Benjamin v. City of Norwalk

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STEPHEN D. BENJAMIN ET AL.
v. CITY OF NORWALK ET AL.
(AC 37876)
Lavine, Mullins and Harper, Js.
Argued September 20—officially released December 27, 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).
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 defendants1 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 memoran-
dum 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 subdivi-
sion 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 drive-
way 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 defen-
dant Urban S. Mulvehill (Mulvehill) countered the plain-
tiffs’ 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 condi-
tion 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.
‘‘Dated at 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 recom-
mends 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 car-
ried.’’ (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 subdivi-
sion 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 evi-
dence 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 accep-
tance 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 con-
tested 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 prepon-
derance 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 high-
ways. 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 rep-
resentation that Jutten had investigated ‘‘the condition
of the highways in Shorefront Park and found them in
good condition and recommends their acceptance’’; and
that a motion was made and seconded that ‘‘the high-
ways in Shorefront Park as designated on map entitled
‘Map of Part of Shorefront Park Property of The Shore-
front Park Co. Norwalk Conn. Aug. 1924’ be accepted
. . . .’’ Moreover, the motion was carried.
The plaintiffs contended at trial that the contested
area could not have been dedicated because it is fewer
than fifty feet wide. The court found, however, that the
city council’s acceptance made no mention of the width
of the highways as a condition of acceptance and The
Shorefront Park Company did not object to the accep-
tance of all of the highways designated on the subdivi-
sion map. The court found that the map relied on by
the city council, plaintiffs’ exhibit 8, reveals that the
subdivision highways consist of a single winding road
that, at many points, is fifty feet wide, but that narrows
before reaching the contested area.5 The court con-
cluded that it did not logically follow from a description
of a highway as being fifty feet wide that, if the highway
narrows at some point, the narrower portion is not,
nonetheless, a portion of the same highway.
The court rejected the plaintiffs’ argument that The
Shorefront Park Company intended to exclude portions
of highway narrower than fifty feet from the dedication.
The court found the argument unconvincing, particu-
larly in the absence of any evidence that The Shoreline
Park Company asserted any right with respect to the
portions of highway fewer than fifty feet wide during the
thirty years between the dedication and the company’s
dissolution in 1959. Also, the court found no evidence
that the shareholders of The Shorefront Park Company
transferred any interest in those portions of roadway
during their lives or devised any interest in the roadway
as part of their estates.
The court concluded that the plaintiffs had failed to
prove, by clear and convincing proof, that the city’s
acceptance was not express and did not include the
contested area. The city council passed a motion to
accept all of Shorefront Park’s highways, as designated
on the 1924 map, without reference to the width of the
highways. Because it had determined that all of the
highways, including the contested area, were expressly
offered by The Shoreline Park Company, it found that
the city’s express acceptance could and did include
them.
The court further found that the city did not abandon
the contested area and that the plaintiffs had not
obtained title to the contested area by way of adverse
possession. The court, therefore, rendered judgment in
favor of the defendants. Thereafter the plaintiffs
appealed.
The plaintiffs subsequently filed a consolidated
motion for articulation and motion for rectification,
which the court granted in part and denied in part. In
its ruling on the plaintiffs’ consolidated motion, the
court stated that ‘‘the evidence supports an understand-
ing of The Shorefront Park Company’s intention and
actions as an express dedication of all of the highways
within Shorefront Park to the city of Norwalk, without
any exclusion or retaining of interest in portions of the
highways which were less than fifty feet wide. . . .
This finding supports the court’s ultimate conclusion
that the contested area is part of a public highway
belonging to the city of Norwalk. . . . The court, how-
ever, was not presented with and did not consider evi-
dence regarding a dispute as to the dedication and
acceptance of any other particular segment of Shore-
front Park highway. The court’s holding, therefore, is
confined to its ultimate conclusion regarding the con-
tested area.’’ (Citations omitted; internal quotation
marks omitted.)
Additional facts will be set forth as necessary.
I
The plaintiffs first claim that the court’s finding that
The Shorefront Park Company dedicated all of the roads
depicted on the subdivision map for the use of the city
was clearly erroneous. We disagree.
We first set forth the applicable standard of review.
‘‘Our review of the factual findings of the trial court is
limited to a determination of whether they are clearly
erroneous. . . . 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 court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings.’’ (Internal quotation
marks omitted.) Ridgefield v. Eppoliti Realty Co., 71
Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261
Conn. 933, 806 A.2d 1070 (2002).
