Hannah Anderson v. Bridgewater Planning & Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

I

INTRODUCTION

This matter, a declaratory judgment action, came before the court for a bifurcated trial on counts two and three of the complaint and on the counterclaim brought by the defendants, Town of Bridgewater (“Bridgewater”), Bridgewater First Selectman William T. Stuart and the Bridgewater Board of Selectmen.¹  In the second count of the complaint, the plaintiff, Neck of the Woods, LLC, seeks a declaratory judgment that an eighteenth century road known as Sturdevant Road ² in Bridgewater is a discontinued or abandoned public highway within the meaning of General Statutes § 13a–55.   The third count of the complaint, pled in the alternative, seeks a declaratory judgment that the portion of Sturdevant Road, extending south beyond a paved cul-de-sac on Old Town Highway and serving as a boundary for at least 200 feet of the plaintiff's property, is a town road/public highway which has not been discontinued or abandoned.

The defendants brought a counterclaim seeking a declaratory judgment.   The defendants argue that the entirety of Sturdevant Road, laid out in 1787, was discontinued by relocation in 1820.   Alternatively, they claim, it was abandoned by nonuse for more than 100 years;  and if not abandoned by nonuse, it was discontinued by town legislative action in 1980.   The defendants also seek a declaratory judgment that Sturdevant Road is not an accepted Bridgewater road.

The court finds that Sturdevant Road, located south of the cul-de-sac at the southerly end of Old Town Road, has been abandoned for over 100 years.   Since the road was abandoned, it was not necessary for Bridgewater to discontinue that road but, nonetheless, the court finds that Bridgewater did so by town legislative action in 1980.

II

FACTUAL AND PROCEDURAL HISTORY

In the third amended complaint, filed on April 24, 2012, the plaintiff alleged that its predecessors in title, Hannah Anderson and, before her, Paul Garlasco, purchased several pieces of abutting property in Bridgewater, Connecticut.   It claims that, together, the latter properties make up a single property equaling approximately twenty-three acres (“the property”), which abuts approximately sixty-five feet of a cul-de-sac at the end of the paved portion of Old Town Highway in Bridgewater.   According to the plaintiff, Bridgewater recognizes this portion of Old Town Highway, including the cul-de-sac, as a dedicated and accepted town road.   The property also abuts Sturdevant Road. The plaintiff seeks to build a residence and install a driveway on the property.

In 2004, Hannah Anderson's predecessor in title, Paul Garlasco, acquired approximately eighteen acres of land in Bridgewater.   Those eighteen acres were a subset of the property now held by the plaintiff.   Garlasco also acquired a fifty-foot strip of land, connecting his eighteen acres to Sturdevant Road and to the cul-de-sac located at the southernmost point of Old Town Highway.

In January 2005, Garlasco sought a variance from the Bridgewater zoning regulations that require at least 200 feet of frontage on an existing street.   The variance was denied and Garlasco appealed that decision, asserting that he was entitled to a variance based on a claim of hardship.   This court denied the appeal.   Garlasco v. Bridgewater Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002236 (January 11, 2006, Pickard, J.) [40 Conn. L. Rptr. 562], aff'd, 101 Conn.App. 451, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007).

In June 2007, Garlasco acquired approximately three additional acres of land that abutted his existing eighteen acres.   The latter acquisition gave him more than 200 feet of frontage on Sturdevant Road and sixty-five feet of frontage on Old Town Highway.   In 2008, Garlasco quitclaimed the total twenty-one acres to Hannah Anderson.   Hannah Anderson then sought a driveway permit from the First Selectman of Bridgewater and a zoning permit from the commission.   The plaintiff claims that, on April 16, 2009, the First Selectmen passed a motion to the effect that Sturdevant Road “was never a town road because it was never used by the general public, maintained, plowed, or treated as such by the town, and it was not otherwise substantiated to have ever been dedicated or accepted as a town road.”

Thereafter, on May 13, 2009, the commission denied Anderson's application for a zoning permit, finding that Anderson did not possess at least 200 feet of frontage on a street that is “dedicated and accepted by the town or the state for such purposes.”   Further, and similarly, the commission concluded that Anderson lacked the required 200 feet of lot width “in all portions of the lot other than a rear yard.”   Anderson did not appeal the commission's denial of her application for a zoning permit.   On October 12, 2009, Anderson acquired an additional 1.92 acres that abut the twenty-one acres she already owned, resulting in the approximately twenty-three acres that make up the property.³

Anderson claims that the First Selectman denied her application for a driveway permit based, in part, on the fact that she does not have a zoning permit for the property.   Since Anderson had neither a driveway permit nor a zoning permit, she could not obtain a building permit for the property.   Consequently, she would not be able obtain a certificate of occupancy for any building constructed on the property.   On January 24, 2013, Anderson transferred the property to Neck of the Woods, LLC (“the LLC”) and, thereafter, assigned her interest in this case to the LLC. The LLC was substituted as the plaintiff on February 21, 2012.

