Celia W. Wheeler et al. v. LLC (2013)

MEMORANDUM OF DECISION AS TO THE FIRST COUNT

I. INTRODUCTION

This matter is before this court following a trial limited to the claim asserted in the revised first count of the plaintiffs' and intervening plaintiffs' Second Amended Complaints.   This case is a continuation, unfortunately, of a century-long property dispute between property owners in a development in Branford, Connecticut currently known as Crescent Bluff Avenue (the Avenue).   In the operative complaints (# # 250 & 264), the plaintiffs and intervening plaintiffs allege that they own property located on Crescent Bluff Avenue that has become commonly known as “rear lots,” meaning that they do not abut directly Long Island Sound (the Sound).   The rear lots do abut and face on the Avenue.   The defendants are owners of “waterfront lots” that do abut the Sound.   The waterfront lots are located at the end of the Avenue.   In order to get to the Sound the plaintiffs must travel up the Avenue and cross the lawn on the McBurneys' property (the Lawn) over which they have a right of way to pass to reach the Sound.

All of the litigation between the property owners in Crescent Bluff from Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903), to the present has focused primarily on disputes over property rights to the Lawn. This case includes such claims as well.¹  What makes this case different though is that for the first time the parties have asked the court to determine their property rights as to the Avenue.   Counts One through Five of the operative complaints assert various claims by the plaintiffs and intervening plaintiffs regarding the Avenue.²  Those claims were precipitated by defendant Beachcroft, LLC's (“Beachcroft”) recent purported acquisition of a fee interest in the Avenue and Lawn from those it believes to be Fisk's heirs.   Following that acquisition, Beachcroft placed stakes along the frontage of the plaintiffs' and intervening plaintiffs' property apparently to make clear its claim of ownership to the Avenue.

In Count One, the plaintiffs and intervening plaintiffs allege that the Avenue is a public way.³  Because such a claim might affect the rights of all those who live on the Avenue, notice of this action was provided to all of the rear lot and waterfront owners on Crescent Bluff Avenue.   In addition, notice was provided to the Town of Branford and the Pine Orchard Association (“POA”).   POA is a body corporate and politic established by the General Assembly in 1903 by virtue of a Special Act and has rights to maintain certain portions of the Town of Branford and collect revenue from residents in the POA area to fund such maintenance.   Crescent Bluff Avenue is located within POA's area.   Waterfront owners James and Erin McBurney (the “McBurneys”) and Roger Lowlicht and Kay Haedicke intervened as defendants and have aligned themselves with Beachcroft.   The POA intervened as a defendant and has aligned itself with the plaintiffs and intervening plaintiffs.   The Town of Branford intervened as a defendant and has taken a somewhat confusing position, although it claims to join in all respects the post-trial brief submitted by the plaintiffs.   In summary, the plaintiffs, intervening plaintiffs, POA and the Town of Branford all claim that the Avenue is a public way.   Beachcroft, the McBurneys, Lowlicht and Haedicke dispute that claim.   Beachcroft also raised three special defenses claiming that the plaintiffs' claims are barred by the doctrine of res judicata (First Special Defense) and collateral estoppel (Second Special Defense), and that it is the owner in fee simple of the Avenue and Lawn (Third Special Defense).⁴

After the parties requested that the court try Count One before turning to the plaintiffs' and intervening plaintiffs' other claims regarding the Avenue, the court defined the issue to be tried as limited to the ownership or other interests that the plaintiffs and intervening plaintiffs have in the paved portion of the Avenue and the grassy strips between the paved portion and the plaintiffs' and intervening plaintiffs' lots by virtue of the plaintiffs' and intervening plaintiffs' claim that that portion of the Avenue is a public way.   The court made clear that it would not consider any other theories of ownership or other interests as such claims required more expansive discovery and would be addressed when the court considered counts Two through Five.

Consequently, the matter was tried before the court over three days.   The court heard testimony from a number of witnesses who currently live or formerly lived on the Avenue or in the area around the Avenue, including some of the parties.   It also heard from current and former employees from the Town of Branford, including a town engineer, the assessor, a former director of public works, and the first selectman, who also worked as a private contractor in Pine Orchard and on the Avenue.   The court also heard the testimony of Jane Bouley, the Town Historian since 1985, David Johnson, an employee of the South Central Regional Water Authority, and Jennifer Aniskovich, a member of the POA board since 2003.   The court also received numerous exhibits, including deeds relating to the properties along the Avenue, the plan by which the Crescent Bluff development was established and various historical documents that discussed or showed how the Avenue was used and maintained.

Following the presentation of evidence, the parties submitted lengthy and thorough post-trial briefs.   After receiving those briefs, the court heard extensive closing arguments from counsel.

II. FINDINGS OF FACT

In July 1885, Ellis Baker filed in the Branford land records a development plan (the Baker plan) for a beachfront community along the Sound.   Ex. 21.   At the time Baker filed the plan, he owned all the property within the development, as trustee for the beneficiaries of a trust, including Baker himself.

The Baker plan is a map depicting thirty-five lots, a strip of land labeled “Avenue” and an area directly abutting the beach labeled “Lawn.” Four of the lots abut the Lawn and face the Sound, while the remaining lots are located behind the waterfront lots and line the Avenue.   These rear lots, numbered 5 through 36,⁵ do not have direct abutting access to the Lawn. The Avenue runs north to south from a highway at its north terminus, to the Lawn at its south terminus.   The even numbered lots of the plan are on the west side of the Avenue.   The odd numbered lots are the east side of the Avenue.   Lots 3 and 4 abut the Avenue at its southern terminus and also abut the Lawn. Lots 1 and 2 abut the Lawn but do not abut the Avenue.   The Avenue, which formerly was known as either Maple or Linden Avenue, presently is known as Crescent Bluff Avenue.

