Hamann v. Town of Newtown

• Decision Date: 31 May 1988
• Docket Number: No. 5878,5878
• Court: Connecticut Court of Appeals
• Parties: Richard A. HAMANN et al. v. TOWN OF NEWTOWN et al.

Page 899

541 A.2d 899

14 Conn.App. 521

Richard A. HAMANN et al. v. TOWN OF NEWTOWN et al.

No. 5878.

Appellate Court of Connecticut.

Argued March 1, 1988.

Decided May 31, 1988.

Mark V. Oppenheimer, Newtown, for appellants (plaintiffs).

Jeffrey C. Pingpank, with whom, on the brief, was Louis B. Blumenfeld, Hartford, for appellees (defendants).

Before DUPONT, C.J., and BORDEN and FOTI, JJ.

DUPONT, Chief Judge.

The plaintiffs appeal from the dismissal by the trial court of their appeal from a decision of the defendant board of selectmen of the town of Newtown (board). ¹ We find no error.

The plaintiffs are the owners of a sixteen acre parcel of land in Newtown which is crossed by a road known as Kale Davis. Pursuant to General Statutes § 13a-39, ² the plaintiffs applied to the board for a determination of the boundaries of Kale Davis road, which boundaries the plaintiffs alleged had become lost or uncertain. Following a hearing, the board issued a resolution which established the boundaries to be as depicted on a certain survey map, and which concluded that the portion of Kale Davis road which crosses the plaintiffs' property is a private road rather than a town highway.

The plaintiffs, in their appeal to the Superior Court, claimed that they were aggrieved ³ because the board's decision unlawfully deprived them of the care and maintenance by the town of the road and of their right to divide their property. They sought a declaration that the road, as depicted on the survey map referred to in the board's resolution, is a public road.

The trial court concluded that the plaintiffs were not aggrieved by the failure of the board to find that the road is a public road because General Statutes § 13a-39 did not empower the board to establish the legal status of the road. The court reasoned that the statute only empowered the board to determine the location of the boundaries of the road and since the board found the boundaries to be those which were not disputed by the plaintiffs, there could be no aggrievement. The court also found, in the alternative, that even if the board had the statutory authority under § 13a-39 to determine whether the road was public or private, the evidence supported the board's conclusion that the road is a private one.

The issue dispositive of this appeal is whether the board is empowered under General Statutes § 13a-39 to determine the legal status of a road. We agree with the trial court's conclusion that the board is not authorized by § 13a-39 to make such a determination.

General Statutes § 13a-39 sets forth a procedure for defining the boundaries of a highway ⁴ which have become lost or uncertain. Appeal of St. John's Church, 83 Conn. 101, 106, 75 A. 88 (1910). After hearing all parties interested, the town selectmen are required to reach a decision defining the lines and bounds of the highway. See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 A. 244 (1911). "A statutory proceeding for the survey and platting of an existing road does not operate to establish the road. Its purpose is merely to ascertain the courses and distances of one claimed already to be established. It estops the public from claiming that the road runs on a line different from that of the survey." 39 Am.Jur.2d, Highways, Streets and Bridges § 55. Recourse to § 13a-39 presupposes a prior determination that the road in question has been deemed a public highway. See id. The board is without authority under that section to determine the legal status of a road.

The determination of the legal status of a road is distinct from a determination of the boundaries of a road. The purpose of § 13a-39 is to settle the uncertain width of a highway for the benefit of adjoining property owners. See Appeal of St. John's Church, supra, 83 Conn. 105, 75 A. 88.

General Statutes § 13a-48 provides for the formal acceptance of a highway by a municipality. ⁵ A road may also be expressly dedicated to a public use; A & H Corporation 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 discontinued; General Statutes § 13a-49; or deemed abandoned due to nonuse by the public. Doolittle v. Preston, 5 Conn.App. 448, 451, 499 A.2d 1164 (1985). We find no basis, and the plaintiffs have presented no authority, however, for support of the proposition that the board is empowered to make a determination as to the status of a road coincident to its authority to determine the boundaries of a road that have become lost or uncertain. The acceptance of municipal highways under General Statutes § 13a-48 is an exercise of legislative power, vested in this case in the Newtown legislative council and town meeting, and such power may not be delegated to the town selectmen. Brookfield v. Greenridge, Inc., 177 Conn. 527, 533, 418 A.2d 907 (1979); see also Thompson v. Portland, 159 Conn. 107, 115, 266 A.2d 893 (1970).

The trial court properly dismissed the plaintiffs' appeal for lack of aggrievement. The tests for determining "aggrievement" for purposes of an appeal from a decision of an administrative agency are whether a specific, personal, and legal interest in the subject matter of a decision has been demonstrated and whether it has been established that a personal and legal interest has been specially and adversely affected by the decision. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986); Goldfeld v. Planning & Zoning Commission, 3 Conn.App....