Opinion
Nos. FST CV 06 4008309 S, FST CV 06 4010239 S
August 6, 2010
MEMORANDUM OF DECISION
This decision addresses the issues raised in two separate cases, consolidated for trial. In the first case the plaintiffs are Christopher Montanaro and Laurie Ann Deilus and the defendants are Aspetuck Land Trust, Inc. ("Aspetuck") and the Town of Wilton (docket no. CV 06-4008309). In the second, the plaintiffs are the same and the defendant is the Town of Wilton (docket no. CV 06-4010239). Thomas T. Adams, William L. Sachs, and David F. Clune, Trustees of the Elizabeth Raymond Ambler Trust, are intervening plaintiffs in both cases.
Laurie Ann Deilus is the owner and Christopher Montanaro the contract purchaser of a parcel of land of some 9.838 acres in Wilton and shown on a map entitled "Map of Property Prepared for Fred B. Deilus, Wilton, Conn." on file in the Town Clerk's office of the Town of Wilton as Map #1987 (Exhibit M16). The intervening plaintiffs own land two properties north of the Deilus' tract, in size approximately 6 1/2 acres.
Hereinafter, the plaintiffs, Laurie Ann Deilus and Christopher Montanaro, will be referred to as "the plaintiffs," the intervening plaintiffs as the "Ambler Trustees," the parcel owned by Laurie Ann Deilus as the "Deilus" parcel, and that owned by the Ambler Trustees as the "Ambler" parcel. The defendant, Aspetuck Land Trust, Inc., will be referred to as "Aspetuck."
The plaintiffs and the Ambler Trustees argue with the defendants over the status of an old highway they claim abuts their properties and over which they have a legal right of access. Aspetuck, over the last several years, has blocked access to the Old 2 Rod Highway from Wampum Hill Road with a chain. The plaintiffs also claim rights over a wood road leading from the Deilus' parcel across Aspetuck's property to the Old 2 Rod Highway and the public road.
I. The First Case: Montanaro et al. v. Aspetuck Land Trust and the Town of Wilton
In this case the plaintiffs claim: in the First Count, a permanent injunction enjoining Aspetuck from blocking and continuing to interfere with a right of way the plaintiffs claim over Old 2 Rod Highway ("Highway"), or in any way preventing the plaintiffs from using the road for all lawful purposes; in the Second Count, a determination and declaratory judgment that Old 2 Rod Highway is a public highway or road; in the Third Count, an easement by implication for the Deilus property over the Highway on Aspetuck's property and over the wood road shown on Exhibit M16 to Wampum Hill Road; in the Fourth Count an easement by necessity for the Deilus' parcel over Aspetuck's property on the Highway and the wood road to Wampum Hill Road; under the Fifth Count a prescriptive easement for the Deilus' property on the wood road across Aspetuck's property. The Ambler Trustees have alleged substantially the same counts in their intervening complaint, except that they have withdrawn the count claiming a prescriptive easement.
The court finds the following facts. In the 18th century towns in Connecticut often entrusted the ownership, control and distribution of properties located in their towns to a group of citizens called Proprietors (usually the founding fathers of the town). In 1730, the Proprietors of the Town of Norwalk laid out several highways, one of which was the Old 2 Rod Highway, the subject of this case. It is described in a deed as being on the westerly side of the dividing line between the Town of Fairfield (now Weston) and Norwalk (now Wilton). The Proprietors, in the same deed conveyed parcels of land abutting the highway on the West to predecessors in title to the Deilus' and Ambler Trustees' pieces. The court judicially notices that highways in the 1700s were not paved or otherwise constructed to accommodate motor vehicles. The primary method of transportation was walking, or traveling by horse in one form or another. Establishment of a highway has always been by dedication and acceptance by the proper authorities or by the general public. Town of Vernon v. Goff, 107 Conn.App. 552, 557 (2008).
Rods (in width) is 33 feet.
A. The Old 2 Rod Highway — Dedication and Acceptance
It is clear from the Norwalk Proprietors' deed of 1730 (Exhibit G) that it was intended to dedicate the Highway to public use. By creating and placing that deed on record, the very same people accepted the Highway, for they were responsible for controlling and distributing all the land in Norwalk.
