Montanaro v. Aspetuck Land Trust, Inc.

• Decision Date: 24 July 2012
• Docket Number: No. 32736.,32736.
• Citation: 137 Conn.App. 1,48 A.3d 107
• Court: Connecticut Court of Appeals
• Parties: Christopher MONTANARO et al. v. ASPETUCK LAND TRUST, INC., et al. Christopher Montanaro et al. v. Town of Wilton.

137 Conn.App. 1

48 A.3d 107

Christopher MONTANARO et al.

v.ASPETUCK LAND TRUST, INC., et al.

Christopher Montanaro et al.

v.Town of Wilton.

No. 32736.

Appellate Court of Connecticut.

Argued Feb. 9, 2012.

Decided July 24, 2012.

John B. Farley, Hartford, with whom were Lawrence P. Weisman, and, on the brief, Eric D. Bernheim, Westport, and Coleman C. Duncan, Hartford, for the appellant (defendant Aspetuck Land Trust, Inc.).

Patricia C. Sullivan, Bridgeport, with whom, on the brief, were G. Kenneth Bernhard, Westport, and Barbara M. Schellenberg, Bridgeport, for the appellant (defendant town of Wilton).

Robert A. Fuller, Wilton, for the appellees (named plaintiff et al.).

Matthew C. Mason, Wilton, for the appellees (intervenor plaintiff Thomas T. Adams et al.).

GRUENDEL, LAVINE and BEAR, Js.

GRUENDEL, J.

The defendants, Aspetuck Land Trust, Inc. (Aspetuck) and the town of Wilton, appeal from the judgments of the trial court in favor of the plaintiffs, Laurie Ann Deilus and Christopher Montanaro, and the intervening plaintiffs, Thomas T. Adams, William L. Sachs and David F. Clune, the trustees of the Elizabeth Raymond Ambler Trust (Ambler trustees). The defendants claim that the court improperly (1) found that Old 2 Rod Highway properly was accepted as a public highway and was not abandoned subsequently, (2) determined the location of the alleged highway in violation of General Statutes § 13a–39 and (3) granted both an easement by necessity and a prescriptive easement to the plaintiffs. We affirm the court's judgment that Old 2 Rod Highway properly was accepted and not abandoned and its determination that § 13a–39 does not apply to this case, but reverse the judgment with respect to the granting of an easement by necessity to the plaintiffs.

The court found the following facts. In the eighteenth century, towns in Connecticut often entrusted the ownership, control and distribution of properties located in their towns to groups of citizens called proprietors. In 1730, the proprietors of the town of Norwalk laid out several highways, one of which was Old 2 Rod Highway ¹ (highway). It is described in the proprietors' deed as being on the westerly side of the dividing line between the towns now known as Weston and Wilton.

In the same deed, the proprietors conveyed parcels of land abutting the highway to the predecessors in title to the land now owned by Deilus and the Ambler trustees. The property owned by Deilus lies in Wilton and consists of 9.838 acres bounded on the easterly side by the highway (Deilus property). Montanaro is the contract purchaser of that parcel of land. The Ambler trustees own a six and one-half acre parcel north of the Deilus property that also abuts the highway. Aspetuck owns three adjoining parcels to the south of the Deilus property that likewise abut the highway.

Although originally part of Norwalk, in 1802, with the approval of the legislature, Wilton became a town separate from Norwalk. Subsequently, the proprietors of Norwalk conveyed all remaining land owned by them in Norwalk to the town of Norwalk, including the fee title to the highway.²

Prior to this litigation, Aspetuck blocked access to the highway with a chain. In 2006, the plaintiffs commenced two separate actions. They filed a five count amended complaint dated October 7, 2008, against Aspetuck and the town of Wilton (first action). In count one, the plaintiffs sought a permanent injunction enjoining Aspetuck from blocking and interfering with their right-of-way over the highway. In count two, the plaintiffs sought a declaratory judgment that the highway was a public highway and further claimed that they were entitled to a zoning permit for residential construction on the property.³ In count three, the plaintiffs claimed that they had an easement by implication over both the highway and a wood road on Aspetuck's property that leads to the highway. In count four, the plaintiffs claimed that they had an easement by necessity over the highway and the wood road. In count five, the plaintiffs claimed that they had a prescriptive easement over the wood road. The Ambler trustees thereafter filed a five count intervenor complaint, in which they alleged essentially the same claims asserted by the plaintiffs in their amended complaint, but they subsequently withdrew the count claiming a prescriptive easement.

