DOCKET NO. KNL CV 19-6041370
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`SUPERIOR COURT
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`CHRISTOPHER E. MARCHESI TRUSTEE
`OF THE RHONDA M. MARCHESI REVOCABLE
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`TRUST DATED NOVEMBER 17, 2017
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`J .D. OF NEW LONDON
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`v.
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`AT NEW LONDON
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`TOWN OF LYME
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`NOVEMBER 25, 2019
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`MEMORANDUM OF DECISION
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`RE: MOTION TO CITE IN (#105)
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`The plaintiffs, Christopher Marchesi, as trustee of the Rhonda Marchesi Revocable Trust
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`and individually, brought this action seeking declaratory judgment. The plaintiffs’ complaint is
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`set forth in two counts: count one is of common law abandonment and count two is of equitable
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`acquiescence. The plaintiffs allege that, beyond the limits of its unimproved section, Brockway
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`Ferry Road has been abandoned as a municipal'highway by the defendant, the Town of Lyme,
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`and that all rights of the public therein have ceased to exist. The declaratory action is limited to
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`the westerly end of Brockway Ferry Road in which the lost or uncertain bounds thereof were
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`previously defined by the Superior Court. The western end is unimproved and. runs to the
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`Connecticut River.
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`The defendant’s motion to cite in seeks a court order to direct the plaintiffs to cite in
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`additional party-defendants,
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`including all property owners owning real property abutting
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`Brockway Ferry Road and the State of Connecticut, care of the Department of Energy and
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`Environmental Protection, and to further direct the plaintiffs to provide public notice of the
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`pendency of this action in order to allow any members of the public to appear in this action. The
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`motion and the plaintiffs’ objection thereto were heard by the court at short calendar on October
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`15, 2019.
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`The subject portion of Brockway Ferry Road was previously at issue in an action pursuant
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`to General Statutes § 13a-39. In the prior action, the trial court determined the boundaries of the
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`lost or uncertain bounds of Brockway Ferry Road extended beyond the unimproved section
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`through and across the plaintiffs property into and below the mean high tide line of the
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`Connecticut River, which was affirmed in Marchesi V. Board ofSelectmen ofthe Town ofLyme,
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`328 Conn. 615, 181 A.3d 531 (2018). As such, the western end of Brockway Ferry Road is a
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`portion of a town highway. The plaintiffs claim that this portion ceases to exist as a public
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`highway based upon abandonment or equitable acquiescence.
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`DISCUSSION
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`Practice Book § 9-18 provides in relevant part that “the judicial authority may determine
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`the controversy as between the parties before it, if it can do so without prejudice to the rights of
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`others, but, if a complete determination cannot be had without the presence of other parties, the
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`judicial authority may direct they be brought in.” See also General Statutes § 52-107.1 A
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`necessary party is indispensable to a complete determination of the controversy. See Practice
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`Book § 9-18; W. Horton et a1., 1 Connecticut Practice Series: Connecticut Superior Court Civil
`Rules (2018-2019 Ed.) § 9-18. In Biro v. Hill, 214 Conn 1, 6, 5’10 A.2d 182 (1990), the Court
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`stated “[i]n short, a party is necessary if its presence is absolutely required in order to assure a
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`fair and equitable trial.” (Internal quotation marks omitted.)
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`l The defendant’s reliance on General Statutes § 52-102 is misplaced, as this provision concerns only
`parties that the plaintiff can join as defendants in the original complaint. See also Practice Book § 9-6.
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`2
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`A. Owners of property abutting Brockway Ferry Road
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`Connecticut courts have offered some guidance as to when a party may be necessary in
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`an action, “Necessary parties .
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`. are those [p]ersons having an interest in the controversy, and
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`who ought to be made parties, in order that the court may act on that rule which requires it to
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`decide on, and finally determine the entire controversy, and do complete justice, by adjusting all
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`the rights involved in it. .
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`. [B]ut if their interests are separable from those of the parties before
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`the court, so that the court can proceed to a decree, and do complete and final justice, without
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`affecting other persons not before the court, the latter are not indispensable parties.” (Internal
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`quotation marks omitted.) In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127 (2003).