The plaintiff asserts that it has no adequate administrative remedy and attempting to obtain an administrative remedy “would be futile” for several reasons.   First, the denials of the zoning and driveway permits were based on a decision by the Board of Selectman that Sturdevant Road was never a town road and there is no administrative remedy available relative to a decision by a board of selectmen.   Second, the denials of the zoning and driveway permits were based on the express terms of the zoning regulations.   Third, for the plaintiff to construct a driveway and a residence, there must be a final determination as to whether Sturdevant Road was a) an existing town road, b) an abandoned or discontinued town road, or c) never a town road.   According to the plaintiff, such a determination can only be made by this court.   Fourth, the plaintiff bases her claim on constitutional grounds and issues of statutory construction which can only be addressed in this court.

This matter came before the court and was tried on October 24 and 25, 2012, and December 11 and 18, 2012.   The parties obtained transcripts of the proceedings.   They then filed simultaneous post-trial briefs on February 19, 2013, and simultaneous reply briefs on March 5, 2013.   The parties came before the court on May 23, 2013, to respond to certain questions regarding the record in this case.

III

PARTIES' POSITIONSAThe Plaintiff's Position

The plaintiff seeks, in its prayers for relief relative to the second count, a declaratory judgment concerning four issues.   First, it seeks a ruling that Sturdevant Road is a discontinued or abandoned highway subject to General Statutes § 13a–55.⁴  Second, if the answer to the preceding question is affirmative, then the plaintiff seeks a finding that it has the necessary frontage required by the applicable zoning regulations precedent to the issuance of a zoning permit to construct a single-family residence on the property.   Third, the plaintiff seeks a ruling, if the answer to both of the preceding questions is in the affirmative, that it has the frontage necessary to qualify for a zoning permit, a driveway permit and a building permit.   Finally, the plaintiff seeks a declaratory judgment that the creation of the plaintiff's property is not a subdivision or resubdivision in violation of town zoning or town subdivision regulations, nor is it in violation of General Statutes § 8–18.

In the prayers for relief relative to the third count, the plaintiff seeks a declaratory judgment that Sturdevant Road is currently a town road.   It also seeks a declaratory judgment that the creation of the plaintiff's property is not a subdivision or resubdivision in violation of town zoning or town subdivision regulations, nor is it in violation of General Statutes § 8–18.⁵

B

The Defendants' Position

The defendants argue that Sturdevant Road was never a Bridgewater town road.   They argue that Sturdevant Road, running from what is now known as Route 67 to what is now known as Clapboard Road, was abandoned in 1820, long before Bridgewater was incorporated as a town, and it has not been used as a town road since that time.   Alternatively, they argue that, even if Sturdevant Road was not abandoned, it was discontinued by legislative action in 1980.

IV

DISCUSSION

The plaintiff seeks a declaratory judgment with regard to multiple questions, all of which involve its alleged rights in relation to its real property.   Practice Book § 17–55.⁶  This court concludes that a declaratory judgment action is the appropriate device to use in order to address the questions presented.  “The Superior Court ․ may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.”  General Statutes § 52–29(a).  “The [objective] of an action for a declaratory judgment is to secure an adjudication of rights which are uncertain or in dispute;” Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388 (1941);  and where “[t]here [is] ․ a sufficient practical need for [a] determination ․ in the light of the particular circumstances involved in [the] case.”  (Internal quotation marks omitted.)  Coscina v. Coscina, 24 Conn.App. 190, 192, 587 A.2d 159 (1991).  “[T]he trial court [has] wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.”  (Internal quotation marks omitted.)  Id. “The remedy by means of declaratory judgments is highly remedial and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments.”  (Internal quotation marks omitted.)  Bysiewicz v. Dinardo, 298 Conn. 748, 757, 6 A.3d 726 (2010);  see, e.g., Hyde Road Development, LLC v. Pumpkin Associates, LLC, 130 Conn.App. 120, 21 A.3d 945 (2611) (plaintiff requested declaratory judgment that it had the right to construct and maintain a road over its right of way and, in a counterclaim, defendant requested declaration to invalidate said right of way).

The questions presented in the two counts at issue involve multiple concepts.   The first question presented is whether Sturdevant Road was ever dedicated and accepted by any town.   If that road was dedicated and accepted, the next question is whether Sturdevant Road was either discontinued or abandoned.

“The essential elements to be proved [regarding dedication and acceptance] 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.”  Ventres v. Farmington, 192 Conn. 663, 666–67, 473 A.2d 1216 (1984).  “Acceptance” of a road may be affected formally by a municipality or it may be implied.   Compare General Statutes § 13a–48 (formal acceptance) with A & H Corp. v. Bridgeport, 180 Conn. 435, 440–41, 430 A.2d 25 (1980) (enumerating the elements of implied acceptance).   The issues of dedication and acceptance present questions of fact.  Ventres v. Farmington, supra, 192 Conn. 667.