An understanding of the law and history of establish-
ing highways in this state provides a useful background
for our resolution of the plaintiffs’ claim. Public high-
ways may be established by one of four methods: ‘‘(1)
through the direct action of the legislature; (2) through
authorized proceedings involving an application to a
court; (3) through authorized proceedings by agents
appointed for that purpose, such as selectmen of towns
. . . and specified authorities of cities and boroughs
. . . (4) through private dedication of land for that pur-
pose and its acceptance by the public.’’ (Citations omit-
ted; internal quotation marks omitted.) Montanaro v.
Aspetuck Land Trust, Inc., 137 Conn. App. 1, 9, 48 A.3d
107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012),
quoting Makepeace v. Waterbury, 74 Conn. 360, 361, 50
A. 876 (1902).
‘‘The layout of a street or highway by a private person,
company or corporation and the regulation of its width
unless determined otherwise by authority have been a
part of our statute law since 1899. Public Acts 1899, c.
205 § 2; Windsor v. Whitney, 95 Conn. 357, 365, 111 A.
354 [1920]. Since that time our statutes have provided
that no street or highway laid out by any private person,
company or corporation shall be opened to the public
(1) until the grade, width and improvements of such
street or highway shall have the written approval of the
selectmen of the town or, in case the location is within
the limits of a city or borough, the approval of the
common council of the city or the warden and burgesses
of the borough or (2) until such approval has been filed
in the office of the clerk of the town, city or borough,
as the case may be.’’ Thompson v. Portland, 159 Conn.
107, 111–12, 266 A.2d 893 (1970).6
In Stratford v. Fidelity & Casualty Co., 106 Conn.
34, 39, 137 A. 13 (1927), our Supreme Court said that
the dedication statute in effect at that time ‘‘has to do
with the layout and improvement of roads or streets
by individuals or private corporations, and the approval
of the selectmen is an approval of the layout and open-
ing of private ways and not of public highways; it looks
to the possibility of their becoming public highways,
but does not constitute an acceptance of them as such.’’
‘‘Immediately following this decision, the legislature
enacted chapter 248 of the Public Acts of 1927. Section
1 of that act (now General Statutes [Rev. to 1966] § 13a-
48) gave specific authority to a municipality at any
annual or special meeting held for that purpose to
accept as a public highway any street or highway situ-
ated in the municipality. Section 2 validated the action
of any municipality theretofore taken in accepting any
highway as a public highway. Where the legislature
establishes the conditions necessary for a dedication
of land for public purposes, the statutory provisions
are controlling.’’ (Internal quotation marks omitted.)
Thompson v. Portland, supra, 159 Conn. 113. This his-
torical review concerns the law in effect at the time the
city accepted the highways in Shorefront Park in 1930.
‘‘Dedication is an appropriation of land to some pub-
lic use, made by the owner of the fee, and accepted for
such use by and in behalf of the public. . . . Both the
owner’s intention to dedicate the way to public use and
acceptance by the public must exist, but the intention
to dedicate the way to public use may be implied from
the acts and conduct of the owner, and public accep-
tance may be shown by proof of the actual use of the
way by the public. . . . Thus, the two 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 ques-
tions of fact.’’ (Citations omitted.) Meshberg v. Bridge-
port City Trust Co., 180 Conn. 274, 279, 429 A.2d 865(1980). ‘‘The approval of a proposed subdivision and
the acceptance of a public street are entirely separate
and distinct proceedings.’’ (Internal quotation marks
omitted.) Id., 280.
In the present case, the trial court found, on the basis
of the evidence presented, specifically, the minutes of
the April, 1930 city council meeting and the subdivision
map of August, 1924, that The Shorefront Park Company
dedicated the highways within Shorefront Park to the
city and that the city accepted the highways. On appeal,
the plaintiffs do not contend that the council did not
accept the dedication of highways on the subdivision
map; they contend that the only highways the council
accepted were those fifty feet wide. Specifically, they
point to the second sentence of the minutes of the
council meeting, which states: ‘‘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.’’ We disagree with
the plaintiffs, as the construction of the language in the
council minutes does not support such a conclusion.
