Opinion
AANCV126011591S
06-21-2016
Christopher Houk Nichols et al. v. The Town of Oxford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barry K. Stevens, J.
STATEMENT OF THE CASE
The six plaintiffs in this action, Christopher Houk Nichols, Frank Samuelson, Robert Samuelson, Larissa Nichols, Richard Barlow, and Judy Barlow, all own or reside on properties which are located on or near Old Good Hill Road, Oxford, Connecticut. In October 2012, the plaintiffs instituted this action against the named defendant, the Town of Oxford, under General Statutes § 13a-103. The plaintiffs allege that Old Good Hill Road is a town highway and as a public road the town has the responsibility to maintain and repair it. According to the complaint, despite this responsibility, the town has failed to maintain the southerly portion of the roadway and has allowed it to fall into disrepair. As described further below, the plaintiffs seek an order from the court directing the town to repair and maintain a section of this road. In response, the town claims that the sections of Old Good Hill Road at issue have never been utilized as a public road, and to the extent that there was ever any such use, the road has been long abandoned. The other defendants in this action own properties on Old Good Hill Road. Based on the provisions of General Statutes § 13a-103, the court either directed or authorized these property owners to be made parties in this action because their interests may be affected by the disposition of the plaintiffs' complaint.
General Statutes § 13a-103 provides the following in part: " Whenever any town fails to keep any highway within such town in good and sufficient repair or whenever the selectmen of any town fail to remove or cause to be removed any encroachments upon any highway in such town or to make such alterations or improvements therein as may be required by common convenience or necessity, the superior court for the judicial district in which such highway is located, upon the written complaint of six or more citizens of this state under oath, after due inquiry made by it, shall appoint a time and place when and where all persons interested may appear and be heard upon the propriety of such repairs, or of the removal of such encroachments, or of the making of such alterations and improvements . . . If the court finds that such highway should be repaired or that such encroachments should be removed or that such alterations and improvements should be made, it shall order the selectmen of such town to cause such highway to be repaired and such encroachments to be removed and such alterations and improvements to be made, and shall prescribe the manner and extent of such repairs and of the removal of such encroachments and of the making of such alterations and improvements and the time within which the work shall be done, and may, for reasonable cause, extend such time. The court shall assess the benefits resulting from such repairs or removal of encroachments or such alterations and improvements against any of the parties to be benefited, including such town. Such benefits as to such parties other than such town may be collected in the same manner as town taxes are collected."
These other defendants are John Lucas, James Brewster, Robert Brewster, Kristine Fierrro, Diane Talbot, Laura Farkas, Linda Czaplinski, Robert Danieliki, Elena Sadd, and Lenore Nolan. The only individual defendant who actively participated in the trial proceedings was John Lucas. Any future references to the " defendants" in this memorandum of decision refer to the defendants Town of Oxford and John Lucas.
In a ruling issued on March 2, 2015, the court granted the plaintiffs' motion to bifurcate this case so that the first issue to be tried would be whether the southerly, unimproved portion of Old Good Hill Road is a town or public road. If this question were answered affirmatively, the court would then hear evidence on what repairs should be made. A bench trial was held in this case on September 25, 29, 30, and October 1, 2015. The parties filed post-trial briefs, the last one being the plaintiffs' reply brief which was filed on March 7, 2016. The court heard final oral arguments on June 14, 2016.
As explained below, the court finds that the plaintiffs have not proven by a fair preponderance of the evidence that the disputed portion of Old Good Hill Road is a public road established by common-law dedication. Alternatively, the court finds that the defendants have proven by a fair preponderance of the evidence that to the extent that the entirety of Old Good Hill Road was ever used as a public road, this use has long ceased and been abandoned.
