Greist v. Amrhyn

Thayer, J. The court held that the Cavan road was not and never had been a highway, and no question is raised as to the correctness of that conclusion; but the correctness of the court’s conclusion that the old Dogman road had been discontinued as a highway, and the correctness of its finding of facts upon which that conclusion is founded, are raised by the appeal. As the evidence upon which the exceptions to the findings of fact are based is not certified, those exceptions cannot be considered. Do the facts found warrant the conclusion of the court that the old Dogman road had been discontinued ? 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. The length of time during which such nonnser must continue on the part of the public, before the highway can be presumed to be abandoned, has not been determined in this State by statute or judicial decision. It must be a long time. The methods of discontinuing a highway through governmental agencies, except when the General Assembly acts, are prescribed by law and must be strictly pursued. When the agencies thus vested with the power have so acted, the highway becomes discontinued immediately. While the finding contains certain facts from which some inference might be drawn of an abandonment of the old Dogman road by the public between 1840 and the date of the alleged trespasses, it is *286 apparent from the whole finding and from the language in which the court’s conclusion is stated, that it held that upon the facts found there was a legal discontinuance of the highway in 1840. It is found that the owners of the Woodfield lands, vwho were the only persons who traveled the road after the vote of the town mentioned in the statement of the case, used it with full knowledge that it had been discontinued. The fact that the court finds that these parties had knowledge of its discontinuance since 1840, excludes the suggestion that it found an abandonment by nonuser since 1840, as there could be no abandonment of a highway not then in existence. The court must have ruled, therefore, that the vote of the town or the acts of " the selectmen recited in the statement, or both together, constituted a legal discontinuance of the highway. In 1840 the only governmental agencies which could discontinue a highway were the General Assembly, the County Court, and the selectmen of the town within which the highway was situated. The finding gives no foundation for a conclusion that either- the General Assembly or the County Court discontinued the highway in question. The statute then in force provided that “ the selectmen of any town, may, with the approbation of such town, discontinue any public highway, or private way, which may have been laid out by them or their predecessors in office; or which , may have been laid out by the proprietors’ committee of said town, or in any other manner, except by the county court or general assembly; and if any person shall be aggrieved by the doings of the selectmen in discontinuing any way, he may be relieved by application to the counry court,” etc. General Statutes, Comp. 1838, pp. 344, 346; Rev. 1849, p. 421, § 23. A town in town meeting could not discontinue a highway. If, therefore, the town of Woodbridge by the vote recited in the finding intended, as stated in the finding, to discontinue the highway in question, the vote was ineffective to accomplish such purpose. It is apparent from its terms that the vote was not intended as a ratification of a discontinuance of the old high *287 way by the selectmen already made at the time. It is rather an acceptance of the proposition of Clark and Hotchkiss for a new highway. The proposition included a proposal that the selectmen should give the proponents, so far as it could be done without discommoding the proprietors of the Westfield woods, a quitclaim deed of the old road, continuing that as a pentway secured with gates and bars at the expense of Clark and Hotchkiss. The town might, in advance of action by the selectmen discontinuing the highway, approve such a discontinuance by them in the future. Welton v. Thomaston, 61 Conn. 397, 399, 24 Atl. 333. But the court has found that it was the intention of the town by that vote to discontinue the old Dogman road and substitute the new Dogman road in its place. The town’s intention must be determined from the terms of the vote. It is clear that the town did not intend to discontinue that highway to the inconvenience of the proprietors of Woodfield, for the selectmen are to quitclaim the old road only so far as it can be done without discommoding those proprietors ; and it is to be continued as a pentway for their convenience, the gates and bars to .be provided at the expense of Clark and Hotchkiss. Anciently highways were allowed to be pent. 4 Col. Rec. p. 315; Hill v. Hand, 6 Col. Rec. p. 460; 12 Col. Rec. p. 37; General Statutes, 1808, p. 376; Blakeslee v. Tyler, 55 Conn. 387, 11 Atl. 291. The highway in question, in the case last named, was laid out in 1818 as a pent highway by the selectmen of the town of Branford, with the approval of the town, and continued pent until 1879. It is not clear, therefore, that the town of Woodbridge intended by its vote to discontinue the old highway. It is quite as likely that it intended simply that it should thereafter be a pent highway. But if the intention was to discontinue it as a highway, the vote was ineffective, as beyond the power of the town, to accomplish the purpose. And if it is to be taken as an approval of a future discontinuance by the selectmen, it was conditioned upon such discontinuance not proving an inconvenience to the pro *288 prietors of Woodfield, and that it should continue a pent-way with gates and bars for the use of those proprietors. It does not appear in what manner the road became a highway. In the absence of facts indicating the contrary, it is to be presumed that the title to the land, subject to the easement, was in the abutting proprietors, and that upon the discontinuance of the highway they would hold it freed of such easement. If Clark and Hotchkiss were such adjoining proprietors, they would need no deed from the selectmen, and if they were not abutting proprietors such deeds would convey nothing to them. A discontinuance of the highway without provision being made for the proprietors of Woodfield, would shut them off from this