Between July 29, 1885 and August 31, 1889, Baker transferred all of the lots in the plan, except Lot 36.   Exs. 2–18.   Each deed transferring a lot described the lot by referencing its number on the Baker plan.   The deeds by which Baker conveyed lots 1–5, 7–9, 14 and 16 all contained language that the grantees were also receiving “rights of way as shown upon said plan.”   Exs. 2–8, 10–11, 14.   The deeds for the other lots did not contain the right of way language.   Exs. 9, 12–13, 15–18.⁶

By deed dated July 5, 1892, Baker conveyed to “F. E. Drake, Trustee” property “consisting of Lot Number 36, the avenue and common lawn with all improvements thereon” Ex. 500.   In doing so, the deed made reference to the Baker plan.   On October 17, 1898, Drake conveyed lot 36 and the Avenue and Lawn to Prosper Istas, Trustee.   Ex. 501.   On December 6, 1901, Istas conveyed lot 36 and “the avenue and common lawn” to Louis A. Fisk. Ex. 502.   The parties presented no deeds evidencing any transfers of the Avenue or Lawn thereafter.

Since the original conveyances by Baker, the lots on Crescent Bluff Avenue have been conveyed by deeds, including those to the plaintiffs and intervening plaintiffs, that make reference to the lot numbers on the Baker plan.   Exs. 33–38, 301–04.   One of these deeds, Ex. 38, from Swick to Dimmler on July 10, 2002 for lot 20, purports to transfer “the permanent and perpetual right and easement to use said Maple Avenue or Crescent Bluff Avenue, to use the common lawn at the end of Maple Avenue or Crescent Bluff Avenue for bathing purposes;  and to pass and repass over said common land referred to herein for purposes of reaching said beach for bathing purposes.”   Ex. 38.   This deed grants this easement and right of way, even though the original deed from Baker for lot 20 did not include the right of way language.   Ex. 17.   The same is true as to the deed by which James and Joann Baldwin acquired lot 10 in 1994.   Compare Ex. 12 and Ex. 302.   In addition, the deed by which Peter and Suzanne Paquin acquired 9 Crescent Bluff Avenue in 1999 describes the Avenue as a “private way.”   Ex. 305.

Not surprisingly, no party presented any evidence regarding how the Avenue was used or described prior to 1900.   The earliest evidence presented was a “Sanborn map” showing the area at issue prepared in 1901.   Ex. 24.   That map shows the roads Linden Avenue and Maple Avenue.   Sanborn maps for the area prepared in 1908 and 1914 were also submitted into evidence.   Exs. 25 and 26.   The 1914 map shows that Linden Avenue had been renamed as Crescent Bluff Avenue.⁷  Exhibit 26 also shows roads to the west of Crescent Bluff Avenue and to the east of Linden Avenue designated as “Private Road.” The plaintiffs claim that these maps are persuasive evidence that as early as 1914, if not 1901, Crescent Bluff Avenue was a public way.

The court cannot reach that conclusion.   There was no evidence that the Sanborn maps were prepared for or at the direction of the Town of Branford, POA or any of the owners of the lots on Crescent Bluff Avenue.   The testimony of Jane Bouley, the town historian, was that they were prepared by a private company primarily for fire insurance purposes.⁸  There was simply no evidence that the Sanborn maps were intended to have any significance as to the legal status of Crescent Bluff Avenue.   Consequently, the court gives the maps no weight.

On June 13, 1903, POA was chartered by the State of Connecticut as an incorporated borough and municipal subdivision of the Town of Branford.   It has taxing power and jurisdiction over land use and streets within its borders.   Ex. 29.   The purpose of POA “is to provide for the improvement of the lands in said district and for the health, comfort, and convenience of persons living therein.”  Id. All persons owning real property within the boundaries of the borough of Pine Orchard are members of POA by virtue of their residency.   The area covered by POA includes both public and private roads.   It is undisputed that Crescent Bluff Avenue is in Pine Orchard and subject to POA's jurisdiction.

The evidence established that as early as 1939 residents on Crescent Bluff Avenue from time to time asked POA for assistance with various issues.   For example, the April 5, 1939 minutes of the POA executive board reflect that “property owners on Crescent Bluff Avenue had requested the assistance of the Association in restoring the means of access at the end of the said street.”   Ex. 1028.   While it is unclear whether this request related to work on the Avenue itself, other records of the POA show that prior to 1960 the POA installed road signs on Crescent Bluff Avenue (Ex. 1029, 1032) and issued parking regulations for the Avenue (Ex. 1036).   In 1969, a resident on Crescent Bluff Avenue asked the POA's permission to conduct a block party on the street on the Fourth of July. According to the POA's board minutes, “[h]e was informed that this street is a public road and that the matter should be referred to the appropriate town authorities.”   Ex. 1043.   In 1980 the POA installed signs on Crescent Road Avenue regulating alternate side of the street parking.   Ex. 1051.   Finally, Jennifer Aniskovich, a member of the POA board since 2003, testified that, during her tenure, the board had authorized work on Crescent Bluff Avenue, in particular maintaining the steps, railings and access way to the water.   She also testified that POA has a private security officer who patrols all of the streets in Pine Orchard, including Crescent Bluff.

Other documents of POA reflect a different view.   In a memorandum dated February 25, 1954, the POA examined the legal status of the various beach accesses within its jurisdiction.   Ex. 514.   Based on its survey of the titles associated with each access point, the POA determined that Crescent Bluff Avenue was a private street.   As to both Crescent Bluff Avenue and Linden Avenue, the author of the memorandum determined that “ownership of the property and its extension to the Sound is still in the original owners, subject however to right-of-way to and from the beach to the owners of property on each side of [Crescent Bluff Avenue].”  Id. Consistent with this conclusion, minutes of POA's board reflect that the POA viewed the wharf at the end of Crescent Bluff Avenue to be a private wharf.   Ex. 516.   Similarly, in or around 1966, the POA noted that there had been considerable use of Crescent Bluff Avenue by children as sort of a playground and cautioned drivers in the area to be careful.   Ex. 1039.   Approximately a year later, the minutes of the POA reflect that a resident on Crescent Bluff Avenue again raised the issue of children using the street as a playground and was told that “this was their personal problem and they were urged to do their best to control the situation.”   Ex. 1042.   Finally, POA's president in 2008 stated at a meeting that the public had no access rights to the beach from Crescent Bluff.   Ex. 517.⁹

Overall, the evidence regarding the POA's involvement with the Avenue is inconclusive.   The evidence does not establish whether the individuals requesting assistance from the POA board were rear lot owners or those who might claim to be successors to Fisk, who purported to acquire the Avenue and Lawn in 1901.   Furthermore, the fact that the POA provided road signs on Crescent Bluff could merely reflect that the residents on the Avenue were getting some benefit for the taxes that were levied on them.   The fact that the POA imposed parking regulations on the Avenue does suggest that it viewed the street as being a public road.   At the same time though, in 1954 it specifically concluded that the Avenue was a private road and when asked to intervene to stop children from using the road as a playground, the POA board told the residents on Crescent Bluff Avenue that it was their personal problem.   Given the inconsistencies in its record and conduct, the court attaches little legal significance to the evidence it heard regarding the POA.

