Opinion
No. CV-04-0103439-S
November 14, 2005
MEMORANDUM OF DECISION
On January 27, 2004, the plaintiffs, Leonard and Ellen Nicholas, filed a petition for a writ of mandamus from the Superior Court to compel the defendants, the town of East Hampton and members of the town council of East Hampton, to declare the boundaries of Bailey Road and Sexton Hill Road, both of which are alleged to be located in East Hampton. The plaintiffs had earlier requested that the defendants determine boundaries of the two roads pursuant to General Statutes § 13a-39, which provides:
Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on such map such lines as in their judgment coincide with the lines of the highway as originally laid down.
The statute thus provides a means for a property owner, whose land abuts a "highway" for which "the boundaries . . . been lost or become uncertain" to request the town's selectmen to determine the boundaries of that highway. The Selectmen are to act as the statutory committee of fact finders to review the evidence of the highway's location in the first instance. Our Supreme Court has held that the language of this statute is mandatory, not directory. See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 650 (1911); State ex rel Foote v. Bartholomew, 103 Conn. 607, 612 (1925); State ex rel Stankus v. Parker et al, 15 Conn.Sup. 104 (1948).
On July 8, 2003, following the recommendation of the town manager, the town council had rejected the plaintiffs' first such request on the basis of its conclusion that the roads were private and not public. The plaintiffs resubmitted their request in August of 2003, and the defendants did not respond. The plaintiffs thereupon turned to this court and asked for a writ of mandamus compelling the town to determine the boundaries of the roads in question. Both parties had moved for summary judgment, and both parties' motions were denied by the court. The case was then tried before the undersigned on June 23, 2005, and the briefs were filed on August 5, 2005.
The defendants now also contend that the plaintiffs have not even established that the roads in question are located in East Hampton, and that they of course have no power to determine the boundaries of highways located in other towns.
The law surrounding the writ of mandamus in our state is well-established. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391 (2000). "An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). "Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659 (1990).
"The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn.App. 137, 143 (1995). "If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 249 (2002). "The duty it compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary." Becchia v. Waterbury, 185 Conn. 445, 453 (1981). "[M]inisterial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000). "Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action." Clark v. Gibbs, 184 Conn. 410, 419, 439 A.2d 1060 (1981).
In this case, therefore, based on the law of mandamus and the requirements of General Statutes § 13a-39, the issues are whether the Town of East Hampton has a clear legal obligation to locate, and whether the plaintiffs have a clear legal right to compel the town to locate, the boundaries of either the so-called Bailey or Sexton Hill Roads, or both: To make this determination, the court first needs to determine that a) the so-called Bailey and/or Sexton Hill Roads are "highways" as provided in CGS § 13a-39; b) the so-called Bailey and/or Sexton Hill Roads are located in the Town of East Hampton; and c) the plaintiffs' property adjoins the so-called Bailey and/or Sexton Hill Roads.
The plaintiffs argue that the duty they seek to have compelled is a ministerial one and that the evidence they presented entitles them to have the court order the town to carry out that duty. At the trial, they established that they are the owners of a certain parcel of land in the Haddam Neck section of the Town of Haddam; that, pursuant to General Statutes § 13a-39, they requested that the defendants determine the boundaries of two roads or highways, known as Bailey Road and Sexton Hill Road, a/k/a Sexton Road; and that the Town has refused their request. They offered evidence which they claim shows that the roads in question are located, at least in part, in the Town of East Hampton, and that they are "highways" within the meaning of the statute.
Although there was evidence that the latter road has been known by both names, the court will refer to it as "Sexton Hill Road" throughout the balance of this memorandum of decision for the sake of simplicity.
As to the location of the roads, the plaintiffs claimed to have established that their property abuts the Haddam/East Hampton town line, a line which is at several points shared with Bailey Road and Sexton Hill Road, based on several deeds in the Haddam Land Records, Assessors' Maps from both Haddam and East Hampton, and a Boundary Survey prepared for the plaintiffs by Charles Dutch, a land surveyor, on July 31, 2000.
The plaintiffs also argue that a portion of Sexton Hill Road crosses the Haddam/East Hampton town line and into the northeast corner of the plaintiff's property; that Bailey Road lies, in part, along the East Hampton/Haddam town line and along the northern boundary of the plaintiffs' property; and that Sexton Hill Road, running from Connecticut Route 151 in a generally southerly and westerly direction to the boundary of the plaintiffs' property (which is also part of the boundary line between Haddam and East Hampton) lies within the Town of East Hampton.
