Benjamin v. City of Norwalk

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STEPHEN D. BENJAMIN ET AL.

v. CITY OF NORWALK ET AL.

(AC 37876)

Lavine, Mullins and Harper, Js.

Argued September 20—officially released December 27, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Lee, J.)

Simon Sumberg, for the appellants (plaintiffs).

Urban S. Mulvehill, self-represented, the appellee

(defendant).

Opinion

LAVINE, J. The plaintiffs, Stephen D. Benjamin and

Helen Z. Benjamin, appeal from the judgment of the

trial court denying their claim of adverse possession of

708 square feet of land adjacent to their home in Nor-

walk (contested area). On appeal, the plaintiffs claim

that the court erred by (1) finding that The Shorefront

Park Company dedicated all of the roads shown on a

subdivision map for the use of the defendant city of

Norwalk (city), (2) determining that it was their burden

to rebut municipal acceptance of dedicated roadways

by clear and convincing evidence, and (3) finding that

dominion over the contested area was shared. We affirm

the judgment of the trial court.

The plaintiffs commenced the present action against

the city, The Shorefront Park Improvement Association,

Inc., and several individual defendants1 on December

17, 2009. The plaintiffs sought a judgment vesting title

to the contested area in them, claiming that they had

established possession of the area to the exclusion of

all others and had acquired title to the contested area

by adverse possession. The case was tried to the court

over three days in October, 2014. The court made the

following findings of fact in its April 14, 2015 memoran-

dum of decision.

The plaintiffs acquired title to their home at 40

Quintard Avenue (property) from the estate of Mary

Ann Cocchia on June 18, 1992. The property is located

in the Shorefront Park subdivision within the city. The

Cocchia family had owned the property, which is

located just inside the subdivision’s western boundary,

since June 17, 1959. Between the property and Quintard

Avenue, a city street, runs a road called either ‘‘Shore-

front Park’’2 or ‘‘Private Way.’’ The point where that

road meets Quintard Avenue is marked by two stone

pillars, which are approximately sixteen feet apart. A

curb cut runs between the pillars, and a sign bearing

the words ‘‘Shorefront Park’’ is posted on one of the

pillars. A wider opening to the subdivision lies directly

to the south of the pillars. The court found that, although

there is no curb cut at the wider opening, the curb has

been worn down by vehicular use. The contested area

is approximately 708 square feet in size, and occupies

the space between the pillars and the southwest edge

of the property. The plaintiffs consider the pillars to be

the entrance to their driveway and the contested area

to be part of their driveway. The defendants, however,

view the pillars to be a public entrance to the subdivi-

sion and the contested area to be a portion of ‘‘Shore-

front Park’’ or ‘‘Private Way,’’ which they claim is a

public roadway.

The court found that the contested area is not

included in the title or deed to the plaintiffs’ property.

The plaintiffs, however, claim that the Cocchia family

acquired ownership to the contested area by adverse

possession because they treated the area as their drive-

way for at least fifteen years after they acquired the

property in 1959. The plaintiffs also claimed that they

have treated the contested area as their driveway since

they acquired title to the property in 1992. The defen-

dant Urban S. Mulvehill (Mulvehill) countered the plain-

tiffs’ claim with two arguments: (1) the contested area

was dedicated to and accepted by the city in 1930, along

with all of the other roadways in the subdivision, and

property owned by a municipality may not be adversely

possessed; and (2) even if the contested area were not

included in the 1930 dedication, neither the plaintiffs’

nor the Cocchias’ use of the area was sufficient to

establish title to the contested area in them via adverse

possession. The plaintiffs responded to Mulvehill’s

arguments by asserting that, even if the contested area

had been dedicated to the city, the city had abandoned

the area by failing to maintain it or otherwise treat it

as a public roadway.

In support of their claim, the plaintiffs placed into

evidence the April, 1930 minutes of the city council,

which include the following relevant language:

‘‘To the Honorable Mayor and Council of the City

of Norwalk:

‘‘Gentlemen:

‘‘The Shorefront Park Company hereby petitions for

the acceptance of the highways shown on [the] attached

map of Shorefront Park. All highways asked to be

accepted are fifty (50) feet in width and in good condi-

tion and in all of them have been laid water and gas

mains at the Company’s expense. The City is collecting

taxes on twenty-six houses erected in the development

and up to date has not been obliged to expend any

money for construction or repairs.

‘‘Dated at Norwalk, Conn. this 18th day of March 1930.