approach to their wood lots over the old road, and they could only acquire a new right by purchase or adverse user. The condition imposed by the vote of the town was therefore important to them. It did not appear upon the trial that the selectmen gave the deeds referred to in the vote, nor does it appear that the selectmen took formal action discontinuing the highway. In discontinuing a highway the selectmen act as agents of the law, and can exercise no powers except such as are conferred by statute. Simmons v. Eastford, 30 Conn. 286, 288. Their action, and the action of the town approving it, therefore, should be formal and definite, so as to give parties who may be aggrieved an opportunity to apply to the court for the relief which is provided by statute. There is nothing in the present case to show a discontinuance by the selectmen, unless it be the fact that after the vote in question fences were built across the highway by direction of the selectmen and travel actually excluded therefrom. This was not the discontinuance provided for by statute. It may have been done pursuant to a formal vote or action by the selectmen discontinuing the highway, or it may have been done because the selectmen understood that the town by its vote had already discontinued it. The law requires that the selectmen shall themselves act upon the question whether there shall he a discontinuance. Discontinuance *289 is the result of judicial investigation and determination. Cromwell v. Connecticut Brown Stone Quarry Co., 50 Conn. 470, 472. The act of the selectmen directing that the road should be fenced up was equivocal. At most it was a circumstance from which the court might, as an inference of fact, find the fact that the selectmen as agents of the law had voted to discontinue the highway. ' The court has not found that fact, and until it is found it cannot be said as a matter of law that the highway was legally discontinued. And if the selectmen in fact voted to discontinue the highway without providing for the use of it as a pe'ntway by the "W oodfield proprietors, their action was not in conformity to the recited vote, and that vote cannot be treated as an approval by the town, and no other act of approval is shown. The court was wrong, therefore, in its conclusion that upon the facts' found the old Dogman highway was discontinued. Whether the roads in .question, if not highways, were private ways appurtenant to the Thompson tract, was not determined by the court. The question was presented by the second defense as amended, but the decision of this branch of the case is placed upon the ground that the defendants had no right to remove the gates, because “ the order turning over the tract of land in question ‘to the park commissioners for park purposes ’ was without authority and of no effect.” In connection with this ruling were the additional ones, that “ the devise of the Thompson wood tract remains effective, and the restrictions imposed by the testator as to the purpose and use to which the property is to be devoted, remain effective,” and “ exclude any general public use and occupation of the property; or its appropriation for park purposes”; also that “ neither the so-called Consolidation Act of 1897, nor any subsequent legislation, has given the city a greater or different interest in the tract than the town originally had under the trust created by the will, and the city acquired no right by virtue of § 219 of its charter, to name ‘ agents or officials ’ to administer the trust.” *290 Tt may be conceded that those restrictions remain effective, and that the city in possession of the land has no greater or different interest in it than the town originally had.- But the restrictions clearly were not intended for the benefit of the plaintiff’s land. If that land was subject to rights of way appurtenant to the Thompson tract, the restrictions in no way affect such easements. They still exist, and those in possession of the dominant estate may use them for all purposes for which they were created. The plaintiff’s concern is not whether the dominant estate is being diverted from the purposes of the trust, but whether the ways are being used for other purposes than those for which they were established. The plaintiff closed the ways with locked gates, and prevented all access to the dominant estate for any purpose. Had the city brought its action for this obstruction of the ways, it would have been no answer to say that the city was. using or proposing to use the Thompson land for purposes unauthorized by the devise. The defendants removed the obstructions, and justify doing it, simply as custodians of the land for the city. The order placing the land in their custody, as appears, turned it over to them for park purposes. Assuming that such purposes are inconsistent with the restrictions imposed by the devise, which we do not decide, the order was effective at least so far as to place the land in their custody, and it became their duty when so in their custody to protect it and its appurtenant ways from encroachments. The plaintiff claims that to authorize the order and make it effective to give the defendants authority to act for the city, they must show that the city had title to the land, and that no such title is shown by the finding. But one in possession of premises to which an easement is appurtenant may have an action for a disturbance or obstruction of such easement. A tenant or a cestui que trust in possession of the dominant estate may have such an action for ' the injury to his possession. Hamilton v. Dennison, 56 Conn. 359, 368, 15 Atl. 748; Washb. on Easements (2d Ed.) 662; Foley v. Wyeth, 2 Allen (Mass.) 135, 136; 1 *291 Perry on Trusts (5th Ed.) § 328. It follows that he may remove the obstruction as a nuisance. The quitclaim deeds offered in evidence by the defendants were objected to as inadmissible unless supplemented by further proof of the title of the releasors. The deeds were admissible as links in the chain of title, but standing alone, without proof of the releasor’s title, would be of slight if any weight. It does not appear whether they were supplemented as suggested or not. Upon this state of the facts it cannot be said that the court erred in considering them in reaching its conclusions. There is error and a new trial is ordered. In this opinion the other judges concurred.