DISCUSSION
I
A
Old Good Hill Road is a long, winding road in Oxford, Connecticut, intersecting Good Hill Road to the north and Freeman Road to the south. Old Good Hill Road can be described as consisting of four sections. Section one intersects with Good Hill Road. Section one is paved and is maintained by the town. Section one is not specifically at issue in this case because there is no dispute that it is accepted and maintained by the town. The next part of the road, Section two, is an unpaved, unimproved dirt road. Nichols' property is located near the end of Section two. Section two is passable either by foot or a four-wheel drive vehicle. Section two is not maintained by the town. Section three starts just beyond Nichols' home, and extends down a long, steep hill. While there are some path ways, there is no clearly visible, vehicular roadway in this area. Section three is part of a mountainous area and is steep, rutted and rugged. It is passable only by foot. Section three is not maintained by the town. Section three ends at a paved area near the bottom of the hill. This paved area is part of the driveway of 110 Freeman Road. This property is owned by defendant Lucas. This paved area ends on Freeman Road. During the trial, this paved, driveway area was referred to as Section four of Old Good Hill Road. Sections two and three are referred to as the unimproved sections of the road. With the parties' consent and participation, the court inspected the full length of Old Good Hill Road on November 9, 2015, driving over Sections one and two, and walking over Sections three and four.
The primary areas at issue in this case are Sections two and three. The town does not maintain these areas and the plaintiffs contend that the town is required to do so. Section four, Lucas' driveway, is implicated in this dispute because the plaintiffs' claims regarding Sections two and three are premised on their argument that Old Good Hill Road in its entirety has been historically dedicated and accepted as a public road.
In support of their claims, the plaintiffs provided the testimony of five witnesses: Christopher Nichols, Lacinda Lane, Linda Czaplinski, Suzanne Neuman, and Richard Deluca. In 2011, Nichols purchased 108 Old Good Hill Road, consisting of two adjoining parcels. A single-family home is on one parcel, and the other parcel is unimproved land. As with other property owners, Old Good Hill Road is the only way to access his home. His house is the only building on Section two of the road. After purchasing the property, Nichols brought in an excavator to smooth the road and to lay processed stone for a base, but he received a cease and desist order from the then town's zoning enforcement official, Anna Rycenga. This order indicated that his excavation work was without permits and in violation of town zoning regulations. Additionally, the order stated that " consent from the Board of Selectmen of the Town of Oxford is required to perform any activity and improvements on town property." Ex. 45. Nichols indicated that town improvements of Old Good Hill Road would make access to his property more convenient.
Lacinda Lane testified that she and her husband were the previous owners of 108 Old Good Hill Road and sold this property to Nichols. She and her husband completed the construction of the house on this property in or about 1989. Lane testified that when the house was constructed, Section three of the Old Good Hill Road was passable and they used it to bring supplies for the construction from Freeman Road. She stated that during the construction, the town graded the bottom of the hill near Freeman Road so windows could be delivered. During the construction, Lucas' uncle parked a truck in the driveway area of the road (Section four) to prevent their use of the road. Lane also stated that after the construction, she had conversations with town officials about making the road passable but nothing was done. In or about 1988, a storm flooded Section three and washed the road out. After this flood, Section three could not be traversed by motor vehicles. Lane did not testify that she observed or was aware of any use of Sections two or three by the general public.
Linda Czaplinski testified that she owns two lots on Old Good Hill Road: lot 12, consisting of about 80 acres; and lot 23, consisting of about 10.5 acres. These lots are divided by Section three of Old Good Hill Road and they consist of raw, undeveloped land. She testified that she can only access lot 23 from Old Good Hill Road. Lot 12 can be accessed from Old Good Hill Road (on its easterly border) and Freeman Road (on its southerly border). This property was formerly owned by her father, and prior to him, her grandparents. She also testified that she made the complaint about Nichols' work on the road to the town's zoning enforcement official. Czaplinski explained that Old Good Hill Road is the most convenient way to access her property. Czaplinski did not testify that she observed or was aware of any use of Sections two or three of Old Good Hill Road by the general public.
Suzanne Neuman is a title searcher retained by the plaintiffs to review Oxford's records regarding Old Good Hill Road. Neuman testified that she reviewed maps, deeds, zoning minutes and town meeting minutes from 1798 to present. She did not find any record of Old Good Hill Road being either laid or accepted by Oxford. She also found no records indicating any action by Oxford to discontinue any highway use that may have existed.
