The continuing expansion of residential development into predominantly rural towns has substantially increased the market demand for undeveloped tracts of land.  Many of these tracts of land lie in areas without improved public streets for access and case of construction.  This demand has led some property owners to argue that the ancient roads or trails running through or along these parcels were not discontinued in accordance with the relevant statutes or abandoned through disuse by the public.  If a property owner could successfully argue that the ancient road or path is a public road, the owner could demonstrate legal access to his or her property in accordance with local zoning regulations, which would substantially increase the value of the property.  The towns, on the other hand, wish to avoid the liability and expense of constructing and maintaining these long dormant roads.  This scenario has been played out in, among other towns, Enfield,1 Hartland,2 and Granby.3

Other situations involving the status of roads have also been getting attention lately.  In Old Saybrook, there is a dispute over the use of some road stubs to provide public access to Long Island Sound.4  In addition, there has been a long running difference of opinion regarding use of Stantack Road in Berlin to access properties on Lamentation Mountain.5

Once a road is established as a public thoroughfare, its public status continues until the road is discontinued or abandoned.  Discontinuance and abandonment are two separate methods in which the public status of the road terminates. Discontinuance is accomplished when the municipality follows the prescribed statutory requirements.  Abandonment occurs when there is a sufficient period of nonuse by the public coupled with an intent to abandon the road.  Both methods involve legal analysis of the town's actions and an examination of factual and historical considerations that often require testimony of expert witnesses in real estate, surveying, municipal law, and the interpretation of the demographic and political context of the time.

This article outlines the statutory framework for discontinuance and summarizes the common law requirements for abandonment.  The last sections will discuss the nature and type of witnesses and the factual and legal evidence that would be involved in litigating this type of case.

Discontinuance

The general statutes provide the mechanism by which a town may discontinue a road.  The current version of the statute, C.G.S. § 13a-49, specifies that "[t]he 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, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the general assembly,6 and except where such highway is within a city, or within a borough having control of highways within its limits."  This language is essentially unchanged during the last century7 and finds its antecedents in a low passed in 1799.8

Therefore, the statute requires a two-step process in which both the town and the selectmen approve the discontinuance.9  There is no requirement that these occur in any particular order. 10  There is a requirement, however, that the action of the selectmen be in "a writing signed by them."  The particular form of the "writing" is not specified either in the statute or case law.  It has been held that minutes of a meeting of the board of selectmen,11 a certificate of the selectmen,12 and a written report of the selectmen to the town reporting that they had discontinued a road pursuant to the town vote fulfilled this requirement.13  The purpose of requiring the town to observe this specific procedure is to ensure that aggrieved parties have sufficient notice of the action being proposed and time to take an appeal.14  

The effect of the discontinuance is that the easement in favor of the general public for use of the road is extinguished and the obligations of the town to maintain it terminate.  The date of the discontinuance is critical, however, in determining the legal rights of the abutting landowners.  In most instances, fee title to the roadbed either remains in or is vested in the abutting property owners, one-half each to the center line of the road.15  Property owners abutting the discontinued road retain the limited right of way provided by C.G.S. § 13a-55 if the discontinuance occurred after 1959.16  There are several recent cases interpreting the rights provided by that statute.17

Abandonment

If the town did not satisfy the statutory prerequisites for discontinuance, the public status of the road may nevertheless terminate if it is found to have been "abandoned."  This determination may be made by the title searcher or the property owner based upon the information available, but any such conclusion would be subject to a possible contrary adjudication by a court if the issue is ever the subject of civil litigation.  First, there must be nonuse by the public over a "long period of time."18  Second, there must be an intent to abandon the road as a public right-of-way.19  Abandonment implies a "voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances."20

In determining intent to abandon the highway, the length of time the public has ceased to use the road is of primary importance.  No specific time period has been established, however, either by statute or decisional law that would create a presumption of abandonment.21  Our courts have found abandonment in situations where the public had not used a road for periods ranging from fifteen years22 to more than one hundred years.23  On the other hand, nonuse for a mere twenty years was questioned in another case24 and failure to use all of the roadway as originally laid out for a period of one hundred years was found not to have resulted in abandonment of the unused portion.25  The types of facts and circumstances that would arise in this analysis are described below.  If a road is determined to have been abandoned, the abutting property owners have the same private easement rights under C.G.S. § 13a-55 as those who front on a discontinued road.