The first, and as it turns out, dispositive, issue is whether the roads in question are "highways." The defendants contend that they have no authority to establish the boundaries of something which is not a highway, so that they first need to determine whether the Bailey and Sexton Hill Roads are "highways" within the meaning of the law. The plaintiffs contend that the town does not have the authority to establish the status of the roads in question, but the defendants argue that they must at least in some sense do so, and both rely on language in Hamann v. Town of Newtown, 14 Conn.App. 521 (1988). In Hamann, the Newtown board of selectmen commenced a proceeding pursuant to General Statutes § 13a-39 without first having reviewed and determined whether the road in question was a highway. Once that proceeding was underway, the board attempted to establish the legal status of the road as public or private, but, as the plaintiffs here note, "[t]he board is without authority under that section [§ 13a-39] to determine the legal status of a road." (Emphasis added). Hamann, supra, 14 Conn.App. 521, 524. Hamann also notes, however, that "recourse to § 13a-39 presupposes a prior determination that the road in question has been deemed a public highway." Id. The parties differ markedly on how the latter phrase should be interpreted. The plaintiffs note that the Appellate Court's decision references 39 Am.Jur2nd, Highways, Streets and Bridges, 55, as the source for this language but that this particular language is not to be found in the 1968 edition of Am.Jur.2nd, the only edition extant at the time of the Appellate Court's decision. They thus suggest that the citation is erroneous. Whether or not that particular citation is erroneous, however, the Hamann decision is merely pointing out the obvious: that the town cannot use the authority granted to it under § 13a-39 to determine the boundaries of something which is not actually a highway, and that the town is also not empowered to use § 13a-39 as the vehicle for establishing the status of Bailey and Sexton Hill Roads. Thus, by first looking at whether the roads in question are indeed highways, the defendants are only seeking to determine whether they have the authority to honor the plaintiffs' request for a § 13a-39 proceeding. They do so not pursuant to § 13a-39, but rather preliminary to any proceeding under that section. In short, they are not seeking to do what Hamann enjoins, namely to determine the status of the road "under that section." Instead, they have sought to determine, prior to commencing a § 13a-39 proceeding, whether the presupposition that the roads in question are "highways" is valid. This court agrees that the defendants' approach is the correct one, and so, in order to determine whether a writ of mandamus may issue compelling the defendants to respond to the plaintiffs' request under § 13a-39, it must first itself determine whether the defendants have correctly concluded, as a preliminary matter, that the roads in question are not highways.
General Statutes § 13a-1 provides: "a) As used in this title . . .' highway' includes streets and roads . . ." Neither "street" nor "road" is defined in this title, although dictionary definitions generally include some reference to their public aspect. See, e.g. American Heritage Dictionary of the English Language, New College Edition (1981). The defendants argue that § 13a-1 does not actually define "highway" but merely indicates that the term encompasses . . . that is, "includes". . . both "streets," a word which tends to have a more urban connotation, and "roads," which sound more rural or suburban, for purposes of Title 13a. They seek to confirm the public aspect of "roads" by citing the definition of "highway" in the Motor Vehicles title of the General Statutes, found in § 14-1(a)(37): "`Highway' includes any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use." That Title, of course, encompasses far different purposes than Title 13a, but while not necessarily binding, it is nonetheless instructive.
In Stavola v. Palmer, Trustee, 136 Conn. 670, 683 (1950), a case cited by the plaintiffs, the Connecticut Supreme Court expanded on the meaning of "highway:"
Webster's New International Dictionary (2d Ed.) defines a highway as `A main road or thoroughfare; hence, a road or way open to the use of the public.' We said in Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488: `A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle. In every highway the King and his subjects may pass and repass at pleasure.' The essential feature of a highway is that it is a way over which the public at large has the right to pass. See Yale University v. New Haven, 104 Conn. 610, 616; Newton v. New York. N.H. H.R. Co., 72 Conn. 420, 426; Peck v. Smith, 1 Conn. 103, 132. Accordingly, the term `highway' is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.
In this case, there was ample evidence, through maps, plans, deeds, assessor's maps and road lists, that Bailey Road and Sexton Hill Road at some time had enough public recognition to have been given names, to have been included in public records, and to have been indicated as roads on surveys over a period of decades, and they are also shown on the Town of East Hampton's own assessor's maps and road lists. Even the evidence offered by the defendants to the effect that steps were taken in 1931 by the Town of East Hampton, in conjunction with similar efforts by of the Town of Haddam, to discontinue these roads, support the conclusion that the Bailey and Sexton Hill Roads were, at least at one time, "highways" within the meaning of the statute.
