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*********************************************** 
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 commenced, 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. Brewster et al. as defendants; thereafter, the court, Stevens,

J., granted the plaintiffs’ motion to bifurcate hearing;

subsequently, the case was withdrawn in part; thereafter, the court, Stevens, J., granted the defendant John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 sections 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 decision, the trial court found the following facts. ‘‘[The

road] is a long, winding road in Oxford . . . intersecting 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. Nichols’ 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 mountainous 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 bottom 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 sections two and three are premised on their argument

that [the road] in its entirety has been historically dedicated 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 unimproved 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 indicated that town improvements of [the road] would make

access to his property more convenient.’’ (Citation omitted; 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 bifurcate 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 February 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 defendants had proved by a fair preponderance of the evidence 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, acceptance and abandonment generally are recognized as

questions of fact. . . . Our review of the factual findings of the trial court is limited to a determination of

whether they are clearly erroneous.’’ (Citations omitted;

internal quotation marks omitted.) Montanaro v. Aspetuck 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 correctly found are, as a matter of law, sufficient to support

the judgment.’’ (Internal quotation marks omitted.)Benjamin 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. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

A previously established highway ‘‘may be extinguished [1] by direct action through governmental agencies, 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 abandonment implies, of course, a voluntary and intentional

renunciation, but the intent may be inferred as a fact

from the surrounding circumstances . . . . Most frequently, where abandonment has been held established,

there has been found present some affirmative act indicative 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 duration but also upon its character and the accompanying

circumstances.’’ (Citations omitted; footnote added;

internal quotation marks omitted.) Montanaro v. Aspetuck 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 deterioration 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 circumstances 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 conditions, 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 requisite intention and justify a conclusion of abandonment;’’

(internal quotation marks omitted) Montanaro v. Aspetuck 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 circumstances, 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 Trading 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, municipal 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 infrequently. 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 evidence 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 submergence of the Zoar Bridge by the Stephenson Dam

construction in 1919. Between 1919 and 1980 (about

sixty years), there exists evidence of sporadic but insubstantial 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 findings in the record. The parties disputed whether the

road had been used by the public at all since approximately 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 testified 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 property 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 several people have been directed by their global positioning 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 commenced, 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, representatives 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]vidence 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 function 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. Norwalk, 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 independently 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 Samuelson, Robert Samuelson, Larissa Nichols, Richard Barlow and Judy Barlow, 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 encroachments 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 § 13a1 (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 established 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.’’

(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 development 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 dedication 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.’’