Ruggiero v. Town of East Hartford

• Decision Date: 05 June 1984
• Docket Number: No. 2371,2371
• Citation: 477 A.2d 668,2 Conn.App. 89
• Parties: Joseph R. RUGGIERO v. TOWN OF EAST HARTFORD et al.
• Court: Connecticut Court of Appeals

Page 668

477 A.2d 668

2 Conn.App. 89

Joseph R. RUGGIERO v. TOWN OF EAST HARTFORD et al.

No. 2371.

Appellate Court of Connecticut.

Argued April 4, 1984.

Decided June 5, 1984.

William A. Leone, East Hartford, for appellant-appellee (plaintiff).

George F. Murray, Hartford, for appellee-appellant (defendant Charles Burke).

David A. Zipfel, East Hartford, for the appellee on appeal and on the cross appeal (named defendant).

Before TESTO, HULL and BORDEN, JJ.

HULL, Judge.

The plaintiff instituted this action to quiet title to certain real estate allegedly acquired by him through adverse possession as against the defendants, the town of East Hartford and Charles Burke, an adjoining property owner. The defendant Burke filed a counterclaim also asserting an interest in the subject property. The court found that the plaintiff failed to sustain his burden of proof as to his claim of title by adverse possession. The court found that the town of East Hartford had a public easement over the property in question and rendered judgment for the town, but held that upon abandonment ¹ by the town of that right, the land will revert one half to the plaintiff and one hald to the defendant Burke as owners of the property abutting the property in question.

On appeal, ² the plaintiff claims (1) that the court erred in finding that there was a public easement; (2) that the court erred in finding that the plaintiff had failed to establish title to the property by adverse possession; and (3) that certain factual findings of the trial court were clearly erroneous. The defendant Burke claims on cross appeal that the court erred in finding that the property had been dedicated to and accepted by the town of East Hartford, and therefore, in finding that the town had a public easement.

The property in question is a 40 foot wide by 120 foot long unpaved, unimproved portion of a street known as Johnson Street in East Hartford. Johnson Street is an L-shaped street. It is only the base portion of the L-shaped street which is the subject of this action. (See map.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On August 30, 1918, O.J. Signor filed a land map in the land records of East Hartford. The map delineated a division of lots and a street layout of a parcel of land located between Burnside Avenue and Tolland Street. The street layout included Johnson Street as running lengthwise parallel to Tolland Street with the base of the "L" intersecting Tolland Street. Title to Johnson Street was never deeded to the town of East Hartford. The base of Johnson Street, which is in issue here, has never been paved, cared for or improved by the town and the town never formally adopted or accepted that portion of Johnson Street as a public street. The subject property is abutted on the west side by land known as 97 Tolland Street (Lot A), presently owned by the plaintiff. The defendant Burke is the owner of the property at 99 Tolland Street (Lot B) which abuts the east side of the subject property.

The trial court conducted extensive fact finding, as evidenced in its memorandum of decision, concerning ownership and use of the base portion of Johnson Street and the abutting properties. The Ruggiero property (Lot A) is utilized primarily as a used car dealership and auto body shop. The Burke property (Lot B) is used for an office and a residence. In 1955, the plaintiff's father, Joseph Ruggiero, Sr., purchased Lot A with his partners and they conducted a used car business thereon. During this time, the plaintiff's father and his partners freely used a portion of the base of Johnson Street as part of the used car lot. At that time, the then owner of Lot B used a portion of the subject property as an access route from the long portion of Johnson Street to Tolland Street. Eventually, the plaintiff's father became the sole owner of Lot A. That property continued to be used as a used car lot and cars were continuously parked on a portion of the base of Johnson Street. At the same time, however, a portion of the base of Johnson Street was continually used as a driveway or access route by the adjoining land owners.

In 1960, Burke's predecessor in title, Joseph Gadoury, and the plaintiff's father attempted to get the town to abandon its rights concerning the base of Johnson Street. After this attempt failed, these two parties entered into an informal agreement regarding use of the street. The trial court found that it was their intention to split the property evenly, although in actuality, it may not have been evenly divided. The court further found that Gadoury used twenty-five percent of the property, but he also considered that each party had the use of one half of the property; that, in any event, each party occasionally used the other party's one half portion of the property; and that neither claimed title to the property.

