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Town of Granby v. Fred B. Feins
This is not the case of an appeal from eminent domain as claimed by the defendant in his Pre–Trial Memorandum of Law dated April 3, 2013 or in his special defenses, counterclaim and post-trial brief. It is rather a matter requesting the Court to determine the validity of a right of way and seeking an injunction to prevent interference with same.
There is no complaint setting forth a taking, this is not a case of an appeal from a taking, and as for the claim of inverse condemnation, it is not pleaded as a special defense or in any other way.
The plaintiff has cited CGS Sec. 19a–308 which allows municipalities to care for and rehabilitate cemeteries.
This is primarily an issue of law as to the interpretation of the deeds on the land records of the Town of Granby and also of the facts on which it is based.
Trial was held before this Court on April 3, 2013.
ISSUES AND FINDINGS:
Is there a valid 50' right of way over property of the defendant's wife, which property is shown as Lot 12 in a subdivision known as “Harvey Heights”?
The short answer is yes.
1. The property in question is shown on a subdivision map on file in the Town clerk's office of the Town of Granby entitled “Section I Harvey Heights property of the Hill Realty Corp., Lost Acres Road, Granby, Connecticut, Scale 1'=100” February 1960, Survey by Harold R. Sanderson, C.E. & L.S. Bloomfield, Connecticut,” which is plaintiff's Exhibit 2. The defendant's wife owns Lot 12 as shown on said map and is bounded by a 50' wide Traveled Way—50' Right of Way extending from the northerly curve of Harvey Road running westerly and northwesterly to land now or formerly of Leon Broughton and land now or formerly of Frank H. Griffin, partly by each, in all, 170.47 feet as shown on said map. The warranty deed to Barbara A. Healy, the defendant's wife, is recorded in Volume 181 Page 374 of the Granby Land Records and is plaintiff's Exhibit 3. It should be noted that said deed states in part: “Together with the right to use, in common with others, the aforesaid 50–foot right of way as set forth in a Warranty Deed recorded in Volume 68 at Page 114 of the Granby Land Records.” (Emphasis added.)
Various deeds as well as aerial maps refer to a trail or path of a wood road extended along a 50' Right of Way to Cemetery Traveled Way which after reaching the aforementioned boundary of the defendant's wife's property shows that it is continued along land now of Frye and land now of Bombard to the Lee Cemetery which holds several graves dating back to the American Revolution.
Although aerial maps show the Right of Way going back to the 1930s, the chain of title began with the subdivision being approved, as aforesaid, and a Warranty Deed from The Hill Realty Corporation, developer of the subdivision, to Donald F. Phillips of the Town of Granby, lots 12 and 11, recorded in Volume 68 at Pages 114 & 115 of the Granby Land Records, said deed being dated August 9, 1963. The deed includes the following language: “The Grantor hereby grants to the Grantee, his heirs and assigns, the right, in common with the Grantor and others to pass and re-pass over a 50–foot Right of Way shown on said map as “50' Right of Way to Cemetery” in the same manner as a public highway is normally used.” All deeds in the chain of title subsequent to the aforementioned deed to Donald F. Phillips (plaintiff's Exhibit 3) all have the same or similar language down to, and including, the deed to the defendant's wife, Barbara A. Healy, recorded in Volume 181 at Page 374 of the Granby Land Records and dated September 2, 1992.
Further, there was substantial testimony from town officials and others that this Right of Way was used frequently by the Town and others as a public highway. Accordingly, this Court finds that this Right of Way as described is a valid and enforceable Right of Way in favor of the general public.1
Defendant also questions whether there was a formal acceptance by the Town or other authorities, but under Meeder v. City of Milford, 190 Conn. 72, 74 (1983), it may be accepted by the general public and based upon the substantial testimony that officials of the Town and the general public have traversed the right of way on the way to the cemetery certainly proves that it was accepted by the general public.
2. Does the conveyance to the defendant of the fee under which the Right of Way exists affect the Right of Way?
The short answer is no.
By quit claim deed by the purported secretary and director of the Hill Realty Corporation dated March 18, 1994, and recorded in Volume 196 at Page 428 of the Granby Land Records (plaintiff's Exhibit 5), the defendant, for some reason, took title to the land under which the Right of Way exists. However, such deed and conveyance and ownership by the defendant in no way affects the existence or validity of the aforementioned Right of Way.2
3. Is anyone, including the defendant, entitled to interfere or block or hinder the Right of Way?
The short answer is no.
There was substantial testimony during the trial that the defendant has blocked the Right of Way by various means. This he cannot do. The Right of Way is open for use by the public and the Town of Granby. It is a 50–foot–wide Right of Way and nothing can interfere with the travel by foot, by vehicle or other means over said Right of Way.
CONCLUSION:
1. The Court hereby enters judgment for the plaintiff and declares the above mentioned Right of Way to be valid and enforceable in all respects.
2. The defendant, his heirs and assigns, is enjoined and prohibited by temporary and permanent injunction from interfering or blocking said Right of Way, and is ordered to remove, immediately, any obstructions he has put up or established in said Right of Way.
3. Judgment is entered for the plaintiff on the counterclaim.
Rittenband, J.T.R.
FOOTNOTES
FN1. Defendant cites the Unity of Title Doctrine. However, this was abandoned in Connecticut in 1999 under Bolan v. Avalon Farms Properties Owners Assn., Inc., 250 Conn. 135, 144–45 (1999).. FN1. Defendant cites the Unity of Title Doctrine. However, this was abandoned in Connecticut in 1999 under Bolan v. Avalon Farms Properties Owners Assn., Inc., 250 Conn. 135, 144–45 (1999).
FN2. The defendant has owned the fee of the property under the Right of Way since he acquired it in 1994.. FN2. The defendant has owned the fee of the property under the Right of Way since he acquired it in 1994.
Rittenband, Richard M., J.T.R.
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Docket No: HHDCV116027537S
Decided: May 31, 2013
Court: Superior Court of Connecticut.
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