‘‘The Shorefront Park Company

‘‘By (Signed) Mark Haut

‘‘Its Secretary

‘‘Councilman Charpentier stated that Mr. Jutten

investigated the condition of the highways in Shorefront

Park and found them in good condition and recom-

mends their acceptance.3

‘‘A motion that the highways in Shorefront Park as

designated on map entitled ‘Map of Part of Shorefront

Park Property of The Shorefront Park Co. Norwalk

Conn. Aug. 1924’ be accepted was seconded and car-

ried.’’ (Footnote added.)

The plaintiffs claim, on the basis of the April, 1930

minutes, that although the city may have purported to

accept all of the highways depicted on the subdivision

map, it could not have accepted any roads fewer than

fifty feet in width because those roads were never

offered. The plaintiffs claim, therefore, that neither the

contested area nor the private way leading to it could

have been accepted by the city because the road at that

location is only sixteen feet wide.4

The court found that, according to the city’s land

records, The Shorefront Park Company remains the

record owner of the contested area, but that it is unclear

from the complaint or the record whether The Shore-

front Park Company remains the record owner of all

of the subdivision’s highways or only the small portion

of road claimed by the plaintiffs. The subdivision map

on which the city council relied in 1930 was entered

into evidence by the plaintiffs as exhibit 8. The subdivi-

sion map depicts one continuous highway that winds

throughout the subdivision and is labeled at various

locations either ‘‘Shorefront Drive’’ or ‘‘Private Way,’’

the latter being the designation given to the section

of the highway where the contested area is located.

Markings indicating a fifty foot width appear at sections

of the highway labeled ‘‘Private Way,’’ as well as at

sections labeled ‘‘Shorefront Drive.’’

The court first determined whether the actions taken

at the April, 1930 meeting of the city council are evi-

dence of a dedication and acceptance of the contested

area. In doing so, the court relied on Vernon v. Goff,

107 Conn. App. 552, 945 A.2d 1017, cert. denied, 289

Conn. 920, 958 A.2d 154 (2008), for guidance: ‘‘From

early times, under the common law, highways have

been established in this state by dedication and accep-

tance by the public. . . . [T]wo 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. . . . No particular formality

is required in order to dedicate a parcel of land to a

public use; dedication may be express or implied. . . .

Whether there has been a dedication and whether there

has been an acceptance present questions of fact. . . .

Likewise, the determination of the extent to which there

has been an acceptance of a street involves a question

of fact.’’ (Internal quotation marks omitted.) Id., 556–57.

The court also noted that ‘‘[w]hether there has been

a dedication and whether there has been an acceptance

are questions of fact . . . for which the burden of proof

rests upon the [party who claims that the property in

question belongs to the public].’’ (Citation omitted;

internal quotation marks omitted.) Drabik v. East

Lyme, 234 Conn. 390, 397, 662 A.2d 118 (1995). A party

claiming title by adverse possession, however, must

prove, by clear and convincing evidence, that the con-

tested area was not dedicated to the city. See American

Trading Real Estate Properties, Inc. v. Trumbull, 215

Conn. 68, 80, 574 A.2d 796 (1990); Shepard Group, LLC

v. Arnold, 124 Conn. App. 41, 44, 3 A.3d 975 (2010).

In the present case, the trial court found, by a prepon-

derance of the evidence, the existence of both an

express dedication of the highways in the subdivision

and an express acceptance of the contested area by the

city, and that the plaintiffs had failed to prove, by clear

and convincing evidence, that the contested area was

not dedicated with the rest of the subdivision’s high-

ways. The court found that the minutes of the April,

1930 city council meeting record The Shorefront Park

Company petitioning the city ‘‘for the acceptance of the

highways shown on attached map of Shorefront Park.’’

(Internal quotation marks omitted.) The minutes state

that ‘‘[a]ll highways asked to be accepted are fifty (50)

feet in width and in good condition and in all of them

have been laid water and gas mains at the Company’s

expense.’’ The minutes also recorded Charpentier’s rep-

resentation that Jutten had investigated ‘‘the condition

of the highways in Shorefront Park and found them in

good condition and recommends their acceptance’’; and

that a motion was made and seconded that ‘‘the high-

ways in Shorefront Park as designated on map entitled

‘Map of Part of Shorefront Park Property of The Shore-

front Park Co. Norwalk Conn. Aug. 1924’ be accepted

. . . .’’ Moreover, the motion was carried.

The plaintiffs contended at trial that the contested

area could not have been dedicated because it is fewer

than fifty feet wide. The court found, however, that the

city council’s acceptance made no mention of the width

of the highways as a condition of acceptance and The

Shorefront Park Company did not object to the accep-

tance of all of the highways designated on the subdivi-

sion map. The court found that the map relied on by

the city council, plaintiffs’ exhibit 8, reveals that the

subdivision highways consist of a single winding road

that, at many points, is fifty feet wide, but that narrows

before reaching the contested area.5 The court con-

cluded that it did not logically follow from a description

of a highway as being fifty feet wide that, if the highway

narrows at some point, the narrower portion is not,

nonetheless, a portion of the same highway.

