Goodrich v. Dwyer

• Decision Date: 22 November 1988
• Docket Number: No. 6042,6042
• Citation: 17 Conn.App. 111,550 A.2d 318
• Court: Connecticut Court of Appeals
• Parties: Clarence GOODRICH et al. v. Thomas E. DWYER et al.

Page 318

550 A.2d 318

17 Conn.App. 111

Clarence GOODRICH et al. v. Thomas E. DWYER et al.

No. 6042.

Appellate Court of Connecticut.

Argued Oct. 18, 1988.

Decided Nov. 22, 1988.

Kevin M. O'Brien, Manchester, for appellants (plaintiffs).

John D. Boland, with whom, on the brief, was William H. St. Onge, Putnam, for appellees (defendants).

Before EDWARD Y. O'CONNELL, STOUGHTON and NORCOTT, JJ.

PER CURIAM.

The plaintiffs appeal from the judgment of the trial court in favor of the defendants. This action was brought pursuant to General Statutes § 13a-103 ¹ and sought to compel the defendants to repair and improve a roadway alleged by the plaintiffs to be a public highway in Killingly. The named plaintiff owns property in the vicinity of the roadway.

It was conceded that the town had never accepted the roadway as a public highway under General Statutes § 13a-48, so that it could have become a public highway only by operation of the common law. At common law, highways came into existence by dedication to the public use and acceptance by the public. The essential elements are the owner's unequivocal intention to dedicate the way to public use and a general use by the public over a period long enough to indicate that it is acting on the basis of a claimed public right resulting from the owner's dedication. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984). 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). The court found that the plaintiffs offered no direct evidence of intent by the owner of the land to dedicate the roadway to public use as a highway, and that the plaintiffs had not shown acts or conduct from which such an intention might be implied. The court concluded that the roadway was not, nor had it ever been, a public highway of the town. The court further found that even if the roadway had ever been a public highway, the evidence established that the public had abandoned any rights it ever assumed to use the road as a highway prior to the time the plaintiffs purchased their property.

The plaintiffs claim that the trial court erred (1) in concluding that there had been no implied dedication and acceptance of the road as a public highway, and (2) concluding that the public had abandoned the road as a public highway.

It is well established that appellate courts will not retry facts or pass upon credibility of witnesses or the weight to be accorded the evidence. Our function on review is to determine whether the judgment of the trial court was clearly erroneous or if it was contrary to law. Golfin v. Plymouth Industrial...