Town of Stratford v. Fidelity & Cas. Co.

• Decision Date: 11 April 1927
• Citation: 137 A. 13,106 Conn. 34
• Parties: TOWN OF STRATFORD v. FIDELITY & CASUALTY CO.
• Court: Connecticut Supreme Court

137 A. 13

106 Conn. 34

TOWN OF STRATFORD v. FIDELITY & CASUALTY CO.

Supreme Court of Errors of Connecticut.

April 11, 1927

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by the Town of Stratford against the Fidelity & Casualty Company, on a bond given by defendant to insure performance by a third party of a contract. Judgment for defendant, and plaintiff appeals. No error.

Raymond E. Baldwin and Clifton F. Weidlich, both of Bridgeport, for appellant.

Dennis W. Coleman and Hector P. Auray, both of Waterbury, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

MALTBIE, J.

The plaintiff brings this action to recover upon a certain bond in which it is named as obligee, and which purports to be executed by the Bridgeport-Pacific Land Company as principal and by the defendant as surety. This bond is dated May 28 1917, and recites that the principal had agreed with the plaintiff that it would, on or before May 28 1918, at its own expense, and without cost to the town, put certain streets and highways situated in the town, described in the agreement and in a map attached to it, into a condition satisfactory to the selectmen of the town as to grade, layout, location, width, and improvement; and the condition of the bond was that the land company would perform its obligations under this agreement.

The bond was the outgrowth of a certain land development in the plaintiff town; a tract having been plotted into building lots, with the necessary streets to afford access to them. Learning of this, one Lally, then first selectman of the town, objected to the sale of any of the lots until the streets had been built. As a result, a writing was drawn up covering the construction of a certain street in the tract, known as Rockland avenue, the owner of the tract promising that, for a distance of 1,200 feet, the street would be constructed 32 feet wide from gutter to gutter and have a gravel surface 16 feet wide and 4 inches deep. The bond in suit was designed to insure the performance of this undertaking.

At the time the bond was given, the streets plotted in the tract were not highways. However much the owner might have desired to make them such, nothing done by him could bring that about, in the absence of acceptance by the general public or action by the proper authorities. Riley v. Hammel, 38 Conn. 574, 576. The trial court has found that Rockland avenue has never become a highway, but the plaintiff seeks to correct this finding. It claims that Rockland avenue has become a public highway by dedication. Acceptance of a street so as to make it a public highway by this process requires a finding of facts (Phillips v. Stamford, 81 Conn. 408, 411, 71 A. 361, 22 L.R.A. [N. S.] 1114), and the court has not made that finding. The only evidence bearing upon the matter is that of one witness, who, in answer to a question whether Rockland avenue had been opened as a street or used by the public, replied that it had been, and then went on to testify more in detail that at one end it connected only with proposed streets not existing in fact, that there were about a dozen houses upon it, and that traffic upon it was such as went to serve the residents of these houses, for hauling provisions and coal, and for their general traffic. The situation so disclosed falls far short of being one which would point to the conclusion of an acceptance of the street by the general public as the only reasonable one, and so permit us to add it to the finding.

The plaintiff also claims that Rockland avenue has become an accepted highway by virtue of the acts of the selectmen in connection with the taking of the bond. It points particularly to a provision of a special charter granted to the town in 1913, and amended in 1917, which gives to its board of selectmen many of the powers ordinarily exercised by city councils, and, among others, the power to provide for the laying out, establishing, grading, and making of highways and streets, and for repairing and keeping them open and safe for public use and travel, and also the power to prescribe the width of all highways, streets, sidewalks, and gutters. Special Laws of 1913, p. 916; Sp. Laws 1917, p. 1217. We have no need now to inquire into the scope of these sweeping provisions. The creation of a highway affects too many rights, individual and public, and imposes upon the town too heavy a responsibility for maintenance and too great a liability for injuries due to defective conditions, to permit it to be done by the board without formal action duly recorded. Ray v. Huntington, 81 W.Va. 607, 95 S.E 23, L.R.A. 1918D, 931; Dey v. Jersey City, 19 N.J. Eq. 412, 416. If all the corrections of the finding sought by the plaintiff which have any substantial basis in the evidence were made, the most that could be claimed upon the record would be that the agreement was made and the bond was given, both papers being filed away in a locker in which the selectmen stored papers of value, that a map showing the street plotted in the tract, was presented to Lally and by...