The defendants contend, however, that even if Bailey and Sexton Hill Roads were once highways, they lost their status as "roads," and hence as "highways," through abandonment and/or discontinuance long before the plaintiffs made their § 13a-39 request. The public rights in a highway may be vacated either by being discontinued or abandoned. Greist v. Amrhyn, 80 Conn. 280 285 (1907). Prior to the 1963 enactment of General Statutes § 13a-55, whenever a public easement was extinguished, both the public easement and the private easement of access were eliminated, so that the owner of the roadbed was restored to his original dominion over the land. Luf v. Southbury, 188 Conn. 336, 344 (1982); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 356 (1955). Since the enactment of General Statutes § 13a-55 in 1959, whenever a highway is discontinued or abandoned, the owner of the land over which the highway runs holds that property discharged of the public easement, but subject to the private easements of those living along the road.
Based on the testimony offered at trial, the court finds that both East Hampton and Haddam discontinued the portions of the roads that are the subjects of this litigation in 1931. The old rule applied following the 1931 discontinuance of the roads, as General Statutes § 13a-55, which now grants a right-of-way over an abandoned highway to an adjoining landowner, does not apply retroactively. Mackie v. Hull, 69 Conn.App. 538 (2002). Hence, following the 1931 discontinuance, the owner of the roadbed, whoever that might be, was restored to his original dominion over the land and not even private owners living along the abandoned or discontinued road retained any rights thereto.
The court, having concluded that the roads were discontinued in 1931, must still determine whether subsequently they were again accepted as roads by the town of East Hampton. There are two requirements for a roadway over private lands to become, through means other than eminent domain proceedings, a "highway" within the meaning of the statutes and case law. It is essential that there have been both a dedication by the fee owner of that roadway to public use and acceptance by the public or by some public authority. Ventres v. Farmington, 192 Conn. 663 (1984); Katz v. West Hartford, 191 Conn. 594 (1983). Both of these elements are necessary, and since there was no evidence at trial that the roads were in anyway accepted as public roads or highways subsequent to the 1931 resolutions to discontinue them, the court concludes that after 1931, the roads in question never again became public, and hence never again became "highways."
"Acceptance may be express or implied . . . Express acceptance requires certain formalities . . . Formal acceptance of a road must, therefore, be determined from the minutes of the town meetings." Sostman and Anderson, The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment, 61 Conn. B.J. 299, 303-04 (1987). Plaintiffs provided no documentary or other evidence suggesting that the Town of East Hampton ever subsequently formally accepted either road.
Implied acceptance by a municipality occurs where it accepts the street "through actions such as plowing and paving it . . . Where the municipality has done nothing with the street, implied acceptance may still be found through the actions of the general public if the public use is frequent enough and goes on over a sufficient length of time . . . In contrast to formal acceptance, actual use of the street is the essence of acceptance by implication." Sostman and Anderson, 61 Conn. B.J. at 305. Again, plaintiffs provided no evidence showing that the Town of East Hampton plowed or paved or otherwise maintained the roads since the 1931 discontinuance or that the public used the roads frequently over a substantial period of time.
To the contrary, East Hampton Town Manager Alan H. Bergren and Public Works Superintendent Robert G. Drewry established that the Town did not assert control over or maintain these roads by plowing or paving them. Surveyor Jeffrey Sanborn testified to the effect that his visual inspection indicated that the "roads" do not even constitute road beds, and that, at least in those areas that arguably abut the plaintiffs' property, they are impassable by vehicle. Although aerial photographs showed the location of the roadbed clearly enough, terrestrial photographs at various positions along the relevant portion of Sexton Hill Road demonstrated that the road quickly became impassible before the point where it intersected the plaintiff's property line. Thus, whatever their status may have been at an earlier point in time, the roads in question are now no more than "private ways." As "private ways," Bailey and Sexton Hill Roads can not be the proper subject of General Statutes § 13a-39, which presupposes that the roads be "highways," and the defendants are therefore under no obligation to locate their boundaries.
Because the decision on this issue is dispositive of the plaintiffs' right to have the town determine the boundaries they request, and hence of the petition for a writ of mandamus, the court need not address the defendants' alternate contention that the plaintiff has not been able to establish that Bailey Road and Sexton Hill Roads are located within the Town of East Hampton.
Judgment will therefore enter denying the petition for a writ of mandamus.