Di Cioccio v. Town of Wethersfield
| Decision Date | 03 June 1959 |
| Citation | 146 Conn. 474,152 A.2d 308 |
| Court | Connecticut Supreme Court |
| Parties | Salvatore DI CIOCCIO et al. v. TOWN OF WETHERSFIELD. Supreme Court of Errors of Connecticut |
Francis C. Vignati, Hartford, for appellant (plaintiff McKeon).
Thaddeus Maliszewski, Hartford, for appellants (plaintiffs DiCioccio).
Edward H. Kenyon, Hartford, for appellee (defendant).
Before BALDWIN, KING, MURPHY and MELLITZ, JJ., and SHEA, Superior court judge.
The plaintiffs brought this action to enjoin the town of Wethersfield from building a road on their properties on Charter Road and from enforcing any assessment for such road construction. The question involved is whether a highway known as Davis Road is a public highway.
Davis Road is one of a number of streets which appear on a map of a subdivision plan which was approved by the Wethersfield town plan commission on August 8, 1939, and filed in the town clerk's office on September 28, 1939. A second map, showing the same street layout and the subdivision of the tract, which included about sixty-five acres, into lots, was also approved by the commission on August 8, 1939. A portion of the property shown on these maps was owned by Frederick I. Griswold, predecessor in title of the plaintiffs DiCioccio, and another portion by Oliver A. Davis, predecessor in title of the plaintiff McKeon. The layout of Davis Road on the maps was in accordance with the directions of Griswold and Davis, and as laid out, the highway was fifty feet wide, the northerly twenty-five feet on the property of Davis and the southerly twenty-five feet on the property of Griswold. The maps were submitted by Griswold to the commission for approval with the knowledge, approval and acquiescence of Davis. Both Griswold and Davis attended the hearing of the commission on the subdivision plan as shown on the maps and stated that they wished to share equally in giving the land for Davis Road. During the hearing, in the presence of Griswold and Davis, the town engineer pointed out to the commission that Griswold and Davis were each giving up twenty-five feet of land for the highway.
Other maps approved by the commission in 1948, 1954 and 1955 and recorded in the Wethersfield land records, as well as official maps of the town prepared in 1941, 1944, 1952 and 1957, show Davis Road as it was located on the maps approved on August 8, 1939. At the corner of Davis Road and Charter Road, and of Davis Road and Valley Crest Drive, the town set concrete merestones to mark the location of Davis Road. In 1950, an assessment against the northerly half of Davis Road for a water main on Charter Road was abated by the metropolitan district because that half was part of a dedicated highway. Commencing with the tax list of October 1, 1953, the town assessed no taxes against the land comprising Davis Road. Since 1954, the westerly portion of Davis Road, running between Valley Crest Drive and Waters View Drive, has been used by the public, and in particular by milk trucks, delivery trucks and school children. It has a dirt surface, and since 1954 has been cleared of snow by the town. In 1957, the town improved the surface of the westerly portion with gravel. The easterly portion, which runs through the properties of the plaintiffs, has never been used by the public, is covered with grass and appears to be a lawn.
The deed to the plaintiffs DiCioccio of the lot on the southwest corner of Davis Road and Charter Road includes the southerly twenty-five feet of Davis Road, and the deed to the plaintiff McKeon of the lot on the northwest corner includes the northerly twenty-five feet of Davis Road. At the time they acquired their respective properties, the plaintiffs had actual knowledge that Davis Road was a proposed street and knew that it crossed their properties. The existence of Davis Road is recognized in their respective chains of title. The map recorded on September 28, 1939, showing Davis Road, is referred to in each chain of title. The northerly boundary line of the DiCioccio property is described as the center line of a proposed new street called Davis Road; and when the DiCioccios gave a mortgage of their property in 1953, they bounded it on the north on Davis Road. The southerly twenty-five feet of the McKeon property, that is, the northerly twenty-five feet of Davis Road, is referred to in the chain of title as reserved to the grantors as a right of way. Both the DiCioccio and the McKeon properties have been referred to by the plaintiffs and their predecessors as corner lots. The application of the plaintiffs DiCioccio for a building permit shows the property as a corner lot, and the dwelling constructed thereon is so located as to comply with the town building and zoning requirements for a corner lot. The same is true with respect to an application of a predecessor of the plaintiff McKeon for a building permit, and the construction of the dwelling pursuant thereto.
In 1939, when the subdivision maps showing the layout of Davis Road were approved by the town plan commission, the area was open farm land with very few houses. During the following ten years there was little change so far as residential development was concerned, and in 1950 the area was still practically virgin territory. Most of the houses in the subdivision have been constructed, and most of the streets paved and opened to public use, since 1950. In 1956 the town acquired a site in the subdivision for a new elementary school, which was opened in September, 1957. Davis Road provides convenient access to the school from Maple Street and Charter Road, which are within the district served by the school. There is no other access to the school from these streets except by a long, circuitous route. Prior to the opening of the school, there was no need of the town or the surrounding property owners for the acceptance and construction of Davis Road, and the formal acceptance of the highway, as well as plans for paving it, was deferred until 1957 because neither the development of the area nor the public interest required it before that time. The paving of the highway was requested by a petition of interested property owners filed on August 26, 1957; and on October 21, 1957, upon the recommendation of the commission, the town council voted to accept the highway as a public highway and to pave it on an assessment basis. The plaintiffs, who have incorporated into their lawns their respective halves of Davis Road as it abuts their properties, contest the legality of the town's action.
The trial court concluded that Davis Road is a public highway, having been...
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