To resolve the plaintiffs’ claim, we examine the April,
1930 council minutes. The Shorefront Park Company
petitioned the mayor and city council ‘‘for the accep-
tance of the highways shown on [the] attached map of
Shorefront Park.’’ It is a simple declaratory sentence
asking the city to accept the highways depicted on the
subdivision map, without limitation or qualification as
to the highways on the map.7 The following sentence
is another simple declaratory sentence: ‘‘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.’’ Logically,
‘‘[a]ll highways’’ must refer to the prior sentence and
the highways on the attached map. The remainder of
the sentence describes the width of the highways, their
condition, and states that water and gas mains have
been laid at the company’s expense. Although the lan-
guage of the second sentence is descriptive, it is not
conditional. In other words, the second sentence does
not exclude any of the highways on the subdivision
map, or any portion of them.
Councilman Charpentier stated that Jutten had inves-
tigated the condition of the highways in Shorefront Park
and found them to be in good condition and recom-
mended their acceptance. 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
seconded and carried.’’ The clear intent of the motion
was for the council to accept the highways in Shorefront
Park as depicted on the subdivision map without qualifi-
cation, clarification, or limitation.
As our Supreme Court stated in Thompson v. Port-
land, supra, 159 Conn. 111, ‘‘no street or highway laid
out by any private person, company or corporation shall
be opened to the public (1) until the grade, width and
improvements of such street or highway shall have the
written approval of the . . . common council of the
city . . . .’’ The city council in the present case
accepted the report of Jutten that the highways The
Shorefront Park Company was offering for dedication
were in good condition. The minutes do not reflect
any discussion or concern regarding the width of the
highways as depicted on the subdivision map.
As further evidence that the city accepted all of the
highways depicted on the subdivision map, there is
nothing otherwise in the record to suggest that The
Shorefront Park Company objected to the public’s use
of the highways in Shorefront Park at any time until
the company was dissolved in 1959. We, therefore, con-
clude that the court properly found that the highways
depicted on the subdivision map are public roadways,
including the contested area.
As to the plaintiffs’ claim that the contested area is
private property, there is no evidence in the record that
the plaintiffs hold title to the contested area. Richard
McGannon, an attorney specializing in real property
and title matters, testified that The Shorefront Park
Company owned the land, including the roadbeds, for
what became the subdivision. In McGannon’s opinion,
the roads were private in 1924 and throughout the chain
of title there was no record of a conveyance of title to
the roads. The Shorefront Park Company did not convey
an ownership interest in the road to the centerline.
McGannon’s title search of the plaintiffs’ property dem-
onstrated that the deed did not convey the roadbed to
a purchaser.
For the foregoing reasons, the plaintiffs’ claim that
the court’s determination that The Shorefront Park
Company had dedicated all of the roads depicted on
the subdivision map for the use of the city was clearly
erroneous fails.
II
The plaintiffs’ second claim is that the court improp-
erly required them to rebut the city’s acceptance of the
highways in the subdivision by clear and convincing
proof. Although we disagree with the plaintiffs’ claim,
the claim in and of itself is without consequence to
their appeal, as the trial court found by a preponderance
of the evidence that the highways depicted in the subdi-
vision map, including the contested area, were dedi-
cated by The Shorefront Park Company and accepted
by the city. See part I of this opinion. Moreover, the
court found that the highways in Shorefront Park,
including the contested area, were shared by the public.
See part III of this opinion. The plaintiffs’ claim there-
fore fails. Despite our conclusion that the plaintiffs’
claim does not affect the outcome of their appeal, we
take the opportunity to explain that it fails as a matter
of law.
The plaintiffs take exception to the following lan-
guage in the court’s memorandum of decision and iter-
ated in its response to the plaintiffs’ motion for
rectification. ‘‘The burden of proving a dedication and
acceptance, by a preponderance of the evidence, gener-
ally falls upon the party who claims that the property
in question belongs to the public. . . . But, because a
party claiming title by adverse possession must prove
his or her claim by clear and positive proof . . . it falls
to the plaintiffs in this case to prove, by clear and
positive proof, that the contested area was not dedi-
cated to the city, or if it was, that the city abandoned
it, since property owned by a municipality generally
cannot be adversely possessed.’’ (Citations omitted.)