But there is also evidence of public acceptance of the Highway. In 1802, Wilton became a Town separate from Norwalk with the approval of the Legislature, and in the same year the Proprietors of the Town of Norwalk conveyed all of the remaining land owned by them in Norwalk to the Town of Norwalk, including the fee title to the Highway. (Exhibit I.) Since the establishment of Wilton took place a few months prior to the 1802 deed of title to Norwalk (so that the Highway was already located in Wilton and not in Norwalk) the court views that deed as intending to convey the fee of the Highway to the Town of Wilton.
Lots on the westerly side of the Highway thus have public use of it and demonstrated such by several conveyances of the lots in the 1700s, referring to the easterly boundaries thereof as the Highway. Some deeds refer to the easterly boundary as the "Town Line" or "Perambulating Line" (interchangeably it seems) but no one has ever claimed title to the 33 feet of the Highway. There is also an easement granted in 1795 by a predecessor of the Deilus parcel to a neighbor to his north providing a right to pass through the Deilus property around a rock outcropping in the Highway, indicating a public use of the Highway at that time.
In the 1800s and beyond, to the present, numerous maps and deeds have been recorded showing the Highway as the easterly boundary of the lots on the Highway, e.g., Map #242 (Exhibit M-2); Map #2094 (Exhibit M-6).
The court further finds that the fee simple title lies with Wilton by virtue of the 1802 deed from the Norwalk Proprietors to the Town of Wilton (herein before described). Records of the Tax Assessor in Wilton show no taxes ever paid on the road. As a public road owned by the Town of Wilton for highway purposes, the general public gained the benefit of use thereof for such purposes. Cornfield Point Association v. Old Saybrook, 91 Conn.App. 539, 555, 882 A.2d 117 (2005). In 1981, the defendant Town of Wilton itself acquired property which was described as being bounded by "the Old 2 Rod Highway." Exhibit UU.
B. Easements
1. The plaintiffs claim an easement by conveyance and necessity over the Highway as the only access they have to the Wilton public highway system. (The Deilus plaintiffs also claim an easement by prescription over a narrow wood road to the south.)
It is clear that when the Proprietors laid out the Highway in 1730 it was done to serve the convenience and necessity of the otherwise landlocked properties conveyed to the abutting owners. The use need not be more general than such as serves the convenience of those persons who have lawful occasion to pass over the road. Kenneson v. City of Bridgeport, 130 Conn. 298, 301, 33 A.2d 313 (1943).
The wood road in question here is partially shown on Wilton Map #242, Exhibit M2 (1932), on Map #1987, property of Fred B. Deilus, Exhibit M16 as a driftway across property now owned by Aspetuck, on Weston Map #1533, Exhibit M7 (1962), Wilton Map #2094, Exhibit M6 (1961), and as an "Existing 6' to 8' ± wide wood road" on a map prepared by B. G. Root, Surveyor, LLC — Westport (Exhibit M15). Fred Deilus acquired the land in 1946, and during the period of his ownership and that of his successors, the wood road was used as an access to his parcel. The fifteen-year requirement has been met, the use has been adverse, continuous and without the permission of the respective owners of the servient estates. Accordingly, the owners of the Deilus parcel, by a preponderance of the evidence, have proven that they have acquired a prescriptive easement eight feet in width, over the wood road across land of Aspetuck from the Deilus parcel to the Old 2 Rod Highway as depicted on plaintiffs' Exhibit M-15, for all lawful and reasonable purposes. There is no evidence that the Ambler property has or ever had an easement over this wood road.
The standard of proof for a prescriptive easement and an easement by necessity and convenience is a preponderance of the evidence. Jackson v. Lee, Superior Court, district of Stamford/Norwalk at Stamford, docket no. 06-5002699 (May 19, 2009, Mintz, J.).