The court rejected the plaintiffs’ argument that The

Shorefront Park Company intended to exclude portions

of highway narrower than fifty feet from the dedication.

The court found the argument unconvincing, particu-

larly in the absence of any evidence that The Shoreline

Park Company asserted any right with respect to the

portions of highway fewer than fifty feet wide during the

thirty years between the dedication and the company’s

dissolution in 1959. Also, the court found no evidence

that the shareholders of The Shorefront Park Company

transferred any interest in those portions of roadway

during their lives or devised any interest in the roadway

as part of their estates.

The court concluded that the plaintiffs had failed to

prove, by clear and convincing proof, that the city’s

acceptance was not express and did not include the

contested area. The city council passed a motion to

accept all of Shorefront Park’s highways, as designated

on the 1924 map, without reference to the width of the

highways. Because it had determined that all of the

highways, including the contested area, were expressly

offered by The Shoreline Park Company, it found that

the city’s express acceptance could and did include

them.

The court further found that the city did not abandon

the contested area and that the plaintiffs had not

obtained title to the contested area by way of adverse

possession. The court, therefore, rendered judgment in

favor of the defendants. Thereafter the plaintiffs

appealed.

The plaintiffs subsequently filed a consolidated

motion for articulation and motion for rectification,

which the court granted in part and denied in part. In

its ruling on the plaintiffs’ consolidated motion, the

court stated that ‘‘the evidence supports an understand-

ing of The Shorefront Park Company’s intention and

actions as an express dedication of all of the highways

within Shorefront Park to the city of Norwalk, without

any exclusion or retaining of interest in portions of the

highways which were less than fifty feet wide. . . .

This finding supports the court’s ultimate conclusion

that the contested area is part of a public highway

belonging to the city of Norwalk. . . . The court, how-

ever, was not presented with and did not consider evi-

dence regarding a dispute as to the dedication and

acceptance of any other particular segment of Shore-

front Park highway. The court’s holding, therefore, is

confined to its ultimate conclusion regarding the con-

tested area.’’ (Citations omitted; internal quotation

marks omitted.)

Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court’s finding that

The Shorefront Park Company dedicated all of the roads

depicted on the subdivision map for the use of the city

was clearly erroneous. We disagree.

We first set forth the applicable standard of review.

‘‘Our review of the factual findings of the trial court is

limited to a determination of 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 determine credibility, we

give great deference to its findings.’’ (Internal quotation

marks omitted.) Ridgefield v. Eppoliti Realty Co., 71

Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261

Conn. 933, 806 A.2d 1070 (2002).

An understanding of the law and history of establish-

ing highways in this state provides a useful background

for our resolution of the plaintiffs’ claim. Public high-

ways may be established by one of four methods: ‘‘(1)

through the direct action of the legislature; (2) through

authorized proceedings involving an application to a

court; (3) through authorized proceedings by agents

appointed for that purpose, such as selectmen of towns

. . . and specified authorities of cities and boroughs

. . . (4) through private dedication of land for that pur-

pose and its acceptance by the public.’’ (Citations omit-

ted; internal quotation marks omitted.) Montanaro v.

Aspetuck Land Trust, Inc., 137 Conn. App. 1, 9, 48 A.3d

107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012),

quoting Makepeace v. Waterbury, 74 Conn. 360, 361, 50

A. 876 (1902).

‘‘The layout of a street or highway by a private person,

company or corporation and the regulation of its width

unless determined otherwise by authority have been a

part of our statute law since 1899. Public Acts 1899, c.

205 § 2; Windsor v. Whitney, 95 Conn. 357, 365, 111 A.

354 [1920]. Since that time our statutes have provided

that no street or highway laid out by any private person,

company or corporation shall be opened to the public

(1) until the grade, width and improvements of such

street or highway shall have the written approval of the

selectmen of the town or, in case the location is within

the limits of a city or borough, the approval of the

common council of the city or the warden and burgesses

of the borough or (2) until such approval has been filed

in the office of the clerk of the town, city or borough,

as the case may be.’’ Thompson v. Portland, 159 Conn.

107, 111–12, 266 A.2d 893 (1970).6

In Stratford v. Fidelity & Casualty Co., 106 Conn.

34, 39, 137 A. 13 (1927), our Supreme Court said that

the dedication statute in effect at that time ‘‘has to do

with the layout and improvement of roads or streets

by individuals or private corporations, and the approval

of the selectmen is an approval of the layout and open-

ing of private ways and not of public highways; it looks

to the possibility of their becoming public highways,

but does not constitute an acceptance of them as such.’’