‘‘Where title is claimed by adverse possession, the
burden of proof is on the claimant. . . . The essential
elements of adverse possession are that the owner shall
be ousted from possession and kept out uninterruptedly
for fifteen years under a claim of right by an open,
visible and exclusive possession of the claimant without
license or consent of the owner. . . . The use is not
exclusive if the adverse user merely shares dominion
over the property with other users. . . . Such a posses-
sion is not to be made out by inference, but by clear
and positive proof. . . . In the final analysis, whether
possession is adverse is a question of fact for the trier.
. . . The doctrine of adverse possession is to be taken
strictly.’’ (Citations omitted; internal quotation marks
omitted.) Roche v. Fairfield, 186 Conn. 490, 498–99, 442
A.2d 911 (1982).
Our Supreme Court has held that ‘‘property that is
held in fee simple ownership by municipalities must be
presumed to be held for public use. It follows that the
party seeking title by adverse possession must bear
the burden of rebutting that presumption. Municipal
immunity from adverse possession is the rule and not
the exception, and we have consistently held that the
party seeking to acquire title by adverse possession
bears the burden of proving all the elements of adverse
possession.’’ American Trading Real Estate Proper-
ties, Inc. v. Trumbull, supra, 215 Conn. 80.
Moreover, the plaintiffs’ claim overlooks the follow-
ing findings and conclusions of the court. ‘‘Under either
a preponderance or clear and convincing proof stan-
dard, the court finds that the evidence supports an
understanding of The Shorefront Park Company’s inten-
tions and actions as an express dedication of all of the
highways within Shorefront Park to the city of Norwalk,
without any exclusion or retaining of interest in por-
tions of the highways which were less than fifty feet
wide. The court notes also that [the] identification of
the contested area [in the subdivision map] as part of
a ‘Private Way’ is of no consequence, since several other
portions of highway on the map, many marked as fifty
feet wide, are so labeled, and the plaintiffs do not con-
tend that those sections of the road were exempt from
The Shorefront Park Company’s dedication to the city.
‘‘The plaintiffs have also failed to prove, by clear and
convincing proof, that the city of Norwalk’s acceptance
was not express and did not include the contested area.
Again, a motion to accept all of Shorefront Park’s high-
ways, as designated on the map, was passed without
any reference to the width of the highways. Because
the court has determined that all of the highways,
including the contested area, were expressly offered,
the court finds that the [city’s] express acceptance
could and did include them.’’ (Footnote omitted.)
As we explained in part I of this opinion, the court
properly found by a preponderance of the evidence that
the highways on the subdivision map were expressly
dedicated by The Shorefront Park Company and were
expressly accepted by the city. Our Supreme Court has
held that municipalities are immune from claims of
adverse possession. See American Trading Real Estate
Properties, Inc. v. Trumbull, supra, 215 Conn. 80. More-
over, on the basis of our review of the record, including
the evidence, we conclude that the plaintiffs could not
prevail on their claim of adverse possession because
the evidence demonstrates that the contested area is
shared by the public. See part III of this opinion.
Even if the plaintiffs had the legal right to claim title
to the contested area, they could not prevail because
the court found that their use of the contested area was
shared by the public. ‘‘[T]o establish title by adverse
possession, the claimant must oust an owner of posses-
sion and keep such owner out without interruption for
fifteen years by an open, visible and exclusive posses-
sion under a claim of right with the intent to use the
property as his [or her] own and without the consent
of the owner.’’ (Internal quotation marks omitted.)
Schlichting v. Cotter, 109 Conn. App. 361, 364–65, 952
A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009(2008). ‘‘Because adverse possession is a question of
fact for the trier . . . the court’s findings as to this
claim 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 trial
court’s findings in an adverse possession case, if sup-
ported by sufficient evidence, are binding on a
reviewing court . . . .’’ (Internal quotation marks omit-
ted.) Mulle v. McCauley, 102 Conn. App. 803, 809, 927
A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265(2007). The plaintiffs’ claim therefore fails.
III
The plaintiffs’ third claim is that the trial court’s find-
ing that dominion over the contested area is shared by
the public is clearly erroneous. We disagree.
At trial, the plaintiffs argued that, even if the con-
tested area was dedicated to the city in 1930, municipal
immunity to adverse possession was lost when the city
abandoned the area by failing to maintain it or otherwise
treat it as a public road. In its memorandum of decision,
the court noted that ‘‘[t]o establish title by adverse
possession, the claimant must oust an owner of posses-
sion and keep such owner out without interruption for
fifteen years by an open, visible and exclusive posses-
sion under a claim of right with the intent to use the
property for his [or her] own and without the consent
of the owner.’’ (Internal quotation marks omitted.)