Richard DeLuca was called by the plaintiffs as an expert in Connecticut Road History. According to DeLuca, by 1800 Oxford had a good road system. The first documentation of Old Good Hill Road is found on a map of Oxford dated 1852. In characterizing the use or nature of Old Good Hill Road, Deluca emphasized the significance of the Zoar Bridge and the proximity of Old Good Hill Road to this bridge. Zoar Bridge was built in or about 1807 and provided an important way to cross the Housatonic River for many years until the bridge was submerged as a result of the construction of the Stevenson Hydro Electric Dam and the creation of Lake Zoar in 1919. Based on the commerce associated with the Zoar Bridge, DeLuca opines that Old Good Hill Road may have been a " feeder" road providing public access from northwest Oxford to the Zoar Bridge and the Housatonic Turnpike. A " feeder" road is a road which collects traffic from other roads and feeds the traffic to more heavily traveled roads. According to DeLuca, the use or importance of Old Good Hill Road as a feeder road would have decreased after the 1919 construction of the Stevenson Dam and the submergence of the Zoar Bridge.
A problem with characterizing Old Good Hill Road as a feeder road is that Sections two and three of the road are unimproved and unpaved. Both sections are hilly and rugged, but Section three particularly is an extremely steep and rugged hill. In response to this issue, DeLuca testified that the 1868 map (Ex. 3) shows a slight zigzag on the road which may reflect an effort to minimize its steepness. He also suggested that despite its steepness, the possibility exists that the road still may have been able to accommodate " pedestrian travel, " " horse travel, " " livestock, " and " perhaps an empty wagon, but not a loaded one." (Tr., 9/30/15, p. 115.) DeLuca stated that he had not personally visited or actually seen Old Good Hill Road. DeLuca's research also reviewed 1961 and 1962 town logs noting that Oxford had done some reconstruction or improvement work from a part of the road to Freeman Street. In summary, DeLuca stated that in his opinion, Old Good Hill Road could be characterized as a " town road as compared to a country road" meant to serve local traffic, but that his research was insufficient to determine whether Old Good Hill Road was a " public road" or a " private road." Id., p. 80.
B
Defendant Lucas called three witnesses--Eleanor Amato, Robert Danielecki, and himself. Eleanor Amato resides at 104 Freeman Road (Ex. 4, Lot 15A). The rear of her property elevates up the mountain and borders Section three of Old Good Hill Road. This rear border is across from Nichols' property on Old Good Hill Road. Amato has lived at 104 Freeman Road since 1977. She testified that this area of the property is rugged and Section three cannot be traversed by vehicles.
Lucas owns 207, 113, and 110 Old Good Hill Road. Lucas has resided at 207 Freeman Road since 1986, and this property is a half mile from Old Good Hill Road. 110 Freeman Road is located next to Amato's property. 110 Freeman Road was acquired by Lucas in 2003 and was previously owned by Lucas' uncle, Joe Lucas. The paved driveway located on 110 Freeman Road was characterized during the trial as Section 4 of Old Good Hill Road. This driveway ends on Freeman Road. 113 Old Good Hill Road is Lucas' family home where he was raised. He lived there for about thirty years and acquired ownership of this property in 2004. 113 Freeman Road is directly across from 110 Freeman Road.
Lucas testified that as a boy (in the 1960s), Section two of Old Good Hill Road was unpaved and undeveloped, but could be traveled with a two-wheel drive vehicle. Such travel is not possible now because this section has deteriorated and a four-wheel drive vehicle must be used. Lucas did not testify that he ever observed a motor vehicle traverse Section three of the road, and even foot travel on this section became treacherous after a severe storm in 1982. He further testified that except for minor work by property owners, he was unaware of any repair work performed on the road after the 1982 storm.
Robert Danielecki resides at 112 Freeman Road (Ex. 4, Lot 29). His property is next to Lucas' property. The rear of his property also borders a portion of Nichols' property. 112 Freeman Road is a vacant lot and has been owned by Danielecki since about 1984. He testified that when he first purchased the property, Section two of Old Good Hill Road was passable with a two-wheel drive vehicle, but over time the condition of this section has worsened and it is now passable only with a four-wheel vehicle. He also testified that at least since 1990, motor vehicles have been unable to traverse Section three of the road.
