Nichols v. Town of Oxford

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHRISTOPHER HOUK NICHOLS ET AL.
v. TOWN OF OXFORD
(AC 39366)
DiPentima, C. J., and Lavine and Pellegrino, Js.
Syllabus
The plaintiffs brought this action, pursuant to statute (§ 13a-103), seeking
an order directing the trial court to order the defendant town of Oxford
to repair and maintain unimproved sections of a certain highway. The
trial court denied the relief sought, and the plaintiffs appealed to this
court, claiming that the court erred in finding that certain sections of
the road did not comprise part of a highway and that, even if those
sections of the road once comprised part of a highway, they since had
been abandoned. Held that the trial court’s finding that the sections of
the highway at issue had been abandoned was not clearly erroneous:
abandonment of a highway may be inferred from circumstances or
presumed from long continued neglect, and there was sufficient evidence
in the record demonstrating that the disputed sections were not part
of a highway, as the court found that by the time the action was com-
menced, at least twenty-five years had passed since the unorganized
public last used the challenged sections of the road as a highway, and
for as long, the town refused to acknowledge those sections as part of
the road, did not develop or maintain them, and had no plans to develop
or maintain them in the future, all of which suggested an intent to
abandon; moreover, this court deferred to the credibility determinations
and weighing of the facts by the trial court, which weighed all the
evidence and testimony carefully, and personally had visited the road
and drove and walked its entire length.
Argued February 22—officially released June 19, 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. Brew-
ster et al. as defendants; thereafter, the court, Stevens,
J., granted the plaintiffs’ motion to bifurcate hearing;
subsequently, the case was withdrawn in part; there-
after, 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).
Opinion
DiPENTIMA, C. J. The plaintiffs1 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 sec-
tions 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 deci-
sion, the trial court found the following facts. ‘‘[The
road] is a long, winding road in Oxford . . . inter-
secting 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. Nich-
ols’ 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 mountain-
ous 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 bot-
tom 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 sec-
tions two and three are premised on their argument
that [the road] in its entirety has been historically dedi-
cated 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 unim-
proved 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 indi-
cated that town improvements of [the road] would make
access to his property more convenient.’’ (Citation omit-
ted; 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 bifur-
cate 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 Febru-
ary 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 acceptance7 and (2) in the alternative, the defen-
dants had proved by a fair preponderance of the evi-
dence 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, accep-
tance and abandonment generally are recognized as
questions of fact. . . . Our review of the factual find-
ings of the trial court is limited to a determination of
whether they are clearly erroneous.’’ (Citations omitted;
internal quotation marks omitted.) Montanaro v. Aspet-
uck 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 court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings.’’ (Internal quotation marks
omitted.) Drabik v. East Lyme, 234 Conn. 390, 394–95,
662 A.2d 118 (1995).
‘‘We also must determine whether those facts cor-
rectly found are, as a matter of law, sufficient to support
the judgment.’’ (Internal quotation marks omitted.) Ben-
jamin v. Norwalk, 170 Conn. App. 1, 25, 153 A.3d 669
(2016). ‘‘[This court] cannot retry the facts or pass upon
the credibility of the witnesses.’’ (Internal quotation
marks omitted.) Pandolphe’s Auto Parts, Inc. v. Man-
chester, 181 Conn. 217, 220, 435 A.2d 24 (1980).
A previously established highway ‘‘may be extin-
guished [1] by direct action through governmental agen-
cies, in which case it is said to be discontinued; or [2]
by nonuser8 by the public for a long period of time with
the intention to abandon, in which case it is said to
be abandoned. The length of time during which such
nonuser must continue on the part of the public, before
the highway can be presumed to be abandoned, has
not been determined in this [s]tate by statute or judicial
decision. It must be a long time. . . . Such an abandon-
ment implies, of course, a voluntary and intentional
renunciation, but the intent may be inferred as a fact
from the surrounding circumstances . . . . Most fre-
quently, where abandonment has been held established,
there has been found present some affirmative act indic-
ative of an intention to abandon . . . but nonuser, as
of an easement, or other negative or passive conduct
may be sufficient to signify the requisite intention and
justify a conclusion of abandonment. The weight and
effect of such conduct depends not only upon its dura-
tion but also upon its character and the accompanying
circumstances.’’ (Citations omitted; footnote added;
internal quotation marks omitted.) Montanaro v. Aspet-
uck Land Trust, Inc., supra, 137 Conn. App. 20–21; see
also Benjamin v. Norwalk, supra, 170 Conn. App. 21–22;
R. Fuller, 9B Connecticut Practice Series: Land Use Law
and Practice (4th Ed. 2015) § 49:5, p. 112 (‘‘[o]nce 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 improvement or deteriora-
tion may be unless that status was terminated in one
of two ways, [1] abandonment or [2] discontinuance as
provided by General Statutes § 13a-49’’).
