Luf v. Town of Southbury

• Decision Date: 14 September 1982
• Citation: 188 Conn. 336,449 A.2d 1001
• Court: Connecticut Supreme Court
• Parties: Arthur LUF et al. v. TOWN OF SOUTHBURY.

Page 1001

449 A.2d 1001

188 Conn. 336

Arthur LUF et al. v. TOWN OF SOUTHBURY.

Supreme Court of Connecticut.

Argued June 11, 1982.

Decided Sept. 14, 1982.

Anthony M. Fitzgerald, Waterbury, with whom was Thomas P. Byrne, Farmington, for appellant-appellee (defendant).

Samuel J. Henderson, Hartford, for appellees-appellants (named plaintiff at el.).

Dennis N. Garvey, New Haven, with whom were Edward L. Walsh and, on the brief, Ralph K. Winter, New Haven, for appellees (James H. W. Conklin II, administrator, estate of Francis H. Harris et al.).

Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

PETERS, Associate Justice.

This is an action seeking to recover damages from a town for its lawful discontinuance of an unimproved public highway. The plaintiffs, Arthur B. and Nellie Luf; Fred B. Rosnick; James H. W. Conklin II, administrator of the estate of Francis Hicock Harris; and Gus J. and Elaine Procopian, beneficiaries of the estate of Francis Hicock Harris, are owners of or have an actionable interest in land abutting East Hill Road, the discontinued road. They allege that the action of the defendant, the town of Southbury, was in legal effect a constitutional taking of their property for which the defendant was required to pay compensation. The trial court rendered a judgment awarding damages to each of the plaintiffs from which the defendant has appealed and some of the plaintiffs have cross appealed.

The underlying facts are established in the trial court's memorandum of decision and are essentially undisputed. East Hill Road is an east-west road in Southbury that runs east from Poverty Road through Heritage Village to South Britain Road (also known as state highway Route 172). Since 1966, when the town adopted a comprehensive plan of development, East Hill Road had been designated as a "Primary Collector" road and "an important east-west road connection." The town, in 1972 and 1975, reaffirmed the use of East Hill Road as part of its traffic circulation system. Thereafter, when the Heritage Village community was developed, the western end of East Hill Road was improved; the expense of that improvement was borne in part by the Heritage Village developers. In the plan for Heritage Village, a 200 foot buffer zone on the Village's eastern end was purposely left undeveloped. The improved portion of East Hill Road comes to the 200 foot strip, leaving the rest of the road within the strip unimproved. In the fall of 1977, the town, at the request of many of the residents of Heritage Village, voted, pursuant to General Statutes § 13a-49, ¹ to discontinue all of the unimproved portion of East Hill Road. That action was legally challenged ² and thereupon sustained by the Superior Court which found that "common convenience and necessity do not require the continuance ..." of the road. The present law suit ensued.

The property which the plaintiffs own, insofar as it abuts East Hill Road, is unimproved property. The property of the plaintiffs Luf and Rosnick does not abut on any other public highway; the Harris property has, in addition to its frontage on East Hill Road, a limited frontage on South Britain Road (Route 172). Although the plaintiffs' principal claim is that the discontinuance of East Hill Road has deprived them of access to the existing public road system, it is important to an evaluation of this claim to note what the record shows about the condition of East Hill Road. Both before and after its discontinuance, the road was not only unimproved but also impassable by vehicle. Because of years of neglect, disuse and disrepair, the road was barely visible, the road bed overgrown with grass, bushes and tree saplings. The discontinuance of the road therefore imposed no new physical barrier upon the plaintiffs' enjoyment of their property.

The trial court found that the plaintiffs had suffered a substantial and material impairment in their legal right of access to the public highway system because of the discontinuance of East Hill Road. The court further found that the plaintiffs' access rights were not sufficiently protected by General Statutes § 13a-55, on which the defendant relied, because that statute was of doubtful constitutionality. It then found, with respect to damages: that Arthur and Nellie Luf had suffered a devaluation of their property, as of December 1, 1977, the date of discontinuance, from $55,000 to $22,000, a loss of $33,000; that the Harris estate, on similar reasoning, had decreased in value from $209,000 to $126,000, a loss of $83,000; and that Rosnick's parcel had been devalued from $193,000 to $77,200, a loss of $115,800. In a revision of its initial judgment, the court awarded each of the plaintiffs interest from the date of the "taking," December 1, 1977.

