Public Right of Way Story ‘Omits’ Basis for Complaint

The Town of Old Lyme cleared phragmites and weeds at Tantummaheag landing, a public access point to Lord Cove. (CT Examiner)


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To the Editor:

Cate Hewitt’s story about the current state of the dispute over Tantummaheag Landing correctly characterizes our view that the Old Lyme First Selectman’s threat to put the Town’s own signs on our property (which he concedes we own in fee simple), create parking places that never existed, and bulldoze our driveway, trees and wetlands would be “lawless behavior.” The story omits, however, the basis for that contention.

That is: recently discovered Town documents show unequivocally that the Town surrendered in 1713 back to the then-owner of the property Richard Lord the 1701 right of way that constitutes the Town’s entire and only basis for claiming that our back driveway has been a “public highway” for 300 years. As part of this recorded 1713 “deal”, the Town and Lord agreed he would create a replacement path that survives as today’s “Tantummaheag Road” (which always stopped before it reached what is now our property and went up a hill onto neighbors’ property), but that the replacement would last only for Lord’s lifetime. It would then end and place no burden from any Town “demand” or “encumbrance” on his heirs. Richard Lord’s will and deeds of the land to his son went to extraordinary lengths to file in the Town records again and again official confirmations of the Town’s abandonment of both rights of way, fearful that in some future year or century the Town might come slinking around again and try to falsely resuscitate a claim to the extinguished right of way over private land. As they now have.

Your story also omitted to report our position that the historical metes and bounds of these rights of way prove that in neither case did they go over our back driveway. If the town wants to invade and bulldoze our property against our will, Connecticut law clearly requires that regardless of past public use the Town provide evidence to establish some legal basis for its public highway claim and the precise location of such a highway, either with official legal documentation or in court, which it has totally failed to do, not just wave a magic wand and claim control. This is the essence of the Town’s current posture: “we can do anything we want to your property because we say we can, and we have no obligation to produce anything to justify it.” This is not the way responsible and ethical public officials should behave, or are normally allowed to behave, in a government of laws.

George T. Frampton, Jr.
Old Lyme, CT

The editor replies:

The historical research requested by Mr. Frampton has been the subject of a number of stories in CT Examiner, here, here and here, coverage that includes the publication of Frampton’s research summary in full, as well as various of his public statements. As a news story, Ms. Hewitt’s coverage instead focuses on recent developments.

CT Examiner has taken no stand on the competing claims, but attempts to have them evaluated by independent legal counsel have so far yielded no clear answer — to quote David N. Schleicher, Professor of Law at Yale Law School:

The legal question would be whether there is a “public easement by prescription,” that is a property right to drive on the owner’s land achieved through prescription (which is basically the same thing as adverse possession), not that the town owned the property outright.   Public easements by prescription for roads are decently common throughout the country – there’s a neat recent piece called “identifying rural roads” by Alan Romero at the University of Wyoming that discusses the extent this is done around the country.  I don’t know of any Connecticut cases, although public easements by prescription are at least a possibility under Connecticut law (there was once litigation between Greenwich and Westchester over Teeterboro airpoirt in which Westchester county declared that it had a public easement by prescription to air over part of Greenwich – the case settled, I think, before any final ruling by a district court said it was at least possible).