Shepard Group, LLC v. Arnold, supra, 124 Conn. App.
44. ‘‘The use is not exclusive if the adverse user merely
shares dominion over the property with other users.’’
Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826(1980). ‘‘A finding of [a]dverse possession is not to be
made out of inference, but by clear and positive proof.
. . . The burden of proof is on the party claiming
adverse possession.’’ (Internal quotation marks omit-
ted.) Shepard Group, LLC v. Arnold, supra, 44.
The court continued, ‘‘[t]itle to realty held in fee by
a state or any of its subdivisions for a public use cannot
be acquired by adverse possession.’’ (Internal quotation
marks omitted.) Campanelli v. Candlewood Hills Tax
District, 126 Conn. App. 135, 140, 10 A.3d 1073 (2011).
‘‘In light of the myriad of public uses that may be
advanced through public ownership of undeveloped
lands . . . property that is held in fee simple owner-
ship by municipalities must be presumed to be held for
public use. It follows that the party seeking title by
adverse possession must bear the burden of rebutting
that presumption. Municipal immunity from adverse
possession is the rule and not the exception, and we
have consistently held that the party seeking to acquire
title by adverse possession bears the burden of proving
all the elements of adverse possession.’’ American
Trading Real Estate Properties, Inc. v. Trumbull,
supra, 215 Conn. 80.
Furthermore, the two methods of terminating a
town’s responsibility for a road differ. ‘‘A highway may
be extinguished by direct action through governmental
agencies, in which case it is said to be discontinued;
or by nonuser by the public for a long period of time
with the intention to abandon, in which case it is said
to be abandoned.’’ (Internal quotation marks omitted.)
Doolittle v. Preston, 5 Conn. App. 448, 451, 499 A.2d
1164 (1985); see also R. Fuller, 9B Connecticut Practice
Series: Land Use Law and Practice (4th Ed. 2015) § 49:5,
p. 112 (‘‘Once it is shown that the road was a public
highway at some point in the past, it remains one under
Connecticut law no matter what its state of improve-
ment or deterioration may be unless that status was
terminated in one of two ways, (1) abandonment or (2)
discontinuance as provided by General Statutes § 13a-
49.’’).8 The statutory method of discontinuing the use of
a highway must be pursued strictly. Doolittle v. Preston,
supra, 451.
At trial, the plaintiffs made no claim that the city had
discontinued use of the contested area by a majority
vote of the selectmen pursuant to § 13a-49. The court
found that the plaintiffs had the burden of proving aban-
donment by clear and convincing evidence. Abandon-
ment requires proof of both a long period of nonuse
by the public and an intention to abandon. Montanaro
v. Aspetuck Land Trust, Inc., supra, 137 Conn. App. 21.
It is nonuse by the public, not the municipality, that
must be proven. The parties presented conflicting evi-
dence as to the first element of abandonment, i.e., a
long period of nonuse by the public.
In its memorandum of decision, the court summa-
rized the testimony of several witnesses. Dominic Coc-
chia and Peter Cocchia, sons of Mary Ann Cocchia,
testified that they moved into 40 Quintard Avenue in
1959. They understood that the contested area was part
of their driveway where they played games and parked
the family motor vehicles. Their father required them
to clean up litter, weed, and shovel snow from the
contested area. In 1970, their father had it paved. Nei-
ther Dominic Cocchia nor Peter Cocchia could recall
any action the family took to exclude the public from the
contested area or to prohibit the public from entering or
exiting the subdivision through the stone pillars.
Merritt testified that she had resided at 78 Shorefront
Park since 1944 and over a twenty year period, she had
walked four dogs over the contested area and through
the pillars approximately 200 times a year. She also
testified that she regularly saw pedestrians pass through
the pillars, including women with baby carriages, chil-
dren on bicycles, and other dog walkers. Merritt and
other motorists drove their vehicles through the pillars
to enter or exit the subdivision. She never witnessed
any barrier or notice denying the public entry to the
contested area.