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`“[P] arties are indispensable when they not only have an interest in the controversy, but an interest
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`of such a nature that a final decree cannot be made without either affecting that interest, or leaving
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`the controversy in such a condition that its final termination may be wholly inconsistent with
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`equity and good conscience.” (Internal quotation marks omitted.) Fang v. Planning & Zoning
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`Board ofAppeals, 212 Conn. 628, 632, 563 A.2d 293 (1989).
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`In the specific context of land and real estate disputes, “a person whose interests in real
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`estate would be affected by the relief sought [is] an indispensable party.” Goodman v. Bank of
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`Boston Connecticut, 27 Conn. App. 333, 341, 606 A.2d 994 (1992). Conversely, a party is not
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`necessary when they have “no special interest in [the] particular parcel of land” at issue in the ‘
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`case. Bender v. Bender, 292 Conn. 696, 724, 975 A.2d 636 (2009). Necessity does not
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`automatically extend to nearby property owners merely by virtue of their status as abutting
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`owners; the Supreme Court has noted that, in the context of zoning board appeals, the_“interests
`[of abutters] may be regarded as adequately represented by the [zoning] board itself .
`. 3.1.” Fong
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`v. Planning & Zoning Board ofAppeals, supra, 212 Conn. 633.
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`The defendant claims that the neighbors on Brockway Ferry Road hold an easement of
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`travel over public highways. (Def. Memo. of Law, p. 1-2).2 The abutting owners of Brockway
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`Ferry Road have the same interest in the easement over the public highway as other members of
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`the public, as discussed in part D of this opinion. All of the abutting property owners are the
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`owners of real property located easterly and northeasterly of the plaintiffs property, with the
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`exception of James A. Behrendt, who owns property located to the west of the plaintiffs
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`property. In other words, they do not traverse the subject portion of the highway to access their
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`properties, nor do their properties abut the subject portion of the highway at issue. In sum, there
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`is no claim that the owners of property abutting Brockway Ferry Road specifically abut the
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`section of Brockway Ferry Road beyond the limits of the unimproved section, which is at issue
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`in this case.
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`While the owners of property abutting Brockway Ferry Road may have an interest, the
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`court does not conclude that they are necessary parties to an adjudication ofthis matter, excepting
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`Behrendt. See Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 904 A.2d 137
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`(2006).3 This does not mean that these persons may not move to be joined as parties.4 ‘I‘The
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`decision whether to grant a motion for the addition of a party to pending legal proceedings rests
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`generally in the sound discretion of the trial court.” (Internal quotation marks omitted.) In re
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`Devon 3., supra, 264 Conn. 580; see also Practice Book § 9-19 (stating in relevant part that
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`2 The neighbors refers to those individuals listed in defendant’s motion to cite, Schedule A, but
`excluding James Behrendt, who is discussed in part B.
`3 The defendant relies on the prior action, in which the several adjoining property owners of Brockway
`Ferry Road were made additional defendants by the plaintiff. Marchesi v. Board‘ofSelectmen 0fthe
`Town ofLyme, supra, 328 Conn. 618 n.3. The prior action was a statutory action pursuant to § l3a—39
`involving a determination of the bounds of the highway by the town selectmen. Neither the defendant’s
`reference to the requirements of General Statutes § l3a-49 nor to the prior proceedings are persuasive
`authority for the determination of necessary parties in the present action.
`4 See General Statutes § 52-108; Practice Book § 9-6.
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`4
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`“[n]ew parties may be added and summoned in .
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`. by order of the judicial authority, at any stage
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`of the cause as it deems the interests ofjustice require”); Horton v. Meskill, 187 Conn. 187, 192,
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`445 A.2d 579 (1982) (stating that “the admission of new parties is within the broad discretion of
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`the trial court” [internal quotation marks ornitted]).5 The motion'to cite in owners of property
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`abutting Brockway Ferry Road, excepting Behrendt, is denied.