The evidence regarding the Town of Branford's involvement with the Avenue established the following facts.   First, the town never formally accepted Crescent Bluff Avenue as a public road.   Beginning in or about 1987 though, the town did extend its sewer system into Pine Orchard, including Crescent Bluff Avenue.   Ex. 52.   In or about 1990, the residents of Crescent Bluff were levied a benefit assessment associated with the installation of the sewer system.   Ex. 50.   There is no evidence that anyone on Crescent Bluff Avenue claimed that the Town had no right to install the sewer system or even objected to the town digging up the Avenue for that purpose.   There is also no evidence that the town sought an easement from any owner to do this work.   Janice Plaziak, a town engineer for seven years, testified credibly that the town has no records of easements for the work on Crescent Bluff Avenue and that when the town installs sewers on a private road it does get an easement from the owner of the private road before doing such work.

Ms. Plaziak further testified that the town has handled requests for utility work on Crescent Bluff Avenue in a similar fashion in recent years.   For example, on November 27, 2007, the town issued an excavation permit to Southern Connecticut Gas Company to do work on Crescent Bluff Avenue.   Ex. 55.   A similar permit was issued to Tom Shanley on April 28, 2008 to move the sewer line on the Avenue.  Id. The town does not issue such permits for private roads.   In addition, the town has no records that it sought an easement from the owner of the Avenue before issuing such permits.

The court also credits the testimony of Edward Masotta that the town paved or resurfaced and repaired Crescent Bluff Avenue during his tenure.   Mr. Masotta was the Director of Public Works for the town from 1989 to 2010.   Based on his testimony on cross examination that he was 90% certain that the town paved the Avenue, the court so finds.¹⁰  Mr. Masotta also was involved in the town's project to put in and maintain storm drains on Crescent Bluff Avenue.   Again, he testified credibly that the town cleaned out the storm drains every two to three years.   The town also plowed Crescent Bluff Avenue after snow storms and maintained road signs on the Avenue.   It performed all of these functions without ever seeking the permission of anyone to enter onto the Avenue.   By contrast, if Mr. Masotta ever needed to go onto what he considered to be private property, he would inform the owner that he intended to do so.

Mr. Masotta did acknowledge that the town also plows and sands private roads following snow events.   However, it was clear to the court that the services provided by the town to Crescent Bluff Avenue, and the manner in which they were provided, since at least the mid–1980s, went far and beyond the typical services it would provide to private roads and handled in a way different than how the town handled the provision of services to private roads.

The evidence also showed that since 1950, the town has listed Crescent Bluff Avenue as a town maintained road on reports submitted to the State Department of Transportation.   Ex. 44.   While these reports do not explicitly identify the roads listed as public roads, each list submitted requires the town official to certify that “the above-listed roads have had legal liability and maintenance responsibility accepted by the above named town, are open to public motor vehicle travel during the majority of the year, are accessible via the public highway network, and are passable in a standard passenger vehicle.”   Ex. 47.¹¹

In response to the above, the defendants point to evidence that shows that the manner in which the town has treated Crescent Bluff Avenue is consistent with how it treats other private roads in town.   For example, as noted above, the evidence established that the town plows and sands private roads.   It also places fire hydrants on private roads.   Finally, it does not tax roads in town, whether they are public or private.

These facts do not change the court's conclusion that the services provided by the town to Crescent Bluff Avenue were beyond those provided to private roads.   In addition, the evidence the court heard regarding fire hydrants undermines the defendants' reliance on that fact.   David Johnson from South Central Connecticut Regional Water Authority testified regarding the company's record of work done on the Avenue.   The water authority's records of service date to 1915, when the first water line was installed on the Avenue.¹²  Ex. 67.   Johnson testified, and the records reflect, that in addition to doing work on the water mains, the water authority has serviced and replaced fire hydrants on the Avenue.   According to Johnson, while the water authority services both public and private roads they have different procedures for each.   When work is required on private roads, the water authority will obtain an easement.   Johnson found no records of any such easements for Crescent Bluff Avenue.¹³

In addition, the defendants point out that the town has taken inconsistent positions in this litigation regarding whether Crescent Bluff Avenue is a public road.   Most importantly, the defendants argue that the town failed to respond to requests for admission which stated that the Avenue is a private road.   According to the defendants, by failing to respond to the requests for admission, the town is deemed to have admitted them.   At the same time, the town answered a request for admission served on it by the plaintiffs admitting that Crescent Bluff Avenue is a public road.   Adding to the confusion is the town's pre-trial Revised Statement of Interest in which it states that the town “has an interest in the paved portion of Crescent Bluff Avenue in that the Town possesses a right of way and easement across said property for the purposes of maintaining, servicing and repairing property placed upon said Avenue for the public good such as fire hydrants and drainage pipes.   The Town further claims an easement for the purpose of keeping the Avenue clean of snow or storm debris that might impede access to police, fire or other emergency vehicles.   The Town takes no position on the legal issue of whether Crescent Bluff Avenue has been dedicated and accepted as a public street.”   October 11, 2012 Town of Branford Revised Statement of Interest.   Then, after trial, the town stated that it joined in all respects the post-trial brief submitted by the plaintiffs.   Finally, in a curiously constructed reply brief, the town seemed to retreat to its pre-trial position only to conclude by saying that the Avenue has been impliedly accepted by the town.