A road that has been dedicated and accepted creates public rights of way, but those rights can be extinguished by discontinuance.   Discontinuance of a road and abandonment of a road are two separate concepts.  “There is no doubt that the two methods of terminating a town's responsibility for a road differ.   A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued;  or 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 ․ The statutory method of discontinuing a highway must be strictly pursued ․ In discontinuing a highway the selectmen act as agents of the law, and can exercise no powers except such as are conferred by statute ․ Their action, and the action of the town approving it, therefore, should be formal and definite, so as to give parties who may be aggrieved an opportunity to apply to the court for the relief which is provided by statute.”  (Citations omitted;  internal quotation marks omitted.)  Doolittle v. Preston, 5 Conn.App. 448, 451, 499 A.2d 1164 (1985);  see Mackie v. Hull, 69 Conn.App. 538, 547, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 806 A.2d 1055 (2002) (“[d]iscontinuance” of a road is effected “by direct action through governmental agencies ․” (internal quotation marks omitted)).

An alternate method of extinguishing public rights of way on a dedicated and accepted road is “abandonment by non-user.”   See Beardslee v. French, 7 Conn. 125, 127 (1828) (“the non-user of [a supposed highway] for many years, is prima facie evidence of a release of the right to the person over whose land the highway once ran;  and although the precise limit of time in respect of the public ․ has not been established, there can be no doubt that the desertion of a public road for nearly a century, is strong presumptive evidence that the right of way has been extinguished” (emphasis in original));  see also Newkirk v. Sherwood, 89 Conn. 598, 604–05, 94 A. 982 (1915) (“[a] highway is nothing but an easement” and when abandoned, reverts to the grantees of the original dedicators.  “[An] inference of an intentional abandonment of the use of any ancient highway which may have existed in front of the plaintiffs' land, was justified by the finding that there had been no use of any part of the locus for a highway within the memory of witnesses covering a period of over sixty years ․” (emphasis in original));  Benham v. Potter, 52 Conn. 248, 253 (1884) (nonuse of a road for fifty years served to “work an extinguishment of the old road ․”).  For a finding of abandonment, nonuse is not enough.   “The case law requires an intent to abandon together with the nonuse.”   Marrin v. Spearow, 35 Conn.App. 398, 405, 646 A.2d 254 (1994).   Abandonment may also be found where there is nonuse of the old road coupled with acts of ownership by a private party.   See New London v. Pequot Point Beach Co., 112 Conn. 340, 347–55, 152 A. 136 (1930) (“acts of ownership” by private individuals contributed to court's conclusion that highway in dispute had been abandoned).

In making the findings set forth below, this court considered all of the evidence introduced as full exhibits in the course of the hearings, the briefs and arguments of the parties, as well as the testimony of all of the witnesses.   The court did not, however, find all witnesses to be equally credible.  “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.”  (Internal quotation marks omitted.)   Blasco v. Commercial Linens, LLC, 133 Conn.App. 706, 709, 36 A.3d 737 (2012).   The court finds the following witnesses to have been credible and convincing:  Richard Johnson, Christine Smith, Peter Foyto, Randall Carreira and William Stuart.

A

Sturdevant Road—1797 to 1820

Old Town Highway, identified on the demonstrative map attached to this opinion, parallels part of Sturdevant Road, which was first laid out in 1797 pursuant to a vote of the New Milford Board of Selectmen.   Old Town Road lies east of Sturdevant Road. In 1797, Sturdevant Road ran southerly from what is now Route 67 in Bridgewater.   At a point about one-half of its total length, the road turned sharply to the west and then ran southwesterly to, what is now known as, Clapboard Road.⁷

On December 29, 1820, the Litchfield Superior Court ruled on a petition brought by citizens of New Milford ⁸ and Roxbury relative to a road “leading from Roxbury meeting house to Bridgewater meeting house ․ that part of said road in Bridgewater society running over high hills & deep vallies [sic] crooked & stoney [sic] that said road as it now runs is about the distance of five miles & that said road might be shortened to the distance of three miles and one quarter of a mile and can be laid on level ground clear of stones ․” There is no dispute that the part of the road the petitioners sought to reconfigure was Sturdevant Road.

After a hearing, the court appointed a committee to view the road and report to the court on the question of whether it would be “expedient” to lay out the road as requested in the petition.   The committee reported that the road should be re-routed as called for in the petition, and, on December 29, 1820, the court ordered New Milford to do so, with the road “opened & worked for public travel by the 1st day of December 1821.”   New Milford thereafter carried out the relocation as ordered by the court.   DX D.