The town called two witnesses--Wayne Watt and Steven Macary. Macary is the town's present zoning enforcement officer. He testified that the unimproved sections of Old Good Hill Road are not accepted roads by the town.
Watt has been employed by the town's public works department for thirty years and is presently the foreman or director of the department. He testified that before Nichols purchased his property on Old Good Hill Road, he advised Nichols that the unimproved section of the road was not maintained by the town and that he, Nichols, would have to maintain it. Watt further testified that during his thirty years as an employee of the department of public works, he was not aware of any major improvements of any kind done on the unimproved sections of the road. He explained that sometime in the 1980s, a work crew removed sediment that had washed down Old Good Hill Road, but this was at the intersection of Old Good Hill Road with Freeman Road. (Freeman Road is maintained by the town.) Similar to the testimony of other witnesses, Watt testified that Section three of the road has been impassable by motor vehicles since the 1980s.
II
A
The plaintiffs claim that the unimproved section of Old Good Hill Road is a public highway which the town has an obligation to repair and maintain. The defendants, on the other hand, insist that this section is a private road which the town is not responsible for repairing and maintaining. The parties do not dispute the controlling law. " Highways are established by one of the following four methods: '(1) through the direct action of the legislature; (2) through authorized proceedings involving an application to a court; (3) through authorized proceedings by agents appointed for that purpose, such as selectmen of towns . . . and specified authorities of cities and boroughs . . .; (4) through private dedication of land for that purpose and its acceptance by the public." (Citations omitted; internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 9, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012).
Only the last method is being urged by the plaintiffs here. Specifically, the plaintiffs contend that the unimproved section of Old Good Hill Road is a public highway as a result of private dedication by owners of the property and acceptance of the road by the public. The defendants claim that the plaintiffs have failed to meet their burden of proving by a preponderance of the evidence a valid dedication.
" Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public . . . Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public . . . Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public . . . No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied . . . Whether there has been a dedication and whether there has been an acceptance present questions of fact." (Citations omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980).
The plaintiff has not offered any direct evidence indicating when all the owners of the properties in question intended to dedicate or actually dedicated the unimproved section of Old Good Hill Road to public use. The plaintiffs correctly emphasize that the intent of an owner to dedicate land for public use does not require direct or express evidence. Dedicatory intent may be implied from the conduct of the owner. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 279. " An implied dedication which may arise by operation of law from the acts and conduct of a property owner must be such that his intention is clearly manifest to devote land to the public use, [but] no presumption of an intent to dedicate arises unless it is clearly shown by the owner's acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended." (Internal quotation marks omitted.) Mihalczo v. Woodmont, 175 Conn. 535, 542, 400 A.2d 270 (1978).
The court also agrees with the plaintiffs that contrary to the position of the defendants, evidence relevant to acceptance of the use by the public may also be relevant in proving dedication. So for example, the length of time that a road has been used by the public and the extensiveness of this use may support an inference that the owner has both acquiesced to this use and has committed his property for public use. The plaintiffs argue that they have proven dedicatory intent by the extensive nature of the public use of the road. Specifically, the plaintiffs contend that the Old Good Hill Road has " been in existence for at least 165 years" as established through maps, deeds and the testimony of their experts. Based on this evidence, especially the testimony and report of their expert, DeLuca, the plaintiffs maintain that for many years before 1919, Old Good Hill Road was a " feeder road" and " the most direct means for travelers coming from northwest Oxford and western Southbury to access the Zoar Bridge, the turnpike system, certain railroad lines, the post office and other places of importance." Pls.' Reply Br., p. 4.
The problem with the plaintiffs' argument is obvious. The plaintiffs are attempting to establish implied dedication through public use, but their evidence on public use is deficient. The plaintiffs have not offered any direct evidence of public use and the circumstantial evidence of any such use is conjectural. As to direct evidence, no witness testified about any notable or discernable use of the unimproved section of Old Good Hill Road by the public. There are maps, deeds and pictures reflecting the road's existence, but this evidence does not indicate any actual public use .
