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Benjamin v. City of Norwalk

Court of Appeals of Connecticut

December 27, 2016

STEPHEN D. BENJAMIN ET AL.
v.
CITY OF NORWALK ET AL.

          Argued September 20, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Lee, J.

          Simon Sumberg, for the appellants (plaintiffs).

          Urban S. Mulvehill, self-represented, the appellee (defendant).

          Lavine, Mullins and Harper, Js.

          OPINION

          LAVINE, J.

          The plaintiffs, Stephen D. Benjamin and Helen Z. Benjamin, appeal from the judgment of the trial court denying their claim of adverse possession of 708 square feet of land adjacent to their home in Nor-walk (contested area). On appeal, the plaintiffs claim that the court erred by (1) finding that The Shorefront Park Company dedicated all of the roads shown on a subdivision map for the use of the defendant city of Norwalk (city), (2) determining that it was their burden to rebut municipal acceptance of dedicated roadways by clear and convincing evidence, and (3) finding that dominion over the contested area was shared. We affirm the judgment of the trial court.

         The plaintiffs commenced the present action against the city, The Shorefront Park Improvement Association, Inc., and several individual defendants[1] on December 17, 2009. The plaintiffs sought a judgment vesting title to the contested area in them, claiming that they had established possession of the area to the exclusion of all others and had acquired title to the contested area by adverse possession. The case was tried to the court over three days in October, 2014. The court made the following findings of fact in its April 14, 2015 memorandum of decision.

         The plaintiffs acquired title to their home at 40 Quintard Avenue (property) from the estate of Mary Ann Cocchia on June 18, 1992. The property is located in the Shorefront Park subdivision within the city. The Cocchia family had owned the property, which is located just inside the subdivision's western boundary, since June 17, 1959. Between the property and Quintard Avenue, a city street, runs a road called either ‘‘Shore-front Park''[2] or ‘‘Private Way.'' The point where that road meets Quintard Avenue is marked by two stone pillars, which are approximately sixteen feet apart. A curb cut runs between the pillars, and a sign bearing the words ‘‘Shorefront Park'' is posted on one of the pillars. A wider opening to the subdivision lies directly to the south of the pillars. The court found that, although there is no curb cut at the wider opening, the curb has been worn down by vehicular use. The contested area is approximately 708 square feet in size, and occupies the space between the pillars and the southwest edge of the property. The plaintiffs consider the pillars to be the entrance to their driveway and the contested area to be part of their driveway. The defendants, however, view the pillars to be a public entrance to the subdivision and the contested area to be a portion of ‘‘Shore-front Park'' or ‘‘Private Way, '' which they claim is a public roadway.

         The court found that the contested area is not included in the title or deed to the plaintiffs' property. The plaintiffs, however, claim that the Cocchia family acquired ownership to the contested area by adverse possession because they treated the area as their driveway for at least fifteen years after they acquired the property in 1959. The plaintiffs also claimed that they have treated the contested area as their driveway since they acquired title to the property in 1992. The defendant Urban S. Mulvehill (Mulvehill) countered the plaintiffs' claim with two arguments: (1) the contested area was dedicated to and accepted by the city in 1930, along with all of the other roadways in the subdivision, and property owned by a municipality may not be adversely possessed; and (2) even if the contested area were not included in the 1930 dedication, neither the plaintiffs' nor the Cocchias' use of the area was sufficient to establish title to the contested area in them via adverse possession. The plaintiffs responded to Mulvehill's arguments by asserting that, even if the contested area had been dedicated to the city, the city had abandoned the area by failing to maintain it or otherwise treat it as a public roadway.

         In support of their claim, the plaintiffs placed into evidence the April, 1930 minutes of the city council, which include the following relevant language:

         ‘‘To the Honorable Mayor and Council of the City of Norwalk:

         ‘‘Gentlemen:

         ‘‘The Shorefront Park Company hereby petitions for the acceptance of the highways shown on[the] attached map of Shorefront Park. All highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense. The City is collecting taxes on twenty-six houses erected in the development and up to date has not been obliged to expend any money for construction or repairs.

         ‘‘Datedat Norwalk, Conn. this 18th day of March 1930.

         ‘‘The Shorefront Park Company

         ‘‘By (Signed) Mark Haut

         ‘‘Its Secretary

         ‘‘Councilman Charpentier stated that Mr. Jutten investigated the condition of the highways in Shorefront Park and found them in good condition and recommends their acceptance.[3]

         ‘‘A motion that the highways in Shorefront Park as designated on map entitled ‘Map of Part of Shorefront Park Property of The Shorefront Park Co. Norwalk Conn. Aug. 1924' be accepted was seconded and carried.'' (Footnote added.)

         The plaintiffs claim, on the basis of the April, 1930 minutes, that although the city may have purported to accept all of the highways depicted on the subdivision map, it could not have accepted any roads fewer than fifty feet in width because those roads were never offered. The plaintiffs claim, therefore, that neither the contested area nor the private way leading to it could have been accepted by the city because the road at that location is only sixteen feet wide.[4]

         The court found that, according to the city's land records, The Shorefront Park Company remains the record owner of the contested area, but that it is unclear from the complaint or the record whether The Shore-front Park Company remains the record owner of all of the subdivision's highways or only the small portion of road claimed by the plaintiffs. The subdivision map on which the city council relied in 1930 was entered into evidence by the plaintiffs as exhibit 8. The subdivision map depicts one continuous highway that winds throughout the subdivision and is labeled at various locations either ‘‘Shorefront Drive'' or ‘‘Private Way, '' the latter being the designation given to the section of the highway where the contested area is located. Markings indicating a fifty foot width appear at sections of the highway labeled ‘‘Private Way, '' as well as at sections labeled ‘‘Shorefront Drive.''

         The court first determined whether the actions taken at the April, 1930 meeting of the city council are evidence of a dedication and acceptance of the contested area. In doing so, the court relied on Vernon v. Goff, 107 Conn.App. 552, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008), for guidance: ‘‘From early times, under the common law, highways have been established in this state by dedication and acceptance by the public. . . . [T]wo elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. . . . No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. . . . Whether there has been a dedication and whether there has been an acceptance present questions of fact. . . . Likewise, the determination of the extent to which there has been an acceptance of a street involves a question of fact.'' (Internal quotation marks omitted.) Id., 556-57.

         The court also noted that ‘‘[w]hether there has been a dedication and whether there has been an acceptance are questions of fact . . . for which the burden of proof rests upon the [party who claims that the property in question belongs to the public].'' (Citation omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 397, 662 A.2d 118 (1995). A party claiming title by adverse possession, however, must prove, by clear and convincing evidence, that the contested area was not dedicated to the city. See American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 80, 574 A.2d 796 (1990); Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 44, 3 A.3d 975 (2010).

         In the present case, the trial court found, by a preponderance of the evidence, the existence of both an express dedication of the highways in the subdivision and an express acceptance of the contested area by the city, and that the plaintiffs had failed to prove, by clear and convincing evidence, that the contested area was not dedicated with the rest of the subdivision's highways. The court found that the minutes of the April, 1930 city council meeting record The Shorefront Park Company petitioning the city ‘‘for the acceptance of the highways shown on attached map of Shorefront Park.'' (Internal quotation marks omitted.) The minutes state that ‘‘[a]ll highways asked to be accepted are fifty (50) feet in width and in good condition and in all of them have been laid water and gas mains at the Company's expense.'' The minutes also recorded Charpentier's representation that Jutten had investigated ‘‘the condition of the highways in Shorefront Park and found them in good condition and recommends their acceptance''; and ...


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