It is true that the December 29, 1820 court order was an order to create a road that was an alternative to Sturdevant Road. However, it was not an order that New Milford discontinue Sturdevant Road. Indeed, there is no suggestion that the court had the authority to do so.   It is clear to this court that the order of 1820 required the construction of a highway that was intended to be a better route of travel than the one afforded by Sturdevant Road. The factual basis for the 1820 order, and the subsequent construction of a superior route of travel, both provide significant evidence in support of the defendants' claim that a period of nonuser began when the better, alternative route of travel became available on or before December 1, 1821.

B

Sturdevant Road—1820 to 1962

There is no dispute that Bridgewater, which was once part of New Milford, was incorporated and recognized as a separate and distinct municipality in 1856.   Sturdevant Road did not, by that or any other name, appear on an 1860 New Milford map that was introduced, albeit for a limited purpose, into evidence.   DX J1–J4. Further, Sturdevant Road does not appear, with any name, on any Bridgewater town road map.   Thus, if Sturdevant Road ceased to exist after 1820, a question arises as to whether Bridgewater ever dedicated that same road once the town was incorporated.   See Ventres v. Farmington, supra, 192 Conn. 666–67 (dedication occurs when the owner unequivocally intends to dedicate the way to public use).   If Sturdevant Road was dedicated after Bridgewater was incorporated, it would have been necessary for such dedication to have been accepted for Sturdevant Road to have become a Bridgewater highway.   See id. (acceptance is shown by “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”).

The plaintiff did not establish that Bridgewater ever dedicated Sturdevant Road. However, since the court does not find that the December 1, 1820 order served to formally discontinue Sturdevant Road, it is not relevant that the plaintiff cannot demonstrate that Bridgewater dedicated and accepted Sturdevant Road.⁹

There is significant evidence that the public was less likely to use Sturdevant Road after the better route was opened on or before December 1, 1821, which, correspondingly, is evidence that a period of nonuser began after that date.   Nonetheless, this court finds that the defendants have not established, by a preponderance of the evidence, that Sturdevant Road, which had been dedicated in 1797 and thereafter accepted, at least impliedly, was formally discontinued either by the court order of December 29, 1820, or by the opening of the alternate route on or before December 1, 1821.

The fact that Sturdevant Road does not appear on the 1860 New Milford map does not serve to establish that New Milford formally discontinued Sturdevant Road after the 1820 relocation.   First, since Bridgewater was incorporated in 1856, there is less evidentiary significance to the fact that, if a Bridgewater road existed in 1860, it was not included on an 1860 New Milford map.   Second, and more important, the 1860 New Milford map was offered and admitted for a limited purpose, i.e., to explain the opinion of the defendants' expert witness.   The 1860 New Milford map was not offered as substantive evidence.   Trial Trs. 37–42, December 11, 2012.

Similarly, the court finds that the defendants have not established, by a preponderance of the evidence, that Sturdevant Road was fully and effectively abandoned by nonuser by the time Bridgewater was incorporated in 1856.   The plaintiff introduced evidence that a sawmill was in operation along Sturdevant Road until 1850, and, therefore, it is reasonable to infer that some customers of the mill may have used Sturdevant Road to reach the mill during the period that it was in operation.¹⁰

Nonetheless, the court finds that the factual basis for the December 21, 1820 court order, coupled with the fact that Sturdevant Road does not appear on any Bridgewater map on or after the town was incorporated, support the defendants' contention that a period of nonuser on Sturdevant Road began as of December 1, 1821, and that period of nonuser continued to, and beyond, the time that Bridgewater was incorporated.   Specifically, the fact that a court ordered the relocation of Sturdevant Road in 1820 due to the physical and practical superiority of an alternate route, coupled with the fact that New Milford acquiesced in that order rather than seek review on appeal, combine to constitute substantial and convincing evidence that New Milford intended to abandon Sturdevant Road by relocating the road on or before December 1, 1821.

C

Sturdevant Road—1962

In 1962, Jane Dundas White owned property near Clapboard Road. The southwestern terminus of Sturdevant Road originally ran over White's property and intersected with, what is now known as, Clapboard Road. In 1962, White and Bridgewater agreed to swap the portion of Sturdevant Road running through White's land, at the southwestern most point of the road, for a different part of White's land.   Conceptually, that swap caused a portion of the southwestern end of Sturdevant Road to turn and run northwest until it intersected with Clapboard Road. This act, however, does not require the conclusion that the 1797 version of Sturdevant Road was still a highway in 1962.   Similarly, such a conclusion is not warranted based on the fact that this swap gave Bridgewater rights to land that “connected” to the southwestern end of Sturdevant Road and brought the “road” northwest to a new intersection with Clapboard Road.

First, in effecting the transaction, Bridgewater conveyed to White “all such right and title as the said Town of Bridgewater, its successors or assigns have or ought to have in or to a certain Town Highway ․ to release all right title and interest to said old highway or such parts thereof as crossed any of the premises now owned by the said Jane Dundas White.”   Pl.'s Ex. (“PX”) 17F.¹¹ Thus, although the town conveyed any interest that it had in the southwestern terminus of Sturdevant Road, it did not affirmatively assert that any such interest actually still existed in 1962.

