Opinion
LLICV176016109S
02-26-2019
William B. HALL, Jr. et al. v. Ralph C. MORSE et al.
UNPUBLISHED OPINION
OPINION
Pickard, J., Judge Trial Referee
The plaintiffs, William Blakeslee Hall, Jr. and Mary Hainline Hall ("the plaintiffs"), have brought this quiet title action asserting that General Statutes § 13a-55 gives them the right to use a disputed roadway ("the disputed roadway") for access to and from their property in the Town of New Hartford. The defendants are Ralph Carl Morse and Judith Morse ("the Morse defendants"), Carlotta S. Creevey ("Creevey"), and the Town of New Hartford ("the Town"). This case was tried to the court on November 28, 2018 and December 12, 2018. The parties filed post-trial briefs, the last of which was filed on December 31, 2018.
The relevant language of General Statutes § 13a-55 is: "Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right of way for all purposes for which a pubic highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway ..."
Facts and Discussion
Since 1972, the plaintiffs have owned three adjoining parcels of land in New Hartford, one of which is known as the Lovell piece-Cady Lot ("Cady Lot"). The Cady Lot encompasses about 45 acres and is bounded on the east by an unimproved roadway which undergoes a name change from Cady Road to Stoney Hill Road (jointly referred to as Cady Road/Stoney Hill Road) at a point where it is intersected by the disputed roadway. The disputed roadway begins at a T intersection on the easterly side of Cady Road/Stoney Hill Road and runs in an easterly direction for a short distance (roughly 314 feet) until it intersects Beeney Road, a paved highway of the Town. There is no evidence that the disputed roadway has ever had a name.
The Morse defendants own property lying east of Cady Road/Stoney Hill Road and north of the disputed highway, and Creevey owns property lying east of Cady Road/Stoney Hill Road and south of the disputed highway.
The first issue is whether the plaintiffs have proven that Cady Road/Stoney Hill Road and the unimproved roadway were, at one time, municipal roads within the New Hartford public road system. I find that the plaintiff has proven this fact by a fair preponderance of the evidence. This finding is based in large part on the testimony of Elton Harvey, an experienced title attorney who testified as an expert witness for the Morse defendants. The court found the credibility of Attorney Harvey to be very high. On this issue and the next issue his testimony cuts against the position of the parties who engaged him. This adds to his credibility. Although there is no evidence of an express grant to the Town or acceptance by the Town, Attorney Harvey referred to convincing evidence that there was an implied dedication by the abutting owners and implied acceptance by the general public. Cady Road/Stoney Hill Road and the unimproved roadway were roads referred to in deeds and maps prior to 1967. Particularly convincing is the Beers Atlas map of 1874 which clearly shows all three roads within the system of public highways.
The next issue is whether the Morse defendants have proven their special defense that the disputed roadway was abandoned prior to the enactment of General Statutes § 13a-55 in 1959. They have not done so by a fair preponderance of the evidence. Although it is true that the Town did not list Cady Road/Stoney Hill Road or the disputed roadway as part of the town highway system from at least 1952, this evidence is insufficient to show that there had been nonuse amounting to abandonment. Abandonment requires unuse by the public over a long period of time together with an intent to abandon the road as a public highway. The party trying to show abandonment has the burden of proof. Appeal of St. John’s Church, 83 Conn. 101, 105 (1910). Attorney Harvey’s testimony was very helpful to the court in deciding that the Morse defendants have not met their burden of proof on this issue.
The next issue is whether Cady Road/Stoney Hill Road and the disputed roadway were discontinued by a Town meeting in 1967. Despite the unorthodox method employed by the Town, there is no doubt that this discontinuance took place. None of the parties seriously disputes this fact.
The next issue involves the defendants’ argument that the plaintiffs do not need access over the disputed roadway because they have other means of access. The plaintiffs’ property bounds on Cady Road/Stoney Hill Road for several hundred feet. Clearly at the time of their purchase in 1972, § 13a-55 gave the plaintiffs the right to use these roads as access to two different parts of Brunning Road, a paved Town road. The plaintiffs have voluntarily given up these avenues of access by virtue of transactions since 1972. However, as part of one of those transactions, the plaintiffs have retained a right to use a portion of Cady Road and a newly-created easement to a gain access to Beeney Road, a paved Town Road. The Morse defendants argue that a strict construction of § 13a-55 would prevent the plaintiffs from obtaining rights under § 13a-55. There is dicta in the case of Ventres v. Farmington, 192 Conn. 663, 670 (1984), which could be read to support this position. However, I agree with the position of the authors of the highly influential article "The Highway and the Right of Way" written by Ellen Sostman and Jonathan Anderson and printed at 61 Conn. Bar J. 299, 319-20 (1987), that the language "and still has access to the public road system" is surplusage. I agree with the plaintiffs that § 13a-55 does not provide any exception to land owners who have other means of access to their properties. See, Snow v. Krulick, 10 Conn. L. Trib. No. 6 (184) at 13. A land owner may take advantage of the rights provided by § 13a-55 even if he has other means of access to his property.
