Kenmore Road Assn. v. Bloomfield

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KENMORE ROAD ASSOCIATION, INC. v.
TOWN OF BLOOMFIELD
(AC 43141)
Elgo, Cradle and Pellegrino, Js.

Syllabus

The plaintiff corporation, which had acquired title to a certain private road
in 1966, sought, inter alia, a judgment declaring that the defendant town
had accepted the road as a public road. Following a trial, the trial court
rendered judgment in favor of the defendant, concluding that the road
had not been dedicated to public use by the plaintiff or accepted by the
defendant or the public for such use. On the plaintiff’s appeal to this
court, held that the trial court’s findings that the plaintiff had not
impliedly dedicated the road to public use nor had the defendant or the
public impliedly accepted the road for such use were supported by the
record and, therefore, were not clearly erroneous.
Argued May 25—officially released August 24, 2021

Procedural History

Action seeking a judgment declaring that the defen-
dant has accepted a certain road as a public road, and
for other relief, brought to the Superior Court in the
judicial district of Hartford and tried to the court, Hon.
A. Susan Peck, judge trial referee; judgment for the
defendant, from which the plaintiff appealed to this
court. Affirmed.
Mark S. Shipman, with whom was C. Scott Schwefel,
for the appellant (plaintiff).
Thomas R. Gerarde, with whom were Marc N.
Needelman, and, on the brief, Adam J. DiFulvio, for
the appellee (defendant).
Opinion

