A & H Corp. v. City of Bridgeport
| Decision Date | 29 April 1980 |
| Citation | 180 Conn. 435,430 A.2d 25 |
| Court | Connecticut Supreme Court |
| Parties | A & H CORPORATION et al. v. CITY OF BRIDGEPORT. |
Mary E. Sommer, Bridgeport, for appellants (plaintiffs).
Thomas W. Bucci, Bridgeport, with whom was Jack Samowitz, Bridgeport, for appellee (defendant).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.
The six individual plaintiffs, as citizens of this state, brought this action, pursuant to General Statutes § 13a-103, 1 seeking to have the court order the defendant city of Bridgeport to pave and maintain properly Serpentine Road as a public highway in that city. The trial court found that Serpentine road was not a public highway and therefore, denied the relief sought under § 13a-103. From the judgment rendered, the plaintiffs have appealed to this court.
The trial court based its decision on the following relevant facts: According to the map placed in evidence by the plaintiffs, Serpentine Road runs between the intersection of Anton Drive and Oxbridge Road and the terminus of Palmetto Road. Only approximately 300 feet of this road, from the intersection of Anton Drive and Oxbridge road, is paved, however. The pavement ends abruptly and is followed by ground in its natural state, not staked or worn by traverse or otherwise distinguishable from the natural area adjoining it. The map discloses that from the paved portion, "Serpentine Road" exists only as a right of way On appeal the plaintiffs claim that the trial court erred: (1) in ruling that the plaintiffs were not entitled to maintain an action under General Statutes § 13a-103 because they did not own property abutting the street in question; (2) in ruling that the plaintiffs were not entitled to relief under § 13a-103 because Serpentine Road had not been formally accepted by the defendant city; and (3) in failing to conclude that common-law principles of dedication as applied to the facts of this case established, as a matter of law, that Serpentine Road is a public highway.
for approximately 550 feet. There are four homes located on four lots adjacent to the paved portion of the road. The president of the plaintiff corporation saw, on one occasion some years ago, city equipment oil and sand the paved portion of the road, and he has also observed city equipment plowing the paved portion during the winter months. Private cars and delivery and service vehicles use the paved portion of Serpentine Road. A storm drain was installed on the undeveloped portion of Serpentine Road immediately adjacent to Palmetto Road for the purpose of draining water running off Palmetto Road to a nearby brook. An easement was acquired by the city to install this storm drain. The city of Bridgeport has not assessed property taxes upon the property known as Serpertine Road.
The first two claims merit little discussion. It is clear from the record that the trial court did not, as the plaintiffs claim, deny the relief requested in their complaint on the ground that they were not owners of property abutting the street in question. The court denied the relief sought on the basis of its conclusion that Serpentine Road is not a public highway as required by § 13a-103. Likewise, the plaintiffs' claim that the trial court committed error in ruling that they were not entitled to relief under § 13a-103 because Serpentine Road had not been formally accepted by the city is without merit. The court did not so rule. Although the court acknowledged that there was no evidence that Serpentine Road "had ever been formally dedicated (or) formally accepted by the City of Bridgeport," a fact which the parties agreed was not in issue, the court then considered the plaintiffs' claim that the city had "accepted Serpentine road as a city road by implication from its acts and from usage by the general public." The trial court's memorandum of decision clearly discloses that the court recognized that this claim invoked the common-law principles of dedication of highways and it applied those principles to the evidence in concluding that the plaintiffs were not entitled to relief under § 13a-103.
We now turn to the plaintiffs' claim that the court was required, as a matter of law, to conclude on the facts of this case that this road was a public highway. "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." Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241, 243 (1958); see Crescent Beach Ass'n v. East Lyme, 170 Conn. 66, 71 363 A.2d 1045 (1976); Wamphassuc Point Property Owners Ass'n v. Public Utilities Commission, 154 Conn. 674, 680-81, 228 A.2d 513 (1967(; 23 Am.Jur.2d, Dedication § 1. As we recently said in Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, --- A.2d ---- (1980), "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." See DiCioccio v. Wethersfeild, 146 Conn. 474, 479, 152 A.2d 308 (1959); Johnson v. Watertown, 131 Conn. 84, 89, 38 A.2d 1 (1944). Under common-law principles of dedication, "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." Wamphassuc Point Property Owners Ass'n v. Public Utilities Commission, supra, 154 Conn. 681, 228 A.2d 517. Similarly, acceptance by the municipality may be accomplished through formal proceedings; see General Statutes § 13a-48; or, by implication, through its conduct.
