mark. See Lay v. King, 5 Day 72, 76; Town of Orange v. Resnick, 94 Conn. 573, 580, 109 A. 864, 10 A.L.R. 1046; Poneleit v. Dudas, 141 Conn. 413, 419, 106 A.2d 479; 1 Farnham, Waters and Water Rights, p. 209; 2 id., p. 1362. The legislature could not have intended, as claimed by the plaintiffs, that the board should have the power to acquire access to nonnavigable inland lakes, ponds, streams and hunting grounds but not the power to acquire access for members of the public to the navigable streams and rivers and the long coast line of this state. Such a construction of the statute would thwart the obvious purposes of its broad terms. See Bergner v. State, 144 Conn. 282, 287, 130 A.2d 293; Town of West Hartford v. Talcott, 138 Conn. 82, 90, 82 A.2d 351; Northeastern Gas Transimission Co. v. Collins, 138 Conn. 582, 592, 87 A.2d 139.

The plaintiffs claim further that § 26-16 gives no authority for the acquisition of land for the parking of automobiles. It is true that the McGowan land can be used only as a means of access to or egress from the Blackhall River for fishing and...