C. Abandonment
The Highway created in 1730 was, as noted above, used by people walking or by use of a horse. The traveled way was no more than it needed to be in physical development. To be abandoned, a road must be shown as not used by the public for a long period of time, together with an intent to abandon it. Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907). The burden of proof of abandonment lies with the party that claims it. "The continuance of the street will be preserved until satisfactory evidence is produced to rebut it." Appeal of St. John's Church, CT Page 16084 83 Conn. 101, 105, 75 A. 88 (1910). The many conveyances of properties abutting the road and the plethora of maps depicting the Highway for more than the last 200 years belies the fact that there has been an intentional abandonment of the Highway. The defendants have failed in their burden of proof that Old 2 Rod Highway has been intentionally abandoned. Nor does the failure of the Town of Wilton to improve the road aid the defendants in their burden. The town's decision not to do so may have considered factors such as the extent of public use, its location, and present need for improvement. The defendants have not proven that the road is not used at all by the public for at least one of the purposes for which it was laid out in 1730 (e.g. walking).
The parties have agreed that the Old 2 Rod Highway has never been statutorily discontinued by the municipality.
D. The Marketable Record Title Act
The defendant Aspetuck uses this statute as a defense to the plaintiffs' and the Ambler Trustees' claims of easements over the Aspetuck property. Conn. Gen. Stat. § 47-33b et seq. However, the record shows that Aspetuck's marketable record title to its property is subject to the prescriptive easement acquired by the Deilus parcel over the wood road shown on plaintiffs' Exhibit 16. Conn. Gen. Stat. § 47-33(d)(3). In addition, the MRTA also does not apply to the wood road or the Highway because of the evidence of their existence as physical facilities. Conn. Gen. Stat. § 47-33h(1).
This section provides that the MIRTA will not extinguish any easement or interest in the nature of an easement including any right for future use if "(1) the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable . . ."
II. The Second Case: Montanaro v. Town of Wilton
In this case the plaintiffs and the Ambler Trustees (by intervention) seek a declaratory judgment against the Town of Wilton determining that the Old 2 Rod Highway is a public highway or road and that the plaintiffs and the Ambler Trustees have the right to use the Highway for access from their respective properties to the town road system. Because of the findings of fact and legal conclusions reached in part I, the court finds that granting the requested judgment is in order.
The court declines the plaintiffs' request to direct a zoning official to issue a zoning permit for the Deilus property, finding that the court lacks primary jurisdiction. Montanaro v. Aspetuck Land Trust, 103 Conn.App. 237, ftn. 2, 928 A.2d 581 (2007).
III. Conclusions and Orders
In accordance with all of the foregoing, the court comes to the following conclusions and enters the following Orders:
1. The Old 2 Rod Highway is a public road which was dedicated and accepted both by the proper authorities and by the general public.
2. The Old 2 Rod Highway is located in, and is owned in fee by, the Town of Wilton.
3. The Old 2 Rod Highway is 33 feet wide and runs from Wampum Hill Road in Wilton, north to its northerly termination, as depicted on "Revised Map of Property of Julia M. W. Gault Weston Wilton, Conn. July 1961" on file in the Town Clerk's office of the Town of Wilton as Map No. 2094. Plaintiffs' Exhibit M-6.
4. As abutting owners the plaintiffs and the Ambler Trustees have a right of continuous access over the Highway to the road system of the Town of Wilton.
5. The plaintiffs and the Ambler Trustees have an easement by convenience and necessity over the Old 2 Rod Highway to Wampum Hill Road in Wilton.
6. The Deilus parcel owns an easement by prescription over the wood road, eight feet in width, from the Deilus parcel to the Old 2 Rod Highway, such wood road shown as "driftway" on Map #1987 (Exhibit M-16) and as "existing 6' to 8' ± wide Wood road" on Exhibit M-15, said easement being for all lawful and reasonable purposes.
7. No access or easement rights of the plaintiffs or the Ambler Trustees have been abandoned.
8. ORDERS:
a. There being no adequate remedy at law, and the equities favoring the plaintiffs and the Ambler Trustees, a permanent injunction is granted against Aspetuck enjoining it from blocking and continuing to interfere with the plaintiffs' and the Ambler Trustees' access to and over the Old 2 Rod Highway or in any way preventing them from using the Highway for all lawful purposes.
b. The court enters a declaratory judgment declaring the Old 2 Rod Highway as hereinabove described to be a public road.
Therefore, judgment shall enter in favor of the plaintiffs and the Ambler Trustees and against Aspetuck and the Town of Wilton according to the Conclusions and Orders set forth above.
So Ordered.