Granby v. Feins ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
TOWN OF GRANBY v. FRED B. FEINS
(AC 35746)
DiPentima, C. J., and Alvord and Bear, Js.
Argued October 29—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Michael L. Moscowitz, for the appellant (defendant).
Kevin M. Deneen, with whom, on the brief, was Don-
ald R. Holtman, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Fred B. Feins, appeals
from the judgment of the trial court, rendered after a
trial to the court, in favor of the plaintiff, the town of
Granby, in this action for a declaratory judgment and
injunctive relief. On appeal, the defendant claims that
the court improperly concluded that certain property
conveyed to him in 1994 had been dedicated to public
use as a right-of-way to Lee Cemetery.1 We affirm the
judgment of the trial court.
The court’s memorandum of decision and the record
reflect the following facts and procedural history. The
defendant and his wife, Barbara A. Healy, reside in
Granby in their home located on lot 12 in an approved
subdivision known as Harvey Heights. Healy acquired
the property by warranty deed in 1992. The legal
description of lot 12, which refers to a map on file in
the Office of the Town Clerk, provides that the lot is
bounded on its southwesterly and westerly sides by a
‘‘50 foot right-of-way’’ to Lee Cemetery. In 1994, Robert
H. Schultz, as ‘‘Secretary and Director of The Hill Realty
Corporation, formerly a Connecticut Corporation,’’ con-
veyed the adjacent fifty foot right-of-way to the defen-
dant by quitclaim deed.2 At or around the time of the
1994 conveyance, the defendant obstructed passage
over the right-of-way by erecting a fence ‘‘to keep people
from trespassing’’ on his property. Sometime in 2000,
the defendant removed the fence and placed a large
cargo container in the path of the right-of-way. He
removed the container in 2007, and then placed a gate
across the right-of-way.
The plaintiff commenced the present action on
November 7, 2011. In its complaint, the plaintiff alleged
that the defendant’s fifty foot right-of-way had been
dedicated, or its existence confirmed, in June, 1960, as
a public right-of-way to an ancient burial ground known
as Lee Cemetery. The complaint alleged that, for many
years, employees of the plaintiff had accessed the ceme-
tery to maintain the grounds, and that members of the
public had accessed the cemetery to commemorate the
deceased. The plaintiff further alleged that it was
authorized to maintain the cemetery pursuant to Gen-
eral Statutes § 19a-308,3 but that the defendant had bar-
ricaded the right-of-way after he acquired fee title in
1994, thereby denying the plaintiff and members of the
public access to the cemetery. In its prayer for relief,
the plaintiff sought (1) a declaratory judgment that ‘‘the
[plaintiff] may access the Lee Cemetery over the right-
of-way and may maintain the right-of-way for its and the
public’s purposes,’’ and (2) the issuance of a permanent
injunction ‘‘restraining the defendant from obstructing
the . . . access to the Lee Cemetery over the right-
of-way.’’
The defendant filed special defenses and a counter-
claim. The matter was tried before the court on April
3 and 4, 2013. During the trial, the plaintiff submitted
exhibits to demonstrate that the fifty foot right-of-way
to the cemetery had been dedicated to public use by The
Hill Realty Corporation, the developer of the Harvey
Heights subdivision. The plaintiff presented the
approved subdivision map, showing the cemetery right-
of-way, which had been recorded in the Granby land
records in June, 1960.4 The plaintiff also submitted cop-
ies of the deeds to purchasers of various lots in the
subdivision, which expressly referenced the cemetery
right-of-way, in further support of its claim of public
dedication.
The plaintiff called several witnesses to testify as to
the use made of the cemetery right-of-way from the time
of its dedication to the time of trial. Those witnesses
included employees of the plaintiff’s Public Works
Department, the plaintiff’s town planner, a member of
the American Legion who placed flags on the Revolu-
tionary War graves in the cemetery, a former owner of
property abutting the cemetery, and an individual who
served as the curator, archivist, and genealogist of the
Salmon Brook Historical Society. After the plaintiff
rested, the defendant testified and submitted copies of
various deeds and maps, along with photographs of the
disputed property. Following the completion of the trial,
the parties submitted posttrial briefs and reply briefs.
