AMERICAN TRADING REAL ESTATE PROPERTIES, INC.
TOWN OF TRUMBULL.
Argued March 7, 1990.
Burton S. Yaffie, Trumbull, with whom, on the brief, was Peter J. Ottomano, Westport, for appellant-appellee (defendant).
Stewart I. Edelstein, Bridgeport, for appellee-appellant (plaintiff).
Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.
[215 Conn. 69] PETERS, Chief Justice.
This appeal presents two principal questions: (1) the proper construction of the words "for the purpose of a road or passage way" in the granting clause of a deed; and (2) the scope of municipal immunity from claims of adverse possession. The plaintiff, American Trading Real Estate Properties, Inc., brought this action against the defendant, the town of Trumbull, to quiet title to a narrow strip of land in which both parties claim fee simple ownership by separate chains of title. Following a trial to the court, the trial court concluded that the defendant had originally acquired fee title to the parcel, but held that the plaintiff had succeeded to that interest by adverse possession. Both parties appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We agree with the trial court's ruling on fee simple title but not with its resolution of the plaintiff's adverse possession claim.
The trial court found the following facts. The property at issue in this case is an overgrown and impassable roadway running between Route 111 and Old Mine Park in the town of Trumbull. The roadway was created by grant in 1867, when the defendant's predecessor in title purchased "a certain narrow strip of land for the purpose of a road or passage way ... being twenty feet in width and about nine hundred & fifty feet in length...." Immediately following this provision, [215 Conn. 70] the 1867 deed reserved to the grantors "the privilege of passing over, crossing and recrossing said tract whenever our convenience or necessity may require."  The defendant acquired its interest in the roadway in 1937 as part of a transaction in which it acquired three other parcels of land that now comprise Old Mine Park. In 1985, the plaintiff acquired the property through which the roadway passes.
The trial court further found that the plaintiff's predecessors in title, believing that they owned the roadway, had made extensive use of the property since the 1930s by maintaining a chicken coop, a shed, a drainage ditch and a lawn on it. While there has been public use of Old Mine Park, the public has apparently never used the roadway for access to the park.
Pursuant to General Statutes § 47-31, the plaintiff initiated this action in two counts to clear title to the property. The plaintiff first alleged that the 1867 deed to the defendant's predecessor in interest conveyed only an easement to use the roadway, and that, as a consequence, the title to the fee simple estate remained with the plaintiff's predecessors in title. On that hypothesis, the plaintiff, as the successor in interest [215 Conn. 71] to the grantors of the easement, claimed that it now held fee simple title to the roadway. In the alternative, the plaintiff alleged that, whatever the defendant's interest in the roadway may once have been, that interest had been extinguished by adverse possession on the part of the plaintiff's predecessors in title.
The trial court determined that the 1867 deed unambiguously conveyed fee simple title to the defendant's predecessor in title, and accordingly concluded that the defendant
had succeeded to the full fee title when it acquired the roadway in 1937. With regard to the plaintiff's second count, the trial court ruled that the roadway was not immune from adverse possession, notwithstanding the fact that it was owned by a municipality, because the defendant had failed to prove that the property had actually been used by the public for access to the park. Turning to the underlying merits of the plaintiff's adverse possession claim, the court concluded that, by virtue of open, notorious, and exclusive possession of the roadway over a period in excess of fifteen years, the plaintiff's predecessors in interest had adversely possessed a 389 foot section of the roadway and that, as a consequence, the plaintiff had acquired fee simple title to that portion of the property.
On appeal, the plaintiff contends that the trial court failed to accord adequate significance to the language "for the purpose of a road or passage way" contained in the 1867 deed creating the roadway and thus erroneously interpreted that deed as conveying fee simple title to the roadway. The defendant's appeal challenges the trial court's conclusion that the roadway was not immune from the adverse possession claim because it was not held for public use. The court erred, the defendant contends, by invoking an unduly restrictive definition of public use and by imposing on the defendant the burden of proving public use.
[215 Conn. 72] I
We turn first to the plaintiff's contention that the trial court erred in concluding that the defendant's predecessor in interest held fee simple title to the roadway by virtue of the conveyance in 1867. According to the plaintiff, the language in the deed creating the roadway indicating that the grant was intended "for the purpose of a road or passage way" compels the conclusion that the interest granted was an easement and not fee simple title. That conclusion is further supported, the plaintiff contends, by the circumstances surrounding the transaction in 1867 and by the fact that several discrepancies appear in the description of the roadway in deeds and maps filed in the land records subsequent to 1867. We are not persuaded. 
Our discussion of this issue must begin with the case of Chatham v. Brainerd,11 Conn. 60 (1835), which, despite its venerable age, is the controlling precedent. In Chatham v. Brainerd, this court was called upon to interpret the language of a resolution by which a town granted one acre of land "for a burying ground." (Emphasis omitted.) Id., at 86. Although the court recognized the possibility that a grantor could limit a conveyance to an easement while retaining fee simple title to the property, the court concluded that the provision "for a burying ground" did not evince an intent to create an easement. Id., at 91. Instead, the court held, "[i]t [215 Conn. 73] was the land, which was granted, though the object was designated." Id. The court further emphasized that " 'the word land, comprehends any ground, soil or earth whatsoever.' [E. Coke, A Commentary upon Littleton, Book 1, § 1, p. 4 (1703) ]." Id. Like the language at issue in Chatham v. Brainerd, supra, the deed in the ...