In the end, the court finds that statements made or not made by the town during the litigation, as opposed to the sworn testimony of witnesses, have no probative value.   While the court does not condone the manner in which the town handled properly served requests for admission, it is clear to the court that responsibility for the confusion and uncertainty created rests almost entirely with counsel.   For this reason, the court ascribes no weight to the town's responses or non-responses, preferring instead to focus on the testimony of the witnesses and the historical documentary record which establish a much more accurate picture of how the town treated the Avenue.   Based on that evidence, the court finds that the town treated the paved portion of the Avenue as a public road since at least the mid–1980s.   At the same time, the evidence established that the Town never treated the grassy portions adjacent to the Avenue as part of the public road.

Finally, the court turns to the evidence of usage of the Avenue by the public.   The evidence established that, with few exceptions, no signs or barriers were ever placed on the road to block or discourage public usage.   The only evidence to the contrary was the testimony of Tina Mannarino who has lived on the Avenue for eleven years.   According to Ms. Mannarino, at one point a concrete ball with a “children at play” sign was rolled into the street.   She called the town and the town removed the ball and replaced it with a street sign.   Similarly, she saw the town remove a “dead end” sign and replace it with a “no outlet” sign.   This evidence further establishes that the town treated the Avenue as a public road.   Further, neither sign placed by the town is inconsistent with the Avenue being a public road.   In conclusion, a person traveling the roads of Branford would have no reason to believe that the Avenue was anything other than a public road.

Having said that, the court found most of the evidence of anecdotal usage by area residents to be of little value.   The current and former residents of the Avenue, including the plaintiffs and intervening plaintiffs, all testified to seeing non-residents of the Avenue walking along it.   However, almost none of them could identify the persons using the Avenue and whether they were guests of other residents of the Avenue or members of the general public.

One exception was the testimony of Antoinette Verderame.   Ms. Verderame has lived on Crescent Bluff Avenue for 69 years.   She testified that she has often seen people walk down the Avenue towards the water.   She testified that this has been a regular occurrence every year during the warm weather.   While she did not know why the people were there, she testified that she would know if they were tenants of one of the other owners on the Avenue.   Given her long history on the Avenue the court finds this testimony credible.

Many of the witnesses testified to seeing cars parked along the street.   Although, Dean Leone, who is married to Mannarino, testified that in his eleven years on the Avenue he has never seen a car park on the Avenue and the occupants of the car walk to the beach at the end of the Avenue.   Furthermore, the evidence established that the Avenue is narrow with little parking room for people who do not reside there.

As to non-residents of the Avenue, the court credits the testimony of Elaine Littlehales.   Ms. Littlehales has been a resident of 18 Spring Rock Road for 52 years.   Spring Rock Road is the street immediately to the west of Crescent Bluff Avenue.   She testified credibly that she regularly walks the neighborhood and walks up the Avenue approximately fifteen times a year.   She has never been stopped from walking along the Avenue.   Similarly, Jennifer Aniskovich, who does not live on the Avenue, testified credibly that she regularly walks uninhibited along the Avenue.

Barbara Sagesse, the sole member of Beachcroft, testified similarly.   Since first living on the Avenue in the summer of 2003, Sagesse has regularly seen people she does not know walk along the Avenue.   Neither she nor anyone else has ever sought to prevent anyone from walking up and down the Avenue.

The defendants argue that the paucity of public usage evidence offered by the plaintiffs and intervening plaintiffs undermines their claim that the Avenue is regularly used by the public at large.   The defendants correctly note that the plaintiffs offered no witness from outside of Pine Orchard to testify about uninvited use of the Avenue.   They also point out that despite the age of this case, the plaintiffs offered no photographic or video evidence of public usage.

The defendants' arguments are well-founded.   Based on the evidence offered, and what was not offered, the court concludes that while non-residents of the Avenue can and do use the Avenue without interference, such use is infrequent and irregular, occurring mostly in the warmer weather.

Additional facts will be discussed as required.

III. DISCUSSION

In order to prove that the Avenue is a public way, the plaintiffs must prove that there was a valid dedication of the Avenue for that purpose.  Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 9, 48 A.3d 107 (2012).¹⁴  “It is essential to a valid dedication that there be a manifested intent by the owner to dedicate the land in question for use by the public, and an acceptance by the proper authorities or by the general public.”  DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959).   Both the intent to dedicate and the acceptance can be either expressed or implied.  Kent v. Pratt, 73 Conn. 573, 578, 48 A.418 (1901).   In this case, it is undisputed that neither Baker nor any purported owner of the Avenue after him ever expressly dedicated the Avenue for public use.   Similarly, it is undisputed that the Town of Branford never expressly accepted the Avenue as a public road.   Thus, to succeed on their claims, the plaintiffs and intervening plaintiffs must prove a dedication by implication.

With respect to an owner's intent to dedicate, “[t]he acts and conduct of an owner of land may be such that the law will imply from them an intent to devote it to the public use.”  LaChappelle v. Jewett City, 121 Conn. 381, 386, 185 A. 175 (1936).   What is important is not what the owner actually intended, but what his actions conveyed.  “It is the purpose as manifested by his acts, rather than the intention actually existing in his mind, which the law regards as essential to an implied dedication.”  Kent v. Pratt, supra, 73 Conn. 579.   Such acts “must be such that his intention [to dedicate his land] is clearly manifest ․ 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;  citations omitted.)  LaChappelle v. Jewett City, supra, 121 Conn. 386.

Applying these principals to the facts found, the court concludes that the plaintiffs and intervening plaintiffs have failed to prove that Baker intended to dedicate the Avenue as a public road.   The only evidence presented by the plaintiffs and intervening plaintiffs in support of their claim that Baker so intended, is the Baker plan itself and the fact that Baker did not reserve to himself the ownership of the Avenue when he sold the lots on the plan.   According to the plaintiffs and intervening plaintiffs, these facts conclusively establish an intent to dedicate.