On May 31, 2013, the court issued its memorandum
of decision. The court determined that the fifty foot
right-of-way to the cemetery, as shown on the 1960
approved subdivision map and as referenced in Healy’s
deed to lot 12, was a valid and enforceable right-of-way
in favor of the general public. The court noted that
aerial maps dating from the 1930s showed the existence
of the right-of-way as a trail or path or wood road that
reached Lee Cemetery. The court further determined
that the right-of-way had been accepted by the general
public, as evidenced by testimony at trial that town
employees and the general public traversed it on their
way to the cemetery. The court rejected the defendant’s
argument that the 1994 conveyance to him of the fee
under the right-of-way affected the existence or validity
of the cemetery right-of-way. Finally, the court con-
cluded that the defendant was not entitled to block or
in any way to interfere with the use of the right-of-way
by the plaintiff or the public.
The court rendered judgment in favor of the plaintiff
on the complaint and the counterclaim. The court
declared the right-of-way to be valid and enforceable
in all respects, enjoined the defendant from interfering
with or blocking the right-of-way, and ordered the
defendant to remove any obstructions that he had
placed in the right-of-way. This appeal followed.
The defendant challenges the court’s determination
that the fifty foot right-of-way, which was the property
conveyed to him by quitclaim deed in 1994,5 had been
dedicated to public use as a right-of-way to Lee Ceme-
tery. The following legal principles guide our analysis.
‘‘A valid dedication requires the presence of two ele-
ments: (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.’’ (Internal quotation marks omitted.) Meder v.
Milford, 190 Conn. 72, 74, 458 A.2d 1158 (1983).6
‘‘[T]he first prerequisite [is] satisfied by the filing of
[a] subdivision plan with the town plan commission
. . . .’’ Katz v. West Hartford, 191 Conn. 594, 596, 469
A.2d 410 (1983). See also Vernon v. Goff, 107 Conn.
App. 552, 557, 945 A.2d 1017, cert. denied, 289 Conn.
920, 958 A.2d 154 (2008). In the present case, The Hill
Realty Corporation, which was the developer of the
Harvey Heights subdivision and the predecessor in title
to both Healy’s lot 12 and the defendant’s property,
manifested its intent to dedicate the fifty foot right-of-
way to public use by filing the subdivision plan with
the Granby Town Planning Commission (commission)
in June, 1960. It further manifested that intent when it
conveyed lot 12 together with ‘‘the right, in common
with the Grantor and others, to pass and repass over
a 50-foot right of way shown on said [subdivision] map
as ‘50 [foot] Right of Way To Cemetery’ in the same
manner as a public highway is normally used.’’ That
conveyance was made by warranty deed recorded on
August 20, 1963, in the Granby land records.7
Although the subdivision plan was approved by the
commission on June 3, 1960, ‘‘approval of a subdivision
plan does not in itself constitute an implied accep-
tance.’’ Katz v. West Hartford, supra, 191 Conn. 597.
We therefore must determine whether the second pre-
requisite, namely, whether there was ‘‘an acceptance
by the proper authorities or by the general public,’’ was
satisfied. (Internal quotation marks omitted.) Meder v.
Milford, supra, 190 Conn. 72.8 ‘‘[C]ommon-law accep-
tance of property dedicated to the public for a public
way may be established by the public’s actual use of
the property or by the actions of the municipality. . . .
The public’s use of the property must continue over a
significant period of time . . . and be of such a charac-
ter as to justify a conclusion that the way is of common
convenience and necessity. . . . The municipal actions
that may constitute acceptance include grading, paving,
maintaining and improving a street, as well as removing
snow from it; the street’s exemption from taxation may
also be significant.’’9 (Citations omitted; emphasis
added; internal quotation marks omitted.) A & H Corp.
v. Bridgeport, 180 Conn. 435, 440–41, 430 A.2d 25 (1980).
In its memorandum of decision, the trial court stated
that ‘‘[t]here was substantial testimony from town offi-
cials and others that this right-of-way was used fre-
quently by the [plaintiff] and others as a public
highway.’’ The court further found that the right-of- way
had been accepted by the general public, as evidenced
by ‘‘the substantial testimony that officials of the [plain-
tiff] and the general public have traversed the right-of-
way on the way to the cemetery . . . .’’
