140 Main Street-Derby, LLC v. Clark Development

• Decision Date: 04 August 2009
• Docket Number: No. 29910.,29910.
• Citation: 116 Conn.App. 188,975 A.2d 113
• Court: Connecticut Court of Appeals
• Parties: 140 MAIN STREET-DERBY, LLC v. CLARK DEVELOPMENT, LLC.

975 A.2d 113

116 Conn.App. 188

140 MAIN STREET-DERBY, LLC v. CLARK DEVELOPMENT, LLC.

No. 29910.

Appellate Court of Connecticut.

Argued April 16, 2009.

Decided August 4, 2009.

Matthew B. Woods, Norwalk, for the appellant (defendant).

Joseph A. Kubic, Milford, for the appellee (plaintiff).

BISHOP, BEACH and PETERS, Js.

BEACH, J.

The defendant, Clark Development, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, 140 Main Street-Derby, LLC. The defendant claims that the court's finding that the plaintiff has a prescriptive easement over parcels of its property designated as D1 and D2 is clearly erroneous because the plaintiff did not continuously use the subject parcels for the statutorily prescribed period of fifteen years. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The plaintiff and the defendant are owners of abutting property on Main Street in Derby. The plaintiff owns 140-146 Main Street, and the defendant is the owner of 148-156 Main Street, which is immediately to the west and south of the plaintiff's property. The defendant's property is denoted on maps as consisting of schedule B; schedule D, parcel 1; schedule E; and schedule D, parcel 2. The issue on appeal is whether parcels D1 and D2 are properly subject to a prescriptive easement for parking in favor of the plaintiff.

The plaintiff's predecessor in interest, Francesco Cirino, purchased 140-146 Main Street with a partner in 1975. In 1977, Cirino became the sole owner of the property. The property consisted of a chicken market, which was run by Cirino and his partner until 1982, as well as other commercial buildings and residential apartments. Since at least 1975, the owners of 140 Main Street and their tenants and customers used D1 for parking. In 1976, after a bowling alley that had been on D2 burned down, that parcel was used for parking by such owners, tenants and customers as well. The defendant's predecessor in interest, Alphonse Ippolito, owned 148-156 Main Street at this time. In 1977, Ippolito confronted Cirino concerning Cirino's use of parcels D1 and D2. During that confrontation, Cirino told Ippolito that he would continue to park there "and that's the way it is." Cirino did not hear from Ippolito again concerning his use of parcels D1 and D2.

In August, 2004, the plaintiff purchased 140-146 Main Street from Cirino. In March, 2005, Carl Yacobacci and Phillip Clark, members of the defendant limited liability company, purchased 148-156 Main Street from Ippolito's estate. At a meeting between Samuel Rizzitelli, the principal of the plaintiff limited liability company, and Yacobacci and Clark, Rizzitelli claimed a right to parcels D1 and D2 by adverse possession. The defendant thereafter sent letters to Rizzitelli and the tenants of his building, demanding that they stop using any of the property located at 148-156 Main Street. The defendant also placed a fence and "no parking" signs on the property.

The plaintiff then brought this action against the defendant, claiming, inter alia, that it had acquired a prescriptive easement over the parcels at issue. The court found, inter alia, that the plaintiff had acquired a prescriptive easement over parcels D1 and D2.¹ This appeal followed. Additional facts will be set forth as necessary.

"Whether a [prescriptive easement] has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.... When the factual basis of the court's decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous.... In such cases, the trier's determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached." (Internal quotation marks omitted.) Stefanoni v. Duncan, 92 Conn.App. 172, 184, 883 A.2d 1271 (2005), rev'd in part on other grounds, 282 Conn. 686, 923 A.2d 737 (2007).

"To establish an easement by prescription in accordance with General Statutes § 47-37,² [the party claiming to have acquired it] must prove the necessary elements by a preponderance of the evidence.... In applying [§ 47-37, our Supreme Court] repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." (Internal quotation marks omitted.) Stefanoni v. Duncan, supra, 92 Conn.App. at 184, 883 A.2d 1271. "Prescriptive easements ... do not require exclusive use by the claimant ... and the burden of proof is by preponderance of the evidence...." (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn. App. 296, 310, 880 A.2d 889 (2005). "Once established, a prescriptive easement appurtenant to the benefited property generally runs to all subsequent owners thereof." Boccanfuso v. Conner, 89 Conn.App. 260, 268, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). Because the defendant contests only the court's determination that the defendant's use had been continuous for more than fifteen years, we limit our review to that element.

The defendant claims that the court's finding that the plaintiff has a prescriptive easement over parcels D1 and D2 is clearly erroneous. The court found, inter alia, that Cirino's use, the beginning of which predated the plaintiff's use by approximately twenty-nine years, fulfilled the fifteen year requirement to provide Cirino with a prescriptive easement over parcels D1 and D2. The defendant specifically argues that the evidence revealed that there was no fifteen year period of continuous adverse use by the plaintiff of the subject parcels between 1975, when Cirino purchased 140-146 Main Street,³ and May, 2005, when the defendant put up fences and "no parking" signs.⁴ We disagree.

There was testimony from several witnesses supporting the court's finding that Cirino used the subject parcels continuously for at least a fifteen year interval. Cirino's testimony revealed that since at least 1975, the owners of 140-146 Main Street and their tenants and customers used D1 for parking. In 1976, after a bowling alley that had been on D2 burned down, that parcel was used for parking as well. Cirino testified that in 1977, he and Ippolito had a hostile confrontation concerning Cirino's use of parcels D1 and D2 as a parking area for tenants and business patrons of 140 Main Street. He testified that Ippolito, on occasion, would come in the store and "start raising hell," and then "he would walk out." This happened two or three times. Finally, Cirino excused himself from his customers and took Ippolito outside. He told Ippolito, "don't you ever come in my store and do things like that again. Never, ever come here.... I'm parking the cars there, and that's the way it is. You can complain all you want, and that's the way it is." Cirino testified that he subsequently made "no changes" in his use of the parcels. He further testified that following the confrontation, Ippolito made no efforts to limit his use of the property and did not have any further conversations with Cirino regarding his use of parcels D1 and D2. In fact, Cirino testified that after that confrontation, he "never saw [Ippolito] again."

Maria Bellone-Anderson testified that in April, 1991, she opened a business located at 144 Main Street and remained at that location for sixteen and one-half years. She testified that she first became aware of the building at 144 Main Street in December, 1990. At that time, she noticed that cars, which she later learned belonged to tenants of 144 Main Street, were parked on parcel D1. She further testified that Cirino, her landlord, told her she could park behind the building. During Bellone-Anderson's sixteen and one-half year tenancy at 144 Main Street, she, her...