If Sturdevant Road had not been abandoned by nonuser prior to 1962, the abutters to Sturdevant Road would have held a fee interest to the center of that road.  Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982).   However, the dedication and acceptance of a highway creates two easements:  “the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits landowners who abut the highway to have access to the highway and to the connecting system of public roads.”  Id. Therefore, by affecting the land swap, White ensured that any public easement of travel, which may have existed across the southern portion of her property, was extinguished.

Additionally, there is no evidence that the new northwestern leg of Sturdevant Road, created as a result of the land swap with White, was ever actually used.   On the contrary, all evidence presented requires the conclusion that the land that Bridgewater acquired from White in 1962 was never dedicated as a road, never accepted as a road, never improved, never maintained, and, in fact, is virtually impassable.   Thus, Bridgewater, in agreeing to the land swap with White, effectively agreed to the extinguishment of easements that had, in actuality, ceased to exist, and did so in exchange for rights to land that were real, even though there is no evidence that Bridgewater ever exercised those rights.

D

Old Town Highway—1978 to 1980

In approximately 1978, developers who were seeking to create a residential subdivision in an area south of Route 67 and east of Sturdevant Road, initiated litigation with Bridgewater, alleging that they had the necessary frontage and access to their proposed development because, they alleged, Sturdevant Road was an existing town road.

The litigation was resolved by an agreement, dated October 15, 1980, with Bridgewater recognizing a paved part of a road that ran from Route 67 to the northern boundary of property now owned by Peter Foyto.¹²  This recognized portion of the road lies largely to the east of Sturdevant Road, running from Route 67 to a cul-de-sac that borders Foyto's property.   See DX Z, Z–1, AA. That paved road is now known as Old Town Highway.

The court concludes that Bridgewater's 1980 recognition of Old Town Highway, in a location largely to the east of Sturdevant Road, does not serve to constitute a dedication or acceptance of Sturdevant Road, except for the very limited portion of Old Town Highway that literally overlays the 1797 Sturdevant Road. Thus, the dedication and acceptance of Old Town Highway will not serve to constitute a dedication and acceptance of the disputed, unimproved portion of Sturdevant Road that passes on or through the plaintiff's property and beyond.

E

Abandonment of Sturdevant Road

On June 8, 2012, this court, accompanied by counsel, visited the area at issue.   In the course of that site visit, the court walked the length of Old Town Highway.   The court also observed a line of crude posts located west of Old Town Highway, running south from Route 67 to a point near the cul-de-sac at the end of Old Town Highway.

Although the court observed that the unimproved area south and southwest of the cul-de-sac was passable for a relatively short distance, there was no evidence that the path was a road, that it was improved in any meaningful sense, or that it was maintained by a public authority.   Further, as the court moved southwest along the path, the route became increasingly wet, hilly, rocky and progressively more difficult to traverse, even on foot.

The evidence regarding abandonment of Sturdevant Road, in general, and any aspect of Sturdevant Road in relation to the plaintiff's property in particular, compels the conclusion, and the court so finds, that the entirety of Sturdevant Road has been abandoned for more than 100 years, if not since the nineteenth century.

The evidence regarding abandonment and intent to abandon includes the factual basis, as set forth in the 1820 court order, that the highway be relocated.   Further, Sturdevant Road does not, by name, appear on any New Milford or Bridgewater town road map created after 1805.¹³  The court credits the testimony of Christine Smith, who has owned property at the southern end of what was Sturdevant Road since 1985.   Even though she occasionally attempted to traverse parts of the route that was originally Sturdevant Road, she found it very difficult to do so, even on horseback.   Randall Camera testified that he walked the length of Sturdevant Road prior to 1999 and that the road was similar to trails he had hiked in the area.   The defendant's expert, Richard Johnson, described the present state of Sturdevant Road as resembling a “goat path.”   Trial Trs. 43, December 18, 2012.

The court also credits Peter Foyto's testimony that the route that was originally Sturdevant Road, including that part of the road that allegedly fronts on the plaintiff's property, was overgrown when he moved to his property in 2001.   In addition, Foyto testified that, inter alia, the part of the old Sturdevant Road that fronts on the plaintiff's property has been improved by Garlasco, his son, and others employed by Garlasco.   The improvements include the removal of trees in, what was, the roadway;  DX GG6–GG7, DX II7–II8, DX II16–17, DX II23;  and the placement of gravel in the roadway.   DX JJ1, JJ3–JJ6, JJ8–JJ11.   Foyto also testified that “no trespassing” signs were added along that same portion of the roadway.   The signs originally bore the name “Garlasco,” then “Anderson,” and they now bear the name “Neck of the Woods.”   See DX GG1, GG4, GG13–GG15, II5–6, JJ2, JJ8. Foyto testified that, a few weeks prior to his testimony, a police officer met with him because a complaint had been registered against Foyto for trespassing on the plaintiff's property.   Foyto, who had only traveled on the abandoned road, showed his deed to the officer, which gives him the right of passage on Sturdevant Road. DX–NN. The officer took no further action.