On October 6, 2006, the plaintiffs brought a second action against Wilton in which they sought a declaratory judgment against Wilton that the highway was a public highway (second action). On November 22, 2006, the court granted Aspetuck's motion to intervene in the second action. The first and second actions were consolidated for trial on October 15, 2007. On March 25, 2008, the court granted the Ambler trustees' motion to intervene in the second action. On December 1, 2008, the court granted the Ambler trustees' motion to intervene in the first action.

In its answers to the amended complaint and the intervenor complaint Aspetuck asserted three special defenses: (1) that the designation and location of the highway on maps is erroneous, (2) that any rights that the plaintiffs might have to a right-of-way across its land were extinguished by reason of nonuse and (3) that such rights also were extinguished by the Marketable Record Title Act, General Statutes § 47–33b et seq.

In October, 2009, the defendants moved to dismiss the plaintiffs' and the Ambler trustees' complaints for lack of subject matter jurisdiction on the ground that General Statutes § 13a–39⁴ vests primary jurisdiction for determining the location of a disputed highway in the town selectmen, not the Superior Court. Before the presentation of evidence at trial, the court heard oral argument on the defendants' motion to dismiss and denied the motion.

The consolidated actions were tried to the court in October and December, 2009. On August 6, 2010, the court issued its memorandum of decision. The court determined that the highway was a public road and that it was located in and owned by Wilton. It further determined that the plaintiffs and the Ambler trustees have an easement by convenience and necessity over the highway to Wampum Hill Road. Additionally, the court ruled that the plaintiffs have a prescriptive easement over the wood road located on Aspetuck's property. ⁵ The court granted a permanent injunction against Aspetuck, enjoiningit from interfering with the plaintiffs' and the Ambler trustees' “access to and over the ... highway or in any way preventing them from using the highway for all lawful purposes.” The court denied the defendants' motion for reconsideration. This appeal followed.

On October 26, 2010, the defendants moved for an articulation of the court's memorandum of decision. The defendants requested that the court (1) rule on their claim that the court lacked jurisdiction to determine the location of the highway under § 13a–39, (2) articulate the legal standard and principles relied upon by the court to determine whether the highway had been accepted and (3) make a finding as to whether the plaintiffs and the Ambler trustees have alternate access to their properties from Georgetown Road, and, if so, how the access affects the court's conclusions with respect to the acceptance of the highway and the granting of easements. On December 9, 2010, the court issued an articulation. On February 23, 2011, this court granted the defendants' motion for review of the trial court's articulation but denied the relief requested. Additional factual and procedural history will be set forth as necessary.

I

The defendants first claim that the court committed reversible error by holding that the highway properly was accepted as a public highway. We disagree, and conclude that the highway properly was accepted through public use and was not subsequently abandoned.

The questions of whether there have been dedication, acceptance and abandonment generally are recognized as questions of fact. See Drabik v. East Lyme, 234 Conn. 390, 394, 662 A.2d 118 (1995); Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). “Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous.” (Internal quotation marks omitted.) Drabik v. East Lyme, supra, at 394, 662 A.2d 118. To the extent that the defendants' claim regarding the acceptance of the highway challenges the legal basis of the court's conclusions, however, our review is plenary. Crews v. Crews, 295 Conn. 153, 161–63, 989 A.2d 1060 (2010). The question of acceptance, therefore, is better understood as “one of mixed law and fact. It is one of law in so far as it involves questions as to the nature of this acceptance, the source from which it must come, and the acts and things which may be indicative of it. It is one of fact in so far as it involves inquiries as to whether or not the requisite acts and things have been done so that legal requirements have been met.” Phillips v. Stamford, 81 Conn. 408, 411, 71 A. 361 (1908).

A

We begin by reviewing our contemporary laws of highway establishment and their historical counterparts. Highways are established by one of the following four methods: “(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 [General Statutes § 13a–61] and specified authorities of cities and boroughs [General Statutes § 13a–7]; (4) through private dedication of land for that purpose and its acceptance by the public.” Makepeace v. Waterbury, 74 Conn. 360, 361, 50 A. 876 (1902); see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed.2007) § 49:2, pp. 95–96. Only the latter two methods are relevant to this appeal.

Accordingly, we first review the genealogy of the third method of establishing highways. “[I]n 1698 ... the [g]eneral [c]ourt for...