Miller v. Grossman Shoes, Inc.

• Decision Date: 09 February 1982
• Citation: 440 A.2d 302,186 Conn. 229
• Parties: Alfred E. MILLER et al. v. GROSSMAN SHOES, INC., et al.
• Court: Connecticut Supreme Court

Page 302

440 A.2d 302

186 Conn. 229

Alfred E. MILLER et al. v. GROSSMAN SHOES, INC., et al.

Supreme Court of Connecticut.

Argued Dec. 8, 1981.

Decided Feb. 9, 1982.

Richard A. Silver, Stamford, with whom was Ernest F. Teitell, Stamford, for appellants (defendants).

William F. Gallagher and John A. Ackerly, Stamford, with whom, on the brief, was Roger B. Calistro, New Haven, for appellees (plaintiffs).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

SHEA, Justice.

In this action the trial court rendered judgment enjoining the defendants, their tenants and invitees from entering or exiting their building on Greenwich Avenue in Greenwich through the doorway on the north side of their building and crossing over the property of the plaintiffs, and also from leaving thereon personal property of any kind. Nominal damages of one dollar were also awarded to the plaintiffs. In appealing from that judgment the defendants claim they have a right to use the property in question by virtue of a public easement, an implied dedication of the land to the public, and an implied license. ¹ We find no error.

The statements of facts in the briefs do not duplicate each other, but none of the facts recited by one party is contradicted by the other. In 1961 the plaintiffs purchased the land at 80-86 Greenwich Avenue, and in 1963 they erected their present building to house a retail store and business offices. They were required by the town zoning ordinance to set back their building fourteen feet from the property line which fronts upon the public sidewalk extending along Greenwich Avenue and to install a sidewalk upon the area of this set back. The plaintiffs have continued to pay taxes on this portion of their land and also to maintain it, although the general public has used it for passage in the same manner as the public sidewalk since the building was constructed. There is no demarcation between this area and the public sidewalk.

The defendants in 1969 purchased the building at 88 Greenwich Avenue next to the plaintiffs' building, their walls being virtually contiguous along the boundary between them, except that the defendants' building projects out to the front property line along the public sidewalk. This building contains a retail store on the ground floor and apartments on the upper floor. The entrance to the apartments was a doorway in the front of the building which faced upon the public sidewalk on Greenwich Avenue.

In 1971 the defendants began to operate a retail shoe business in their building which competes with the business of the plaintiffs. The defendants also made substantial alterations of their building, which included the conversion of the doorway to the upper floor apartments into a display window and the construction of a new doorway on the side of the building adjacent to the property of the plaintiffs. This doorway faces upon the fourteen foot area of set back between the plaintiffs' building and the public sidewalk. The tenants who occupy apartments on the upper floor of the defendants' building must cross over this set back area of the plaintiffs' property in order to use that doorway for ingress and egress. Except for this doorway, the tenants would be compelled to use a fire escape in the rear of the defendants' building as their only means of access.

This suit was commenced in 1971, a few months after the alteration of the defendants' building had been completed. ² In 1973 the town of Greenwich replaced the entire sidewalk in the set back area of the plaintiffs' property as well as the sidewalks on adjacent properties. At the time of this construction the town agreed to hold the plaintiffs harmless from any claim for injury occurring on the sidewalk. Members of the general public have continued to use the sidewalk without objection.

The defendants claim that the paved area in front of the plaintiffs' building is subject to a public easement based upon (1) the requirement of the zoning ordinance that new buildings be set back fourteen feet from the street line and that sidewalks be installed on this area; (2) the use of town funds to reconstruct the sidewalks in 1973, while this litigation was pending; and (3) the continuous use of this area by the public since 1963.

The zoning ordinance requirements can hardly serve as a substitute for the standard condemnation procedure necessary for laying out or widening a highway. See General Statutes §§ 7-194(8), 48-6. If such a result as that claimed by the defendants could follow upon the enactment of a zoning ordinance, serious constitutional questions would be raised. See Bartlett v. Zoning Commission, 161 Conn. 24, 31, 282 A.2d 907 (1971); Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 311-12, 197 A.2d 770 (1964).

The use of town funds to reconstruct the sidewalks within the set back area might have some significance, except that the hold harmless agreement during the period of construction implies a recognition of the continuing ownership and control of the area by the plaintiffs. The fact that this work of the town involved other properties in a project for the beautification of Greenwich Avenue and occurred while this suit was pending further detracts from its weight upon the issues in this case.

Use by the public may be of some importance in establishing the boundaries of a highway where these are not otherwise ascertainable. New Britain Trust Co. v. Spencer, 117 Conn. 402, 404, 168 A. 16 (1933); Ely v. Parsons, 55 Conn. 83, 95, 10 A. 499 (1887). It is well established, however, that the unorganized public cannot acquire an easement by grant or prescription. Mihalczo v. Woodmont, 175 Conn. 535, 541, 400 A.2d 270 (1978); Turner v. Selectmen of Hebron, 61 Conn. 175, 187, 22 A. 951 (1891). The defendants cannot claim a public easement by prescription over the plaintiffs' land for the additional reason that the period of public use relied upon began only after completion of their building in 1963, less than fifteen years before commencement of this suit in 1971 and therefore, is insufficient in duration to satisfy the requirements of General Statutes § 47-37 ³ for creation of an easement by adverse use. This suit, of course, interrupted the period of necessary continuous use. 25 Am.Jur.2d, Easement and Licenses, § 57.

Whether the portion of the plaintiffs' land in dispute is subject to a public easement really depends upon whether it is included in the area of the public highway easement established by the town. The town of Greenwich has made no claim that Greenwich Avenue includes this property or that the pavement thereon is a public sidewalk. We must be cautious in finding such an area to be part of the public sidewalk, because the municipality would then become responsible for its maintenance and repair and exposed to liability for failure to perform its duties in that respect. General Statutes § 13a-149. The defendants cannot be permitted to thrust...