In regard to circumstantial evidence, the plaintiffs primarily rely on DeLuca's testimony that Old Good Hill Road was once a feeder road facilitating travel over the Zoar Bridge. The court views the plaintiffs' reliance on this evidence unreasonable because the court finds no credibility in DeLuca's opinion that Old Good Hill Road was a major " feeder" road. The evidence suggests that before the construction of the Stevenson Dam in 1919, Old Good Hill Road may have accommodated public travel to a minor or minimal extent, but certainly not as a major " feeder" road as the plaintiffs contend. Any inference of actual public use is difficult, or even impossible, to conceive without actual physical accessibility of the road to the public. The topography of the road, particularly Section three, is so rugged and steep that it mitigates against an inference of any significant public use, especially since there is no dispute that the road has always been an unpaved dirt road.
DeLuca's testimony that an " empty wagon" might have been able to navigate the road is not only conjectural, but also belies any view that the road could have been utilized as an effective " feeder" road for any appreciable public travel. Stated succinctly, not much commerce can be associated with an empty wagon. Similarly, DeLuca's observation that the 1868 map of the road reflects a zigzag to address the road's steepness and to facilitate travel is entirely general and vague, and fails to provide any specific information about the physical dimensions or configurations of the road that would have enabled travel up or down this very steep and mountainous road.
In short, although factual findings may be based on circumstantial evidence, evidentiary inferences must be reasonable and rational, and not speculative or conjectural. The totality of the evidence does not permit a determination about whether the road's physicality provided public use of the road to any extent more than the use available to the property owners. More important, the evidence does not permit a determination about whether the owners' allowance of any conceivable public use of the road was merely permissive rather than dedicatory. Indeed, DeLuca himself explains that he could not conclude from his research whether Old Good Hill Road was a " public road" or a " private road." See Mihalczo v. Woodmont, supra, 175 Conn. 543 (" mere permissive use of land . . . where the user is consistent with the assertion of ownership by the alleged dedicator, does not of itself constitute a dedication nor demonstrate a dedicatory intention" [citations omitted; internal quotation marks omitted]).
Furthermore, work on the road by owners such as Nichols and Lane evidences an intent to control the road, rather than an intent to dedicate it. Certainly, the paving of the road as part of the driveway of 110 Freeman Road does not reflect an intent to dedicate the road to public use. Lucas and his family have exclusively maintained and controlled Section four of the road for decades, as evidenced, for example, by Lucas' uncle blocking this section of the road with his truck to impede the Lanes from using it. Thus, the court concludes that the plaintiffs have failed to prove actual or implied dedication of the road for the public use.
B
" Without a dedication there can, of course, be no acceptance." Mihalczo v. Woodmont, supra, 175 Conn. 543. Consequently, on the basis of the court's conclusion that the plaintiffs have not proven dedication, the court need not address the issue of acceptance. Nevertheless, this issue is addressed for thoroughness and for any appellate review.
" The principles of acceptance of a highway under the common law authorize the gift, estop the giver from recalling it, and presume an acceptance by the public where it is shown to be of common convenience and necessity, and therefore beneficial to them. For the purpose of showing that it is beneficial, an express acceptance by the town, or other corporation within whose limits it is situated, and who are liable for its repair, the reparation of it by the officers of such corporation, or a tacit acquiescence in the open public use of it, are important; and so are the acts of individuals, such as giving it a name by which it becomes generally known, recognizing it upon maps and in directions, using it as a descriptive boundary in deeds of the adjoining land, or as a reference for locality in advertisements of property . . . and any other acts which recognize its usefulness and tend to show an approval of the gifts by the members of the community immediately cognizant of it; but the principal evidence of its beneficial character will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose . . .
