Nichols v. Town of Oxford

• Decision Date: 19 June 2018
• Docket Number: AC 39366
• Citation: 191 A.3d 219,182 Conn.App. 674
• Parties: Christopher Houk NICHOLS et al. v. TOWN OF OXFORD
• Court: Connecticut Court of Appeals

182 Conn.App. 674

191 A.3d 219

Christopher Houk NICHOLS et al.

v.TOWN OF OXFORD

AC 39366

Appellate Court of Connecticut.

Argued February 22, 2018

Officially released June 19, 2018

Robert J. Nichols, Waterbury, for the appellants (plaintiffs).

Michael S. Hillis, New Haven, with whom was Kevin Condon, for the appellee (defendant Town of Oxford).

DiPentima, C.J., and Lavine and Pellegrino, Js.

DiPENTIMA, C.J.

The plaintiffs¹ petitioned the trial court, pursuant to General Statutes § 13a–103,² for an order directing one of the defendants, the town of Oxford (town),³ to repair and maintain unimproved sections of a highway,⁴ Old Good Hill Road (road), located in the town. The trial court denied the relief sought. The plaintiffs appealed, claiming that the court erred in finding that (1) sections two, three and four of the road did not comprise part of a highway, and (2) even if those sections of the road had once comprised part of a highway, they since have been abandoned. We conclude that the court properly found that sections two, three and four of the road have been abandoned, and, accordingly, affirm the judgment of the trial court.⁵

In its thorough and thoughtful memorandum of decision, the trial court found the following facts. "[The road] is a long, winding road in Oxford ... intersecting Good Hill Road to the north and Freeman Road to the south. [The road] can be described as consisting of four sections. Section one intersects with Good Hill Road. Section one is paved and is maintained by the town. Section one is not specifically at issue in this case because there is no dispute that it is accepted and maintained by the town. The next part of the road, section two, is an unpaved, unimproved dirt road. Nichols' property is located near the end of section two. Section two is passable either by foot or a four-wheel drive vehicle. Section two is not maintained by the town. Section three starts just beyond Nichols' home, and extends down a long, steep hill. While there are some pathways, there is no clearly visible, vehicular roadway in this area. Section three is part of a mountainous area and is steep, rutted and rugged. It is passable only by foot. Section three is not maintained by the town. Section three ends at a paved area near the bottom of the hill. This paved area is part of the driveway of 110 Freeman Road. This property is owned by [the] defendant Lucas. This paved area ends on Freeman Road. During the trial, this paved, driveway area was referred to as section four of [the road]. Sections two and three are referred to as the unimproved sections of the road. With the parties' consent and participation, the court inspected the full length of [the road] on November 9, 2015, driving over sections one and two, and walking over sections three and four.

"The primary areas at issue in this case are sections two and three. The town does not maintain these areas and the plaintiffs contend that the town is required to do so. Section four, Lucas' driveway, is implicated in this dispute because the plaintiffs' claims regarding sections two and three are premised on their argument that [the road] in its entirety has been historically dedicated and accepted as a [highway] ....

"In 2011, Nichols purchased 108 Old Good Hill Road, consisting of two adjoining parcels. A single family home is on one parcel, and the other parcel is unimproved land. As with other property owners, [the road] is the only way to access his home. His house is the only building on section two of the road. After purchasing the property, Nichols brought in an excavator to smooth the road and to lay processed stone for a base, but he received a cease and desist order from the then town's zoning enforcement official .... This order indicated that his excavation work was without permits and in violation of town zoning regulations. Additionally, the order stated that ‘consent from the Board of Selectmen of [the town] is required to perform any activity and improvements on town property.’ ... Nichols indicated that town improvements of [the road] would make access to his property more convenient." (Citation omitted; emphasis in original.)

In accordance with § 13a–103, the plaintiffs brought the underlying action on November 20, 2012. On March 2, 2015, the court granted the plaintiffs' motion to bifurcate so that the only issue at trial was whether sections two, three and four of the road comprised part of a highway. By way of special defense, the defendants pleaded, inter alia, that the road had been abandoned.⁶ The matter was tried to the court in September and October, 2015. The parties filed posttrial briefs in February and March, 2016, and the court heard final argument on June 14, 2016. On June 21, 2016, the court rendered judgment in favor of the defendants, finding that (1) the challenged sections of the road had not become a highway under the common law doctrine of dedication and acceptance⁷ and (2) in the alternative, the defendants had proved by a fair preponderance of the evidence that sections two, three and four of the road had been abandoned. The plaintiffs appealed. Additional facts will be set forth as necessary.

We turn now to the plaintiffs' claim that the court erred in concluding that the defendants had proved by a preponderance of the evidence that the challenged sections of the road had been abandoned. We conclude that the court did not err.

We begin with the applicable legal principles. "The questions of whether there have been dedication, acceptance and abandonment generally are recognized as questions of fact .... Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous." (Citations omitted; internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc. , 137 Conn. App. 1, 8, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012). "A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings." (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 394–95, 662 A.2d 118 (1995).

"We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment." (Internal quotation marks omitted.) Benjamin v. Norwalk , 170 Conn. App. 1, 25, 153 A.3d 669 (2016). "[This court] cannot retry the facts or pass upon the credibility of the witnesses." (Internal quotation marks omitted.) Pandolphe's Auto Parts, Inc. v. Manchester , 181 Conn. 217, 220, 435 A.2d 24 (1980).

A previously established highway "may be extinguished [1] by direct action through governmental agencies, in which case it is said to be discontinued; or [2] by nonuser⁸ by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned. The length of time during which such nonuser must continue on the part of the public, before the highway can be presumed to be abandoned, has not been determined in this [s]tate by statute or judicial decision. It must be a long time .... Such an abandonment implies, of course, a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances .... Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon ... but nonuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." (Citations omitted; footnote added; internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc. , supra, 137 Conn. App. at 20–21, 48 A.3d 107 ; see also Benjamin v. Norwalk , supra, 170 Conn. App. at 21–22, 153 A.3d 669 ; R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 49:5, p. 112 ("[o]nce it is shown that the road was a public highway at some point in the past, it remains one under Connecticut law no matter what its state of improvement or deterioration may be unless that status was terminated in one of two ways, [1] abandonment or [2] discontinuance as provided by General Statutes § 13a–49").

Although the individual elements of abandonment are (1) nonuse by the public (2) for a long period of time (3) with the intent to abandon, it has long been the rule that "abandonment may be inferred from circumstances or may be presumed from long continued neglect." (Internal quotation marks omitted.) Appeal of Phillips , 113 Conn. 40, 45, 154 A. 238 (1931). With respect to actual nonuse, "[i]t is nonuse by the public, not the municipality, that must be proven." Benjamin v. Norwalk , supra, 170 Conn. App. at 22, 153 A.3d 669. Nevertheless, "[i]t is not essential ... that large numbers of the public participate in the user, or that the user be one which results in a large volume of travel. Each situation must be judged in relation to its own surroundings and conditions, and with a regard for the number of persons who would have occasion to use the way .... It is only necessary that those who would be naturally expected to enjoy it have done so at their pleasure." (Citation omitted.) Phillips v. Stamford , 81 Conn. 408, 414, 71 A. 361 (1908) ; see also Benjamin v. Norwalk , supra, at 24, 153 A.3d 669 ; Granby v. Feins , 154 Conn. App. 395, 404, 105 A.3d 932 (2014).

With respect to intent, we iterate that "negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment;" (internal quotation...