‘‘Immediately following this decision, the legislature

enacted chapter 248 of the Public Acts of 1927. Section

1 of that act (now General Statutes [Rev. to 1966] § 13a-

48) gave specific authority to a municipality at any

annual or special meeting held for that purpose to

accept as a public highway any street or highway situ-

ated in the municipality. Section 2 validated the action

of any municipality theretofore taken in accepting any

highway as a public highway. Where the legislature

establishes the conditions necessary for a dedication

of land for public purposes, the statutory provisions

are controlling.’’ (Internal quotation marks omitted.)

Thompson v. Portland, supra, 159 Conn. 113. This his-

torical review concerns the law in effect at the time the

city accepted the highways in Shorefront Park in 1930.

‘‘Dedication is an appropriation of land to some pub-

lic 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 accep-

tance may be shown by proof of the actual use of the

way by the public. . . . Thus, the 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. . . . No particular

formality is required in order to dedicate a parcel of

land to a public use; dedication may be express or

implied. . . . Whether there has been a dedication and

whether there has been an acceptance present ques-

tions of fact.’’ (Citations omitted.) Meshberg v. Bridge-

port City Trust Co., 180 Conn. 274, 279, 429 A.2d 865

(1980). ‘‘The approval of a proposed subdivision and

the acceptance of a public street are entirely separate

and distinct proceedings.’’ (Internal quotation marks

omitted.) Id., 280.

In the present case, the trial court found, on the basis

of the evidence presented, specifically, the minutes of

the April, 1930 city council meeting and the subdivision

map of August, 1924, that The Shorefront Park Company

dedicated the highways within Shorefront Park to the

city and that the city accepted the highways. On appeal,

the plaintiffs do not contend that the council did not

accept the dedication of highways on the subdivision

map; they contend that the only highways the council

accepted were those fifty feet wide. Specifically, they

point to the second sentence of the minutes of the

council meeting, which states: ‘‘All highways asked to

be accepted are fifty (50) feet in width and in good

condition and in all of them have been laid water and

gas mains at the Company’s expense.’’ We disagree with

the plaintiffs, as the construction of the language in the

council minutes does not support such a conclusion.

To resolve the plaintiffs’ claim, we examine the April,

1930 council minutes. The Shorefront Park Company

petitioned the mayor and city council ‘‘for the accep-

tance of the highways shown on [the] attached map of

Shorefront Park.’’ It is a simple declaratory sentence

asking the city to accept the highways depicted on the

subdivision map, without limitation or qualification as

to the highways on the map.7 The following sentence

is another simple declaratory sentence: ‘‘All highways

asked to be accepted are fifty (50) feet in width and in

good condition and in all of them have been laid water

and gas mains at the Company’s expense.’’ Logically,

‘‘[a]ll highways’’ must refer to the prior sentence and

the highways on the attached map. The remainder of

the sentence describes the width of the highways, their

condition, and states that water and gas mains have

been laid at the company’s expense. Although the lan-

guage of the second sentence is descriptive, it is not

conditional. In other words, the second sentence does

not exclude any of the highways on the subdivision

map, or any portion of them.

Councilman Charpentier stated that Jutten had inves-

tigated the condition of the highways in Shorefront Park

and found them to be in good condition and recom-

mended their acceptance. A motion that ‘‘the highways

in Shorefront Park as designated on map entitled ‘Map

of Part of Shorefront Park Property of The Shorefront

Park Co. Norwalk Conn. Aug. 1924’ be accepted

seconded and carried.’’ The clear intent of the motion

was for the council to accept the highways in Shorefront

Park as depicted on the subdivision map without qualifi-

cation, clarification, or limitation.

As our Supreme Court stated in Thompson v. Port-

land, supra, 159 Conn. 111, ‘‘no street or highway laid

out by any private person, company or corporation shall

be opened to the public (1) until the grade, width and

improvements of such street or highway shall have the

written approval of the . . . common council of the

city . . . .’’ The city council in the present case

accepted the report of Jutten that the highways The

Shorefront Park Company was offering for dedication

were in good condition. The minutes do not reflect

any discussion or concern regarding the width of the

highways as depicted on the subdivision map.

As further evidence that the city accepted all of the

highways depicted on the subdivision map, there is

nothing otherwise in the record to suggest that The

Shorefront Park Company objected to the public’s use

of the highways in Shorefront Park at any time until

the company was dissolved in 1959. We, therefore, con-

clude that the court properly found that the highways

depicted on the subdivision map are public roadways,

including the contested area.

