Boccanfuso v. Conner, 24545.

• Court: Appellate Court of Connecticut
• Writing for the Court: LAVERY, C.J.
• Citation: 89 Conn.App. 260,873 A.2d 208
• Parties: Dominick BOCCANFUSO v. Louis Allan CONNER, Jr., et al.
• Docket Number: No. 24545.,24545.
• Decision Date: 31 May 2005

873 A.2d 208
89 Conn.App. 260

Dominick BOCCANFUSO
v.
Louis Allan CONNER, Jr., et al

No. 24545.

Appellate Court of Connecticut.

Argued October 21, 2004.

Decided May 31, 2005.

873 A.2d 212

John R. Hall, Stamford, with whom was Edward Kanowitz, New York, NY, for the appellants-appellees (defendants)

William Bradley Kellogg, for the appellee-appellant (plaintiff).

LAVERY, C.J., and BISHOP and DUPONT, Js.

LAVERY, C.J.

The defendants, Louis Allan Conner, Jr., and Eulala Conner,¹ appeal from the judgment of the trial court declaring that the

873 A.2d 213

plaintiff, Dominick Boccanfuso, has acquired via prescription the right to park vehicles in a right-of-way located on the defendants' property. The plaintiff has filed a cross appeal from that part of the court's judgment declaring that the portion of the defendants' property subject to the right-of-way has been diminished by the defendants' adverse use thereof. On appeal, the defendants claim that the court improperly concluded that the plaintiff acquired a prescriptive easement to park in the right-of-way because the requisite fifteen year period of adverse use was not established. In his cross appeal, the plaintiff claims for a variety of reasons² that the court improperly found that a portion of the right-of-way had been extinguished. We disagree with all of the parties' claims and affirm the judgment of the trial court

The following facts, as found by the court, and procedural history are relevant to the appeals. The parties own adjoining residential parcels of land in Westport. The plaintiff owns 3 Madeline Avenue, which is land-locked and located behind the defendants' parcel, 5 Madeline Avenue. The plaintiff's parcel is benefited by an express right-of-way over the defendants' parcel for purposes of ingress and egress. The right-of-way originally was ten feet wide and 37.5 feet long,³ and is the plaintiff's only means of vehicular access to Madeline Avenue.

Prior to September 19, 1928, both parcels were owned by Theodore M. Haight. On that date, Haight conveyed what is now 3 Madeline Avenue to Sarah S. Moser. The deed from Haight to Moser created the right-of-way with the following provision: "The grantor also conveys to the grantee a right of way for all lawful purposes over the Northerly ten (10) feet of said Lot # 73 [now 5 Madeline Avenue] for the purpose of affording ingress and egress to and from the land hereby conveyed and Madeline Avenue...." In 1929, Moser conveyed 3 Madeline Avenue to Samuel E. Nicholas, who, between August 1, 1948, and June 29, 1956, rented the property to Charles Eaton and Louise Eaton. After January 7, 1950, the Eatons occupied the property under a "bond for deed"⁴ from Nicholas,

873 A.2d 214

and they subsequently obtained fee title on June 29, 1956. The bond for deed contained a legal description of the property, including a reservation for the right-of-way. The Eatons occupied 3 Madeline Avenue until they sold the property on November 7, 1963. In short, the Eatons resided at 3 Madeline Avenue for a total of fifteen years and approximately three months, first as tenants, then as tenants under a bond for deed and finally as owners

Charles Eaton owned two vehicles, which he parked in the right-of-way. During the latter years of their residency, the Eatons' three sons also parked their vehicles in the right-of-way. Only the Eatons and occasionally their guests parked there, and nobody ever asked that the vehicles be moved. The court made "no finding ... as to the parking habits of Charles Eaton's immediate successor in title [but found that] subsequent owners of the property or their tenants continued to park their vehicles in the right-of-way." The plaintiff purchased 3 Madeline Avenue on October 29, 1998.