PER CURIAM. In this declaratory judgment action,
the plaintiff, Kenmore Road Association, Inc., appeals
from the judgment of the trial court, rendered after
a court trial, in favor of the defendant, the town of
Bloomfield. On appeal, the plaintiff claims that the trial
court erred in concluding that Kenmore Road had nei-
ther been impliedly dedicated to public use nor
impliedly accepted as a public road by the defendant
or the public.1 We affirm the judgment of the trial court.
The plaintiff is a Connecticut corporation, which took
title to Kenmore Road, as a private road, in 1966. The
plaintiff is not a common interest community. The mem-
bers of the plaintiff are residents whose properties abut
the road, which is the sole means of ingress and egress
to those properties. On October 29, 2015, the plaintiff
filed this action by way of a one count complaint seeking
a declaratory judgment that the defendant has accepted
Kenmore Road as a public road. Following a brief trial,
the court issued a written memorandum of decision in
which it concluded that Kenmore Road had been neither
dedicated to the defendant, nor accepted by the defen-
dant or the public, for public use. This appeal followed.
‘‘[U]nder the common law, highways have been estab-
lished in this state by dedication and acceptance by the
public. . . . Dedication 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 acceptance 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.’’ (Internal
quotation marks omitted.) Montanaro v. Aspetuck
Land Trust, Inc., 137 Conn. App. 1, 11, 48 A.3d 107,
cert. denied, 307 Conn. 932, 56 A.3d 715 (2012).
As noted, the plaintiff does not challenge on appeal
the trial court’s determinations that Kenmore Road was
not expressly dedicated or accepted for public use. Our
review is therefore limited to the trial court’s rejection
of the plaintiff’s claims that Kenmore Road was
impliedly dedicated by the plaintiff and impliedly
accepted by the defendant and the public for public use.
‘‘An implied dedication may arise . . . where the
conduct of a property owner unequivocally manifests
his intention to devote his property to a public use; but
no presumption of an intent to dedicate arises unless
it is clearly shown by the owner’s acts and declarations,
the only reasonable explanation of which is that a dedi-
cation was intended.’’ A & H Corp. v. Bridgeport, 180
Conn. 435, 439–40, 430 A.2d 25 (1980).
‘‘To determine whether the public has accepted a
[road] through actual use, the use need not necessarily
be constant or by large numbers of the public, but it
must continue over a significant period of time . . .
and be of such a character as to justify a conclusion
that the way is of common convenience and necessity.
. . . While the public’s actual use of the property dedi-
cated to a municipality can, under appropriate circum-
stances, constitute an implied acceptance on the part
of the public, there are municipal actions that may also
constitute acceptance of such property. . . . Where a
municipality grades and paves a street, maintains and
improves it, removes snow from it, or installs storm or
sanitary sewers, lighting, curbs, or sidewalks upon it
there exists a factual basis for finding an implied accep-
tance of the street by the municipality. . . . Such
municipal acts are factors to be weighed in the ultimate
factual determination of acceptance. Another factor is
the municipality’s levy and collection of general and
special taxes and assessments on the property.’’ (Cita-
tion omitted; internal quotation marks omitted.) Mon-
tanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.
App. 18.
‘‘The questions of whether there have been dedication
[and] acceptance . . . 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. . . . To the extent
that the . . . claim regarding the acceptance of the
[road] challenges the legal basis of the court’s conclu-
sions, however, our review is plenary. . . . The ques-
tion of acceptance, therefore, is better understood as
one of mixed law and fact. It is one of law [insofar] as
it involves questions as to the nature of this acceptance,
the source from which it must come, and the acts and
things which may be indicative of it. It is one of fact
[insofar] as it involves inquiries as to whether . . . the
requisite acts and things have been done so that legal
requirements have been met.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 8–9. Here, because
the plaintiff challenges the trial court’s determination
that the requisite acts and things have not been done
to constitute dedication and acceptance, this appeal
involves questions of fact, which we review to deter-
mine 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 [to] determine credibility, we give
great deference to its findings.’’ (Internal quotation
marks omitted.) Reserve Realty, LLC v. Windemere
Reserve, LLC, 205 Conn. App. 299, 333, A.3d
(2021).
In rejecting the plaintiff’s claims that it had impliedly
dedicated Kenmore Road for public use and that Ken-
more Road had been impliedly accepted for such use
by the public, the court reasoned, inter alia: ‘‘Kenmore
Road has no access to any other road of the town other
than Simsbury Road. Without question, it primarily
exists to serve its residents. Thus, the public benefit to
be derived from public use of the road is not readily
apparent. At the top, of the road, it abuts the [Metropoli-
tan District Commission (MDC)] reservoir property. At
some point in time, the MDC constructed a fence, which
served as a barrier to enter onto the MDC property.
Residents of Kenmore Road testified that, at least in
recent time, they have taken no action to bar the public’s
use and entry onto the road. Occasionally, members of
the public have been spotted by witnesses walking on
the road. In the past, however, residents have sought
to restrict access by the general public. Members of
the [plaintiff] prevailed upon the MDC to install a gate
in the fence that had a combination lock, the combina-
tion for which was provided to [the plaintiff’s] members.
‘‘Significantly, there is no specific evidence as of what
date, or period of time, the [plaintiff] claims the road
may be deemed to have been impliedly dedicated by it
to public use. The lack of evidence on this point makes
it even more challenging for the court to find implied
acceptance by the general public. To the extent there
has been use by the public, it has been sparse and
irregular. Also, there is scant evidence of continuity of
use by the general public. Further, assuming there has
been use of Kenmore Road by the unorganized public
over time, it is not clear from the evidence how benefi-
cial that use has been. As noted, there is only one access
point to and from Kenmore Road. There is no public
parking on Kenmore Road for folks seeking access to
the reservoir. The MDC reservoir property has a large
public entrance with substantial public parking within
a mile of Kenmore Road on Route 44 in Avon. . . .
‘‘Essentially, the plaintiff has failed to establish that,
at any time prior to the filing of this [action], it unequivo-
cally manifested an intention to devote Kenmore Road
to public use. . . . In fact, the weight of the evidence
demonstrates that, until the present time, the [plaintiff]
has consistently exhibited private control of the road.
Thus, the court finds that the plaintiff has failed to prove
by a preponderance of the evidence the dedication of
Kenmore Road by implication. . . .
‘‘Even assuming, however, implied dedication by the
plaintiff, the evidence of use by the general public is
scant, of unclear benefit to the public, and generally
insufficient. Basically, there is little or no evidence that
the use of Kenmore Road by the unorganized public
. . . i.e., that the use by members of the public who are
not residents of the road or their invitees, has continued
over a significant period of time, and can be said to be
of such a character as to justify a conclusion that the
way is of common convenience and necessity. . . . In
addition, as stated, implied acceptance by public use
must occur within a reasonable time after dedication.
. . . Because the timing of both the plaintiff’s pur-
ported dedication and acceptance is unclear from the
evidence, the court cannot justifiably make this deter-
mination. . . .
‘‘[Moreover], [a]s illustrated by the testimony of the
residents of Kenmore Road, evidence of the actual use
of the road by the unorganized public is weak, uncertain
and of unclear benefit. For these reasons, the use of
Kenmore Road to the general public, as shown by the
plaintiff, cannot be said to be of common convenience
and necessity, and therefore beneficial to them.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.)
The trial court also disagreed with the plaintiff’s con-
tention that the provision of certain services by the
defendant constituted an implied acceptance of Ken-
more Road as a public road. The trial court found that
the defendant had provided ‘‘trash pickup, snow
removal, oiling, sanding and sweeping of sand off the
road to be stored in an environmentally secure area, per
order of the [Department of Energy and Environmental
Protection], trimming tree limbs, clearing downed trees,
which would interfere with the efforts of first respond-
ers from getting to residents in need of emergency assis-
tance, and transportation services for schoolchildren
and the elderly.’’ The court nevertheless rejected the
plaintiff’s argument that, in providing those services,
the defendant impliedly accepted Kenmore Road for
public use. The court reasoned: ‘‘[T]he provision of
these services alone to members of the [plaintiff] on a
voluntary or contractual basis cannot reasonably be
said to constitute an implied acceptance of the roadway
by the [defendant] as a public [road] particularly in light
of the substantial evidence indicating that the [defen-
dant] has consistently and repeatedly rejected the resi-
dents’ historical requests to accept the road for public
use absent substantial improvements. Thus, the weight
of the evidence is that the [defendant] cannot be said to
have impliedly accepted Kenmore Road for public use.’’
The plaintiff argues on appeal that the trial court
erred in finding that it had not impliedly dedicated Ken-
more Road to public use, nor had Kenmore Road been
impliedly accepted for such use by the defendant or the
public. The trial court’s findings are amply supported
by the record and, therefore, are not clearly erroneous.
The plaintiff asks this court to substitute its judgment
for that of the trial court. It is not the role of this court
to do so. See Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d
780 (1983) (‘‘[u]nless there were no facts [on] which
the [trial] court could base its finding, we as an appellate
body cannot retry the case or substitute our judgment
for that of the trial court’’).
The judgment is affirmed.
1
The trial court also concluded that Kenmore Road had neither been
expressly dedicated by the plaintiff, nor expressly accepted by the defendant,
as a public road. The plaintiff does not challenge these aspects of the trial
court’s decision.