Makepeace v. City of Waterbury

• Decision Date: 08 January 1902
• Citation: 74 Conn. 360,50 A. 876
• Parties: MAKEPEACE et ux. v. CITY OF WATERBURY.
• Court: Connecticut Supreme Court

50 A. 876

74 Conn. 360

MAKEPEACE et ux.

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

Jan. 8, 1902.

Appeal from superior court, New Haven county; William T. Elmer, Ju6)ge.

Action by Henry Makepeace and wife against the city of Waterbury for damages for injuries caused by a defective highway. Prom a judgment for nominal damages in favor of plaintiffs, they appeal. Reversed.

It appears from the finding of the trial court, Elmer, J., that on July 20, 1899, the plaintiff, while exercising due care, was Injured through a defect in a traveled road situate in the defendant city. This road was known as "Brewster Street." It had not been laid out as a highway by the city authorities in accordance with the city charter. The plaintiff claimed that Brewster street had become, by dedication, a public highway, prior to the accident. Upon the trial, the court made the following rulings, to which the plaintiff duly excepted: First, excluding evidence offered by plaintiff that said street, prior to the accident, had become a highway by dedication, and that said city was therefore in duty bound to keep it in repair; second, excluding evidence that the city had ordered a water main laid through said street and awarded a contract for building the same; third, excluding evidence showing that the street was duly laid out a year after the accident; fourth, excluding evidence that the land within Brewster street had been given by one Piatt, for use as a public highway, and had been continuously used by the public as such from 1886 to the date of the accident. The appeal assigns as error the above rulings.

Argued before TORRANCE, C. J., and BALDWIN, HAMERSLEY, HALL, and PRENTICE, JJ.

Albert P. Bradstreet and Michael J. Byrne, for appellants.

John P. Kellogg, for appellee.

HAMERSLEY, J. (after stating the facts). Highways are established by the state (1) through the direct action of the legislature, (2) through authorized proceedings involving an application to a court (3) through authorized proceedings by agents appointed for that purpose, such as selectmen of towns and specified authorities of cities and boroughs, (4) through private dedication of land for that purpose and its acceptance by the publie.

The existence of highways established through municipal authorities is proved by appropriate records showing that the prescribed action has been duly taken. The existence of highways established through dedication is proved by evidence directly showing a gift of the owners of land for that purpose, or such action of the owners, or failure to act, as equitably estops them from denying such gift, and by evidence showing such conduct by the public, in the use of land so dedicated, continued for such a time, and under such circumstances, as establishes an acceptance by the public. The acceptance must be by the "unorganized public" and not by formal action of a municipality. Neither town nor city has power to establish a highway by corporate vote, accepting land given for that purpose, when the legislature has not given it specific authority. Acts of a municipality may, however, tend to show a use by the public, as well as its nature and extent; and for this reason such acts may be relevant to the question of acceptance by the public. Noyes v. Ward, 19 Conn. 250, 264; Green v. Town of Canaan, 29 Conn. 157, 103; Guthrie v. Town of New Haven, 31 Conn. 308, 321; City of Hartford v. New York & N. E. R. Co., 59 Conn. 250, 252, 22 Atl. 37. Prom the earliest settlement of Connecticut the towns assumed some duty in respect to maintaining safe highways within their limits. In 1643 the general court enforced this duty by directing surveyors of highways to impress, one day in each year, every person and team fit for labor, to amend the highways. 1 Col. Rec. pp. 91, 527. In 1672 this duty is formulated as follows: "The several townships within this colony shall keep in sufficient repair all the highways and bridges within their townships;" and is further enforced by providing for impressment of labor when necessary, and also by imposing on the town, as a penalty for failure to perform the duty, a liability to pay damages to any one who may be injured in person or property by means of a defect in a highway which a town is bound to keep in repair. Laws 1672, p. 7. This act of 1672 has from time to time been modified as to details and penalties, but, as affecting the duty and liability of towns, has remained in force until the present time. Bartram v. Town of Sharon, 71 Conn. 686, 694, 43 Atl. 143, 46 L. R. A. 144, 71 Am. St. Rep. 225. When cities and boroughs were first established, their charters ordinarily contained provisions authorizing municipal authorities to lay out highways within their limits. This power, however, was not exclusive, and the duty and liability of towns in respect to highways within their limits covered highways within the particular limits of a city or borough. Shortly after the custom of providing for the repair of highways by taxation became general, municipal charters began to be altered, so that the duty of repairing highways within the limits of a city was Imposed upon the city corporation, and the town within which the city was situate was relieved therefrom. See amendment to city charter of Hartford, passed in 1829. 1 Sp. Laws, p. 387. Eventually most charters contained these provisions, and the General Statutes provided in a similar manner for the exceptions. It is provided that "the selectmen of each town may lay out necessary highways therein, not being within a city, or within a borough having by virtue of its charter, or by the provisions of this chapter, control of, and liability for, the highways within its limits" (Gen. St. § 2699); "that towns shall build and repair all necessary highways and bridges except where the duty belongs to some particular person" (Gen. St § 2666); "that any person injured in person or property by means of any defective highway, may recover from the party bound to keep it in repair" (Gen. St § 2673); "that cities and boroughs, not authorized by charter, may lay out highways in the manner prescribed" (Gen. St § 2702). See, also, sections 2674, 2676, 2679, and Pub. Acts 1856, p. 73.

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