In support of their argument, the plaintiffs rely principally on two cases.   First, they point to Street v. Leete, 79 Conn. 352, 65 A. 373 (1906), in which the Supreme Court affirmed the trial court's conclusion that a street in a development plan similar to the Avenue in the Baker plan had been impliedly dedicated to public use.   As Baker did in this case, in Street, James and Cornelia Parker developed a piece of property along Long Island Sound, in particular, along Morris Cove in South Haven.   In doing so, the Parkers prepared a map that divided the property into 42 building lots.   The map also showed an avenue, Parker Place, that ran through the development to the cove.   Before reaching the cove, Parker Place crossed another road, Townsend Avenue.   Similarly, lots 1–13 of the development were separated from the cove by Townsend Avenue.   When they sold those lots between 1882 and 1886, the Parkers conveyed to the purchasers the property on both sides of Townsend Avenue.   Id., 355.   In 1906, James Parker executed a quit-claim deed transferring any rights he had to that part of Parker Place between Townsend Avenue and the cove.   When the defendant in Street sought to build on this piece of land, the plaintiffs, owners of other lots in the Parker development, brought an action seeking to enjoin the defendant and claiming that the land in question was an extension of Parker Place and had been dedicated as a public road by the Parkers.

The court agreed with the defendants and found that the Parkers had effectively dedicated Parker Place before James Parker quit-claimed the piece along the cove.  Id., 358.   In doing so, the court looked not just at the development map, but also at the language of the deeds by which the lots were conveyed in the 1880s.   Not only did those deeds show an intent to continue each lot sold beyond Townsend Avenue to the cove, some of the deeds specifically stated that Parker Place itself continued past Townsend Avenue to the cove.  Id. Furthermore, there was evidence that the Parkers had specifically said that the lot in question could not be sold as they had dedicated it to the public.  Id., 357.   Finally, the evidence established that the public had regularly used the lot in question to access the cove for two decades before Parker purported to sell it.  Id.

The evidence, or lack thereof, in this case, renders Street of little help to the plaintiffs.   First, the plaintiffs and intervening plaintiffs presented no evidence of public use between 1885 when the Baker plan was put in place and 1892 when Baker purported to sell the Avenue.   Similarly, there is no evidence that Baker ever specifically told anyone that he had dedicated the Avenue to the public.   Third, while the language of the deeds in Street were consistent with an intent to dedicate the lot in question, the language of the deeds in this case is inconsistent with any such intent.   As noted above, the deeds for lots conveyed by Baker around the same time he filed the Baker plan explicitly provided the grantees with “rights of way as shown upon said plan.”   There would be no need to grant such rights if Baker intended to dedicate the Avenue to the public.   As our Supreme Court has held, “the inclusion, in the conveyances ․ of a right of way in each case through Water Street tend to negative the existence of such intention [to dedicate].”  LaChappelle v. Jewett City, supra, 121 Conn. 387.   Consequently, the evidence that showed a manifest intent to dedicate in Street is simply not present here.

In Pierce v. Roberts, 57 Conn. 31, 17 A. 275 (1889), the court also addressed a claim of implied dedication based upon a development plan similar to the Baker plan.   Once again, the property in question was along Long Island Sound, specifically at Sachems' Head in Guilford.   The map that depicted the development showed 22 building lots laid out fronting the Sound in a circular configuration “and on the interior side on a circular drive-way or road sixteen feet wide, which left a piece of land in the center resembling an ellipse in shape, containing half an acre.”  Id., 34.   The ellipse piece in the center was marked as “Park” on the map.   Each of the plaintiffs bought lots in the development in 1882 and erected cottages thereon.   The park area was kept open until some years later when the defendants, who had sold the lots to the plaintiffs, sought to sell the park to a third party “who had at the time and previously full knowledge of the agreements made by the other defendants with the several plaintiffs.”  Id., 36.   The court held that the facts supported a conclusion that the defendants had dedicated the park when they developed their plan and sold the lots to the plaintiffs.   In reaching this conclusion, the court relied not only on the development plan and map but also parol evidence that showed that the defendants so intended.  Id., 39–41.   Nevertheless, the court stated that “a dedication was conclusively effected by the deeds in connection with the map and its filing in the town clerk's office.”  Id., 41.

The plaintiffs argue that this court should apply this rule and hold that the filing of the Baker plan and the deeds granted in connection with that plan conclusively establish a dedication here.   The court is not persuaded.   First, as noted above, the deeds here negative an intent to dedicate by inclusion of the right of way language.   There is no indication that any such language appeared in the deeds in Pierce.   Second, none of the parole evidence that was present and relied upon by the court in Pierce is present here.

Finally, although Pierce uses the word dedication, it has been cited by our Supreme and Appellate Courts as holding that the development plan and map actually created an implied easement in favor of the other residents.   See, e.g. Whitton v. Clark, 112 Conn. 28, 32 151 A. 305 (1930);  Hickson v. Noroton Manor, Inc., 118 Conn. 180, 188, 171 A.31 (1934);  Aunt Hick Ridge Estates, Inc. v. Planning Comm., 160 Conn. 109, 116, 273 A.2d 880 (1970);  Murphy v. EAPWJP, LLC, 123 Conn.App. 316, 334, 1 A.3d 1171 (2010).

Significantly, one of the cases that so applied Pierce was McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006), which involved many of the same parties involved here and the Baker plan.   After citing Pierce for the “well settled” rule that “a map may create an implied easement,” id., 802, the court applied the reasoning of Pierce to the Baker plan.  “In [Pierce ], we noted that use of the area designated as ‘[p]ark’ on the map was so ‘prominent and attractive’ a feature of the individual lots that such use was essential to the ‘completeness' of those lots ․ This very same reasoning supports the conclusion in the present case that the Baker plan created an implied easement allowing the rear lot owners use of the lawn area.”  Id., 804.   Given all of the above, the court concludes that Pierce, as subsequently interpreted by our appellate courts, does not require a finding that by filing a map that included the Avenue, Baker necessarily dedicated the Avenue as a public road.