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`B. Abutting Owner James A. Behrendt
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`The court concludes that James A. Behrendt, an abutting owner on Brockway Ferry
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`Road, is a necessary party for the following reason: the Behrendt property is the beneficiary of
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`a deeded right of way over and‘ across the plaintiffs’ property to and from Brockway Ferry
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`Road. While the Behrendt property interest may be statutorily protected pursuant to General
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`Statutes § 13a—556 and the deed, the property interests of the plaintiffs and Behrendt are
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`inherently and intrinsically interwoven as a matter of law. For this reason, the court grants the
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`motion to cite in Behrendt.
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`C. The State
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`The defendant claims that the State is a necessary party on the grounds that ifthe plaintiffs
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`are successful, the public’s easement of, travel to the river will be extinguished. 'In Leydon V.
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`Greenwich, 257 Conn. 318, 332 n.17, 777 A.2d. 552 (2001), the Court held that the public trust
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`doctrine does not necessarily allow members of the public access to public beaches over land or
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`roads. “Under the public trust doctrine, members of the public have the right to access the portion
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`5 Section 52-108, discussing non-joinder. and misjoinder of parties, provides: f‘An action shall not be
`defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and
`parties misjoinéd may be dropped, by order of the court, at any stage of the action, as the court deems
`the interests ofjustice require.”
`6 General Statutes § 13a—5 5 provides in relevant part: “Property owners bounding a discontinued or
`abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have
`a right-of—way for all purposes for which a public highway may now or hereafter used over such
`discontinued or abandoned highway to the nearest or most accessible highway .
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`. .”
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`5
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`of any beach extending from the mean high tide line to the water, although it does not also give
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`a member of the public the right to gain access to that portion of the beach by crossing the beach
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`landward of the mean high tide line.” (Citations omitted.) Id. The unimproved section extends
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`through and across the plaintiffs property into the mean high tide line of the Connecticut River.
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`(P1. Obj., p. 2). See also Marchesi v. Board ofSelectmen ofthe Town ofLyme, supra, 328 Conn.
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`646 (affirming the trial court’s determination of the western terminus of Brockton Ferry Road).
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`The defendant’s claim that the access to the river is of interest to the public and requires the State
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`to be a necessary party is unsupported. As the defendant notes, citing to Wellswood Columbia,
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`LLC v. Town ofHebron, 295 Conn. 802 (2010), “[t]own roads are for the benefit of the general
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`public.” (Def. Memo. of Law, p. 2). The public interest is well-represented by the defendant.
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`The motion to cite in the State is denied.
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`D. The Public at Large
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`The defendant claims that, as this action concerns a public highway, the public is a
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`necessary party. The defendant defines “public” as “relating or belonging to the entire
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`community, state or nation.” Black’s Law Dictionary (8th Ed. 2004). The defendant further
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`claims that, similar to the neighbors on Brockway Ferry Road, the public holds an easement of
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`»
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`travel over public highways. (Def. Memo. of Law, p. 1-2). First, the court concludes that the
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`defendant’s claim that the public is a necessary party is overly broad. It would render the public
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`a necessary party in every case where the right of travel over a highway is at issue. Second, the
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`public interest in the subject portion of the highway is well-represented by the defendant, the
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`town of Lyme, which has statutory duties to build, maintain and repair its municipal highways.
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`See General Statutes § l3a—99.7 Third, the Defendant has not cited any authority that public notice
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`is required in this action.
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`The motion to cite in additional party defendants with the exception of James Behrendt
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`and for public notice is denied.
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`' Wherefore, it is ordered that the complaint be amended to state facts showing the interest
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`of James Behrendt and to summon James Behrendt and to appear as a defendant in this action on
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`or before the second day following January 7, 2020, by causing some proper officer to serve on
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`the defendant in the manner prescribed by law a true and attested copy of this order, a true and
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`attested or certified copy of the complaint in this action as amended, and a Summons Civil Form
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`JD-CV-l and due return make.
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`Knox, J.
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`7 General Statutes § l3a—99 provides in relevant part: “Towns shall, within their respective limits, build
`and repair all necessary highways and bridges .
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`. .”
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`7
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