The court’s factual findings are supported by the
record. The following evidence was presented at trial:
(1) Carol Laun, the curator, archivist, and genealogist
of the Salmon Brook Historical Society, testified that
she walked over the disputed right-of-way in the late
1960s and early 1970s when she was working on a
project to make a note card for every gravestone in
Granby; (2) Laun further testified that over the past
thirty years, she has walked over the right-of-way and
has directed interested persons to use the right-of-way
to access Lee Cemetery; (3) three employees of the
plaintiff’s Public Works Department testified that they
drove over the disputed right-of-way to access Lee Cem-
etery for maintenance purposes in the 1980s; (4) the
plaintiff’s town planner testified that he walked over
the right-of-way to access the cemetery; (5) the town
planner further testified that the plaintiff’s Public Works
Department cared for the cemetery for several years
until the owner of the cemetery agreed to maintain it;
(6) the owner of the cemetery conveyed it to the plaintiff
in the summer of 2012; and (7) a member of the Ameri-
can Legion testified that he traversed the cemetery
right-of-way beginning in the early 1960s to place flags
on the Revolutionary War gravesites, and that he contin-
ued to use that right-of-way until approximately ten
years prior to trial.
The defendant claims that the evidence of use was
insufficient to establish acceptance of the fifty foot
right-of-way by the general public. The defendant’s
claim requires us to determine whether, as a matter of
law, acceptance was established from the facts relied
on by the trial court. The defendant argues that ‘‘[t]here
has not been any evidence of continuous use, or any
action to maintain the right-of-way or any improve-
ments by the [plaintiff], including any tax exemption
of the right-of-way.’’
We first note, as previously discussed, that accep-
tance of property dedicated for public use may be estab-
lished either by the public’s actual use of the property
or by the actions of the municipality. A & H Corp.
v. Bridgeport, supra, 180 Conn. 440. Accordingly, the
plaintiff’s lack of improvements to the right-of-way does
not defeat the dedication if members of the general
public actually used the right-of-way to access the ceme-
tery. Moreover, ‘‘actual use need not necessarily be
constant or by large numbers of the public . . . .’’ (Cita-
tion omitted.) Meshberg v. Bridgeport City Trust Co.,
180 Conn. 274, 282, 429 A.2d 865 (1980).
The case of Phillips v. Stamford, 81 Conn. 408, 71
A. 361 (1908), is particularly instructive in the present
case. In Phillips, a short strip of land leading from an
existing highway to the seashore in a somewhat remote
and sparsely settled portion of Stamford was at issue.
Id., 411. The town had not worked on or repaired the
land dedicated, and the use of the way had been in
large part by pedestrians during the summer season.
Id., 414. The plaintiff claimed that the use made of the
property was insufficient to establish public acceptance
of the disputed strip of land. Id., 411. Our Supreme
Court disagreed and held: ‘‘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. . . . It is only necessary that those who would
be naturally expected to enjoy it have done so at their
pleasure.’’ (Citation omitted.) Id., 413–14.
Under the circumstances of the present case, the
court reasonably could have concluded that the evi-
dence presented regarding the use by the public was
sufficient to establish acceptance of the fifty foot ceme-
tery right-of-way. Employees of the plaintiff used the
right-of-way to access the cemetery whenever the
grounds needed to be mowed or maintained. Members
of the public visited the cemetery via the right-of-way
for, inter alia, research and historical purposes. Flags
were placed on the gravesites of Revolutionary War
soldiers at appropriate times during the year. The use
was not constant or by large numbers of people, but
the use evidenced acceptance for the purpose for which
the right-of-way had been dedicated. The subordinate
facts, when subjected to these principles, are sufficient
to justify the court’s conclusion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Lee Cemetery has been a cemetery since the 1700s and contains several
Revolutionary War gravesites.