Although the individual elements of abandonment
are (1) nonuse by the public (2) for a long period of
time (3) with the intent to abandon, it has long been
the rule that ‘‘abandonment may be inferred from cir-
cumstances or may be presumed from long continued
neglect.’’ (Internal quotation marks omitted.) Appeal of
Phillips, 113 Conn. 40, 45, 154 A. 238 (1931). With
respect to actual nonuse, ‘‘[i]t is nonuse by the public,
not the municipality, that must be proven.’’ Benjamin
v. Norwalk, supra, 170 Conn. App. 22. Nevertheless, ‘‘[i]t
is not essential . . . 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 condi-
tions, 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.) Phillips v. Stamford, 81 Conn. 408, 414, 71
A. 361 (1908); see also Benjamin v. Norwalk, supra,
24; Granby v. Feins, 154 Conn. App. 395, 404, 105 A.3d
932 (2014).
With respect to intent, we iterate that ‘‘negative or
passive conduct may be sufficient to signify the requi-
site intention and justify a conclusion of abandonment;’’
(internal quotation marks omitted) Montanaro v. Aspet-
uck Land Trust, Inc., supra, 137 Conn. App. 21; and
that although ‘‘abandonment implies . . . a voluntary
and intentional renunciation . . . the intent may be
inferred as a fact from the surrounding circumstances
. . . .’’ Newkirk v. Sherwood, 89 Conn. 598, 605, 94
A. 982 (1915); see also Cornfield Point Assn. v. Old
Saybrook, 91 Conn. App. 539, 567, 882 A.2d 117 (2005)
(intent to abandon ‘‘can also be inferred from the cir-
cumstances, such as the lack of any express plan for the
future development of the property’’ [internal quotation
marks omitted]). Logically, it is clear that both the public
and the municipality must intend to abandon a highway
for it truly to be abandoned. See, e.g., American Trad-
ing Real Estate Properties, Inc. v. Trumbull, 215 Conn.
68, 77–82, 574 A.2d 796 (1990) (absent evidence of intent
to abandon, municipal land is presumed to be held
in trust for public use); Cornfield Point Assn. v. Old
Saybrook, supra, 570–73 (same). Nevertheless, munici-
pal ownership of the fee to the roadway itself does not
forestall abandonment ipso facto.9
With respect to the length of time required to prove
abandonment, we emphasize that ‘‘[t]he length of time
during which such nonuser must continue on the part
of the public, before the highway can be presumed to
be abandoned, has not been determined in this [s]tate
by statute or judicial decision. It must be a long time.’’
(Internal quotation marks omitted.) Montanaro v.
Aspetuck Land Trust, Inc., supra, 137 Conn. App. 20,
citing Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521
(1907). Our courts have considered this issue infre-
quently. Compare Newkirk v. Sherwood, supra, 89
Conn. 605 (sixty years deemed sufficient); Hartford v.
New York & New England Railroad Co., 59 Conn. 250,
260, 22 A. 37 (1890) (nonuse ‘‘for many years’’ is evi-
dence of abandonment); Benham v. Potter, 52 Conn.
248, 253 (1884) (fifty years deemed sufficient);
Beardslee v. French, 7 Conn. 125, 127 (18 Am. Dec. 86)
(1828) (‘‘desertion of a public road for nearly a century,
is strong presumptive evidence that the right of way
has been extinguished’’); Litchfield v. Wilmot, 2 Root
(Conn.) 288, 290 (1795) (fifteen years of uninterrupted
possession of highway bars town from recovering it);
with Brownell v. Palmer, 22 Conn. 106, 120–21 (1852)
(questioning, without deciding, whether twenty years
was sufficient); Stohlts v. Gilkinson, 87 Conn. App.
