Drabik v. Town of East Lyme

• Decision Date: 25 July 1995
• Docket Number: No. 15095,15095
• Citation: 234 Conn. 390,662 A.2d 118
• Court: Connecticut Supreme Court
• Parties: Stanley J. DRABIK et al. v. TOWN OF EAST LYME et al.

Page 118

662 A.2d 118

234 Conn. 390

Stanley J. DRABIK et al. v. TOWN OF EAST LYME et al.

No. 15095.

Supreme Court of Connecticut.

Argued April 27, 1995.

Decided July 25, 1995.

Joseph E. Moukawsher, Groton, for the appellants (plaintiffs).

Maryann Diaz, New London, for the appellees (named defendant et al.).

Rita Provatas, with whom was Thomas J. Riley, New London, for the appellees (defendant Ferdinand Drabik et al.).

Before CALLAHAN, BERDON, NORCOTT, KATZ and PALMER, JJ.

NORCOTT, Associate Justice.

The principal issue in this appeal is whether the unpaved shoulder area of Drabik Road in East Lyme is a public highway for the purposes of General Statutes § 13a-103. ¹ The plaintiffs, Stanley J. Drabik, Helen M. Drabik, John H. Drabik, John J. Herbert and Willard Collins, instituted this action against the defendants, the town of East Lyme (town), ² Ferdinand L. Drabik and Bertha Drabik (the defendant Drabiks), to compel the town to remove a hay bale fence that the defendant Drabiks had constructed within a few feet of the paved portion of Drabik Road. The plaintiffs alleged that the fence constituted an obstruction or encroachment that the town was required to remove, pursuant to § 13a-103. The trial court rendered judgment in favor of the defendants, concluding that the particular area upon which the fence was situated was not a public highway for the purposes of § 13a-103, and, therefore, the town was not required to remove the fence. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs owned and operated a golf course on the west side of Drabik Road, directly across the road from property owned by the defendant Drabiks. Patrons of the golf course frequently used the east side of Drabik Road for parking. The defendant Drabiks, in order to prevent such parking, constructed the fence on the eastern shoulder of Drabik Road. The issue on appeal, arising out of the underlying dispute over the use of the eastern shoulder of Drabik Road, is whether the town, which admittedly exercised control over and maintained the paved area of Drabik Road, similarly had exerted control over and maintained the shoulder portion of the road such that it should have been deemed a public highway for the purposes of § 13a-103.

The plaintiffs claim that the trial court improperly: (1) found that the unpaved portion of Drabik Road had not been accepted by the town and, therefore, that it was not a public highway; (2) concluded that the plaintiffs had the burden to prove that the unpaved portion of Drabik Road had been accepted; and (3) refused to take judicial notice of the contents of the file of a prior action between the same parties in the same court on the same issue. ³ The plaintiffs also claim that the trial court improperly subjected them to a full civil trial rather than a statutory hearing and that principles of equitable estoppel or judicial estoppel should have been applied in this case.

I

The plaintiffs initially claim that the trial court's factual finding that the town had not accepted the shoulder portion of Drabik Road is clearly erroneous and contrary to law. We disagree.

"From early times, under the common law, highways have been established in this state by dedication and acceptance by the public." (Internal quotation marks omitted.) Ventres v. Farmington, 192 Conn. 663, 666, 473 A.2d 1216 (1984). "Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public.... Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public.... Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public.... No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied.... Whether there has been a dedication and whether there has been an acceptance present questions of fact." (Citations omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980).

"Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 548, 636 A.2d 1360 (1994); see also Practice Book § 4061. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings. Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993), quoting Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991); Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992).... Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 772, 646 A.2d 790 (1994)." (Internal quotation marks omitted.) State v. Ellis, 232 Conn. 691, 700-701, 657 A.2d 1099 (1995).

The parties do not controvert that the town had not formally accepted the disputed portion of Drabik Road. Rather, the question in this appeal is whether the facts found by the trial court support the conclusion that the town had not accepted, by its conduct, the shoulder portion of Drabik Road. The trial court found that "[t]he exhibits ... make it clear ... that the street as shown on the [town] street line survey for Drabik Road ... has been dedicated in its entire width." The trial court also found, however, that the plaintiffs had not sustained their burden of proving that the town had accepted the shoulder portion of Drabik Road. The plaintiffs' challenge to this factual finding is essentially an attempt to relitigate the facts on appeal. "This court cannot retry the facts or pass upon the credibility of the witnesses.... Pandolphe's Auto Parts, Inc. v. Manchester, [181 Conn. 217, 220, 435 A.2d 24 (1980) ]." Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 41, 633 A.2d 1368 (1993).

The record indicates that David Cini, first selectman for the town, testified that the town had plowed and maintained only the paved surface of Drabik Road and thus considered only that portion of the road to be a public highway. Further, Warren Tarr, an employee of the town's department of public works, testified that in his twenty-five years of service, he had worked on the paved area of Drabik Road, but not on the unpaved shoulder area. Tarr also testified that removal of brush and overgrowth took place only to the edge of the paved area of Drabik Road. Thus, there was substantial evidence on the record to support the trial court's finding that the town had not accepted the unpaved shoulder portion of Drabik Road. ⁴

Although the plaintiffs argue that the trial court should have credited other evidence, a review of their specific claims is not necessary. "In a case in which the evidence is conflicting, it is the quintessential ... function [of the fact finder] to reject or accept certain evidence, and to believe or disbelieve any expert testimony.... [T]he trial court is not required to accept uncontradicted expert testimony. The court might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven." (Citations omitted; internal quotation marks omitted.) State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). Because there was substantial evidence upon which the trial court could base its finding that the town had not accepted the unpaved portion of Drabik Road, we reject the plaintiffs' claim that the trial court's finding was clearly erroneous.

II

The plaintiffs also claim that the trial court improperly placed on the plaintiffs the burden of proving that the town had accepted the shoulder portion of Drabik Road. The plaintiffs argue that, because they "have attempted to remedy a flagrant violation of our laws," the burden of proof should be on the defendants. The plaintiffs further argue that the court "should not assist [the defendants] by placing impossible burdens upon all other citizens seeking to vindicate the public right, in the form of an unreasonable burden of proof." This claim merits little discussion.

"Whether there has been a dedication and whether there has been an acceptance are questions of fact; Ruggiero v. East Hartford, 2 Conn.App. 89, 94, 477 A.2d 668 (1984); for which the burden of proof rests upon the plaintiffs. Miller v. Grossman Shoes, Inc., 186 Conn. 229, 236, 440 A.2d 302 (1982)." Goodrich v. Dwyer, 17 Conn.App. 111, 113, 550 A.2d 318 (1988); see also 2 C. McCormick, Evidence (4th Ed.1992) § 337, p. 428. The plaintiffs have provided no compelling reason why we should depart from this established principle, and we decline to do so.

III

The plaintiffs next claim that the trial court improperly refused to take judicial notice of the contents of the file of Drabik v. East Lyme, Superior Court, judicial district of New London, Docket No. 500974 (June 16, 1986), a prior court action involving the same parties, in which, the plaintiffs claim, the town had admitted its prior acceptance of...