Meshberg v. Bridgeport City Trust Co., supra, Conn. at 479, --- A.2d ----; DiCioccio v. Wethersfield, supra, 146 Conn. 479, 152 A.2d 308; 11 McQuillin, Municipal Corporations (3d Ed.Rev.) § 33.48.
Because it is conceded that Serpentine Road was neither expressly dedicated to a public use nor formally accepted for that use by the municipality, we must determine whether the court was justified in concluding that Serpentine Road is not a public highway based upon the common-law principle of implied dedication and acceptance.
An implied dedication may arise by operation of law where the conduct of a property owner unequivocally manifests his intention to devote his property to a public use; but no presumption of an intent to dedicate arises unless it is clearly shown by the owner's acts and declarations, the only reasonable explanation of which is that a dedication was intended. Mihalczo v. Woodmont, 175 Conn. 535, 542, 400 A.2d 270 (1978); see LaChappelle v. Jewett City, 121 Conn. 381, 386, 185 A.175 (1936); 11 McQuillin, Municipal Corporations (3d Ed.Rev.) § 33.37. Absent such unequivocal conduct, the existence of an intent to dedicate is a question of fact. Lynch v. West Hartford, 167 Conn. 67, 78, 355 A.2d 42 (1974); Whippoorwill Crest Co. v. Stratford, supra, 145 Conn. 272, 141 A.2d 241.
From the facts contained in the court's decision, it is clear that a presumption of intent to dedicate arose with respect to that portion of Serpentine Road that is paved. The existence of homes along the paved road, the open and continuous use by the public of that portion of Serpentine Road, and the absence of evidence of private control of the road supports but one conclusion: the intention to dedicate that portion of Serpentine Road arises by operation of law. See Mihalczo v. Woodmont, supra, 175 Conn. 542; 400 A.2d 270; McQuillin, op.cit. §§ 33.30, 33.31, 33.37. The trial court, therefore, erred in its conclusion that no dedication had been proved with regard to the paved portion of Serpentine Road. There is an absence of facts sufficient to support a conclusion that the unpaved portion of Serpentine Road had been dedicated and the trial court's conclusion on that point will not be disturbed.
As we pointed out in Meshberg v. Bridgeport City Trust Co., supra, common-law acceptance of property dedicated to the public for a public way may be established by the public's actual use of the property or by the actions of the municipality. Id. The plaintiffs' claim requires us to determine whether, as a matter of law, acceptance was established from the facts relied upon by the trial court. The public's use of the property "must continue over a significant period of time; 11 McQuillin, Municipal Corporations (3d Ed.Rev.) § 33.50; and be of such a character as to justify a conclusion that the way is 'of common convenience and necessity.' " Meshberg v. Bridgeport City Trust Co., supra, Conn. at 282; se...
To continue reading
Request your trial
-
Marchesi v. Bd. of Selectmen of the Town of Lyme, SC 19726
...the formal acceptance of a highway by a municipality. A road may also be expressly dedicated to a public use; A & H [Corp. ] v. Bridgeport , 180 Conn. 435, 439, 430 A.2d 25 (1980) ; or impliedly dedicated and accepted by the general public. Id. A public road may also be formally discontinue......
-
Aetna Cas. and Sur. Co. v. Murphy
...the trial court was correct in granting summary judgment, although not for the reason upon which it relied. A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). Chubb, the third party defendant, was not automat......
-
Smith v. Zoning Bd. of Appeals of Town of Greenwich
...(1987); Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983); A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); C. Tait, Connecticut App......
-
Rubin v. Rubin
...an assignment under § 46b-81, we would properly affirm the judgment "if the same result is required by law." A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 General Statutes § 46b-82, 4 which currently authorizes ......