634, 637, 644, 867 A.2d 860 (plaintiffs could not prove
abandonment where, approximately eleven years prior
to purchase, municipality approved permit pursuant to
plot plan showing highway), cert. denied, 273 Conn.
930, 873 A.2d 1000 (2005).
Whether the disputed sections of the road have been
abandoned is a question of fact, which we review on the
clearly erroneous standard. See Montanaro v. Aspetuck
Land Trust, Inc., supra, 137 Conn App. 8. On the basis
of our review of the record, the law and the trial court’s
well-reasoned memorandum of decision, we cannot
conclude that the court’s finding of abandonment was
clearly erroneous. The court’s memorandum of decision
clearly lays out its summation and assessment of each
witness’ testimony and all the other evidence; the court
ultimately concluded that the defendants had met their
burden of proving that, even if the disputed sections
of the road once had comprised part of a highway, they
have long since been abandoned. Specifically, the trial
court summarized its factual findings as follows. ‘‘[T]he
evidence regarding abandonment is conflicting. The
‘indicia’ of acceptance10 . . . mitigate against a finding
of abandonment, but few of these facts reflect recent
incidents. The plaintiffs claim that there was substantial
public use of [the road] when the Zoar Bridge existed.
As previously addressed, the accuracy and credibility
of this claim are questionable. Nevertheless, even the
plaintiffs’ position contemplates the dissipation of the
public’s interest and usage of [the road] after the sub-
mergence of the Zoar Bridge by the Stephenson Dam
construction in 1919. Between 1919 and 1980 (about
sixty years), there exists evidence of sporadic but insub-
stantial work on the road by the town and no evidence
whatsoever of any significant public use. The evidence
is undisputed that for the last twenty-five years [the
road] has been a dead end road, the public has not used
the unimproved section of the road and the town has
not done any work on this section of the road. For well
over sixty years, section four has been used primarily
(if not exclusively) as part of the driveway owned by
the Lucas family. Based on Watt’s testimony,11 the town
has no present intention or plan to engage in any work
on the road as the town’s records do not show the
unimproved section of the road as an accepted town
highway.’’ (Footnotes added.)
There is more than sufficient evidence for these find-
ings in the record. The parties disputed whether the
road had been used by the public at all since approxi-
mately 1919, but agreed that the road became partially
impassable sometime in the 1980s. Testimony with
respect to use since then was varied. With respect to
section two, there is a ‘‘dead end’’ sign at the end of
section one where the highway terminates. Lucas testi-
fied that he had only seen one car use this section
recently, and that he could recall no traffic on the road
when he was young. Further, Nichols testified that he
is the only homeowner along or near section two of
the road. The town does not maintain or repair section
two, and Watt testified that it has no intention of doing
so.12 Indeed, numerous witnesses testified that since at
least the construction of the house that now belongs
to Nichols, the town has not maintained or improved
section two; the only improvements to section two were
made either by Nichols or by the previous owner, Paul
Lane, at their own expense. As a result, section two is
passable only by vehicle with four wheel drive.
With respect to section three, Lucas testified that it
has been impassable since a severe storm in 1982.
Another witness, Robert Danielecki, who owns prop-
erty adjacent to Nichols’ property, testified that section
three has been impassable since at least 1988. Lacinda
Lane agreed that section three was washed out in a
storm in the 1980s and has been impassable ever since.
Photographic evidence in the record shows that section
three is steep, narrow and overgrown with vegetation.
The court itself concluded that section three is too
rugged and steep for a vehicle to traverse.13
With respect to section four, although others may
once have used section four, Lacinda Lane testified that
Lucas’ uncle openly and deliberately blocked access
thereto with his truck to prevent her and her husband,
as well as the general public, from using that section
in the 1980s. There is no indication that it has been
used as anything other than a private driveway since
then; Danielecki testified that, since at least 1990, he
had not seen anyone operate a vehicle all the way
through the road. He further testified that although sev-
eral people have been directed by their global position-
ing system navigation devices to drive up the road from
section four, those people ‘‘turn right around’’ because
‘‘[t]hey can’t get through.’’
Collectively, this evidence supports the conclusion
that the disputed sections are not part of a highway.
