Phillips v. City of Stamford

• Decision Date: 18 December 1908
• Citation: 81 Conn. 408,71 A. 361
• Parties: PHILLIPS v. CITY OF STAMFORD.
• Court: Connecticut Supreme Court

71 A. 361

81 Conn. 408

PHILLIPS

v. CITY OF STAMFORD.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal fom Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Action by John B. Phillips against the City of Stamford for trespass to land. Judgment for defendant, and plaintiff appeals. Affirmed.

Moses Rogers died in 1824 possessed of a large tract of land comprising Shippan Point in Stamford, and distant about two miles from the center of the present city of Stamford. This point extends out into Long Island Sound, is bordered by the waters of the Sound and Stamford Harbor on every side except the northerly end. This tract Rogers by his will placed in the hands of trustees. In 1859 the trustees caused the land to be surveyed, laid out into building lots, with suitable highway approaches and parks and a map of this lay-out to be filed in the town clerk's office. This was done with a view to the development of the property for residential purposes. At that time there were few, if any, bouses on the land, and the single highway by which it could be reached was but little traveled. The highways thus laid down on the map were dedicated to the public use, and most of them, including Ocean Drive, had before July, 1880, become accepted highways, and with others since accepted are now so used. Ocean Drive skirts the easterly shore of Stamford Harbor at a distance of approximately from 200 to 400 feet therefrom, and then continues its course around the point in general conformity to the shore, leaving building lots between it and the shore. Before July, 1886, the trustees conveyed to various persons certain of the lots, retaining the unsold portions of the property, and houses and other buildings had been erected upon the lots sold. The lots thus built upon were for the most part confined to the section between Ocean Drive and the harbor and the drive and the Sound at the southern end of the point. July 3, 1886, the trustees, who retained title to the locus, executed and recorded an instrument setting apart and dedicating it and another strip of land to the use of the public as and for streets and highways. The locus in controversy thus dedicated is a strip 50 feet in width, and extends from Ocean Drive westerly to the waters of the harbor at high-water mark. It is not shown on the map of 1869 as a projected street, but is included in lot No. 271. It has never been worked as a roadway, but it has been allowed to remain in its natural state, except that the grass upon it has been cut from time to time, and there have never been visible traveled paths over it. There are trees within its limits, not interfering with its use. It has at all times afforded a safe and feasible passage for public travel, whether on foot or in vehicles. It furnished a means of easy access to the beach and harbor, and from the time of its dedication continuously to the present time many of the public have availed themselves of it for this purpose. Its use has been principally, but not entirely, by pedestrians, and has been chiefly confined to the summer time. It has increased as the population in the vicinity has increased. It has been used to some extent by people with conveyances driving upon it, and hitching their horses to the trees standing upon it. The court found that there had been sufficient user by the unorganized public to constitute an acceptance of the highway, and that the premises had by such acceptance been a public highway for at least 15 years. In 1904 the trustees parted with the title to the unsold lots in said tract, which immediately passed to a land company, which has caused the property to be greatly developed and improved, and many lots have been sold upon which many and expensive houses have been erected for use as summer homes. Reference to the evidence which has been certified to this court for a correction of the finding discloses that the court, in finding that many of the public had used the way for purposes of travel to and from the beach, did not use that language to convey the impression that the number of users was a very large one or the volume of travel heavy. One of the defendant's witnesses, who testified that he lived near to the locus during the four or five years following the dedication, estimated that he saw some 50 wagons each season. Another, who said that he had lived in the immediate neighborhood ever since the land was dedicated, but worked elsewhere, estimated that the average number of persons whom be had seen using the way was from 50 to 80 annually.

Robert A. Fosdick, for appellant.

Stanley T. Jennings, for appellee.

PRENTICE, J. (after stating the facts as above). This record presents only one general question which calls for consideration. The remaining questions are subsidiary to it. The plaintiff charges the defendant with having committed a trespass upon a strip of land 50 feet wide and about 200 feet long, extending from a highway to high-water mark of Stamford Harbor. The defendant sets up, in justification of its acts, that the locus was a public highway as the result of its dedication to highway uses by its owner, and the acceptance by the public of it for the purposes for which it was dedicated. It is conceded that, if the land was a highway, the conduct of the defendant which is complained of was within its rights. It is admitted that the land was in 1886 dedicated for public use as a highway, as claimed. The acceptance by the public is denied. The court has found that there was such an acceptance within a reasonable...