Nicholas v. Town of East Hampton, No. CV-04-0103439-S (CT 11/14/2005)
| Decision Date | 14 November 2005 |
| Docket Number | No. CV-04-0103439-S,CV-04-0103439-S |
| Parties | Leonard Nicholas et al. v. Town of East Hampton et al. Opinion No.: 91290 |
| Court | Connecticut Supreme Court |
On January 27, 2004, the plaintiffs, Leonard and Ellen Nicholas, filed a petition for a writ of mandamus from the Superior Court to compel the defendants, the town of East Hampton and members of the town council of East Hampton, to declare the boundaries of Bailey Road and Sexton Hill Road, both of which are alleged to be located in East Hampton. The plaintiffs had earlier requested that the defendants determine boundaries of the two roads pursuant to General Statutes §13a-39, which provides:
Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on such map such lines as in their judgment coincide with the lines of the highway as originally laid down.
The statute thus provides a means for a property owner, whose land abuts a "highway" for which "the boundaries . . . been lost or become uncertain" to request the town's selectmen to determine the boundaries of that highway. The Selectmen are to act as the statutory committee of fact finders to review the evidence of the highway's location in the first instance. Our Supreme Court has held that the language of this statute is mandatory, not directory. See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 650 (1911); State ex rel Foote v. Bartholomew, 103 Conn. 607, 612 (1925); State ex rel Stankus v. Parker et al, 15 Conn.Sup. 104 (1948).
On July 8, 2003, following the recommendation of the town manager, the town council had rejected the plaintiffs' first such request on the basis of its conclusion that the roads were private and not public.1 The plaintiffs resubmitted their request in August of 2003, and the defendants did not respond. The plaintiffs thereupon turned to this court and asked for a writ of mandamus compelling the town to determine the boundaries of the roads in question. Both parties had moved for summary judgment, and both parties' motions were denied by the court. The case was then tried before the undersigned on June 23, 2005, and the briefs were filed on August 5, 2005.
The law surrounding the writ of mandamus in our state is well-established. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391 (2000). "An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). "Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659 (1990).
"The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn.App. 137, 143 (1995). "If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 249 (2002). 'The duty it compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary." Becchia v. Waterbury, 185 Conn. 445, 453 (1981). "[M]inisterial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000). "Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action." Clark v. Gibbs, 184 Conn. 410, 419, 439 A.2d 1060 (1981).
In this case, therefore, based on the law of mandamus and the requirements of General Statutes §13a-39, the issues are whether the Town of East Hampton has a clear legal obligation to locate, and whether the plaintiffs have a clear legal right to compel the town to locate, the boundaries of either the so-called Bailey or Sexton Hill Roads, or both: To make this determination, the court first needs to determine that a) the so-called Bailey and/or Sexton Hill Roads are "highways" as provided in CGS §13a-39; b) the so-called Bailey and/or Sexton Hill Roads are located in the Town of East Hampton; and c) the plaintiffs' property adjoins the so-called Bailey and/or Sexton Hill Roads.
The plaintiffs argue that the duty they seek to have compelled is a ministerial one and that the evidence they presented entitles them to have the court order the town to carry out that duty. At the trial, they established that they are the owners of a certain parcel of land in the Haddam Neck section of the Town of Haddam; that, pursuant to General Statutes §13a-39, they requested that the defendants determine the boundaries of two roads or highways, known as Bailey Road and Sexton Hill Road, a/k/a Sexton Road;2 and that the Town has refused their request. They offered evidence which they claim shows that the roads in question are located, at least in part, in the Town of East Hampton, and that they are "highways" within the meaning of the statute.
As to the location of the roads, the plaintiffs claimed to have established that their property abuts the Haddam/East Hampton town line, a line which is at several points shared with Bailey Road and Sexton Hill Road, based on several deeds in the Haddam Land Records, Assessors' Maps from both Haddam and East Hampton, and a Boundary Survey prepared for the plaintiffs by Charles Dutch, a land surveyor, on July 31, 2000.
The plaintiffs also argue that a portion of Sexton Hill Road crosses the Haddam/East Hampton town line and into the northeast corner of the plaintiff's property; that Bailey Road lies, in part, along the East Hampton/Haddam town line and along the northern boundary of the plaintiffs' property; and that Sexton Hill Road, running from Connecticut Route 151 in a generally southerly and westerly direction to the boundary of the plaintiffs' property (which is also part of the boundary line between Haddam and East Hampton) lies within the Town of East Hampton.
The first, and as it turns out, dispositive, issue is whether the roads in question are "highways." The defendants contend that they have no authority to establish the boundaries of something which is not a highway, so that they first need to determine whether the Bailey and Sexton Hill Roads are "highways" within the meaning of the law. The plaintiffs contend that the town does not have the authority to establish the status of the roads in question, but the defendants argue that they must at least in some sense do so, and both rely on language in Hamann v. Town of Newtown, 14 Conn.App. 521 (1988). In Hamann, the Newtown board of selectmen commenced a proceeding pursuant to General Statutes §13a-39 without first having reviewed and determined whether the road in question was a highway. Once that proceeding was underway, the board attempted to establish the legal status of the road as public or private, but, as the plaintiffs here note, "[t]he board is without authority under that section [§13a-39] to determine the legal status of a road." (Emphasis added). Hamann, supra, 14 Conn.App. 521, 524. Hamann also notes, however, that "recourse to §13a-39 presupposes a prior determination that the road in question has been deemed a public highway." Id. The parties differ markedly on how the latter phrase should be interpreted. The plaintiffs note that the Appellate Court's decision references 39 Am.Jur2nd, Highways, Streets and Bridges, 55, as the source for this language but that this particular language is not to be found in the 1968 edition of Am.Jur.2nd, the only edition extant at the time of the Appellate Court's decision. They thus suggest that the citation is erroneous. Whether or not that particular citation is erroneous, however, the Hamann decision is merely pointing out the obvious: that the town cannot use the authority granted to it under §13a-39 to determine the boundaries of something which is not actually a highway, and that the town is also not empowered to use §13a-39 as the vehicle for establishing the status of Bailey and Sexton Hill Roads. Thus, by first looking at whether the roads in question...
To continue reading
Request your trial