There is substantial evidence that Sturdevant Road has had little or no traffic for a great many years, including the fact that there are substantial trees growing between the stone “farmer's walls” that line much of Sturdevant Road. DX GG17–GG19;  see DX HH1–HH17, II18–II21.   The passage of an occasional hiker or horseback rider is insufficient to overcome overwhelming evidence of nonuser.   See Ventres v. Farmington, supra, 192 Conn. 667.

There was no evidence that New Milford made any effort to improve or maintain Sturdevant Road after 1820, or that Bridgewater ever made any effort to improve or maintain that road.   Bridgewater improved and maintained only that aspect of Sturdevant Road overlain by Old Town Highway, which was constructed after 1980.

In summary, the exhibits, the testimony that the court has credited, and the court's own observations require the conclusion that Sturdevant Road, including that portion of the road that fronts on the plaintiff's property, has been abandoned by nonuser for over 100 years.   The plaintiff's own efforts to improve its frontage and to exclude others from that same area support the court's conclusion.

F

Sturdevant Road—1980

If, in 1980, there had been a judicial finding in place that Sturdevant Road had been abandoned prior to 1980, there would have been no litigation between Bridgewater and the developers in 1978, no need to agree to the creation of Old Town Road in the 1980 settlement agreement, and no need to formally discontinue Sturdevant Road after the dispute was resolved.

However, since there was no such judicial finding in effect in 1980, Bridgewater did take the necessary steps to formally discontinue Sturdevant Road at that time.   On July 24, 1980, Bridgewater passed a resolution formally discontinuing all roads not on the Department of Transportation road inventory.   Shortly thereafter, Bridgewater formally discontinued Sturdevant Road, except for that portion of Sturdevant Road overlain by Old Town Highway which was the subject of the October 15, 1980 agreement.¹⁴  See DX V, W, X, Y.¹⁵

When the relevant defendants' exhibits are read in conjunction with each other, it is clear that Bridgewater formally discontinued Sturdevant Road, if it still existed, in 1980.   See DX V, W, X, Y;  see also Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907) (“[w]hen the agencies thus vested with the power [to discontinue a road] have so acted, the highway becomes discontinued immediately”).   Bridgewater's action, read in conjunction with the evidence regarding the litigation surrounding Old Town Road, adds credence to the testimony by Stuart, the First Selectman, that the formal discontinuances of roads in the two 1980 resolutions were intended to avoid the type of litigation that arose with the developers during the period of 1978 to 1980.

V

CONCLUSION

The court finds that the defendants have established, by a preponderance of the evidence, that Sturdevant Road was abandoned by nonuser more than 100 years ago.¹⁶  Even though it was not necessary for Bridgewater to discontinue an abandoned road, it did discontinue Sturdevant Road in 1980.   Old Town Highway, which was dedicated and accepted pursuant to the 1980 settlement agreement, overlays a small part of Sturdevant Road. No part of Old Town Highway or Sturdevant Road, south of the cul-de-sac that lies at the southern terminus of Old Town Highway, was ever dedicated or accepted by Bridgewater.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. Defendant Bridgewater Planning and Zoning Commission did not participate in the bifurcated trial..  FN1. Defendant Bridgewater Planning and Zoning Commission did not participate in the bifurcated trial.

FN2. Although the plaintiff refers to the road at issue as “Old Town Highway,” the court finds that Old Town Highway more properly refers, only, to a paved road that was created after Bridgewater entered into a settlement agreement in 1980.   For the most part, the latter road lies east of, and parallel to, a part of an eighteenth century road that was originally referred to as “Sturdevant Road.” Defs.' Ex. (“DX”) B. For the sake of clarity, the court will refer to the eighteenth century road as Sturdevant Road. The court will refer to the paved road that was constructed, dedicated and accepted by Bridgewater on or after 1980 as Old Town Highway..  FN2. Although the plaintiff refers to the road at issue as “Old Town Highway,” the court finds that Old Town Highway more properly refers, only, to a paved road that was created after Bridgewater entered into a settlement agreement in 1980.   For the most part, the latter road lies east of, and parallel to, a part of an eighteenth century road that was originally referred to as “Sturdevant Road.” Defs.' Ex. (“DX”) B. For the sake of clarity, the court will refer to the eighteenth century road as Sturdevant Road. The court will refer to the paved road that was constructed, dedicated and accepted by Bridgewater on or after 1980 as Old Town Highway.