Mulvehill testified that he had been a resident of
Shorefront Park since 1977. According to him, the city
plows the subdivision every year and pushes snow into
the contested area. He has never seen a chain, fence,
sign, name on the pillars, or other circumstance that
would suggest that the plaintiffs claimed possession of
the contested area. Patricia Audet, a resident of 25
Shorefront Drive since 1977, testified that she fre-
quently drove through the pillars to enter or exit the
subdivision. Significantly, the court viewed the con-
tested area and disclosed to the parties that, while he
was parked on Quintard Avenue, he observed a woman
walk south on Quintard Avenue, through the stone pil-
lars, and proceed down Shorefront Drive.
The court considered the conflicting evidence and,
in its memorandum of decision, found that the testi-
mony of the plaintiffs’ witnesses was not more likely to
be true than the testimony of the defendants’ witnesses.
The court, therefore, concluded that the public’s use
of the contested area and of the stone pillars as a public
entrance to the subdivision fell somewhere between
the levels suggested by the parties, but not so low as
to satisfy the nonuser prong of abandonment.
According to the court, the plaintiffs therefore failed
to carry their burden of proving, by clear and convincing
evidence, that public use of the contested area or stone
pillar entrance was so infrequent between 1959 and
1974, or between 1974 and the present, to satisfy the
first element of abandonment. Rather, the evidence indi-
cated to the court that the use of the contested area
was shared by the owners of 40 Quintard Avenue and
the general public. The court explained: ‘‘It is not essen-
tial . . . 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.’’ (Internal quotation
marks omitted.) Granby v. Feins, 154 Conn. App. 395,
404, 105 A.3d 932 (2014).
The essence of the plaintiffs’ claim on appeal is that
their witnesses, Dominic Cocchia and Peter Cocchia,
lived at the property during the period in which adverse
possession is claimed and the only witness for the
defendants who could testify as to the use of the con-
tested area during the adverse period was Merritt. The
plaintiffs acknowledge that it is in the discretion of the
trial court to accept her testimony over that of Dominic
Cocchia and Peter Cocchia, but not if its findings were
not reasonable and the reviewing court is left with the
impression that the finding was a mistake. See Stratford
v. Jacobelli, 317 Conn. 863, 870, 120 A.3d 500 (2015).
The plaintiffs specifically argue that the court’s finding
is clearly erroneous because Merritt testified that she
was of the opinion that the plaintiffs should not acquire
the contested area by adverse possession. They claim,
therefore, that such testimony makes her an interested
witness, not one who is testifying on the basis of what
she has seen.
‘‘[W]e must determine whether the facts set out in
the memorandum of decision are supported by the evi-
dence or whether, in light of the evidence and the plead-
ings in the whole record, those facts are clearly
erroneous. . . . We also must determine whether
those facts correctly found are, as a matter of law,
sufficient to support the judgment. . . . [W]e give great
deference to the findings of the trial court because of
its function to weigh and interpret the evidence before
it and to pass upon the credibility of witnesses . . . .’’
(Internal quotation marks omitted.) Rana v. Terdjan-
ian, 136 Conn. App. 99, 113, 46 A.3d 175, cert. denied,
305 Conn. 926, 47 A.3d 886 (2012).
‘‘[E]vidence is not insufficient . . . because it is con-
flicting or inconsistent. [The trier of fact] is free to
juxtapose conflicting versions of events and determine
which is more credible. . . . In this regard, [w]e are
not in a position to question the court’s credibility find-
ing. The sifting and weighing of evidence is peculiarly
the function of the trier. [N]othing in our law is more
elementary than that the trier is the final judge of the
credibility of witnesses and of the weight to be accorded
their testimony. . . . The trier is free to accept or
reject, in whole or in part, the testimony offered by
either party.’’9 (Citation omitted; internal quotation
marks omitted.) Masse v. Perez, 139 Conn. App. 794,
798, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61
A.3d 1098 (2013).
A court properly may take into account testimony
from a witness with an interest in the outcome of the
case. See Beaucar v. Bristol Federal Savings & Loan
Assn., 6 Conn. Cir. Ct. 148, 154, 268 A.2d 679 (1969).
‘‘[A] trial court is at liberty to discredit any witness or
a multitude of witnesses, if it deems that it has cause
to do so.’’ Antenucci v. Hartford Roman Catholic Dioc-
esan Corp., 142 Conn. 349, 357, 114 A.2d 216 (1955).
‘‘[I]t is futile to assign error involving the weight of
testimony or the credibility of witnesses.’’ Hartford-
Connecticut Trust Co. v. Putnam Phalanx, 138 Conn.