As to the plaintiffs’ claim that the contested area is

private property, there is no evidence in the record that

the plaintiffs hold title to the contested area. Richard

McGannon, an attorney specializing in real property

and title matters, testified that The Shorefront Park

Company owned the land, including the roadbeds, for

what became the subdivision. In McGannon’s opinion,

the roads were private in 1924 and throughout the chain

of title there was no record of a conveyance of title to

the roads. The Shorefront Park Company did not convey

an ownership interest in the road to the centerline.

McGannon’s title search of the plaintiffs’ property dem-

onstrated that the deed did not convey the roadbed to

a purchaser.

For the foregoing reasons, the plaintiffs’ claim that

the court’s determination that The Shorefront Park

Company had dedicated all of the roads depicted on

the subdivision map for the use of the city was clearly

erroneous fails.

II

The plaintiffs’ second claim is that the court improp-

erly required them to rebut the city’s acceptance of the

highways in the subdivision by clear and convincing

proof. Although we disagree with the plaintiffs’ claim,

the claim in and of itself is without consequence to

their appeal, as the trial court found by a preponderance

of the evidence that the highways depicted in the subdi-

vision map, including the contested area, were dedi-

cated by The Shorefront Park Company and accepted

by the city. See part I of this opinion. Moreover, the

court found that the highways in Shorefront Park,

including the contested area, were shared by the public.

See part III of this opinion. The plaintiffs’ claim there-

fore fails. Despite our conclusion that the plaintiffs’

claim does not affect the outcome of their appeal, we

take the opportunity to explain that it fails as a matter

of law.

The plaintiffs take exception to the following lan-

guage in the court’s memorandum of decision and iter-

ated in its response to the plaintiffs’ motion for

rectification. ‘‘The burden of proving a dedication and

acceptance, by a preponderance of the evidence, gener-

ally falls upon the party who claims that the property

in question belongs to the public. . . . But, because a

party claiming title by adverse possession must prove

his or her claim by clear and positive proof . . . it falls

to the plaintiffs in this case to prove, by clear and

positive proof, that the contested area was not dedi-

cated to the city, or if it was, that the city abandoned

it, since property owned by a municipality generally

cannot be adversely possessed.’’ (Citations omitted.)

‘‘Where title is claimed by adverse possession, the

burden of proof is on the claimant. . . . The essential

elements of adverse possession are that the owner shall

be ousted from possession and kept out uninterruptedly

for fifteen years under a claim of right by an open,

visible and exclusive possession of the claimant without

license or consent of the owner. . . . The use is not

exclusive if the adverse user merely shares dominion

over the property with other users. . . . Such a posses-

sion is not to be made out by inference, but by clear

and positive proof. . . . In the final analysis, whether

possession is adverse is a question of fact for the trier.

. . . The doctrine of adverse possession is to be taken

strictly.’’ (Citations omitted; internal quotation marks

omitted.) Roche v. Fairfield, 186 Conn. 490, 498–99, 442

A.2d 911 (1982).

Our Supreme Court has held that ‘‘property that is

held in fee simple ownership by municipalities must be

presumed to be held for public use. It follows that the

party seeking title by adverse possession must bear

the burden of rebutting that presumption. Municipal

immunity from adverse possession is the rule and not

the exception, and we have consistently held that the

party seeking to acquire title by adverse possession

bears the burden of proving all the elements of adverse

possession.’’ American Trading Real Estate Proper-

ties, Inc. v. Trumbull, supra, 215 Conn. 80.

Moreover, the plaintiffs’ claim overlooks the follow-

ing findings and conclusions of the court. ‘‘Under either

a preponderance or clear and convincing proof stan-

dard, the court finds that the evidence supports an

understanding of The Shorefront Park Company’s inten-

tions and actions as an express dedication of all of the

highways within Shorefront Park to the city of Norwalk,

without any exclusion or retaining of interest in por-

tions of the highways which were less than fifty feet

wide. The court notes also that [the] identification of

the contested area [in the subdivision map] as part of

a ‘Private Way’ is of no consequence, since several other

portions of highway on the map, many marked as fifty

feet wide, are so labeled, and the plaintiffs do not con-

tend that those sections of the road were exempt from

The Shorefront Park Company’s dedication to the city.

‘‘The plaintiffs have also failed to prove, by clear and

convincing proof, that the city of Norwalk’s acceptance

was not express and did not include the contested area.

Again, a motion to accept all of Shorefront Park’s high-

ways, as designated on the map, was passed without

any reference to the width of the highways. Because

the court has determined that all of the highways,

including the contested area, were expressly offered,

the court finds that the [city’s] express acceptance

could and did include them.’’ (Footnote omitted.)