The defendant's appeal challenges the trial court's interpretation of § 13a-55. Urging this court to find the statute both a constitutional legislative act and an effective safeguard of the plaintiffs' access rights, the defendant claims that the plaintiffs have established neither a constitutional taking of their property nor a proven claim to damages. The plaintiffs Luf and Rosnick in their cross appeal maintain (1) that we should expressly declare General Statutes § 13a-55 to be unconstitutional and (2) that their damages should be measured by the diminution in their property's value not when the road was discontinued, the date selected by the trial court, but rather when that discontinuance became final, i.e., August 1, 1978. The remaining plaintiffs, whose interest is in the Harris estate, have not cross appealed. ³

Because of the close interrelationship of the various issues raised in the appeal and the cross appeal, we will deal with them together rather than sequentially. We will first address the question whether the discontinuance of East Hill Road served totally to destroy the plaintiffs' constitutionally protected right to access. That question necessarily requires us to determine the impact and the constitutionality of General Statutes § 13a-55. We will then consider whether the plaintiffs, even in the absence of total destruction of their access rights, may nonetheless recover damages because their remaining access rights have been substantially impaired.

I

The basic principles that govern this controversy are well established. Our law has long ago settled the property rights that inhere in a public highway before its abandonment or discontinuance.

The existence of East Hill Road as a public highway before its discontinuance in 1977 is undisputed. Under our law, such a highway creates no interests in fee, the presumption being that the landowners whose lands abut the highway continue to be the owners of the soil to the middle of the highway. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56, 114 A.2d 216 (1955); Newton v. New York, N.H. & H.R. Co., 72 Conn. 420, 426-27, 44 A. 813 (1899); Peck v. Smith, 1 Conn. 103, 132, 6 Am. Dec. 216 (Swift, J.) (1814); 2 Nichols, The Law of Eminent Domain (3d Ed. Rev. 1981) § 6.32. Instead of creating a fee, the taking of the highway creates two easements- : the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits landowners who abut the highway to have access to the highway and to the connecting system of public roads. Antenucci v. Hartford Roman Catholic Diocesan Corporation, supra; Knothe v. Zinzer, 96 Conn. 709, 713-15, 115 A. 477 (1921); Park City Yacht Club v. Bridgeport, 85 Conn. 366, 371-72, 82 A. 1035 (1912); Cullen v. New York, N.H. & H.R. Co., 66 Conn. 211, 226, 33 A. 910 (1895); see 2 Elliott, The Law of Roads and Streets (4th Ed. 1926) § 1180; 10 McQuillin, The Law of Municipal Corporations (3d Ed. Rev. 1981) § 30.54. Our principal concern is with the abutter's private easement of access.

A landowner who, as a result of governmental action, suffers a total and permanent loss of his right of access to the public way adjacent to his land and to the system of public roads is entitled to recover damages. Total deprivation of his right to access constitutes a taking of his property, an inverse condemnation of his property rights, in violation of article first, § 11 of the constitution of Connecticut and of the fifth amendment to the United States constitution. ⁴ Laurel, Inc. v. State, 169 Conn. 195, 201, 362 A.2d 1383 (1975); Cone v. Waterford, 158 Conn. 276, 279-80, 259 A.2d 615 (1969); Park City Yacht Club v. Bridgeport, supra, 373, 82 A. 1035; Cullen v. New York, N.H. & H.R. Co., supra, 224-26, 33 A. 910; see 2 Nichols, loc. cit.; Stoebuck, "The Property Right of Access Versus the Power of Eminent Domain," 47 Texas L. Rev. 733, 733-38 (1969).

Before the effective date of General Statutes § 13a-55, this court held compensable the total and permanent destruction of a right of access caused by the discontinuance of the public highway which had provided the abutting owner with his only practical access to the public highway system. Cone v. Waterford, supra. Like the case before us, Cone involved the valid discontinuance of an unimproved road, and the property rights of abutting owners whose land was, as of the time of suit, unimproved. Like the case before us, Cone was governed solely by constitutional principles, there being no statutory basis for affording the plaintiffs the relief they sought and obtained.

But for the enactment of § 13a-55, this case would unquestionably be governed by our holding in Cone. Not surprisingly, the plaintiffs urge the continued viability of Cone, while the defendant maintains that Cone has been superseded by § 13a-55. We agree with the defendant.

Although Cone was in fact decided after the enactment of § 13a-55, the opinion in this court did not address the statute. It is a reasonable inference that the court thought § 13a-55 inapplicable because the highway there in issue was...