Evidence of Discontinuance

As seen above, the statute requires 1) the vote of a regular or special town meeting, and 2) a writing signed by the selectmen approving the town's decision to discontinue all or part of a public road.  It is likely that the actions of a town meeting will be properly documented in the records of the town clerk, although there may well be differences of interpretation in the meaning of the specific language describing the action taken.26

On the other hand, there may not be accurate or comprehensive records of the actions of the selectmen, since they were not required by law to keep minutes until 1965.27  Even in those instances where such minutes exist, they may or may not constitute a "writing" as required by the statute.  Even if such a writing had been created, it may well have been lost or destroyed during the intervening years.28

In the absence of the required "writing," a party contending that the municipality properly discontinued the road may have to rely on circumstantial evidence and legal presumptions.  One such presumption is that, in the absence of any proof to the contrary, a town and its officials acted in accordance with the law.29  Further, common sense would suggest that the selectmen would not bring before the town meeting an action which they would disapprove in their own deliberations or which would not be legally effective.30

In addition to legal presumptions, circumstantial evidence and documents may help resolve the question.  For example, are there other records of the selectmen contemporaneous to the action being examined (particularly those dealing with similar subject matter) or are there significant gaps in those records?  Do such records exist in conjunction with earlier or later discontinuances?  Also, the wording of the call of the town meeting may give some clue as to whether the action had already been approved by the selectmen and the town was being asked simply to ratify that decision.

Evidence of Abandonment

Proof of abandonment of a road is a fact-specific inquiry that generally occurs in the context of a civil action seeking to determine whether the road has been abandoned.  The town's intention to abandon may be demonstrated either explicitly or implicitly.  Some of the actions described in the discussion of discontinuance may be strong evidence of the intent to abandon even if the municipality did not satisfy the strict statutory requirements.31  Evidence of the town's intent to abandon could include failure to appropriate funds for the road's maintenance or its deletion from any inventories of public highways.  Treating such a road differently from those recognized as public roads would also provide circumstantial evidence of the town's intent.

Other facts impacting the issue of abandonment include nonuse by the public and the extent, both in time and in volume of such use or nonuse.  Inclusion or exclusion of the road on public or private maps and surveys would also be informative.  Failure of property owners abutting the road to challenge its abandonment (or purported discontinuance) by the town would also be given some weight.  Although town property may not be acquired through adverse possession,32 the same issues of open, notorious, exclusive, and adverse use by a property owner would lend support to an argument of abandonment.  Factors such as the "planned obsolescence" of a particular road or portion of a road arising from the construction, relocation, or improvement of the same road or a different one which makes the former road either impassible, inaccessible, or redundant, or the existence on other public roads of alternative access for property owners, may also support the inference that it had been abandoned.

In all of these cases, the land records should be thoroughly reviewed for any evidence in the chains of title for the properties located on the road at issue.  There may be references in the deeds that suggest whether the landowners at a particular time viewed the road as being public or private.  Items such as a grant of a right-of-way over adjacent properties of the grantor may suggest that the road was considered discontinued or abandoned.  As with any real property matters, a competent title search and survey are essential.  Expert testimony with respect to the title searches, examination of land and town records, and the historical and cultural practices of the town and its selectmen is often necessary when litigating this type of case.

Finally, while the focus of this article is on the related concepts of discontinuance and abandonment, it is important to remember that there may be no need to address those issued in great detail if the road in question had never been a town road in the first place.  Therefore, the town records, land records, and extrinsic documentation should be examined for evidence that the road had not been dedicated and accepted.33

Conclusions

The determination of whether a public road has been discontinued requires a review and analysis of the records of the town – both the board of selectmen and town meeting or their successors in those roles – to determine whether the statutory requirements have been satisfied.  In the absence of a clear answer to that question, it will be necessary to review both the legal and the factual circumstances surrounding the use and nonuse of the road to reach a conclusion on whether the road was abandoned.  The burden for both sides is to identify documentary and circumstantial evidence from records, which in many instances are missing or incomplete and encompass years, often decades, of town history.  The financial impact in such a case is high for both the town and the property owner, but the legal framework within which the issue will be viewed is narrowly defined.  CL

This article originally appeared in the Connecticut Lawyer, November 2003, Volume 14, Number 3.  Reprinted with permission.

1 RYA Corp. v. Enfield Planning & Zoning Commission, 2003 WL 356694 (Conn. Super.).

2 Witty v. Hartland Planning & Zoning Commission, 2000 WL 765378 (Conn. Super.).

3 Schlicht v. Royer, 2002 WL 31886706 (Conn. Super.).

4 "Dispute over Road Endings Deepens," Hartford Courant, February 7, 2003, B3.

