Tracey v. Miami Beach Assn.

Decision Date08 November 2022
Docket NumberAC 43965
CourtAppellate Court of Connecticut

Argued January 14, 2021

Procedural History

Action for, inter alia, an injunction requiring the defendant to remove a fence along the border of certain waterfront property, and for other relief, brought to the Superior Court in the judicial district of New London and tried to the court, Knox, J.; judgment for the plaintiffs, from which the defendant appealed to this court; thereafter, the court, Knox, J., granted in part the defendant's motion to stay the judgment. Affirmed.

Daniel J. Krisch, with whom, on the brief, was Kenneth R. Slater Jr., for the appellant (defendant).

William E. McCoy, for the appellees (plaintiffs).

Elgo Moll and Cradle, Js.



This case involves an action to enforce a judgment that memorialized the rights of the general public to freely access and use a parcel of waterfront property in Old Lyme. Following a bench trial, the trial court concluded that the prior judgment in question precluded the defendant, Miami Beach Association, from restricting public access and use of that property. On appeal, the defendant challenges the propriety of that determination. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. At all relevant times, the plaintiffs, Kathleen Tracy,[1] Robert Breen, Jerry Vowles, and Dee Vowles, resided in an area of Old Lyme known as Sound View, a neighborhood that is adjacent to the property in question. The defendant is a municipal corporation created by special act of the General Assembly in 1949.[2]This appeal concerns the ability of the defendant to restrict public access and use of a parcel of waterfront property owned by the defendant and known as Miami Beach.[3]

Miami Beach originally was owned by Harry J. Hilliard, who conveyed the property to a devisee through his will. Title thereafter changed hands between private individuals several times until the defendant acquired the property via quitclaim deed on July 12, 1951.

The present action concerns prior litigation that transpired soon after the defendant acquired the property. In November, 1951, the defendant constructed a six foot high iron fence that precluded access to Miami Beach. In response, twenty-six owners of property in the adjacent Sound View neighborhood brought an injunctive action (1952 action), alleging violations of their right to freely access and use Miami Beach.[4]

In the introductory paragraph of their complaint, the plaintiffs specifically alleged that, in bringing that injunction action, they were "also acting as members of the general public . . . ." In the first count of their complaint, the plaintiffs alleged that Hilliard "on or about 1900 laid out [Miami Beach] as an 'open way for foot passengers and bicycles only'" and had, "by deed to purchasers of property . . . abutting [Miami Beach], expressly covenanted for himself, his heirs and assigns, that [Miami Beach] would remain an open way for the use of the public . . . ." The plaintiffs further alleged that Hilliard, "by laying out [Miami Beach] on various maps, through his deeds . . . and by his actions, conduct and speech over a period of approximately fifty years, intended and designated [Miami Beach] as an open way for public use." The plaintiffs thus claimed that the erection of the iron fence wrongfully interfered with the rights memorialized in the respective deeds to their properties.

In count two, the plaintiffs claimed a prescriptive right to use Miami Beach "as an open way and as a beach." In the third and final count, the plaintiffs alleged that Hilliard, "[b]y various deeds subsequent to 1892 . . . reserved [Miami Beach] as an open public way for foot passengers and bicycles," that Hilliard had dedicated Miami Beach "to the public," and that "the plaintiffs and other members of the general public accepted the same as a public way and beach and never abandoned it as such." The plaintiffs further alleged that, by erecting the iron fence, the defendant interfered with their rights as "members of the general public to [the] free and unimpeded use of [Miami Beach and] have prevented their free use and enjoyment thereof . . . ."