2
The quitclaim deed conveyed ‘‘all such right, title, interest, claim and
demand whatsoever’’ as the releasor had in ‘‘one certain piece or parcel of
land, with all improvements thereon, located on the Northerly side of Harvey
Road, also known as Harvey Drive, in the Town of Granby, County of
Hartford and State of Connecticut, being shown as ‘Traveled Way to Ceme-
tery’ and ‘50 [foot] Right of Way’ on a map entitled ‘Section I Harvey Heights
Property of The Hill Realty Corp. Lost Acres Road Granby Connecticut Scale
1’’=100’ February 1960 Survey By Harold R. Sanderson C.E. & L.S. Bloomfield
Connecticut’ which map is on file in the Office of the Town Clerk of said
Granby . . . .’’
3
At the time of trial, General Statutes § 19a-308 provided: ‘‘In any town
in which there is a burial ground or cemetery containing more than six places
of interment and not under the control or management of any currently
functioning cemetery association, which has been neglected and allowed
to grow up to weeds, briars and bushes, or about which the fences have
become broken, decayed or dilapidated, the selectmen of such town may
annually cause such burial ground to be cleared of weeds, briars and bushes,
and may cause its fences or walls to be repaired and kept in orderly and
decent condition and its memorial stones to be straightened.’’
Section 19a-308 was amended by No. 14-217 of the 2014 Public Acts. The
revisions, however, are not material to our decision.
4
The approved subdivision map shows the disputed right-of-way, located
between lot 12 and lot 14, as ‘‘50’ RIGHT OF WAY TO CEMETERY’’ and
‘‘TRAVELED WAY.’’
5
A quitclaim deed has the force and effect of a conveyance to the releasee
of all the releasor’s right, title, and interest in and to the property described
therein, except as otherwise limited therein, but without any covenants of
title. ‘‘It is well settled that a quitclaim deed . . . conveys to the grantee
[only] whatever interest the grantor has in the property.’’ Socha v. Bordeau,
277 Conn. 579, 588 n.7, 893 A.2d 422 (2006). Accordingly, if the property
owned by The Hill Realty Corporation was subject to the fifty foot cemetery
right-of-way at the time it conveyed it to the defendant in 1994, the defendant
took title subject to that same fifty foot cemetery right-of-way.
6
‘‘Whether there has been a dedication and whether there has been an
acceptance present questions of fact.’’ Meshberg v. Bridgeport City Trust
Co., 180 Conn. 274, 279, 429 A.2d 865 (1980). ‘‘The trial court’s findings of
fact are binding upon this court unless they are clearly erroneous in light
of the evidence and the pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses. . . . 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.’’ (Internal quotation marks omitted.) Bethle-
hem v. Acker, 153 Conn. App. 449, 466, A.3d (2014).
7
In support of his claim that The Hill Realty Corporation did not manifest
its intent to dedicate the property in dispute to public use, the defendant
argues that the fifty foot right-of-way, as depicted on the subdivision plan,
ends at the boundary line of the subdivision property. In order to reach Lee
Cemetery, the path would have to continue over additional properties now
owned by Frye and Bombard (the first names of these individuals do not
appear in the record). As conceded by the plaintiff at trial, the land records
do not disclose any recorded easements over the Frye and Bombard parcels
to access the cemetery. The defendant claims that the lack of recorded
easements over the Frye and Bombard parcels defeats the purpose of the
fifty foot right-of-way shown on the approved subdivision plan because
individuals would have to trespass on those parcels to reach the cemetery.
The owners of the Frye and Bombard parcels are not parties to this action.
Their rights cannot be asserted by the defendant to defeat the plaintiff’s
claims. ‘‘[G]enerally speaking, a person has no standing to assert the rights
of another . . . .’’ In re Tayquon H., 76 Conn. App. 693, 698, 821 A.2d
796 (2003). See also Sadloski v. Manchester, 235 Conn. 637, 643, 668 A.2d
1314 (1995).
8
‘‘A valid acceptance may be either express or implied.’’ (Internal quota-
tion marks omitted.) Katz v. West Hartford, supra, 191 Conn. 596. No evi-
dence was presented at trial to show that the plaintiff expressly accepted
the right-of-way.
9
No evidence was presented at trial with respect to the taxation of the
disputed right-of-way.