Phillips v. Stamford , 81 Conn. 408 ( 1908 )

This record presents only one general question which calls for consideration. The remaining questions are subsidiary to it. The plaintiff charges the defendant with having committed a trespass upon a strip of land 50 feet wide and about 200 feet long, extending from a highway to high-water mark of Stamford harbor. The defendant sets up in justification of its acts, that the locus was a public highway as the result of its dedication to highway uses by its owner and the acceptance by the public of it for the purposes for which it was dedicated. It is conceded that if the land was a highway, the conduct of the defendant which is complained of was within its rights. It is admitted that the land was in 1886 dedicated for public use as a highway, as claimed. The acceptance by the public is denied. The court has found that there was such an acceptance within a reasonable time. If this conclusion was justified by the facts, the judgment cannot be disturbed.

The admission of the dedication of the land for the purposes of public travel, removes from the case a question which has been a fruitful source of difficulty where the existence of highways as the result of dedication and acceptance has been in dispute. We have to deal only with the question of public acceptance. This question is one of mixed law and fact. It is one of law in so far as it involves questions as to the nature of this acceptance, the source from which it must come, and the acts and things which may be indicative of it. It is one of fact in so far as it involves inquiries as to whether or not the requisite acts and things have been done so that legal requirements have been met. Hall v.Meriden, 48 Conn. 416, 428. The legal principles which the trial court applied clearly appear in the record, and they are the correct ones. The subordinate facts found, when subjected to these principles, are sufficient to justify the conclusion reached.

The acceptance which, and which alone, is efficient, is one on the part of the unorganized public, who, by the circumstances of the situation, cannot express themselves by vote or other formal action. It can only be disclosed by acts and conduct on the part of the individual members of the public as such, or as organized into some public organic group. Makepeace v. Waterbury, 74 Conn. 360, 362, 50 A. 876. We have said that where the proffered way is shown to be one of common convenience and necessity, and therefore beneficial to the public, acceptance will be presumed; that for the purpose of showing that it is beneficial, a variety of acts and conduct on the part of the municipality, or of individual members of the public, indicating a recognition of its usefulness and tending to show an approval of the gift by the members of the community immediately cognizant of it, are of importance; and that of all the things thus important as evidence of the beneficial character of the dedication, the actual use of the way as a highway by those who have occasion to use it, holds the highest place. Guthrie v. New Haven,31 Conn. 308, 321; Green v. Canaan, 29 id. 157, 165. Whether or not this statement embodies in all respects a correct analysis, certain it is that when the public, by the acts and conduct of those of its members who are most likely to be cognizant of a proffered gift of a way for the public use, has shown its recognition of its usefulness and beneficial character, and its approval of the gift by any one or more of a variety of recognized acts and conduct, the conditions of an acceptance are fully satisfied; that if the dedication appears to be one of common convenience and necessity, and therefore beneficial to the public, the conditions arising from the acts and conduct of the public will the more readily be regarded as satisfied; and that to the user of the way, by those who have occasion to use it, special importance attaches as an indication of the public attitude. Guthrie v. New Haven,31 Conn. 308, 321; Hall v. Meriden, 48 id. 416, 431; County of Wayne v.Miller, 31 Mich. 447, 450; Abbott v. Cottage City, 143 Mass. 521, 525,10 N.E. 325.

The facts of the present case disclose no working of the land for highway use. This, however, is not a matter of vital moment. Street v.Leete, 79 Conn. 352, 357, 65 A. 373. That a traveled way has or has not been wrought by the local municipality, that repairs have or have not been made at the public charge, or otherwise, for the accommodation of travel, are facts which naturally possess significance and oftentimes great significance as evidence tending to show the acceptance or the absence of acceptance by the public of a dedicated way; but the only importance to be attached to such facts is that which bears upon their evidential value for the purpose indicated. Neither original working nor subsequent reparation possess binding force as creating an acceptance, and acceptance may be shown in other ways. Green v. Canaan, 29 Conn. 157,165; Guthrie v. New Haven, 31 id. 308, 321; Sherwood v. Weston, 18 id. 32, 51.

The facts also disclose that the use of the way has been in large part by persons on foot, and been confined chiefly to the summer season. Neither of these facts is of controlling significance. The attitude of the public toward the proffered gift for its benefit could be as effectively disclosed by foot travel, if that was, as here, the kind which would naturally be chiefly accommodated, as by any other; and a user limited to the summer season, if that was the user to be anticipated and for the accommodation of which the way was, under the circumstances, suited, would be as significant as any could reasonably be expected to be.

The user of this locus as a highway does not appear to have been an extensive one, or one participated in by large numbers of the general public. But that fact is not one fatal to the court's conclusion. It is not essential to the creation of a highway by dedication and acceptance that large numbers of the public participate in the user, or that the user be one which results in a large volume of travel. Each situation must be judged in relation to its own surroundings and conditions, and with a regard for the number of persons who would have occasion to use the way. Guthrie v. New Haven, 31 Conn. 308,321. It is only necessary that those who would be naturally expected to enjoy it have done so at their pleasure. 13 Cyc. 466. Here the dedicated way was a short one, leading from an existing highway to the shore. It was located in a somewhat remote portion of Stamford, and was surrounded by property which in the beginning had been sparsely settled and had continued to be in the process of development as property suited to shore residence and life. Houses had been built upon nearby land, but there were none for which the 200-foot strip would furnish a natural or necessary means of access. The service for which it was intended and adapted was that of furnishing a way of access to the beach and harbor for those who, not owning land upon them, might wish to reach them. This service was one which, in view of its connection with the highway system and the present and prospective appropriation and use of the neighboring land, the public might well regard as a beneficial one.

The court has found that from the time of the dedication in 1886 many of the public have used the locus for highway purposes and as a means of access to the beach, and that this user has been sufficient to constitute an acceptance of the dedication of the land for highway purposes. The plaintiff seeks a correction of the finding in respect to these conclusions and certain matters involved therein. An examination of the evidence discloses a reasonable foundation for the findings made in respect to both the subordinate facts stated, and, under the principles of law already discussed, the ultimate conclusion reached.

Certain of this testimony was received under objection, and this action of the court is assigned as error. It was admissible as tending to show the character and extent of the user of the public, and the public's approving attitude toward the gift of the way for its use and its beneficial character.

There is no error.

In this opinion the other judges concurred.