Town of Granby v. Feins
| Decision Date | 23 December 2014 |
| Docket Number | No. 35746.,35746. |
| Citation | 154 Conn.App. 395,105 A.3d 932 |
| Court | Connecticut Court of Appeals |
| Parties | TOWN OF GRANBY v. Fred B. FEINS. |
Michael L. Moscowitz, New Haven, for the appellant (defendant).
Kevin M. Deneen, Windsor, with whom, on the brief, was Donald R. Holtman, Hartford, for the appellee (plaintiff).
DiPENTIMA, C.J., and ALVORD and BEAR, Js.
The defendant, Fred B. Feins, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, the town of Granby, in this action for a declaratory judgment and injunctive relief. On appeal, the defendant claims that the court improperly concluded that certain property conveyed to him in 1994 had been dedicated to public use as a right-of-way to Lee Cemetery.1 We affirm the judgment of the trial court.
The court's memorandum of decision and the record reflect the following facts and procedural history. The defendant and his wife, Barbara A. Healy, reside in Granby in their home located on lot 12 in an approved subdivision known as Harvey Heights. Healy acquired the property by warranty deed in 1992. The legal description of lot 12, which refers to a map on file in the Office of the Town Clerk, provides that the lot is bounded on its southwesterly and westerly sides by a “50 foot right-of-way” to Lee Cemetery. In 1994, Robert H. Schultz, as “Secretary and Director of The Hill Realty Corporation, formerly a Connecticut Corporation,” conveyed the adjacent fifty foot right-of-way to the defendant by quitclaim deed.2 At or around the time of the 1994 conveyance, the defendant obstructed passage over the right-of-way by erecting a fence “to keep people from trespassing” on his property. Sometime in 2000, the defendant removed the fence and placed a large cargo container in the path of the right-of-way. He removed the container in 2007, and then placed a gate across the right-of-way.
The plaintiff commenced the present action on November 7, 2011. In its complaint, the plaintiff alleged that the defendant's fifty foot right-of-way had been dedicated, or its existence confirmed, in June, 1960, as a public right-of-way to an ancient burial ground known as Lee Cemetery. The complaint alleged that, for many years, employees of the plaintiff had accessed the cemetery to maintain the grounds, and that members of the public had accessed the cemetery to commemorate the deceased. The plaintiff further alleged that it was authorized to maintain the cemetery pursuant to General Statutes § 19a–308,3 but that the defendant had barricaded the right-of-way after he acquired fee title in 1994, thereby denying the plaintiff and members of the public access to the cemetery. In its prayer for relief, the plaintiff sought (1) a declaratory judgment that “the [plaintiff] may access the Lee Cemetery over the right-of-way and may maintain the right-of-way for its and the public's purposes,” and (2) the issuance of a permanent injunction “restraining the defendant from obstructing the ... access to the Lee Cemetery over the right-of-way.”
The defendant filed special defenses and a counter-claim. The matter was tried before the court on April 3 and 4, 2013. During the trial, the plaintiff submitted exhibits to demonstrate that the fifty foot right-of-way to the cemetery had been dedicated to public use by The Hill Realty Corporation, the developer of the Harvey Heights subdivision. The plaintiff presented the approved subdivision map, showing the cemetery right-of-way, which had been recorded in the Granby land records in June, 1960.4 The plaintiff also submitted copies of the deeds to purchasers of various lots in the subdivision, which expressly referenced the cemetery right-of-way, in further support of its claim of public dedication.
The plaintiff called several witnesses to testify as to the use made of the cemetery right-of-way from the time of its dedication to the time of trial. Those witnesses included employees of the plaintiff's Public Works Department, the plaintiff's town planner, a member of the American Legion who placed flags on the Revolutionary War graves in the cemetery, a former owner of property abutting the cemetery, and an individual who served as the curator, archivist, and genealogist of the Salmon Brook Historical Society. After the plaintiff rested, the defendant testified and submitted copies of various deeds and maps, along with photographs of the disputed property. Following the completion of the trial, the parties submitted posttrial briefs and reply briefs.