As we explained in part I of this opinion, the court

properly found by a preponderance of the evidence that

the highways on the subdivision map were expressly

dedicated by The Shorefront Park Company and were

expressly accepted by the city. Our Supreme Court has

held that municipalities are immune from claims of

adverse possession. See American Trading Real Estate

Properties, Inc. v. Trumbull, supra, 215 Conn. 80. More-

over, on the basis of our review of the record, including

the evidence, we conclude that the plaintiffs could not

prevail on their claim of adverse possession because

the evidence demonstrates that the contested area is

shared by the public. See part III of this opinion.

Even if the plaintiffs had the legal right to claim title

to the contested area, they could not prevail because

the court found that their use of the contested area was

shared by the public. ‘‘[T]o establish title by adverse

possession, the claimant must oust an owner of posses-

sion and keep such owner out without interruption for

fifteen years by an open, visible and exclusive posses-

sion under a claim of right with the intent to use the

property as his [or her] own and without the consent

of the owner.’’ (Internal quotation marks omitted.)

Schlichting v. Cotter, 109 Conn. App. 361, 364–65, 952

A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009

(2008). ‘‘Because adverse possession is a question of

fact for the trier . . . the court’s findings as to this

claim are binding upon this court unless they are clearly

erroneous in light of the evidence and the pleadings in

the record as a whole. . . . We cannot retry the facts

or pass on the credibility of the witnesses. . . . A trial

court’s findings in an adverse possession case, if sup-

ported by sufficient evidence, are binding on a

reviewing court . . . .’’ (Internal quotation marks omit-

ted.) Mulle v. McCauley, 102 Conn. App. 803, 809, 927

A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265

(2007). The plaintiffs’ claim therefore fails.

III

The plaintiffs’ third claim is that the trial court’s find-

ing that dominion over the contested area is shared by

the public is clearly erroneous. We disagree.

At trial, the plaintiffs argued that, even if the con-

tested area was dedicated to the city in 1930, municipal

immunity to adverse possession was lost when the city

abandoned the area by failing to maintain it or otherwise

treat it as a public road. In its memorandum of decision,

the court noted that ‘‘[t]o establish title by adverse

possession, the claimant must oust an owner of posses-

sion and keep such owner out without interruption for

fifteen years by an open, visible and exclusive posses-

sion under a claim of right with the intent to use the

property for his [or her] own and without the consent

of the owner.’’ (Internal quotation marks omitted.)

Shepard Group, LLC v. Arnold, supra, 124 Conn. App.

44. ‘‘The use is not exclusive if the adverse user merely

shares dominion over the property with other users.’’

Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826

(1980). ‘‘A finding of [a]dverse possession is not to be

made out of inference, but by clear and positive proof.

. . . The burden of proof is on the party claiming

adverse possession.’’ (Internal quotation marks omit-

ted.) Shepard Group, LLC v. Arnold, supra, 44.

The court continued, ‘‘[t]itle to realty held in fee by

a state or any of its subdivisions for a public use cannot

be acquired by adverse possession.’’ (Internal quotation

marks omitted.) Campanelli v. Candlewood Hills Tax

District, 126 Conn. App. 135, 140, 10 A.3d 1073 (2011).

‘‘In light of the myriad of public uses that may be

advanced through public ownership of undeveloped

lands . . . property that is held in fee simple owner-

ship by municipalities must be presumed to be held for

public use. It follows that the party seeking title by

adverse possession must bear the burden of rebutting

that presumption. Municipal immunity from adverse

possession is the rule and not the exception, and we

have consistently held that the party seeking to acquire

title by adverse possession bears the burden of proving

all the elements of adverse possession.’’ American

Trading Real Estate Properties, Inc. v. Trumbull,

supra, 215 Conn. 80.

Furthermore, the two methods of terminating a

town’s responsibility for a road differ. ‘‘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.’’ (Internal quotation marks omitted.)

Doolittle v. Preston, 5 Conn. App. 448, 451, 499 A.2d

1164 (1985); see also R. Fuller, 9B Connecticut Practice

Series: Land Use Law and Practice (4th Ed. 2015) § 49:5,

p. 112 (‘‘Once 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 improve-

ment 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.’’).8 The statutory method of discontinuing the use of

a highway must be pursued strictly. Doolittle v. Preston,

supra, 451.

At trial, the plaintiffs made no claim that the city had

discontinued use of the contested area by a majority

vote of the selectmen pursuant to § 13a-49. The court

found that the plaintiffs had the burden of proving aban-

donment by clear and convincing evidence. Abandon-

ment requires proof of both a long period of nonuse

by the public and an intention to abandon. Montanaro

v. Aspetuck Land Trust, Inc., supra, 137 Conn. App. 21.

It is nonuse by the public, not the municipality, that

must be proven. The parties presented conflicting evi-

dence as to the first element of abandonment, i.e., a

long period of nonuse by the public.

