City of New London v. New York, New Haven & Hartford Railroad , 85 Conn. 595 ( 1912 )

The city of New London seeks to restrain the defendant railroad from erecting a fence on or near the railroad crossing over one of its public highways known as Maple Avenue. It was therefore the duty of the plaintiff to establish the existence of this public highway at this crossing. It attempted to do this on the trial by showing (1) that the public had acquired, by user or dedication, the right to travel over this crossing, (2) that this was a highway, because a part of the old road, known as the Harbor's Mouth Road, or Old Harbor's Mouth Road.

The attempt in support of ground one was confined to proof of acts subsequent to Public Acts of 1883, chapter 107, § 2. The court excluded the offer because of this Act, providing that "whenever a new highway or a new portion of a highway shall hereafter be constructed across a railroad, such highway or portion of highway shall pass over or under the railroad, as the railroad commissioners shall direct." No error is predicated upon this ruling.

The defendant claims that the allegation that this highway was a part of Maple Avenue precludes the plaintiff from proof that it was a part of another highway. We think, however, the allegations are broad enough to admit of proof that the locus was a public highway, whether as part of an old highway, or as part of a new highway. Further, we do not find this among the assignments of error.

The finding of the court that this crossing was a private way, and a way of necessity for the owners and occupants of the Simmons house from 1845, would, if the action had been brought by such owners, have prevented the erection of the proposed fence. But the case does not seek the protection of a private way, but of a public highway. The plaintiff's contention on the trial was that the locus was a part of the Harbor's Mouth Road, while the defendant contended that this old road had been legally discontinued.

Only two of the remaining assignments of error are pursued by the plaintiff. The first, the holding of the trial court that the Old Harbor's Mouth Road was discontinued, without evidence either that the road was not laid out by the General Assembly or the County Court, or that it was laid out by the selectmen with the approbation of the town. The second, the holding that the action of the town and selectmen effected a discontinuance.

It was not necessary that evidence should be offered that this road was not laid out by the court or General Assembly. In the absence of proof to the contrary, the presumption of law is that the town and its officials acted in accordance with the law. This presumption serves the purpose of evidence in making out a prima facie case. It is strengthened and enforced by the public character of the business, the length of time these public acts have passed unchallenged, and the cessation of public use following the discontinuance.

The fact that the only map of this old road has been on file in the town clerk's office — the lawful place of custody had the road been in fact laid out by the selectmen with the approbation of the town — would, after this length of time and nonuse, justify the conclusion, as one of fact, that such had been its original source of layout.

The presumption, after this length of time and in the absence of evidence to the contrary, that the town and its officials acted within the law and in accord with their duty, finds expression in the legal maxims, exdiuturnitate temporis omnia proesumuntur rite et solenniteresse acta, and Omnia proesumuntur legitime factadonec probetur in contrarium. Our decisions furnish many examples of the application of the presumption.Seymour v. Over-River School District, 53 Conn. 502,510, 3 A. 552; Keating v. Macdonald, 73 Conn. 125, 130,46 A. 871; Hamilton v. Smith, 74 Conn. 374, 377,50 A. 884; State v. Main, 69 Conn. 123, 140, 37 A. 80.

The precise question here raised is not an open one in this State; it was decided adversely to the defendant's claim in Brownell v. Palmer, 22 Conn. 107, and the argument of that opinion requires no further elaboration.

The selectmen could discontinue only with the approbation of the town. Statutes, 1838, pp. 344, 346. This might be given before or after action by the selectmen. The method of discontinuance provided by statute must be strictly followed. Greist v. Amrhyn, 80 Conn. 280,68 A. 521. Approbation of the town must be of the precise act of discontinuance made by the selectmen.Welton v. Thomaston, 61 Conn. 397, 399, 24 A. 333.

The single particular in which the discontinuance is said to be defective is that the selectmen discontinued a part of the old road, while the approbation of the town was given to its discontinuance for its entire length. The length of road discontinued, given in the vote of the town as ninety and one half rods, and in the certificate of the selectmen as sixty rods, does not control in law. The termini are the most distinctive marks of the portion discontinued. Clark v. Middlebury, 47 Conn. 331,335. As we read the finding, the vote of discontinuance by the town and the action of the selectmen related to the same road, and the same portion of the road, and we are not at liberty to construe these votes, were we so inclined, contrary to this definite finding. The presumption of regularity in official action, coupled with the nonuse since 1845 of the old road as a public highway, would, at this interval of time, make any other conclusion unsupportable.

There is no error.

In this opinion the other judges concurred.