On May 31, 2013, the court issued its memorandum of decision. The court determined that the fifty foot right-of-way to the cemetery, as shown on the 1960 approved subdivision map and as referenced in Healy's deed to lot 12, was a valid and enforceable right-of-way in favor of the general public. The court noted that aerial maps dating from the 1930s showed the existence of the right-of-way as a trail or path or wood road that reached Lee Cemetery. The court further determined that the right-of-way had been accepted by the general public, as evidenced by testimony at trial that town employees and the general public traversed it on their way to the cemetery. The court rejected the defendant's argument that the 1994 conveyance to him of the fee under the right-of-way affected the existence or validity of the cemetery right-of-way. Finally, the court concluded that the defendant was not entitled to block or in any way to interfere with the use of the right-of-way by the plaintiff or the public.
The court rendered judgment in favor of the plaintiff on the complaint and the counterclaim. The court declared the right-of-way to be valid and enforceable in all respects, enjoined the defendant from interfering with or blocking the right-of-way, and ordered the defendant to remove any obstructions that he had placed in the right-of-way. This appeal followed.
The defendant challenges the court's determination that the fifty foot right-of-way, which was the property conveyed to him by quitclaim deed in 1994,5 had been dedicated to public use as a right-of-way to Lee Cemetery. The following legal principles guide our analysis. “A valid dedication requires the presence of two elements: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public.” (Internal quotation marks omitted.) Meder v. Milford, 190 Conn. 72, 74, 458 A.2d 1158 (1983).6
“[T]he first prerequisite [is] satisfied by the filing of [a] subdivision plan with the town plan commission....” Katz v. West Hartford, 191 Conn. 594, 596, 469 A.2d 410 (1983). See also Vernon v. Goff, 107 Conn.App. 552, 557, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008). In the present case, The Hill Realty Corporation, which was the developer of the Harvey Heights subdivision and the predecessor in title to both Healy's lot 12 and the defendant's property, manifested its intent to dedicate the fifty foot right-of-way to public use by filing the subdivision plan with the Granby Town Planning Commission (commission) in June, 1960. It further manifested that intent when it conveyed lot 12 together with “the right, in common with the Grantor and others, to pass and repass over a 50–foot right of way shown on said [subdivision] map as ‘50 [foot] Right of Way To Cemetery’ in the same manner as a public highway is normally used.” That conveyance was made by warranty deed recorded on August 20, 1963, in the Granby land records.7
Although the subdivision plan was approved by the commission on June 3, 1960, “approval of a subdivision plan does not in itself constitute an implied acceptance.” Katz v. West Hartford, supra, 191 Conn. at 597, 469 A.2d 410. We therefore must determine whether the second prerequisite, namely, whether there was “an acceptance by the proper authorities or by the general public,” was satisfied. (Internal quotation marks omitted.) Meder v. Milford, supra, 190 Conn. at 72, 458 A.2d 1158.8 9 (Citations omitted; emphasis added; internal quotation marks omitted.) A & H Corp. v. Bridgeport, 180 Conn. 435, 440–41, 430 A.2d 25 (1980).
In its memorandum of decision, the trial court stated that “[t]here was substantial testimony from town officials and others that this right-of-way was used frequently by the [plaintiff] and others as a public highway.” The court further found that the right-of-way had been accepted by the general public, as evidenced by “the substantial testimony that officials of the [plaintiff] and the general public have traversed the right-of-way on the way to the cemetery....”
The court's factual findings are supported by the record. The following evidence was presented at trial: (1) Carol Laun, the curator, archivist, and genealogist of the Salmon Brook Historical Society, testified that she walked over the disputed right-of-way in the late 1960s and early 1970s when she was working on a project to make a note card for every gravestone in Granby; (2) Laun further testified that over the past thirty years, she has walked over the right-of-way and has directed interested persons to use the right-of-way to access Lee Cemetery; (3) three employees of the plaintiff's Public Works Department testified that they drove over the disputed right-of-way to access Lee Cemetery for maintenance purposes in...
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...who would be naturally expected to enjoy it have done so at their pleasure." (Internal quotation marks omitted.) Granby v. Feins , 154 Conn.App. 395, 404, 105 A.3d 932 (2014).The essence of the plaintiffs' claim on appeal is that their witnesses, Dominic Cocchia and Peter Cocchia, lived at ......
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