" To determine whether the public has accepted a highway through actual use, the use need not necessarily be constant or by large numbers of the public but it must continue over a significant period of time . . . and be of such a character as to justify a conclusion that the way is of common convenience and necessity . . . While the public's actual use of the property dedicated to a municipality can, under appropriate circumstances, constitute an implied acceptance on the part of the public, there are municipal actions that may also constitute acceptance of such property . . . Where a municipality grades and paves a street, maintains and improves it, removes snow from it, or installs storm or sanitary sewers, lighting, curbs, or sidewalks upon it there exists a factual basis for finding an implied acceptance of the street by the municipality . . . Such municipal acts are factors to be weighed in the ultimate factual determination of acceptance. Another factor is the municipality's levy and collection of general and special taxes and assessments on the property." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 17-18.
The plaintiffs' evidence provides some indicia of acceptance. The plaintiffs emphasize that Old Good Town Road has been long identified and recognized on deeds and maps, although the town emphasizes that these documents were not produced or created by the town. The earliest references to the road are in maps of Oxford dated 1852 and 1868. The plaintiffs identified town logs that were dated 1961 and 1962, indicating that the town did some reconstruction or improvement work on the road which may have included work on the unimproved sections of the road. The plaintiffs' evidence also reflects a 2006 easement granted by the town to Lucas for him to install a sanitary sewer line. Ex. 21. This easement is equivocal as to the issues of acceptance or ownership as it explicitly states that " the town of Oxford does not make any representation as to what right it may have, if any, over this easement area." Over the years, some of the property owners had conversations with town officials that indicated some town interest in or responsibility for the property. For example, Lane testified that she had such communications with town officials, and Nichols received communications for the town's zoning enforcement official that his work on the road was being done on town property. The evidence also indicates that in the 1960s, the town's planning and zoning commission approved a subdivision development plan that was not completed. According to the plaintiffs, this approval required the commission to view the road as a public highway. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 280 (implied acceptance may not be established solely by approval of subdivision plans because approval of a proposed subdivision and the acceptance of a public street are entirely separate matters). Additionally, there is no evidence that the areas of the road are taxed by the town. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 284 (in evaluating acceptance " [t]he weight to be accorded the assessment or nonassessment of taxes upon property dedicated to a public use varies according to the other circumstances of the case").
The evidence did not establish exactly where this work in 1961 and 1962 took place or exactly what was done.
On the other hand, there is evidence disputing the plaintiffs' acceptance claim. There is no evidence that the town has either assumed any responsibility to maintain the road or has performed any major repairs or improvements. For example, the evidence is undisputed that Section two and three are ungraded, unpaved, and unimproved. There are no sewers, lights or sidewalks in these areas.
Moreover, the most important factor in determining public acceptance is actual, unopposed public use. See Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 17-18. As discussed previously, the plaintiffs rely heavily on historical evidence indicating that Old Good Hill Road was physically positioned or located so as to serve as a feeder road. The plaintiffs contend that this evidence, in turn, supports an inference of public usage. The court has not found this evidence credible or this inference reasonable. Specifically, the court has found that the plaintiffs' evidence regarding the public use of the road fails to permit an inference of actual dedication. For the exact reasons previously discussed, the court finds the plaintiffs' evidence insufficient to determine whether any possible public use of the road was minor or incidental, as compared to significant and beneficial. Stated differently, the evidence is insufficient for the court to conclude that the nature, extent or character of any public use justifies " a conclusion that the way is of common convenience and necessity." Id., 19; accord, Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 274.
In summary, in viewing the evidence as a whole, the court concludes that assuming arguendo that the plaintiffs have proven dedicatory intent, they have failed to prove public acceptance of the road by a fair preponderance of the evidence.
III
Alternatively, the defendants argue that even if the plaintiffs establish common-law dedication of the road, any public use has been abandoned. The law regarding the abandonment of an accepted highway is well established.
" A highway may be extinguished [1] by direct action through governmental agencies, in which case it is said to be discontinued; or [2] by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned." (Internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 20. The defendants claim abandonment through the second method involving nonuse for a long period of time with the intention to abandon.
" The length of time during which such nonuser must continue on the part of the public, before the highway can be presumed to be abandoned, has not been determined in this state by statute or judicial decision. It must be a long time . . . Such an abandonment implies, of course, a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances . . . Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon . . . but nonuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances . . . The burden of proof is on him who seeks to establish the abandonment of a highway, and the continuance of the street will be presumed until satisfactory evidence is produced to rebut it." (Citations omitted; internal quotation marks omitted.) Id., 20.