The court found that by the time the action was com-
menced, at least twenty-five years had passed since the
unorganized public last used the challenged sections
of the road as a highway. For as long, the town refused
to acknowledge those sections as part of the road and
did not develop or maintain them; at trial, representa-
tives from the town testified that it has no plans to do
so in the future. On this evidence, under the specific
facts and circumstances of this case, a sufficiently long
period of wilful nonuse has passed to imply intent to
abandon.
To the extent that the plaintiffs presented evidence
and their witnesses testified to the contrary; see, e.g.,
footnote 10 of this opinion; we emphasize that ‘‘[e]vi-
dence is not insufficient . . . because it is conflicting
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 finding. The
sifting and weighing of evidence is peculiarly the func-
tion 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.’’
(Internal quotation marks omitted.) Benjamin v. Nor-
walk, supra, 170 Conn. App. 25.
We note again that, in addition to weighing all the
evidence and testimony carefully, the court personally
visited the road and drove and walked its entire length.
That kind of observation demonstrates exactly why this
court cannot relitigate the facts. See, e.g., Hensley v.
Commissioner of Transportation, 211 Conn. 173, 178
n.3, 558 A.2d 971 (1989) (‘‘[w]e have consistently held
that the visual observations made by the trier on a visit
to the property are as much evidence as the evidence
presented for his consideration by the witnesses under
oath’’ [internal quotation marks omitted]); C. Tait & E.
Prescott, Connecticut Evidence (5th Ed. 2014) § 11.9.1,
p. 730 (‘‘[A] court has discretion to permit the [fact
finder], be it court or jury, to view the premises or a
location relevant to the trial. . . . Evidence obtained
from views is substantive evidence and can indepen-
dently support a factual finding. . . . The fact that such
evidence is unreviewable on appeal in no way impairs
its admissibility.’’ [Citations omitted; emphasis added.])
Because we defer to the trial court’s weighing of the
facts, and because nothing in this record suggests that
the court misapplied the law, we conclude that the
finding of abandonment was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The six plaintiffs in this action, Christopher Houk Nichols, Frank Sam-
uelson, Robert Samuelson, Larissa Nichols, Richard Barlow and Judy Bar-
low, all own or reside on properties that are located on or near Old Good
Hill Road in Oxford.
2
General Statutes § 13a-103 provides, in relevant part: ‘‘Whenever any
town fails to keep any highway within such town in good and sufficient repair
or whenever the selectmen of any town fail . . . to make such alterations
or improvements therein as may be required by common convenience or
necessity, the superior court for the judicial district in which such highway
is located, upon the written complaint of six or more citizens of this state
under oath, after due inquiry made by it, shall appoint a time and place
when and where all persons interested may appear and be heard upon the
propriety of such repairs . . . or of the making of such alterations and
improvements. . . . If the court finds that such highway should be repaired
. . . or that such alterations and improvements should be made, it shall
order the selectmen of such town to cause such highway to be repaired
. . . and such alterations and improvements to be made, and shall prescribe
the manner and extent of such repairs and of the removal of such encroach-
ments and of the making of such alterations and improvements and the
time within which the work shall be done, and may, for reasonable cause,
extend such time.’’
3
In addition to the town, the defendants were John Lucas, James H.
Brewster, Robert H. Brewster, Kristine Fierrro, Diane Talbot, Laura Farkas,
Linda Czaplinski, Robert Danieliki, Elena Saad, and Lenore Nolan, each of
whom own property on the road and were made parties pursuant to the
provisions of § 13a-103 because their interests may have been affected by
the outcome of the action. Only John Lucas participated in the trial. We
refer to the town and Lucas together as the defendants.
4
The term ‘‘highway’’ refers to ‘‘[a] main road or thoroughfare; hence, a
road or way open to the use of the public. . . . A highway is a public way
open and free to any one who has occasion to pass along it on foot or with
any kind of vehicle. . . . The essential feature of a highway is that it is a
way over which the public at large has the right to pass. . . . Accordingly,
the term highway is ordinarily used in contradistinction to a private way,
over which only a limited number of persons have the right to pass. . . . The
expression private highway is a misnomer and public highway is tautology.’’
(Citations omitted; internal quotation marks omitted.) Stavola v. Palmer,
136 Conn. 670, 683–84, 73 A.2d 831 (1950). See also General Statues § 13a-
1 (a) (2) (‘‘‘[h]ighway’ includes streets and roads’’).