FN3. The plaintiff claims that the precise measurement of the property is 22.952 acres.   For ease of reference, the court will hereafter refer to the property as being composed of “twenty-three” acres.   The court notes that the plaintiff purchased “all appurtenant rights to obtain access to said premises from Botsford Hill Road located in the Town of Roxbury.”   DX TT;  Trial Trs. 46–45, December 11, 2012..  FN3. The plaintiff claims that the precise measurement of the property is 22.952 acres.   For ease of reference, the court will hereafter refer to the property as being composed of “twenty-three” acres.   The court notes that the plaintiff purchased “all appurtenant rights to obtain access to said premises from Botsford Hill Road located in the Town of Roxbury.”   DX TT;  Trial Trs. 46–45, December 11, 2012.

FN4. General Statutes § 13a–55 provides that “[p]roperty 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 public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”.  FN4. General Statutes § 13a–55 provides that “[p]roperty 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 public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”

FN5. The parties agree that the following issues are not ripe for decision:  whether the creation of the plaintiff's property is a subdivision, a resubdivision, or in violation of General Statutes § 8–18..  FN5. The parties agree that the following issues are not ripe for decision:  whether the creation of the plaintiff's property is a subdivision, a resubdivision, or in violation of General Statutes § 8–18.

FN6. Practice Book § 17–55 provides that “[a] declaratory judgment action may be maintained if all of the following conditions have been met:  (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;  (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties;  and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”.  FN6. Practice Book § 17–55 provides that “[a] declaratory judgment action may be maintained if all of the following conditions have been met:  (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;  (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties;  and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

FN7. The court has attached to this opinion a drawing, for illustrative purposes only, of the route that Sturdevant Road followed and also the current location of Old Town Highway as it currently appears on the Bridgewater town assessor's map.   The location and nature of Sturdevant Road changed on several occasions after 1797.   The original description of the road, which relies on references to landmarks such as, e.g., “a heap of stones,” “a bunch of alders,” “a white oak,” and “a black oak,” is not particularly helpful in describing the contours of Sturdevant Road..  FN7. The court has attached to this opinion a drawing, for illustrative purposes only, of the route that Sturdevant Road followed and also the current location of Old Town Highway as it currently appears on the Bridgewater town assessor's map.   The location and nature of Sturdevant Road changed on several occasions after 1797.   The original description of the road, which relies on references to landmarks such as, e.g., “a heap of stones,” “a bunch of alders,” “a white oak,” and “a black oak,” is not particularly helpful in describing the contours of Sturdevant Road.

FN8. In 1820, Bridgewater was part of New Milford.   Bridgewater was not incorporated until 1856..  FN8. In 1820, Bridgewater was part of New Milford.   Bridgewater was not incorporated until 1856.

FN9. To be sure, it is clear, and the court finds, that Bridgewater never dedicated and accepted Sturdevant Road as a town road.   The plaintiff seems to argue that the town did so because, at one point in recent years, it placed boulders at the end of the cul-de-sac that forms the terminus of Old Town Highway.   Such evidence supports, not the plaintiff, but the defendants' position that the town had no intention of dedicating or accepting any highway south of the cul-de-sac..  FN9. To be sure, it is clear, and the court finds, that Bridgewater never dedicated and accepted Sturdevant Road as a town road.   The plaintiff seems to argue that the town did so because, at one point in recent years, it placed boulders at the end of the cul-de-sac that forms the terminus of Old Town Highway.   Such evidence supports, not the plaintiff, but the defendants' position that the town had no intention of dedicating or accepting any highway south of the cul-de-sac.

FN10. However, there is no credible evidence that any business operated on Sturdevant Road after 1850.   The plaintiff claims that some buildings visible on 1934 aerial photos of the Sturdevant Road area depict workshops of some sort.   The court does not find the latter evidence to be sufficient for the court to conclude that such workshops, if they existed at all, generated traffic on Sturdevant Road. The plaintiff also contends that the farms abutting Sturdevant Road after 1850 are “businesses.”   The court does not agree that the existence of abutting farms justifies a finding that Sturdevant Road would have been used by farm “customers” after 1850.   Similarly, the court rejects the plaintiff's claim that recent wood cutting on Sturdevant Road constitutes the operation of a “business” on that road.   There was significant evidence, which the court credits, that the recent woodcutting on Sturdevant Road was carried out by, or at the direction of, Garlasco..  FN10. However, there is no credible evidence that any business operated on Sturdevant Road after 1850.   The plaintiff claims that some buildings visible on 1934 aerial photos of the Sturdevant Road area depict workshops of some sort.   The court does not find the latter evidence to be sufficient for the court to conclude that such workshops, if they existed at all, generated traffic on Sturdevant Road. The plaintiff also contends that the farms abutting Sturdevant Road after 1850 are “businesses.”   The court does not agree that the existence of abutting farms justifies a finding that Sturdevant Road would have been used by farm “customers” after 1850.   Similarly, the court rejects the plaintiff's claim that recent wood cutting on Sturdevant Road constitutes the operation of a “business” on that road.   There was significant evidence, which the court credits, that the recent woodcutting on Sturdevant Road was carried out by, or at the direction of, Garlasco.