Furthermore, the holding in McBurney supports this conclusion for another reason.   Although the focus of the dispute in McBurney was the Lawn, the court also discussed the Avenue.  “[W]e note that the plan depicts the avenue leading directly into the lawn area, without any lines indicating the extension of the road to the Sound or in any other way indicating a division between the lawn area and the avenue.   In fact, the most reasonable way to view the two, the avenue and the lawn, is as part and parcel of one common area.   Thus, any inferences that would apply to support the conclusion that the avenue is a common area strengthen the conclusion that the lawn was also intended to be shared in common ․ The avenue depicted on the Baker plan is the only access that the rear lot owners have to the street labeled “highway” on the map.   It is well settled that under such circumstances, lot owners have an implied easement over the street for access to the highway.”  (Citations omitted.)   Id., 805.   This conclusion is essentially the same one the court reached 103 years earlier in Fisk v. Ley. With regard to the Baker plan, the court, citing Pierce, held that “[t]he filing of the plan in the town clerk's office, and the conveyances referring to it, annexed to every lot a right to use the ‘avenue’ and ‘lawn’;  to go over them to the Sound;  and to use the strip of beach between the foot of the bank and the water for all purposes as might reasonably serve the convenience of an adjoining proprietor.”  Fisk v. Ley, supra, 76 Conn. 300.

The court's analyses in McBurney and Fisk are relevant to this dispute because they set forth a reasonable explanation for Baker's conduct in putting together his plan other than dedication of the Avenue to the public.   Where such a reasonable alternative intention exists, the court cannot infer an intent to dedicate.  LaChappelle v. Jewett City, supra, 121 Conn. 386.   Furthermore, given that some of the residents on the Avenue had an express right of way, it is more likely that Baker intended to create an implied easement in the Avenue for the others as opposed to intending to create a general right to use in the public.

In addition, the court concludes that Baker's conveyance of the Avenue and Lawn to Drake in 1892 is inconsistent with a conclusion that Baker seven years earlier intended to dedicate the Avenue as a public road.   While it is true that the courts in Street and Pierce found an intent to dedicate despite a subsequent conveyance by the developer, those cases do not undermine this conclusion.   Unlike in Street, here there is no evidence of public use of the Avenue before Baker's conveyance of it.   Furthermore, there is no evidence of any statements by Baker acknowledging that the Avenue was a public way.   Pierce has been interpreted consistently as holding that the defendants' actions created an implied easement in favor of the other lot owners.   That is exactly how our Supreme Court has interpreted the Baker plan on two different occasions.   A conveyance of the Avenue by Baker to Drake, knowing that it was encumbered by both express and implied easements, is completely consistent with the Baker plan and how it has been interpreted.

Finally, the deeds by which the plaintiffs and intervening plaintiffs acquired their own title to their lots are inconsistent with a claim that the Avenue is a public way.   Despite claiming that the Avenue was dedicated as a public road in 1885, deeds into the plaintiffs or intervening plaintiffs more than 100 years later continue to reference a private right of way to use the Avenue.   Ex. 37, 38, 302 and 303.   In addition, at least one deed, prepared in 1999, explicitly describes Crescent Bluff Avenue as a “private way.”   Ex. 305.

In conclusion, the evidence presented does not establish that Baker had a manifest intent to dedicate the Avenue as a public road.   To the contrary, the evidence established that it is as reasonable, if not more so, to infer that Baker intended to grant rights of way, either expressly or impliedly, to the lot owners on the Avenue.   Consequently, the plaintiffs and intervening plaintiffs have failed to prove one of the two essential elements to establish a dedication of the Avenue as a public road—an intent to dedicate.

Given the above conclusion, the court need not address the question of whether the town accepted the road as a public road following the filing of the Baker plan.   Nevertheless, it is worth noting the following.  “[T]o be effectual an acceptance must occur within a reasonable period of time after the intent to dedicate the property has been manifested.”  Katz v. West Hartford, 191 Conn. 594, 598, 469 A.2d 410 (1983).   Given the plaintiffs' argument that Baker expressed his intent to dedicate the Avenue when he filed the Baker plan, acceptance would have to have occurred in a reasonable time period after 1885.   The plaintiffs and intervening plaintiffs presented no evidence of any acts that would constitute acceptance until several decades after 1885.

While a water line was first placed on the Avenue in 1915, there was no evidence of any involvement by the town in that project.   Similarly, there was no evidence of any town involvement in preparation of the Sanborn maps in 1901, 1908 and 1914.   While the court has found that the town paved the Avenue and installed storm drains and sewers, there was no evidence as to when any of those things occurred, other than the sewers being installed around 1987.   Similarly, there was no evidence that the town posted any signs on the street prior to the 1960s.   While the town listed the Avenue as a road it maintained, on the report it provided the Department of Transportation, as early as 1950, even if viewed as an act of acceptance, it still did not occur until 65 years after Baker filed his plan.   There was also no evidence of public usage of the Avenue earlier than 1944.   Consequently, the plaintiffs and intervening plaintiffs failed to prove acceptance within a reasonable time following the filing of the Baker plan.

The plaintiffs, intervening plaintiffs, the POA and the town make an alternative argument regarding dedication.   They argue that even if Baker did not dedicate the Avenue as a public road the actions or inactions of the subsequent owners of the Avenue constitute a dedication by acquiescence.   In at least one case, our Supreme Court has found evidence of an intent to dedicate from “[t]he existence of homes along the paved road, the open and continuous use by the public of that portion of [the road], and the absence of evidence of private control of the road.”  A & H Corp. v. Bridgeport, 180 Conn. 435, 440, 430 A.2d 25 (1980).   However, “[a]cquiescence of the property owners to its use by some members of the public does not conclusively establish its dedication to the borough for public use.”  Mihalczo v. Woodmont, 175 Conn. 535, 542–43, 400 A.2d 270 (1978).

The plaintiffs and related parties claim that the evidence shows that for at least the last 30 years the Avenue has been used openly and continuously by the public, the town of Branford has controlled the repair and maintenance of the Avenue, and there is an absence of any private control of the road.   Consequently, the court should find that the purported owners of the Avenue dedicated it to the public by their acquiescence to such activities.