5 "Access Remains a Key Issue," Hartford Courant, October 19, 2000, B1.

6 In this case, C.G.S. § 13a-50 would apply, requiring discontinuance by a decision of the superior court.  See Marrin v. Spearow, 35 Conn. App. 398 (1994).

7 C.G.S. § 2708 (1901).

8 "Be it enacted…[t]hat the selectmen of any town be, and hereby are authorized, with the approbation of such town, to discontinue any public highway or private-way, which shall have been laid out by such selectmen or their predecessors in office," Resolution of 1799, quoted in Witty, supra, 200 WL 765378 (Conn. Super.).

9 Comparable actions by the town's legislative body and chief executive officials(s) may be substituted in those towns which have abandoned the town meeting form of government and/or management by a board of selectmen.  Statutes, special acts, and, if applicable, a town's charter will identify the appropriate successor to the town meeting and selectmen.

10 Welton v. Town of Thomaston, 61 Conn. 397, 399 (1892).

11 Chaput v. Clarke, 26 Conn. App. 785 (1992).

12 City of New London v. New York, New Haven & Hartford Railroad Co., 85 Conn. 595 (1912).

13 Clark v. Town of Cornwall, 93 Conn. 374, 378 (1919).

14 Appeals are taken pursuant to C.G.S. § 13a-62.

15 Luf v. Southbury, 188 Conn. 336, 341 (1982); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56 (1955); Benham v. Potter, 52 Conn. 248, 252 (1884); Commissioner of Transportation v. Shea, 47 Conn. Sup. 418 (2002). Cf. Town of Ashford v. Flora Rogers, 29 Conn. L. Rptr. 333 (May 28, 2001)(dealing with a road which had been laid out on common land in 1725).

16 "C.G.S. § 13a-55.  Right-of-way of property owners bounding a discontinued or abandoned highway or a highway any portion of which is discontinued or abandoned.  Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway."  Note that C.G.S. § 13a-55 altered the common law consequences of the discontinuance of a highway.  Prior to its 1959 effective date, both the public easement of travel and the private easement of access were extinguished.  Luf v. Southbury, 188 Conn. 336, 344 (1982); Antenucci, supra, at 356.

17 Double I Limited Partnership v. Planning and Zoning Commission, 218 Conn. 65, 71 (1991); Phillips v. Palakewitz, 17 Conn. App;. 476, 479 (1989).

18 Greist v. Amrhyn, 80 Conn. 280, 285 (1907).

19 Marrin, supra, at 405.

20 City of New London v. Pequot Point Beach Co., 112 Conn. 340, 347 (1930), citing Newkirk v. Sherwood, 89 Conn. 598, 605 (1915).

21 City of New London v. Pequot Point Beach Co., 112 Conn. 340, 347, quoting Greist v. Amrhyn, 80 Conn. 280, 285 (1907).

22 Litchfield v. Wilmot, 2 Root 288 (1795)

.23 Beardslee v. French, 7 Conn. 125, 128 (1828).

24 Brownell v. Palmer, 22 Conn. 107, 121 (1852).

25 Appeal of St. John's Church, 83 Conn. 101 (1910).

26 For a recent example of the types of issues which would be subject to interpretation and discussion, see Witty, supra (Conn. Super.).

27 Sec. 7-12b provides that "[T]he boards of selectmen shall keep an accurate record of all minutes of their meetings which shall be available for public inspection at reasonable times."

28 This dilemma was ably discussed in Brownell v. Palmer, 22 Conn. 107, 118 (1852), which commented as follows on the difficulty of locating documents that selectmen were not required to preserve:  "it could hardly be expected to be preserved for any great length of time; and after a lapse of more than a half of century, which has now intervened, considering the manner in which the papers of selectmen, generally, are even now kept, no one could reasonably hope or expect to find it."

29 City of New London v. New York, New Haven & Hartford Railroad Co., 85 Conn. 595, 601 (1912).

30 Brownell v. Palmer, 22 Conn. 107, 122 (1852), ("[w]ould [the selectmen] lay such a matter before a meeting, which they had themselves warned, without first taking the steps necessary to render the actions of the town legal?").

31 Mackie, supra, at 549.

32 Brownell v. Palmer, supra at 120.

33 For a thorough discussion of this and several other topics related to roads, see E. Sostman and J. Anderson, "The Highway and The Right of Way," 61 Conn. Bar J., 299 (1987), which remains one of the most comprehensive sources on the subject.