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Nichols v. Town of Oxford

Court of Appeals of Connecticut

June 19, 2018

CHRISTOPHER HOUK NICHOLS ET AL.
v.
TOWN OF OXFORD

          Argued February 22, 2018

         Procedural History

         Action for an order directing the named defendant to repair and maintain unimproved sections of a certain highway, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Tyma, J., granted the plaintiffs' motion to implead James H. Brewster et al. as defendants; thereafter, the court, Stevens, J., granted the plaintiffs' motion to bifurcate hearing; subsequently, the case was withdrawn in part; thereafter, the court, Stevens, J., granted the defendant John J. Lucas' motion to be cited in as a party defendant; subsequently, the matter was tried to the court, Stevens, J.; judgment in favor of the defendants, from which the plaintiffs appealed to this court; thereafter, the court, Stevens, J., granted in part the plaintiffs' motion for articulation. Affirmed.

          Robert J. Nichols for the appellants (plaintiffs).

          Michael S. Hillis, with whom was Kevin Condon, for the appellee (defendant Town of Oxford).

          DiPentima, C. J., and Lavine and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         The plaintiffs[1] petitioned the trial court, pursuant to General Statutes § 13a-103, [2] for an order directing one of the defendants, the town of Oxford (town), [3] to repair and maintain unimproved sections of a highway, [4] Old Good Hill Road (road), located in the town. The trial court denied the relief sought. The plaintiffs appealed, claiming that the court erred in finding that (1) sections two, three and four of the road did not comprise part of a highway, and (2) even if those sections of the road had once comprised part of a highway, they since have been abandoned. We conclude that the court properly found that sections two, three and four of the road have been abandoned, and, accordingly, affirm the judgment of the trial court.[5]

         In its thorough and thoughtful memorandum of decision, the trial court found the following facts. ‘‘[The road] is a long, winding road in Oxford . . . intersecting Good Hill Road to the north and Freeman Road to the south. [The road] can be described as consisting of four sections. Section one intersects with Good Hill Road. Section one is paved and is maintained by the town. Section one is not specifically at issue in this case because there is no dispute that it is accepted and maintained by the town. The next part of the road, section two, is an unpaved, unimproved dirt road. Nichols' property is located near the end of section two. Section two is passable either by foot or a four-wheel drive vehicle. Section two is not maintained by the town. Section three starts just beyond Nichols' home, and extends down a long, steep hill. While there are some pathways, there is no clearly visible, vehicular roadway in this area. Section three is part of a mountainous area and is steep, rutted and rugged. It is passable only by foot. Section three is not maintained by the town. Section three ends at a paved area near the bottom of the hill. This paved area is part of the driveway of 110 Freeman Road. This property is owned by [the] defendant Lucas. This paved area ends on Freeman Road. During the trial, this paved, driveway area was referred to as section four of [the road]. Sections two and three are referred to as the unimproved sections of the road. With the parties' consent and participation, the court inspected the full length of [the road] on November 9, 2015, driving over sections one and two, and walking over sections three and four.

         ‘‘The primary areas at issue in this case are sections two and three. The town does not maintain these areas and the plaintiffs contend that the town is required to do so. Section four, Lucas' driveway, is implicated in this dispute because the plaintiffs' claims regarding sections two and three are premised on their argument that [the road] in its entirety has been historically dedicated and accepted as a [highway]. . . .

         ‘‘In 2011, Nichols purchased 108 Old Good Hill Road, consisting of two adjoining parcels. A single family home is on one parcel, and the other parcel is unimproved land. As with other property owners, [the road] is the only way to access his home. His house is the only building on section two of the road. After purchasing the property, Nichols brought in an excavator to smooth the road and to lay processed stone for a base, but he received a cease and desist order from the then town's zoning enforcement official . . . . This order indicated that his excavation work was without permits and in violation of town zoning regulations. Additionally, the order stated that ‘consent from the Board of Selectmen of [the town] is required to perform any activity and improvements on town property.' . . . Nichols indicated that town improvements of [the road] would make access to his property more convenient.'' (Citation omitted; emphasis in original.)

         In accordance with § 13a-103, the plaintiffs brought the underlying action on November 20, 2012. On March 2, 2015, the court granted the plaintiffs' motion to bifurcate so that the only issue at trial was whether sections two, three and four of the road comprised part of a highway. By way of special defense, the defendants pleaded, inter alia, that the road had been abandoned.[6]The matter was tried to the court in September and October, 2015. The parties filed posttrial briefs in February and March, 2016, and the court heard final argument on June 14, 2016. On June 21, 2016, the court rendered judgment in favor of the defendants, finding that (1) the challenged sections of the road had not become a highway under the common law doctrine of dedication and acceptance[7] and (2) in the alternative, the defendants had proved by a fair preponderance of the evidence that sections two, three and four of the road had been abandoned. The plaintiffs appealed. Additional facts will be set forth as necessary.

         We turn now to the plaintiffs' claim that the court erred in concluding that the defendants had proved by a preponderance of the evidence that the challenged sections of the road had been abandoned. We conclude that the court did not err.

         We begin with the applicable legal principles. ‘‘The questions of whether there have been dedication, acceptance and abandonment generally are recognized as questions of fact. . . . Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous.'' (Citations omitted; internal quotation marks omitted.) Montanaro v.Aspetuck Land Trust, Inc., 137 Conn.App. 1, 8, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012). ‘‘A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial ...


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