The Highway and the Right of Way: an Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment
| Publication year | 2021 |
| Pages | 299 |
ORDER
Ellen L. Sostman[*] and Jonathan S. R. Anderson[**]
In the beginning, when life was less complex, Connecticut's earliest settlers created roads from virgin land. There was undoubtedly little question whether a particular road was or was not public since, as Judge Ingersoll observed in the 1814 case of Peck v. Smith, "it was seldom or never practiced to lay out a highway through the lands of an individual proprietor, as there was a sufficiency of common lands not taken up for all highways thought to be necessary."[1] Land for needed highways was reserved as towns were settled and laid out; tide to the highway was in the abutting landowners or in the town itself, but the highway was subject to the control of whatever body was given : authority and responsibility for roads — the county court in 1699, then the legislature, and ultimately the complex interrelationship that now exists among the legislature, the mayor, selectmen or common council of each town and city, the State Highway Commissioner, the State Department of Transportation and the federal government.
The system of roads itself has grown increasingly complex ― a complexity that is reflected by the fact that as a society, we have moved from a public discussion of "highways" to a public discussion of die state of the "infrastructure." As would logically follow, the issues involving roads and the body of law that has grown up in response to those issues have also become increasingly complex; yet today the Connecticut courts, in many cases, are still grappling with the issues that plagued them in 1814 when Peck v. Smith, cited above, was decided.
This article will attempt to identify and discuss the legal issues involving highways, private ways and so-called "paper streets" as they affect the use and conveyance of real property.
I. Dedication and Acceptance: A Threshold Issue
In dealing with the legal issues surrounding roads, at the outset one must make the distinction between public and private, between "Highway" and "private way." It is from this distinction between what is public and what is private that the ownership and rights of use of the roadway flow. Important also is the change in a road from private to public, or vice versa, and the time when such change occurs.
To most of us, the term "Highway" connotes 55 mph speed limits, four lanes of traffic and miles-long commuter traffic jams. It is important to note, however, that the term "highway," as used in the state statutes and in the case law, is a well-defined term of art.
Section 13a-1 of the Connecticut General Statutes states that the term "highway" includes streets and roads, while Section 14-1(18) defines a "highway" as "any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision thereof, dedicated, appropriated or opened to public travel or other use." If one's mental image of a "highway" is four lanes of traffic traveling at high speed, the definition in Section 14-1(18) is particularly enlightening. Whether a road is a "highway" does not depend upon its physical features, such as how quickly one can travel on it, how wide it is or how many automobiles can occupy it at any given time. The key factors are that control of the road is vested in the state, town or city and that the road in question is open to public travel or use. The case law is even clearer in distinguishing between public and private, the clearest statement coming from Wamphassuc Point Property Owners Association v. Public Utilities Commission.[2] In that case, the court states that the term "public highway" is a tautology and that "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 a limited number of persons have the right to pass."[3]
Roadways, in recent times, have rarely been constructed over land that is not privately owned. How, then, does the public obtain its control and rights of use in a roadway? Leaving aside for a moment the field of condemnation and the law of eminent domain, it is necessary to examine an entire body of statutory and case law that has arisen over time and that governs the transformation into a highway that has been laid out over private lands. This is the law of dedication and acceptance. For a roadway which is laid out over private lands to become, through means other than eminent domain proceedings, a "highway" within the meaning of the statutes and case law, it is essential that there have been both a dedication by the fee owner of that roadway to public use and acceptance by the public or by some public authority.'' What constitutes dedication and how acceptance is manifested are threshold questions to be answered. Both are questions of fact.[5]
A. Dedication
Dedication of a street to public use need not be done with any particular formality.[6] However, a dedication requires a manifest intent by the owner to dedicate the land for use by the public.[7] The intent to dedicate is clearly manifested where the developer expressly requests the town to accept the streets in his subdivision, as happened in the case of Johnson v. Watertown.[8] Most commonly, though, there is nothing express, and dedication must be implied from the acts and conduct of the owner of the road. At first glance, the common law seems to set a stiff standard for implying an intent to dedicate from conduct: "[N]o presumption of an intent to dedicate arises unless it is clearly shown by the owner's acts and declarations, or by a line of conduct the only reasonable explanation of "which is that a dedication was intended."[9] A closer look at the cases reveals that the unequivocal line of conduct required to be held sufficient to manifest the required intent need only be the filing of a subdivision plan showing the streets.[10] These cases suggest that, in fact, there is something very close to a presumption of dedication to public use absent a manifest intent on the part of the owner of the streets to keep them private.[11]
B. Formal Acceptance
As stated above, a dedication is not sufficient alone to establish a street as public.[12] The dedication becomes effective only when acceptance has occurred.[13] Similarly, acceptance, while it may occur without a dedication, is not enough to make a road public.[14]
Acceptance, like dedication, may be express or implied. Express acceptance requires certain formalities: What may be accepted, by whom and the manner in which formal acceptance must be done is regulated by state statute and municipal regulations, including subdivision regulations. Sections 13a-71, 13a-48 and 8-24 of the Connecticut General Statutes warrant special attention.
The first of these statutes, Section 13a-71, is found in Chapter 238, Highway Construction and Maintenance, and is entitled "Layout by Individuals." Subsection (b) contains a requirement that written approval must be given by a majority of the members of the municipal governing body or planning commission .of "the grade, layout, location, width and improvements" of a highway laid out by an individual[15] before it can be opened to the public. At first glance, it would appear that such written approval would constitute acceptance; however, it does not. The Connecticut courts have at least twice read this statute strictly, confining the scope of its application to its title.[16] While approval of a road's layout may be obtained as a first step toward acceptance, it is not required. Formal acceptance is done at an annual or special meeting of the municipal governing body, with the approval o£ the planning commission, in accordance with Sections 8-24 and 13a-48 of the General Statutes." Formal acceptance of a road must, therefore, be determined from the minutes of the town meetings.
Occasionally, subdivision streets will be deeded to the town by the developer of the subdivision. While this is not the formal action contemplated by the statutes discussed above, acceptance of a deed is an official act by the town.[18] Acceptance of such a grant may not require the same formality as acceptance of streets on a map, although this is not clear.[19] However, acceptance of a deed by the municipality without a formal town meeting may not be sufficient to consititute acceptance of the streets without actual use by the general public.[20]
Public use is clearly not required where acceptance is accomplished by a formal town meeting. In that case, formal acceptance is sufficient, without more: "When. . . a municipality by formal action in conformity with the statutory-requirements, expressly accepts a street as a public highway, no further action on the part of the general public is required to constitute the street a public highway."[21] As a general rule, inquiry into whether or not formal acceptance has occurred may stop with evidence of a formal town meeting accepting the street. If a deed is found instead, the inquiry must continue into the circumstances surrounding the receipt of the deed by the town and/or into public use of the road.
C. Implied Acceptance
The more difficult problems arise where there has been no express formal acceptance. In such cases, it is necessary to determine whether there has been an implied acceptance of the street, either by some public entity such as a municipality or by the general public. A municipality may impliedly accept a street through actions such as plowing and paving it. Where the municipality has done nothing with the street, implied acceptance may still be found through the actions of the general...
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