In its memorandum of decision, the court summa-

rized the testimony of several witnesses. Dominic Coc-

chia and Peter Cocchia, sons of Mary Ann Cocchia,

testified that they moved into 40 Quintard Avenue in

1959. They understood that the contested area was part

of their driveway where they played games and parked

the family motor vehicles. Their father required them

to clean up litter, weed, and shovel snow from the

contested area. In 1970, their father had it paved. Nei-

ther Dominic Cocchia nor Peter Cocchia could recall

any action the family took to exclude the public from the

contested area or to prohibit the public from entering or

exiting the subdivision through the stone pillars.

Merritt testified that she had resided at 78 Shorefront

Park since 1944 and over a twenty year period, she had

walked four dogs over the contested area and through

the pillars approximately 200 times a year. She also

testified that she regularly saw pedestrians pass through

the pillars, including women with baby carriages, chil-

dren on bicycles, and other dog walkers. Merritt and

other motorists drove their vehicles through the pillars

to enter or exit the subdivision. She never witnessed

any barrier or notice denying the public entry to the

contested area.

Mulvehill testified that he had been a resident of

Shorefront Park since 1977. According to him, the city

plows the subdivision every year and pushes snow into

the contested area. He has never seen a chain, fence,

sign, name on the pillars, or other circumstance that

would suggest that the plaintiffs claimed possession of

the contested area. Patricia Audet, a resident of 25

Shorefront Drive since 1977, testified that she fre-

quently drove through the pillars to enter or exit the

subdivision. Significantly, the court viewed the con-

tested area and disclosed to the parties that, while he

was parked on Quintard Avenue, he observed a woman

walk south on Quintard Avenue, through the stone pil-

lars, and proceed down Shorefront Drive.

The court considered the conflicting evidence and,

in its memorandum of decision, found that the testi-

mony of the plaintiffs’ witnesses was not more likely to

be true than the testimony of the defendants’ witnesses.

The court, therefore, concluded that the public’s use

of the contested area and of the stone pillars as a public

entrance to the subdivision fell somewhere between

the levels suggested by the parties, but not so low as

to satisfy the nonuser prong of abandonment.

According to the court, the plaintiffs therefore failed

to carry their burden of proving, by clear and convincing

evidence, that public use of the contested area or stone

pillar entrance was so infrequent between 1959 and

1974, or between 1974 and the present, to satisfy the

first element of abandonment. Rather, the evidence indi-

cated to the court that the use of the contested area

was shared by the owners of 40 Quintard Avenue and

the general public. The court explained: ‘‘It is not essen-

tial . . . 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.’’ (Internal quotation

marks omitted.) Granby v. Feins, 154 Conn. App. 395,

404, 105 A.3d 932 (2014).

The essence of the plaintiffs’ claim on appeal is that

their witnesses, Dominic Cocchia and Peter Cocchia,

lived at the property during the period in which adverse

possession is claimed and the only witness for the

defendants who could testify as to the use of the con-

tested area during the adverse period was Merritt. The

plaintiffs acknowledge that it is in the discretion of the

trial court to accept her testimony over that of Dominic

Cocchia and Peter Cocchia, but not if its findings were

not reasonable and the reviewing court is left with the

impression that the finding was a mistake. See Stratford

v. Jacobelli, 317 Conn. 863, 870, 120 A.3d 500 (2015).

The plaintiffs specifically argue that the court’s finding

is clearly erroneous because Merritt testified that she

was of the opinion that the plaintiffs should not acquire

the contested area by adverse possession. They claim,

therefore, that such testimony makes her an interested

witness, not one who is testifying on the basis of what

she has seen.

‘‘[W]e must determine whether the facts set out in

the memorandum of decision are supported by the evi-

dence or whether, in light of the evidence and the plead-

ings in the whole record, those facts are clearly

erroneous. . . . We also must determine whether

those facts correctly found are, as a matter of law,

sufficient to support the judgment. . . . [W]e give great

deference to the findings of the trial court because of

its function to weigh and interpret the evidence before

it and to pass upon the credibility of witnesses . . . .’’

(Internal quotation marks omitted.) Rana v. Terdjan-

ian, 136 Conn. App. 99, 113, 46 A.3d 175, cert. denied,

305 Conn. 926, 47 A.3d 886 (2012).

‘‘[E]vidence is not insufficient . . . because it is con-

flicting 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 find-

ing. 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.’’9 (Citation omitted; internal quotation

marks omitted.) Masse v. Perez, 139 Conn. App. 794,

798, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61

A.3d 1098 (2013).

A court properly may take into account testimony

from a witness with an interest in the outcome of the

case. See Beaucar v. Bristol Federal Savings & Loan

Assn., 6 Conn. Cir. Ct. 148, 154, 268 A.2d 679 (1969).

