Ventres v. Town of Farmington

• Decision Date: 10 April 1984
• Citation: 473 A.2d 1216,192 Conn. 663
• Parties: Fiske H. VENTRES et al. v. TOWN OF FARMINGTON.
• Court: Connecticut Supreme Court

Page 1216

473 A.2d 1216

192 Conn. 663

Fiske H. VENTRES et al. v. TOWN OF FARMINGTON.

Supreme Court of Connecticut.

Argued Feb. 8, 1984.

Decided April 10, 1984.

Fiske H. Ventres, pro se, appellant (named plaintiff).

Justin J. Donnelly, Sr., West Hartford, with whom, on the brief were Jay B. Weintraub and Celia J. Donnelly, West Hartford, for appellee (defendant).

Before PETERS, ARTHUR H. HEALEY, SHEA, GRILLO and BIELUCH, JJ.

GRILLO, Justice.

The plaintiff, Fiske H. Ventres, is a land developer who owns approximately 365 acres of land wholly located in Burlington on Taine Mountain, which mountain lies partly in the towns of Burlington and Farmington. ¹ This property abuts a public highway in Burlington known as Taine Mountain Road. When the plaintiff attempted in 1980 to widen and grade an extension of Taine Mountain Road located in Farmington, to the Burlington town line the defendant, town of Farmington, erected barricades to prevent the plaintiff from continuing these improvements. The plaintiff brought an action seeking injunctive relief and damages. The court held for the defendant, stating that the extension of Taine Mountain Road in Farmington was not a public highway and that the defendant's barricades did not deny him access to his property since he was not entitled to a right of access along the discontinued extension of Taine Mountain Road in Farmington. The plaintiff appeals to this court claiming, inter alia, that the court's conclusions as to the legal status of Taine Mountain Road and the defendant's possessory rights in the discontinued road are clearly erroneous in light of evidence presented at trial.

The following facts form the basis of this appeal: The Ventres property is an irregular tract of land in Burlington, separated from the Farmington-Burlington town line by other property. Taine Mountain Road is a "woods road or mountain trail" connecting River Road, a public highway in Farmington to Punch Brook Road, a public highway in Burlington, a distance of about two miles. This road traverses land in Farmington four rods wide which was reserved by the town "for a highway" when a Farmington town highway committee conveyed a thirty rod strip of land to an abutting owner in 1787. No formal layout of a town road over the reserved land, however, appears in any town records or in map collections dating from the mid-1700's. While lines on various maps presented at trial indicate some sort of passageway, there is no proof that any portion of Taine Mountain Road in Farmington was a public highway until 1947. As houses began to be built along the reserved strip of land, the town graded and maintained a portion of the dirt road from River Road to the town line. In November of 1950, the Farmington town council held a public hearing on the discontinuance of several roads, including a portion of Taine Mountain Road, then described as 960 feet long. Because of objections, no further action was taken at that time to discontinue any portion of the road.

By 1955, new street lines were established, and Taine Mountain Road was paved by the defendant from River Road to a point approximately 100 feet from the town line, where a circular cul-de-sac was established. Only a narrow dirt path extended from the cul-de-sac to the town line; it is this narrow strip of land which is the subject of this action. The plaintiff viewed the road described above and was aware of its condition before he obtained an option to purchase the Page property in 1975.

Prior to exercising his option to purchase the property, the plaintiff began to bulldoze the area in Farmington from the paved road to the town line. He was stopped in his work at the town line in September, 1978 when the defendant dumped gravel and fill across the road. Thereafter, at a meeting on November 29, 1978, the town council voted to call a town meeting on a resolution to discontinue Taine Mountain Road from the cul-de-sac to the town line. At a town meeting held on December 12, 1978, such resolution was passed by a show of hands, and the discontinuance of this 100 foot strip of land was formally approved by the town council on December 26, 1978.

In 1980, the plaintiff proceeded once again to widen the road between the cul-de-sac and the town line from its existing narrow path to a width of about forty-five feet. Farmington residents protested because several trees were destroyed in the process. The plaintiff's explanation of his action was, on the one hand, that he was improving a public highway and, on the other hand, that he thought that the town had discontinued that unpaved portion of the road and that he had the permission of the abutters to grade the area. No abutter's testimony was introduced at trial to support this claim. The town of Farmington then installed concrete barricades across the road at the town line, and the plaintiff brought an action for injunctive relief and damages. The trial court denied the requested relief, holding that the subject road was not a public highway, and, because the plaintiff had access to his land from other public roads, he could not complain of inconvenience or necessity due to lack of access. The plaintiff herein appeals the trial court's decision.

In his first claim of error, the plaintiff disputes the finding of the trial court that the unpaved portion of the road from the cul-de-sac to the town line was not a public highway. The plaintiff argues that a public highway was created by the 1787 deed which reserved to the defendant the four rod strip of land "for a highway." Therefore, dedication and acceptance of the road were not necessary to establish its legal status. We disagree.

"From early times, under the common law, highways have been established in this state by dedication and acceptance by the public." Wamphassuc Pt. Prop. Owners Ass'n v. Public Utilities Commission, 154 Conn. 674, 680, 228 A.2d 513 (1967). The essential elements to be proved are the owner's unequivocal intention to dedicate the way to public use, and a general use by the public over a period long enough to indicate that it is acting on the basis of a claimed public right resulting from the owner's dedication. Lynch v. West Hartford, 167 Conn. 67, 78, 355 A.2d 42 (1974). Since both of these issues are questions of fact; Johnson v. Watertown, 131 Conn. 84, 90, 38 A.2d 1 (1944); our function is limited to determining whether the decision of the trial court was clearly erroneous. Pandolphe's Auto Parts, Inc v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); Practice Book § 3060D.

It is clear that the facts found could not support a conclusion that the disputed unpaved portion of Taine Mountain Road was accepted by the public through actual use. The record shows that only that portion of Taine Mountain Road from River Road to the cul-de-sac became a public highway in 1947. The remaining portion at issue in this case, which extended from the cul-de-sac to the town line, remained a steep, narrow, dirt road which was used occasionally by hikers. The trial court found "no evidence of any use of the way beyond the town line except by hikers, horseback riders, and a few experiments to traverse it by specially equipped motorbike[s] ... From the 1955 cul-de-sac to the town line, the area appears to have remained as its original passway or trail until the town acted to discontinue passage by formal action in December 1978." ² While it is true that actual use need not be constant or by large numbers of the public; Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 282, 429 A.2d 865 (1980) and Phillips v. Stamford, 81 Conn. 408, 414, 71 A. 361 (1908); it can hardly be said that the very slight use made of the "paper road," coupled with the fact that this portion of the passway was not paved or maintained, constituted acceptance by the public. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 282-83, 429 A.2d 865. We cannot find clearly erroneous the trial court's conclusion that the disputed portion of Taine Mountain Road did not become a public highway through public use and acceptance of the roadway.

Since the disputed way was not a public highway at any time since 1787, a public easement in this passage was never created. See Luf v. Southbury, 188 Conn. 336, 449 A.2d 1001 (1982) and Peck v. Smith, 1 Conn. 103 (1814). Had this road been accepted and dedicated as a public highway, the plaintiff would have had the right to enter lawfully upon the land to make repairs or improvements under the authority of local highway officials in the exercise of a right incident to the public easement of passage. See Arborio v. Hartford Electric Light Co., 130 Conn. 592, 597, 36 A.2d 384 (1944). However, since the land has not a...