The Supreme Court concluded its decision with this statement: "Since the plaintiff in this case does not own property abutting on the discontinued way and still has access to the public road system, his claim under Section 13a-55 was properly denied."
This leaves the central issue of the case: does the plaintiffs’ property bound on the disputed roadway so that the plaintiffs may take advantage of General Statutes § 13a-55? The plaintiffs argue that their property bounds on the disputed roadway because it bounds on the intersection of the three highways and, therefore, bounds on all three. The defendants argue that the plaintiffs’ property bounds on Cady Road/Stoney Hill Road but lies across both of them from the intersection of the disputed highway.
In support their argument, that plaintiffs refer to a definition of "intersection" contained within the motor vehicle statutes entitled "Vehicle Highway Use," Chapter 248. General Statutes § 14-212(4) states:" ‘Intersection’ means the area embraced within the prolongation of the lateral curb lines of two or more highways which join one another at an angle, whether or not one of the highways crosses the other." Prior to the enactment of this statute, the Supreme Court had construed the words "such intersection" to mean "all the space included within the lines of both highways where any highway joins another at an angle, if it crosses the other; or if one highway joins, but does not cross the other, all the space that would be included within the lines of both extended to cross the other." Rhode v. Nock, 101 Conn. 439, 443 (1924).
Using these definitions, the plaintiffs argue in their brief: "Applying the intersection analysis to the present case makes it apparent that by virtue of extending the curb lines of Cady/Stoney Hill Road, and the disputed roadway the disputed roadway crosses over Cady/Stoney Hill Road, and runs into and abuts the plaintiffs’ Lovell piece-Cady lot."
This creative argument misses the mark, however. § 13a-55 never uses the word "intersection." It uses the words "bounding a discontinued or abandoned highway." The legislature could have said "bounding a discontinued or abandoned highway and all intersections with that highway" or similar language. But, it did not. The statute further provides that the property owner shall have a right of way "over such discontinued or abandoned highway to the nearest or most accessible highway." The legislature could have said "over such discontinued or abandoned highway and any intersecting highways" or similar language, but did not. The court is required to interpret the words actually used in the statute. "[General Statutes] § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes." Kackman v. McSnulty, 324 Conn. 277, 286 (2017). I conclude that the text of § 13a-55 is clear and has no relationship to § 14-212(4), a definitional section within those statutes designed to regulate the operation of motor vehicles.
Instead of the word "intersection," the court must determine the meaning of the word "bounding" as used in § 13a-55. Although the court has been unable to find a useful dictionary definition of the word "bounding," it is clear that it is related to the noun "boundary." "Boundary" means "a natural or artificial separation that delineates the confines of real property." Black’s Law Dictionary (10th Ed. 2014). The Supreme Court has used the word "abutting" as a synonym for "bounding." "General Statutes § 13a-55 provides a right-of-way over an abandoned roadway for owners of property abutting the abandoned road." Double I Ltd. Partnership v. Planning and Zoning Com’n of Town of Glastonbury, 218 Conn. 65, 71 (1991). The verb "abut" means "to join at a border or boundary; to share a common boundary with." Black’s Law Dictionary (10th Ed. 2014). See also, Town of Newington v. Lesinski, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0276812S (May 31, 1984).
Applying these definitions, the plaintiffs abut Cady Road/Stoney Brook Road on the west and the Morse defendants and Creevey abut it on the east. The Morse defendants abut the disputed roadway on the north, and Creevey abuts the disputed roadway on the south. In no way can it be said that the plaintiffs abut the disputed roadway because the Cady Lot does not share a common boundary with the disputed roadway. For this reason, the court cannot grant the relief requested by the plaintiffs. Judgment shall enter for all defendants.