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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 defendant 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 neither 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 members 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 defendant or the public, for public use. This appeal followed.

‘‘[U]nder 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.’’ (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 dedicated to a municipality can, under appropriate circumstances, 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 acceptance 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.’’ (Citation omitted; internal quotation marks omitted.) Montanaro 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 findings 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 conclusions, however, our review is plenary. . . . The question 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; internal 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 determine 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 Kenmore 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 [Metropolitan 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 combination 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 beneficial 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 unequivocally 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 purported dedication and acceptance is unclear from the

evidence, the court cannot justifiably make this determination. . . .

‘‘[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.’’ (Citations omitted; footnote omitted; internal quotation

marks omitted.)

The trial court also disagreed with the plaintiff’s contention that the provision of certain services by the

defendant constituted an implied acceptance of Kenmore 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 responders from getting to residents in need of emergency assistance, 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 [defendant] has consistently and repeatedly rejected the residents’ 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 Kenmore 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.