The problem with this argument is that the plaintiffs and related parties offered no evidence that the owners of the Avenue in the recent past even knew about the public use of the Avenue.   In fact, the plaintiffs did not even identify who the owners were at any particular point in time.   One cannot be found to acquiesce to something without evidence that he or she knew about it.   Our appellate courts have so held in this precise context.   In Kent v. Pratt, the Supreme Court held:  “We think it clear that the facts may be such as to amount to a dedication, without an express finding of an intention to dedicate, and that the amount, character, duration and circumstances of the use which has existed with the full knowledge of the owner of the land, and without his dissent, may be shown to be such ․ that the law will conclusively presume an intent to dedicate.”  (Emphasis added.)  Kent v. Pratt, supra, 73 Conn. 579.   Similarly, in LaChappelle, the court held that:  “Such user, known to and acquiesced in by the owner, may, under certain circumstances, afford a sufficient ground for an inference of an intent to dedicate.”  (Emphasis added.)  LaChappelle v. Jewett City, supra, 121 Conn. 387.   More recently, our Appellate Court held that the doctrine of title by acquiescence requires that “the acquiescence must occur under circumstances that indicate an assent to such a use.”  Marshall v. Soffer, 58 Conn.App. 737, 744–45, 756 A.2d 284 (2000).   Such assent necessarily requires knowledge.  DelBuono v. Brown Boat Works, Inc., 45 Conn.App. 524, 533, 696 A.2d 1271 (1997).

As noted above, the evidence of public use of the Avenue offered by the plaintiffs and related parties began in approximately 1944.   The plaintiffs did not prove who owned the Avenue from that date until Beachcroft acquired and took the antagonistic actions that precipitated this dispute.   Nor did they prove that any owner had knowledge of the alleged public use.   Consequently, the plaintiffs and related parties have failed to prove an intent on the part of any owner of the Avenue to dedicate it to public use.¹⁵

Given that the plaintiffs and intervening plaintiffs have failed to prove an intent to dedicate the Avenue to public use, either by Baker in 1885 or by any owner since then, they cannot succeed on Count One of the Second Amended Complaint.   The plaintiff and intervening plaintiffs have failed to prove that the Avenue is a public way.¹⁶

IV. Conclusion

For all of the foregoing reasons, judgment determining that the Avenue is not a public way shall enter for the defendant Beachcroft on Count One of the plaintiffs' and intervening plaintiffs' second amended complaints.

Bright, J.

FOOTNOTES

FN1. Counts Six through Eleven of the operative complaints assert various claims by the plaintiffs regarding the Lawn. Earlier this year, the court granted summary judgment in favor of the defendants as to Counts Seven, Eight, Ten, and Eleven It denied the defendants' motions for summary judgment as to Counts Six and Nine, which remain to be tried..  FN1. Counts Six through Eleven of the operative complaints assert various claims by the plaintiffs regarding the Lawn. Earlier this year, the court granted summary judgment in favor of the defendants as to Counts Seven, Eight, Ten, and Eleven It denied the defendants' motions for summary judgment as to Counts Six and Nine, which remain to be tried.

FN2. Count One asserts that the Avenue is a public way.   Count Two asserts a claim of adverse possession.   Count Three asserts a claim of prescriptive easement.   Count Four asserts a claim of covenant appurtenant.   Count Five asserts easement by necessity..  FN2. Count One asserts that the Avenue is a public way.   Count Two asserts a claim of adverse possession.   Count Three asserts a claim of prescriptive easement.   Count Four asserts a claim of covenant appurtenant.   Count Five asserts easement by necessity.

FN3. Although Count One asks for judgment as to the “Avenue–Lawn Parcel,” the parties agree that all that is at issue in Count One was whether the Avenue is a public way.   This is further confirmed by the relief requested by the plaintiffs and intervening plaintiffs.   They ask for a judgment “declaring that the portion of the Avenue–Lawn Parcel that abuts the Plaintiffs' Residential Lots is a public way.”   The plaintiffs' properties only abut the Avenue and not the Lawn. Finally, Count Six of the operative complaints seek a specific determination that the Lawn is a public way..  FN3. Although Count One asks for judgment as to the “Avenue–Lawn Parcel,” the parties agree that all that is at issue in Count One was whether the Avenue is a public way.   This is further confirmed by the relief requested by the plaintiffs and intervening plaintiffs.   They ask for a judgment “declaring that the portion of the Avenue–Lawn Parcel that abuts the Plaintiffs' Residential Lots is a public way.”   The plaintiffs' properties only abut the Avenue and not the Lawn. Finally, Count Six of the operative complaints seek a specific determination that the Lawn is a public way.

FN4. Beachcroft has acknowledged that the question of its ownership interest in the Avenue was not at issue in this trial.   The court agrees Beachcroft's claim to ownership of the Avenue only becomes an issue if the court concludes that the Avenue is not a public way.   In that event, the court will determine what private property rights all of the parties have in the Avenue.   Consequently, the Third Special Defense is really a defense to Counts Two through Five of the operative complaints and will be considered in conjunction with those counts, should the court need to reach them..  FN4. Beachcroft has acknowledged that the question of its ownership interest in the Avenue was not at issue in this trial.   The court agrees Beachcroft's claim to ownership of the Avenue only becomes an issue if the court concludes that the Avenue is not a public way.   In that event, the court will determine what private property rights all of the parties have in the Avenue.   Consequently, the Third Special Defense is really a defense to Counts Two through Five of the operative complaints and will be considered in conjunction with those counts, should the court need to reach them.

FN5. Due to the shape of the development and an apparent desire to keep the even and odd numbered streets on opposite sides of the road, the Baker Plan does not include a lot 35.   Thus, although the last numbered lot is 36, there are only 35 lots on the plan..  FN5. Due to the shape of the development and an apparent desire to keep the even and odd numbered streets on opposite sides of the road, the Baker Plan does not include a lot 35.   Thus, although the last numbered lot is 36, there are only 35 lots on the plan.