‘‘[A] trial court is at liberty to discredit any witness or

a multitude of witnesses, if it deems that it has cause

to do so.’’ Antenucci v. Hartford Roman Catholic Dioc-

esan Corp., 142 Conn. 349, 357, 114 A.2d 216 (1955).

‘‘[I]t is futile to assign error involving the weight of

testimony or the credibility of witnesses.’’ Hartford-

Connecticut Trust Co. v. Putnam Phalanx, 138 Conn.

695, 699, 88 A.2d 393 (1952) (witness former trustee

of defendant).

On the basis of our review of the record, the law,

and the court’s memorandum of decision, we conclude

that the court’s finding that the contested area was

shared by the plaintiffs and the general public is not

clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The individual defendants were owners of property adjacent to Shore-

front Park, a roadway in the city, and the descendants of the original owners

of The Shorefront Park Company. The individual defendant property owners

were Thursa June Merritt, Mary Merritt, Urban S. Mulvehill, Diane K. Mulveh-

ill, James A. Smith, Joanne C. Smith, William Faulkenstein, and Kaori O’Brien.

The individual defendant descendants were John Keogh III, M. Douglas

Keogh, William Allen Keogh, Stephen B. Keogh, Tara Quinn-Siegel, and

Jacqueline F. Quinn. The plaintiffs impleaded numerous other individuals

who had a possible interest in property, but none appeared in the trial court.

The following defendants appeared at trial: the city, Thursa June Merritt,

Urban S. Mulvehill, and The Shorefront Park Improvement Association,

Inc. Those defendants filed appearances in this appeal, but only Urban S.

Mulvehill, a self-represented party, filed a brief and argued on appeal. The

defendants, as used in this opinion, refers to only those defendants who

appeared at trial.

2

‘‘Shorefront Park’’ is both a street address within the subdivision and

the name of the subdivision itself.

3

The court found that the plaintiffs alleged that Jutten was employed by

the city’s Department of Public Works. Another section of the minutes

contains the words ‘‘A.F. Jutten Commissioner.’’

4

The court found that the road widens to fifty feet where it meets the

border of the plaintiffs’ property.

5

Under either a preponderance of the evidence or clear and convincing

proof standard, the court found that the evidence supports an understanding

of The Shorefront Park Company’s intentions and actions as an express

dedication of all of the highways within Shorefront Park to the city, without

any exclusion or retaining of interest in portions of the highways that were

fewer than fifty feet wide. Although the plaintiffs’ exhibit 8 identifies the

contested area as part of a ‘‘Private Way,’’ the court found that to be of no

consequence, as several other portions of the highway on the map, many

marked as fifty feet wide, are similarly labeled. The plaintiffs did not contend

that those sections of road were exempt from The Shorefront Park Com-

pany’s dedication to the city.

6

‘‘Various minor changes were made in the statute, but no major change

occurred until 1959, when the statute was amended to require the approval

of the planning commission where one existed in such town, city or borough

and where the commission had adopted subdivision regulations.’’ Thompson

v. Portland, supra, 159 Conn. 112.

7

If Shorefront Park Company had wished to limit or restrict the dedication,

it might have included a restrictive phrase in the sentence, such as, ‘‘for

the acceptance of the highways that are fifty feet wide shown on the

attached map.’’

8

General Statutes § 13a-49 (a) (1) provides in relevant part: ‘‘The 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 . . . in its entirety . . . .’’

9

We also note the jury instructions given with respect to possible bias

or motive of witnesses generally: ‘‘In weighing the testimony of a witness,

you should consider his or her demeanor on the witness stand, whether his

or her testimony was reasonable or unreasonable, the basis of the witness’

knowledge or opportunity to observe the events that he or she testified

about, whether his or her testimony was supported or contradicted by other

testimony, his or her motive to tell the truth or not to tell the truth, the

probability or improbability of his or her testimony. . . .

‘‘You also have a right to consider whether any witness has shown bias

or prejudice or has a personal interest or professional interest in the outcome

of the case which might cause him or her to testify to something other than

the truth or to color or embellish his or her testimony. However, even if

you find that the witness is an interested witness, has some stake in the

matter, remember, there’s no legal presumption that he or she did not tell

the truth nor is there any legal presumption that a disinterested witness

did, in fact, tell the truth. The question of the interest of a witness and the

effect upon his or her testimony is for you to decide from the evidence in

the case.’’ (Internal quotation marks omitted.) State v. Patterson, 276 Conn.

452, 466 n.10, 886 A.2d 777 (2005); see also 2 D. Wright & W. Ankerman,

Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 641, pp. 1017–18.