695, 699, 88 A.2d 393 (1952) (witness former trustee
of defendant).
On the basis of our review of the record, the law,
and the court’s memorandum of decision, we conclude
that the court’s finding that the contested area was
shared by the plaintiffs and the general public is not
clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The individual defendants were owners of property adjacent to Shore-
front Park, a roadway in the city, and the descendants of the original owners
of The Shorefront Park Company. The individual defendant property owners
were Thursa June Merritt, Mary Merritt, Urban S. Mulvehill, Diane K. Mulveh-
ill, James A. Smith, Joanne C. Smith, William Faulkenstein, and Kaori O’Brien.
The individual defendant descendants were John Keogh III, M. Douglas
Keogh, William Allen Keogh, Stephen B. Keogh, Tara Quinn-Siegel, and
Jacqueline F. Quinn. The plaintiffs impleaded numerous other individuals
who had a possible interest in property, but none appeared in the trial court.
The following defendants appeared at trial: the city, Thursa June Merritt,
Urban S. Mulvehill, and The Shorefront Park Improvement Association,
Inc. Those defendants filed appearances in this appeal, but only Urban S.
Mulvehill, a self-represented party, filed a brief and argued on appeal. The
defendants, as used in this opinion, refers to only those defendants who
appeared at trial.
2
‘‘Shorefront Park’’ is both a street address within the subdivision and
the name of the subdivision itself.
3
The court found that the plaintiffs alleged that Jutten was employed by
the city’s Department of Public Works. Another section of the minutes
contains the words ‘‘A.F. Jutten Commissioner.’’
4
The court found that the road widens to fifty feet where it meets the
border of the plaintiffs’ property.
5
Under either a preponderance of the evidence or clear and convincing
proof standard, the court found that the evidence supports an understanding
of The Shorefront Park Company’s intentions and actions as an express
dedication of all of the highways within Shorefront Park to the city, without
any exclusion or retaining of interest in portions of the highways that were
fewer than fifty feet wide. Although the plaintiffs’ exhibit 8 identifies the
contested area as part of a ‘‘Private Way,’’ the court found that to be of no
consequence, as several other portions of the highway on the map, many
marked as fifty feet wide, are similarly labeled. The plaintiffs did not contend
that those sections of road were exempt from The Shorefront Park Com-
pany’s dedication to the city.
6
‘‘Various minor changes were made in the statute, but no major change
occurred until 1959, when the statute was amended to require the approval
of the planning commission where one existed in such town, city or borough
and where the commission had adopted subdivision regulations.’’ Thompson
v. Portland, supra, 159 Conn. 112.
7
If Shorefront Park Company had wished to limit or restrict the dedication,
it might have included a restrictive phrase in the sentence, such as, ‘‘for
the acceptance of the highways that are fifty feet wide shown on the
attached map.’’
8
General Statutes § 13a-49 (a) (1) provides in relevant part: ‘‘The selectmen
of any town may, subject to approval by a majority vote at any regular or
special town meeting, by a writing signed by them, discontinue any highway
or private way . . . in its entirety . . . .’’
9
We also note the jury instructions given with respect to possible bias
or motive of witnesses generally: ‘‘In weighing the testimony of a witness,
you should consider his or her demeanor on the witness stand, whether his
or her testimony was reasonable or unreasonable, the basis of the witness’
knowledge or opportunity to observe the events that he or she testified
about, whether his or her testimony was supported or contradicted by other
testimony, his or her motive to tell the truth or not to tell the truth, the
probability or improbability of his or her testimony. . . .
‘‘You also have a right to consider whether any witness has shown bias
or prejudice or has a personal interest or professional interest in the outcome
of the case which might cause him or her to testify to something other than
the truth or to color or embellish his or her testimony. However, even if
you find that the witness is an interested witness, has some stake in the
matter, remember, there’s no legal presumption that he or she did not tell
the truth nor is there any legal presumption that a disinterested witness
did, in fact, tell the truth. The question of the interest of a witness and the
effect upon his or her testimony is for you to decide from the evidence in
the case.’’ (Internal quotation marks omitted.) State v. Patterson, 276 Conn.
452, 466 n.10, 886 A.2d 777 (2005); see also 2 D. Wright & W. Ankerman,
Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 641, pp. 1017–18.