As the defendant acknowledged in its posttrial brief in the present case, "[i]t is not clear from the file as to whether trial commenced, but the file does reflect that exhibits were presented to the court," and, on February 18, 1953, the court rendered judgment in favor of the plaintiffs on counts one and three (1953 judgment).[5]Vitetto v. Corsino, Superior Court, judicial district of New London, Docket No. 20902 (February 18, 1953) (Troland, J.). The court issued a written ruling in which it specifically found that, "prior to the year 1941, [Hilliard] dedicated for public use the strip of land known as [Miami Beach, and] . . . this dedication for such use by [Hilliard] was accepted by the unorganized public and has been continuously used and enjoyed by the public down to the date of the beginning of this action."[6]By way of relief, the court ordered in relevant part: "[T]he [defendant is] . . . hereby enjoined . . . from maintaining and establishing after [May 29] 1953, a steel and wire fence across said [Miami Beach] from the intersection of [Miami Beach] with the west line of Hartford Avenue in [Old Lyme]; and it is further adjudged that the [defendant] and [its] servants and agents . . . are hereby ordered ... to remove from [Miami Beach] the said steel and wire fence which they have erected . . . and it is further adjudged that the [defendant] and [its] servants and agents be, and they are hereby enjoined . . . from interfering with the rights of the plaintiffs and the unorganized public to free entry and egress, and to free and unimpeded use and enjoyment of [Miami Beach] along its entire length and width, from now henceforth . . . ."[7]

It is undisputed that, in the decades following the 1953 judgment, public use of Miami Beach continued without impediment.[8] More than one-half century later, following complaints regarding litter and other inappropriate behavior by beachgoers, the defendant instituted what it termed a "Clean Beach Program" in the fall of 2017. That program involved the erection of a fence with an entrance gate, the monitoring of the gate by security personnel, and the creation of a fee structure and permit program to access and use Miami Beach.

Residents of Old Lyme were permitted to enter and use the beach at no cost, provided they furnished proof of residency. Residents also were permitted to bring nonresident guests to the beach, so long as they purchased a guest pass from the defendant. Nonresident members of the public were obligated to pay a fee to enter and use Miami Beach.

In 2018, the plaintiffs[9] commenced the present action to enforce the 1953 judgment. In the sole count of their complaint, the plaintiffs alleged that the defendant illegally interfered with the public's right to freely access and use Miami Beach "in direct violation" of the 1953 judgment.[10] In so doing, they specifically alleged that the court, in rendering the 1953 judgment, "found that [Miami Beach] ... is dedicated for public use." They thus sought declaratory and injunctive relief, including an order mandating "the removal of the fence blocking public access to Miami Beach," an order "enjoining the defendant from charging fees and issuing permits for use of Miami Beach," and a declaration that "the [defendant's] actions preventing the plaintiffs' use of Miami Beach . . . are in violation of previous court orders."[11]In its answer, the defendant admitted that the 1953 judgment "was entered" but averred that it "cannot admit or deny the [plaintiffs'] characterization of the judgment in that it speaks for itself." The defendant also summarily denied the allegations of paragraph 10 of the complaint.[12] It did not assert any special defenses or counterclaim.

In his opening remarks at trial, the plaintiffs' counsel explained that the plaintiffs brought the present action to compel the defendant to "abide by the rulings of [the Superior Court] in 1953 to enforce the free and unimpeded right of the public to use Miami Beach." On cross-examination, the following colloquy occurred between Tracy and the defendant's counsel:

"[The Defendant's Counsel]: You want [Miami Beach] to be a public beach, correct?
"[Tracy]: I don't want it to be anything. I want the public to have access to that beach; that's what I want.
"[The Defendant's Counsel]: All right. And they do have access, don't they?
"[Tracy]: No. I don't think they have free, unencumbered access; no, I do not believe that they have that."

The defendant's counsel asked Tracy to "describe what rights" the 1953 judgment conferred on the public with respect to Miami Beach; Tracy responded that the 1953 judgment memorialized "the right to unimpeded access-free, unimpeded access to the unorganized public." Tracy also testified that she "read the [1953 judgment as mandating] that there should be no impediment to the public to use" Miami Beach and opined that "access to [Miami Beach] means you have access to the sand, not just to the water."

Breen whose family had owned property in Sound View since 1895, was born the year after the 1953 judgment issued. In his testimony, Breen indicated that, with respect to the public's right to use the beach, he never understood it to be limited to "walking purposes only" and testified that the gate and fence erected by the defendant as part of the Clean Beach Program "denies me free and unimpeded access to [Miami Beach] that I had enjoyed the right to use whenever I pleased for most of my life." Breen thus...

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