In 1972, the plaintiff's father deeded the property to the plaintiff through a straw man. In 1974, another of Burke's predecessors in ownership, Paul Rancourt, erected a fence on the property line between the Burke property and the base of Johnson Street. The trial court found that, from the time the fence was erected in 1974, "there is no doubt that Mr. Ruggiero was making a claim openly and adversely to the entire disputed parcel." Burke purchased Lot B sometime after 1974.

I

The plaintiff claims that the court erred in rendering judgment in favor of the town of East Hartford on the basis of its finding a public easement.

Title to realty held by a municipality for a public use cannot be acquired by adverse possession. See Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 276, 429 A.2d 865 (1980); Goldman v. Quadrato, 142 Conn. 398, 402-403, 114 A.2d 687 (1955). We must first address the issue of whether there existed a public easement over the subject property. In order to establish the existence of a public easement, there must be a dedication of the land by the owner of it and an acceptance of the dedicated land by the town or by the general public. A & H Corporation v. Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980). A dedication is an appropriation of land to some public use made by the owner of the property. Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241 (1958). The court, in this case, found that there was an implied dedication of Johnson Street to the town of East Hartford by virtue of the references to Johnson Street in the deeds of the subdivision created by the original grantor, O.J. Signor, and due to the fact that Signor filed with the clerk a map which included Johnson Street. The fact that a subdivision map was filed with the town does not in itself constitute an implied acceptance of the street by the town. Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 280, 429 A.2d 865.

Whether there has been a dedication and whether there has been an acceptance are questions of fact. Meshberg v. Bridgeport City Trust Co., supra, 279, 429 A.2d 865, DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959). An acceptance may be express, pursuant to formal proceedings, or implied. Meder v. Milford, 190 Conn. 72, 75, 458 A.2d 1158 (1983); A & H Corporation v. Bridgeport, supra. A valid acceptance of a dedication can only be made by the town or the proper municipal authorities or by the general public. Meder v. Milford, supra, 74, 458 A.2d 1158; Meshberg v. Bridgeport City Trust Co., supra. An implied acceptance by a town or municipal officials may be established where, for example, the town grades and paves the street, maintains and improves it, plows it, or installs drains, sewers, lighting, curbs, or sidewalks on it. Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 283, 429 A.2d 865. There is no evidence in this case establishing that the town of East Hartford exercised control over the subject property in any way. The facts, therefore, do not support a finding of a valid acceptance by town authorities.

In order to find an acceptance by the general public through actual use, "[t]he use to which the public puts the subject property must continue over a significant period of time ... and be of such a character as to justify a conclusion that the way is 'of common convenience and necessity.' " Id., 282, 429 A.2d 865. The actual use, however, "need not necessarily be constant or by large numbers of the public...." Id.

The trial court found, as a matter of fact, that "many people would walk through [the base of] Johnson Street to get to Burnside Avenue and vice versa." The court further found that, in addition to pedestrian traffic, there was use by motorcyclists and bicyclists and by persons who parked their cars on the disputed portion. These findings were based upon public use of the disputed parcel from at least 1959 to 1972. This is not an insignificant period of time. On the basis of these factual findings of use by the general public, we cannot say that the court's conclusion that there was a public easement over the base of Johnson Street was clearly erroneous. See Practice Book § 3063; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

II

Because we conclude that the trial court's conclusion that there was a public easement was not clearly erroneous, the plaintiff may not properly assert a claim to title to the subject property by adverse possession. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 276, 429 A.2d 865; Goldman v. Quadrato, supra. In any event, this claim, in the absence of finding a public easement, would fail. The plaintiff claims on appeal that certain factual findings by the trial court, which led to its conclusion that the plaintiff failed to meet his burden of proof on the issue of adverse possession, were clearly erroneous. The trial court stated that "[i]n order to prevail [on the issue of adverse possession] it is incumbent upon the plaintiff to prove his...