5
As a result, we do not address the plaintiffs’ claim that the court should
have found that sections two, three and four of the road comprised part of
the highway; to the extent that the challenged sections of the road had been
dedicated and accepted, they since have been abandoned. This opinion,
however, should not be read to suggest that the court’s findings that the
plaintiffs failed to prove both dedication and acceptance were erroneous.
6
Accordingly, the defendants bore the burden of proving abandonment.
See Montanaro v. Aspetuck Land Trust, Inc., 137 Conn App. 1, 21, 48 A.3d
107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012) (‘‘[t]he burden of proof
is on him who seeks to establish the abandonment of a highway, and the
continuance of the street will be presumed until satisfactory evidence is
produced to rebut it’’ [internal quotation marks omitted]).
7
‘‘From early times, under the common law, highways have been estab-
lished in this state by dedication and acceptance by the public. . . . Dedica-
tion is an appropriation of land to some public 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, 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.’’
(Citation omitted; internal quotation marks omitted.) Drabik v. East Lyme,
234 Conn. 390, 394, 662 A.2d 118 (1995).
8
‘‘User’’ and ‘‘nonuser’’ are terms of art in early case law. See, e.g.,
Beardslee v. French, 7 Conn. 125, 127 (18 Am. Dec. 86) (1828). Where
possible, we use the terms ‘‘use’’ and ‘‘nonuse’’ instead.
9
We express no opinion as to the present owner of the fee, if any. See
generally American Trading Real Estate Properties, Inc. v. Trumbull, supra,
215 Conn. 77–82; Burke v. Ruggiero, 24 Conn. App. 700, 707, 591 A.2d 453,
cert. denied, 220 Conn. 903, 593 A.2d 967 (1991); R. Fuller, 9B Connecticut
Practice Series: Land Use Law and Practice (4th Ed. 2015) § 49:5, p. 113–14.
10
In its thorough evaluation of all the evidence, the court noted that
‘‘[t]he plaintiffs’ evidence provides some indicia of acceptance. The plaintiffs
emphasize that [the road] has been long identified and recognized on deeds
and maps, although the town emphasizes that these documents were not
produced or created by the town. The earliest references to [the road] are
in maps of [the town] dated 1852 and 1868. The plaintiffs identified town
logs that were dated 1961 and 1962, indicating that the town did some
reconstruction or improvement work on the road which may have included
work on the unimproved sections of [the road]. The plaintiffs’ evidence also
reflects a 2006 easement granted by the town to Lucas for him to install a
sanitary sewer line. . . . This easement is equivocal as to the issues of
acceptance or ownership as it explicitly states that ‘the town of Oxford
does not make any representation as to what right it may have, if any,
over this easement area.’ Over the years, some of the property owners had
conversations with town officials that indicated some town interest in or
responsibility for the property. For example, Lane testified that she had such
communications with town officials, and Nichols received communications
[from] the town’s zoning enforcement official that his work on the road was
being done on town property. The evidence also indicates that in the 1960s,
the town’s planning and zoning commission approved a subdivision develop-
ment plan that was not completed. According to the plaintiffs, this approval
required the commission to view the road as a public highway. See Meshberg
v. Bridgeport City Trust Co., [180 Conn. 274, 280, 429 A.2d 865 (1980)]
(implied acceptance may not be established solely by approval of subdivision
plans because approval of a proposed subdivision and the acceptance of a
public street are entirely separate matters.) Additionally, there is no evidence
that the areas of the road are taxed by the town. See [id., 284] (in evaluating
acceptance ‘[t]he weight to be accorded the assessment or nonassessment
of taxes upon property dedicated to a public use varies according to the
other circumstances of the case’).’’ (Citation omitted; footnote omitted.)
Ultimately, the court, weighing these indicia of acceptance against the rest
of the evidence, concluded that the plaintiffs had failed to prove both dedica-
tion and acceptance.
11
Wayne Watt testified that he was the foreman/director of the town’s
public works department.
12
We note that both Nichols and Watt also testified that Watt informed
Nichols upon his purchase of the home that the disputed sections were not
a ‘‘town approved road’’ and were not maintained.
13
The plaintiff’s expert conceded that, even in its heyday, section three
may have been navigable only by ‘‘empty wagon.’’