Mihalczo v. Borough of Woodmont

• Decision Date: 01 August 1978
• Citation: Mihalczo v. Borough of Woodmont, 400 A.2d 270, 175 Conn. 535 (Conn. 1978)
• Parties: Alice C. MIHALCZO v. BOROUGH OF WOODMONT et al.
• Court: Connecticut Supreme Court

Page 270

400 A.2d 270

175 Conn. 535

Alice C. MIHALCZO v. BOROUGH OF WOODMONT et al.

Supreme Court of Connecticut.

Argued May 3, 1978.

Decision Released Aug. 1, 1978.

Gerald T. Weiner, Bridgeport, for appellants (defendants).

Clement J. Kichuk, Bridgeport, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and RUBINOW, JJ.

COTTER, Chief Justice.

The plaintiff, the owner of a shore-front cottage at Merwin's Point in the borough of Woodmont, city of Milford, brought this action seeking a permanent injunction restraining the defendants from interfering with the use and enjoyment of her property, a determination of the rights in and to her land, and damages. From a judgment in favor of the plaintiff, the defendants have appealed.

The following facts were found by the court: The plaintiff's property, known as No. 2 Chapel Street, was purchased by warranty deed in 1970, and is bounded southerly fifty feet by Long Island Sound and westerly by Chapel Street, formerly known as Beach Avenue. These premises were conveyed to her together with and subject to the agreements and rights-of-way contained in a document which involved other cottagers and other parcels of land fronting on Long Island Sound, and which was executed by John W. Merwin and others, dated May 22, 1885, and recorded in the Milford land records. The right-of-way to pass and repass on foot only was granted by Merwin to those cottagers, their heirs and assigns and the heirs and assigns of each of them. Along with the aforesaid documents a map delineating the rights-of-way was recorded, also describing a lot referred to as parcel N, designated "Proposed Road," which is now Dixon Street.

A seawall-walkway in general conformity to the beach and shore now exists across the width of the Mihalczo property adjacent to the beach on the south. Although the cement seawall-walkway has been in existence for about fifty years and used by the unorganized public, including some residents of the defendant borough, as a walkway, the plaintiff first became aware of the use of the seawall-walkway by pedestrians when she moved into the cottage in the summer following her purchase of the property in February, 1970. In June, 1971, after consulting her attorney, she attempted, on three occasions, to erect a gate, open only to the cottagers, across the walkway on the westerly border of her property next to Chapel Street. Under the direction of the warden and burgesses of the borough, however, the defendant constable, George Ramadon, was instructed to remove the gate across the sidewalk, which he did on June 21-22, 1971. Thereafter, the plaintiff brought the instant action.

On appeal, we consider only those assignments of error which the defendants have raised in their brief, ¹ viz: whether the seawall-walkway was within the plaintiff's property lines; whether she sustained her burden of proof that it "was within her southerly boundary without establishing the mean high-water mark of Long Island Sound"; whether the defendant borough in order to claim an easement must have a deed to a road appurtenant to the land that it claims was dedicated and accepted as a public right-of-way; whether the defendant borough established a prescriptive right-of-way by adverse use under General Statutes § 47-37; and, finally, whether the seawall-walkway was dedicated to the Woodmont Association-Borough by the plaintiff's predecessors in title. ²

The findings that the plaintiff has title to the property which is bounded southerly fifty feet by Long Island Sound are not attacked. The latter description is equivalent to a boundary at the high-water mark since the land between high and low-water marks remains in the state. Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 200, 224 A.2d 532. Thus, Long Island Sound establishes the southern boundary of the plaintiff's property. Buckley v. Maxson, 120 Conn. 511, 518-19, 181 A. 922; Smith v. Dotolo, 99 Conn. 241, 242, 121 A. 472. It has been recognized that a landowner could only have a fee simple title to the area above the Mean high-water mark. Shorefront Park Improvement Assn., Inc. v. King, 157 Conn. 249, 251, 257, 253 A.2d 29. The court properly concluded, and the defendants agree, that the location of the mean high-water mark delineates the plaintiff's southern boundary.

In using the term "high-water mark" the line of "ordinary high-water mark is always intended." United States v. Pacheco, 69 U.S. (2 Wall.) 587, 590, 17 L.Ed. 865; Freeman v. Bellegarde, 108 Cal. 179, 41 P. 289. "(B)y the common law, the shore 'is confined to the flux and reflux of the sea at ordinary tides.' Blundell v. Cotterall, 5 B. & A. 268, 292. It is the land 'between ordinary high and low water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails.' United States v. Pacheco . . . (supra)." Borax Consolidated Ltd. v. Los Angeles, 296 U.S. 10, 22, 56 S.Ct. 23, 29, 80 L.Ed. 9.

The defendants separately by way of special defense allege that the sidewalk in issue was "across the southern portion of the plaintiff's property," and the defendant borough in its cross complaint alleges that the strip of land which it claims is either a public sidewalk or a public right of way which the borough residents obtained by prescription is "across the southerly portion of the plaintiff's property." The quoted portions of the defendants' allegations which admit that their claims specifically relate to pedestrian passage over the southerly boundary of the plaintiff's land are judicial admissions and are conclusive upon the defendants. Bridgeport v. Stratford, 142 Conn. 634, 646, 116 A.2d 508.

The court found that a survey of the shoreline by the state water resources commission for the years 1964 to 1967, inclusive, which was admitted into evidence as a full exhibit by the defendants, showed a constant shifting of the mean high-water mark on shore, and, as a result of this movement, the plaintiff's beach today shows approximately the same conditions that prevailed before the pumping of sand about sixteen years ago. That exhibit and the testimony presented at the time of its introduction support the findings and conclusion of the court that although the seawall is periodically touched by high tide, the mean high-water line or the plaintiff's southerly boundary is presently about twenty feet southerly from the plaintiff's seawall-walkway. The court made a visual inspection of the plaintiff's premises and of the physical appearance and structure of the seawall and walk between Chapel and Clinton Streets, in company of counsel for the parties; it observed the tide and sand along the southern boundary of the plaintiff's property.

The court, therefore, was not in error in concluding that the seawall-walkway was within the plaintiff's property line.

The named defendant's claim that it has the same right to use the walkway as any other property owner fronting on the beach who received a grant from Merwin is similarly without merit. It is undisputed that the intervening deeds in the plaintiff's chain of title all carry the restrictions and benefits of the easement agreement of 1885 between the so-called "Cottagers" concerning the correlative right to pass and repass on foot over the right-of-way in question, without expressing at any time any further easement in favor of the public, the borough of Woodmont, or its predecessor, Woodmont Association. The fact that Dixon Street, which was originally shown as a "Proposed Road" on the 1885 map, is now a public street which ends at the seawall-walkway and stairway leading from the seawall to the beach, does not, as the defendant claims, entitle it to "inherit" the easement of way specifically granted for the benefit of the "Cottagers" who were described in and parties to the agreement.

Nor have the defendants satisfied their burden of proving the acquisition of an easement by prescription. We have held that the unorganized public cannot acquire rights by prescription. Since a deed...