FN11. The minutes of the town meeting regarding this transaction state that the town gave “a quit claim deed to Jane Dundas White for any right the Town of Bridgewater may have to an old abandoned road running through her property ․” PX 15A..  FN11. The minutes of the town meeting regarding this transaction state that the town gave “a quit claim deed to Jane Dundas White for any right the Town of Bridgewater may have to an old abandoned road running through her property ․” PX 15A.

FN12. Foyto's property can be seen on the map attached to this opinion..  FN12. Foyto's property can be seen on the map attached to this opinion.

FN13. The various aerial maps offered by the plaintiff are not reliable evidence relative to the issue of the abandonment of Sturdevant Road. Those maps, at best, show that parts of Sturdevant Road seem to have been visible from the air at the time the photographs were taken.   Evidence that a road, particularly one bordered by stone walls, may be discernable from the air does not serve to rebut the defendants' showing of abandonment..  FN13. The various aerial maps offered by the plaintiff are not reliable evidence relative to the issue of the abandonment of Sturdevant Road. Those maps, at best, show that parts of Sturdevant Road seem to have been visible from the air at the time the photographs were taken.   Evidence that a road, particularly one bordered by stone walls, may be discernable from the air does not serve to rebut the defendants' showing of abandonment.

FN14. The July 24, 1980 resolution discontinued all highways or private ways' or land dedicated as such within Bridgewater, except those laid out by a court or the General Assembly and those highways, private ways or lands listed on the resolution.   The resolution referred to the developers' request that the town recognize “a portion” of “an alleged ‘old town highway’ running between Route 67 and Route 67A [Clapboard Road], it is understood that this resolution does not apply to said alleged ‘old town highway.’  “ DX X. It is clear that Bridgewater was not agreeing to recognize the “alleged ‘old town highway’ “ and that it was exempting from discontinuance only that small portion of the “old town highway” that was, eventually, conveyed to the developers..  FN14. The July 24, 1980 resolution discontinued all highways or private ways' or land dedicated as such within Bridgewater, except those laid out by a court or the General Assembly and those highways, private ways or lands listed on the resolution.   The resolution referred to the developers' request that the town recognize “a portion” of “an alleged ‘old town highway’ running between Route 67 and Route 67A [Clapboard Road], it is understood that this resolution does not apply to said alleged ‘old town highway.’  “ DX X. It is clear that Bridgewater was not agreeing to recognize the “alleged ‘old town highway’ “ and that it was exempting from discontinuance only that small portion of the “old town highway” that was, eventually, conveyed to the developers.

FN15. DX Y is dated October 30, 1980, and thus followed Bridgewater's October 15, 1980 settlement with the developers.   DX Y is a town resolution that served to “abandon as a town road that portion of the so-called ‘Old Town Highway’ running from Connecticut Route # 67 to its intersection with the new ‘Proposed Roadway’ ․” The court, having considered all of the evidence presented in this case, concludes that the foregoing resolution is properly interpreted to be a discontinuance of that portion of what was once known as Sturdevant Road that ran from Route 67 to its intersection with the southerly terminus of what is now known as Old Town Road. The fact that the town used the word “abandon” instead of “discontinue” is of no moment.   See Savalle v. Hilzinger, 123 Conn.App. 174, 181, 1 A.3d 1098 (2010) (“the incantation of a legal ‘abracadabra’ is not necessary to terminate the town road.   The essence of the thing accomplished controls” (internal quotation marks omitted))..  FN15. DX Y is dated October 30, 1980, and thus followed Bridgewater's October 15, 1980 settlement with the developers.   DX Y is a town resolution that served to “abandon as a town road that portion of the so-called ‘Old Town Highway’ running from Connecticut Route # 67 to its intersection with the new ‘Proposed Roadway’ ․” The court, having considered all of the evidence presented in this case, concludes that the foregoing resolution is properly interpreted to be a discontinuance of that portion of what was once known as Sturdevant Road that ran from Route 67 to its intersection with the southerly terminus of what is now known as Old Town Road. The fact that the town used the word “abandon” instead of “discontinue” is of no moment.   See Savalle v. Hilzinger, 123 Conn.App. 174, 181, 1 A.3d 1098 (2010) (“the incantation of a legal ‘abracadabra’ is not necessary to terminate the town road.   The essence of the thing accomplished controls” (internal quotation marks omitted)).

FN16. Consequently, the abandonment of Sturdevant Road is not governed by General Statutes § 13a–55, because the latter statute was enacted in 1959..  FN16. Consequently, the abandonment of Sturdevant Road is not governed by General Statutes § 13a–55, because the latter statute was enacted in 1959.

Danaher, John A., J.