FN6. Exhibits 15 and 16 each conveyed seven lots.   Exhibit 17 conveyed six lots..  FN6. Exhibits 15 and 16 each conveyed seven lots.   Exhibit 17 conveyed six lots.

FN7. Exhibits 24 and 26 also show Maple Avenue as the street immediately to the east of Linden Avenue.   As noted above, the court heard evidence that Crescent Bluff was formerly Maple Avenue.   Exhibit 26 though shows that Maple Avenue became Linden Avenue when Linden Avenue became Crescent Bluff.   Given the purpose for which the plaintiffs offered the maps, the issue of whether Crescent Bluff was formerly named Linden Avenue, Maple Avenue or both is not relevant to this matter..  FN7. Exhibits 24 and 26 also show Maple Avenue as the street immediately to the east of Linden Avenue.   As noted above, the court heard evidence that Crescent Bluff was formerly Maple Avenue.   Exhibit 26 though shows that Maple Avenue became Linden Avenue when Linden Avenue became Crescent Bluff.   Given the purpose for which the plaintiffs offered the maps, the issue of whether Crescent Bluff was formerly named Linden Avenue, Maple Avenue or both is not relevant to this matter.

FN8. Bouley further testified that she is affiliated with the Branford Historical Society, which is not affiliated with the Town of Branford..  FN8. Bouley further testified that she is affiliated with the Branford Historical Society, which is not affiliated with the Town of Branford.

FN9. The defendants also rely on the minutes from a 2006 POA meeting where this same president, John Donegan, said that the POA would not get involved with the then existent right of way dispute between the rear lot owners and the waterfront lot owners over access across One Crescent Bluff Avenue.   Ex. 515.   The defendants read too much significance into Donegan's comment that “the Board does not get involved in private property disputes.”   There was no issue regarding access to the Avenue at that time or at that meeting..  FN9. The defendants also rely on the minutes from a 2006 POA meeting where this same president, John Donegan, said that the POA would not get involved with the then existent right of way dispute between the rear lot owners and the waterfront lot owners over access across One Crescent Bluff Avenue.   Ex. 515.   The defendants read too much significance into Donegan's comment that “the Board does not get involved in private property disputes.”   There was no issue regarding access to the Avenue at that time or at that meeting.

FN10. The defendant argues that the court should reject Mr. Masotta's recollection in light of his testimony that there should be town records showing the paving work.   The plaintiffs produced no such records.   While such records might have furthered the plaintiffs' case, the court does not draw the negative inference the defendants suggest.   Mr. Masotta testified credibly, and the defendants offered no evidence to the contrary.   In addition, the defendants could have just as easily searched the town's records to rebut Mr. Masotta's testimony They did not..  FN10. The defendant argues that the court should reject Mr. Masotta's recollection in light of his testimony that there should be town records showing the paving work.   The plaintiffs produced no such records.   While such records might have furthered the plaintiffs' case, the court does not draw the negative inference the defendants suggest.   Mr. Masotta testified credibly, and the defendants offered no evidence to the contrary.   In addition, the defendants could have just as easily searched the town's records to rebut Mr. Masotta's testimony They did not.

FN11. The evidence was unclear regarding how long this certification has been required.   Exhibit 47 indicates that it was revised in 2009..  FN11. The evidence was unclear regarding how long this certification has been required.   Exhibit 47 indicates that it was revised in 2009.

FN12. Johnson testified that the water authority was formed in 1980 as a quasi-municipal entity.   It is the successor to Branford Power & Light.   Thus, although maintained by the water authority, the records for work done prior to 1980 were those of its predecessor..  FN12. Johnson testified that the water authority was formed in 1980 as a quasi-municipal entity.   It is the successor to Branford Power & Light.   Thus, although maintained by the water authority, the records for work done prior to 1980 were those of its predecessor.

FN13. The court found Johnson's testimony persuasive only as it related to the water authority.   Johnson never worked for Branford Power & Light and could not testify about its procedures regarding easements.   There was also no evidence offered as to who contracted for and paid for the installation of the water line in 1915..  FN13. The court found Johnson's testimony persuasive only as it related to the water authority.   Johnson never worked for Branford Power & Light and could not testify about its procedures regarding easements.   There was also no evidence offered as to who contracted for and paid for the installation of the water line in 1915.

FN14. The court in Montanaro discussed the four methods by which public highways may be created.  Id. The only method that is applicable or claimed to have occurred here is by dedication to the public..  FN14. The court in Montanaro discussed the four methods by which public highways may be created.  Id. The only method that is applicable or claimed to have occurred here is by dedication to the public.

FN15. Because the plaintiffs have failed to prove an intent to dedicate, the court need not reach the issue of acceptance.   Were the court to reach that issue, it would likely find acceptance in the actions the town has taken on the Avenue over the last at least 25 years.   That is of little help to the plaintiffs though.  “[A] use by the public of land claimed to have been dedicated as a highway which would be sufficient to establish its acceptance of the dedication might not necessarily be inconsistent with the absence of an intention by the owner to dedicate it to the public.”   LaChappelle v. Jewett City, supra, 121 Conn 387.   That is the case here..  FN15. Because the plaintiffs have failed to prove an intent to dedicate, the court need not reach the issue of acceptance.   Were the court to reach that issue, it would likely find acceptance in the actions the town has taken on the Avenue over the last at least 25 years.   That is of little help to the plaintiffs though.  “[A] use by the public of land claimed to have been dedicated as a highway which would be sufficient to establish its acceptance of the dedication might not necessarily be inconsistent with the absence of an intention by the owner to dedicate it to the public.”   LaChappelle v. Jewett City, supra, 121 Conn 387.   That is the case here.

FN16. This finding is all that is required to dispose of Count One. The court need not reach the issues raised by the plaintiffs as to the validity of Beachcroft's title in the Avenue.   That will be addressed in conjunction with the resolution of Counts Two through Five..  FN16. This finding is all that is required to dispose of Count One. The court need not reach the issues raised by the plaintiffs as to the validity of Beachcroft's title in the Avenue.   That will be addressed in conjunction with the resolution of Counts Two through Five.

Bright, William H., J.