Old 2 Rod Highway: Clear decisions led to 'the road that isn't'

The odd legal status of Old 2 Rod Highway can easily lead to confusion. The road has been devoid of motorized vehicles since at least 1977, yet state courts recently found reason to declare the dirt path a legally recognized public right-of-way, something better known as a public road.

Wilton officials had hoped the Old 2 Rod Highway quandary would not reach this level, believing courts would never find the overgrown road to be a legal right-of-way.

Nevertheless, the Connecticut Superior Court did just that in a case brought by a potential developer of a large tract of land along the right-of-way.

As it stands today a number of lot owners near Wampum Hill Road have the proper right-of-way frontage to subdivide their property into multiple two-acre lots, though that right would be revoked if the town abandons the road by majority vote.

Abandonment, Town Planner Bob Nerney said during an interview this week, would be the most cost-effective option for the town.

Though the town has no responsibility to maintain or improve Old 2 Rod Highway, were its abutting lots subdivided Mr. Nerney fears owners of new homes on the property might someday expect the town to improve conditions for convenience or emergency reasons.

“Once you see subdividing occur, the fear is that over time the pressure would be brought to upgrade,” he said. “When it comes to a town road, to partially improve it would set a bad standard. The rules and regulations would not be applied fairly.

“You cannot negotiate municipally adopted standards. It would be unwise to go down that path,” he said.

If the road were abandoned, owners of property that abut the right-of-way would reclaim their half of the right-of-way as privately owned land, and the plots would be restricted from subdivision.

How did we get here?

To understand how the court reached this seemingly ironic decision, a person familiar with the case directed The Bulletin to an opinion rendered by Judge Frank H. D’Andrea during a 2012 appeal of a previous case which upheld Old 2 Rod Highway as a roadway.

In his opinion, Judge D’Andrea delineated his appellate court’s opinion on three claims raised by the case’s defendants, Aspetuck Valley Land Trust and town of Wilton. Both defendants claimed:

  • The road was improperly found to be a dedicated road.
  • The road was improperly found to be accepted through public use.
  • The road should have been determined as “abandoned.”

On the defendants’ first claim, that the road should not be considered a dedicated road, Judge D’Andrea’s court disagreed.

In determining the road’s legal establishment, the court found early Colonial land-holders — known as proprietors — were tasked with determining and dedicating roadways throughout townships they controlled.

“It was also observed that ‘when the new townships have been taken up … it has been the general, if not universal, practice to reserve lands for highways,’” Judge D’Andrea wrote, quoting from an 1868 Connecticut Superior Court Decision: State v. Merrit.

Proprietors’ early right to dedicate highways, paired with evidence showing the road’s inclusion on early proprietor maps, convinced the court the road had been legally established.

Public acceptance

On the defendant’s complaint the road was never accepted through public use, the court also disagreed.

In order to be accepted through public use, Judge D’Andrea explained, “actual use” is the primary determining factor, though other aspects of acceptance should not be ignored, like taxation information, recognition as a boundary, and use on public maps.

In this case, an easement granted in 1795 by a former owner of an abutting property permitting passage through the property was determined to be a “factual finding” of “actual use.”

That finding, paired with the road’s recognition on historic maps, its use as a descriptive boundary in property deeds, and the town of Wilton’s failure to raise taxes on the land for more than 200 years, constituted the road as being accepted by the public, the court said.

Abandonment

The average person’s definition of abandonment — a long period of non-use coupled with a lack of maintenance — doesn’t come close to matching the appellate court’s legal definition in this case.

“While non-use of the highway may, in some circumstances, conclusively establish the intent to abandon, where abandonment is found there most frequently is some affirmative act of an intention to abandon,” Judge D’Andrea wrote.

“Whatever inference of intent to abandon that may be created by the nonuse of the highway thus was weakened by the continued reliance on the highway as a boundary and the depiction of it in maps and the lack of evidence presented by the defendants to demonstrate an intent to abandon other than non-use,” he wrote.