The undisputed evidence is that Old Good Hill Road has been a dead end road since a flood washed out Section three making the road accessible only from Good Hill Road. This flooding occurred more than twenty-five years ago. Before this flood, the evidence indicates that the road's unimproved section could be traversed with difficulty with a two-wheel drive vehicle. At the present time, travel on Section two requires a four-wheel drive vehicle; Section three is impassable by motor vehicle and can only be traversed by foot. Foot travel on Section three is treacherous and hazardous.
Lane testified that this storm occurred in or about 1988; Lucas testified that this storm occurred in 1982.
Since this flooding, there is no dispute that the town has not done any work on the road's unimproved section. Indeed, in the alleged one hundred and sixty-year history of this road, there is little evidence that the town has ever engaged in routine or regular maintenance or repair of this section of the road. There are notes indicating that some work on the road was done by the town in 1961 and 1962, but the evidence fails to indicate what this work involved and there is no evidence that this work was either substantial or extensive. There is evidence that in the 1980s, at the request of the Lanes, the town cleared debris from the intersection of Old Good Hill Road and Freeman Road. This work would have been in the area of Section four. Also, as previously stated, the town has not leveled or paved the unimproved section, nor installed sidewalks, lighting, or sewers. These disputed areas have always been unimproved and unpaved. According to Watt's testimony, the town's present records do not recognize the unimproved sections of the road as an accepted town highway. According to Neuman, there is nothing in the town's records indicating that the town has ever recognized the road as an accepted town highway.
The plaintiffs argue the public utilized Old Good Hill Road as a major feeder road for local commerce prior to the construction of the Stevenson Dam. Notwithstanding the questionable credibility of this contention, even according to the plaintiffs, the reasons justifying this public use of the road existed while the Zoar Bridge existed, but not after the bridge's demise by the construction of the Stevenson Dam in 1919.
As previously explained, legal abandonment of a highway must be based on nonuse, as well as voluntary and intentional abandonment. The law is well established that intent may be proven by express conduct and statements, or may be inferred by the circumstances, including conduct and statements. Although a finding nonuse of a road alone is insufficient to conclude abandonment, " negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment." Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 21. This negative or passive conduct, in turn, may be evidenced by a substantial time period of nonuse. Stated differently, the extent and nature of the nonuse may support an inference of an intent to abandon. " The length of time during which such [nonuse] must continue on the part of the public, before the highway can be presumed abandoned, has not been determined in this state by statute or judicial decision. It must be a long time." Id., 20.
To summarize, the evidence regarding abandonment is conflicting. The " indicia" of acceptance, discussed above in the preceding section, mitigate against a finding of abandonment, but few of these facts reflect recent incidents. The plaintiffs claim that there was substantial public use of Old Good Hill Road when the Zoar Bridge existed. As previously addressed, the accuracy and credibility of this claim are questionable. Nevertheless, even the plaintiffs' position contemplates the dissipation of the public's interest and usage of Old Good Hill Road after the submergence of the Zoar Bridge by the Stephenson Dam construction in 1919. Between 1919 and 1980 (about sixty years), there exists evidence of sporadic but insubstantial work on the road by the town and no evidence whatsoever of any significant public use. The evidence is undisputed that for the last twenty-five years Old Good Hill Road has been a dead end road, the public has not used the unimproved section of road and the town has not done any work on this section of the road. For well over sixty years, Section four has been used primarily (if not exclusively) as part of the driveway owned by the Lucas family. Based on Watt's testimony, the town has no present intention or plan to engage in any work on the road as the town's records do not show the unimproved section of the road as an accepted town highway. After carefully considering and weighing the totality of the evidence, the court finds that the defendants have met their burden of proving by a fair preponderance of the evidence that to the extent there was any common-law dedication of Old Good Hill Road for public use, that use has been long abandoned.
CONCLUSION
Therefore, for these reasons, judgment enters against the plaintiffs and in favor of the defendants.