The defendants purchased 5 Madeline Avenue on May 12, 1978. All deeds in their chain of title state that the property is subject to the right-of-way. Sometime in the 1970s, either the defendants or their predecessors in title built a deck and planted shrubbery along the right-of-way, encroaching within its ten foot width. On December 11, 1992, the defendants' home was destroyed by fire. They rebuilt the premises, including the deck, and reoccupied the property by 1994.

The plaintiff brought this action in September, 1999, and in the operative complaint alleged that (1) the defendants unlawfully were obstructing the right-of-way with their deck and shrubs, and (2) through his predecessors in title he had acquired a prescriptive easement for the purpose of parking within the right-of-way. The plaintiff sought damages, an injunction restraining the defendants from interfering with his use of the right-of-way for passage and parking, and a declaratory judgment as to the existence of the claimed easement for parking.

The defendants in their answer raised two special defenses and a two count counterclaim. In their first special defense, they alleged, in essence, that the presence of the deck and shrubs within the right-of-way for more than fifteen years operated to extinguish that portion of the right-of-way that the deck and foliage occupied. In the first count of their counterclaim, the defendants sought, inter alia, an injunction restraining the plaintiff from using the right-of-way other than for ingress and egress and a declaratory judgment regarding the scope of the right-of-way.⁵

Following a trial to the court, on June 5, 2003, the court issued a comprehensive memorandum of decision addressing the parties' claims. It concluded that the plaintiff had established, by a preponderance of the evidence, the necessary elements to establish a prescriptive easement

873 A.2d 215

for parking motor vehicles in the right-of-way. Specifically, the court found that the Eatons, between 1948 and 1963, had made open, visible and continuous use of the right-of-way for parking motor vehicles under a claim of right, and that such use applied to establish the requisite fifteen year prescriptive period even though for some portion of it, the Eatons were only tenants, rather than owners, of 3 Madeline Avenue. It found further that the Eatons' adverse use inured to the plaintiff as their successor in title and, accordingly, that "the plaintiff's use of the right-of-way includes the right to park motor vehicles thereon." The court granted a declaratory judgment so stating.

The court next considered whether a portion of the right-of-way had been extinguished by the presence of the defendants' deck and shrubs within the right-of-way. It concluded that an easement could be partially extinguished through adverse use by the servient estate holder for the requisite period and that the defendants' deck and shrubbery constituted such use. Specifically, the court found that the defendants' incursion into the right-of-way with their deck and shrubbery was made continuously and under a claim of right for fifteen years. Consequently, the portion of the right-of-way that the deck and shrubbery occupied⁶ had been extinguished. The court granted a declaratory judgment so stating.

The court denied both parties' requests for injunctive relief. It noted that there was no evidence that the defendants had sought to encroach any further on the right-of-way than by the deck and shrubbery and that pursuant to the court's previous findings, the plaintiff's use of the right-of-way was not limited to ingress and egress.

Following the issuance of the court's judgment, both parties filed motions to reargue or to correct the judgment. In their motion, the defendants claimed that the court had misapplied the holdings of Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553 (1936) (Deregibus I), and Deregibus v. Silberman Furniture Co., 124 Conn. 39, 197 A. 760 (1938) (Deregibus II), to the facts at hand and also took issue with the court's factual findings in this regard. In his motion, the plaintiff largely disagreed with the court's factual findings and claimed that the court improperly had found certain of his arguments abandoned due to inadequate briefing. On August 1, 2003, the court issued a second memorandum of decision in response to the parties' motions. It disagreed with the defendants' interpretation of the Deregibus cases and declined to alter its findings that the defendants had obstructed the right-of-way under a claim of right and on a continuous, uninterrupted basis.

Thereafter, the defendants appealed and the plaintiff cross appealed from the court's judgment. Additional facts will be provided as necessary.

I

The defendants raise one claim of error on appeal. They argue that the court's conclusion that the plaintiff had proven the requisite elements for a prescriptive right to park vehicles in the right-of-way was improper because the necessary fifteen year period of adverse use was not established. According to the defendants, under our Supreme Court's holdings in Deregibus I and Deregibus II, the period

873 A.2d 216

during which the Eatons occupied 3 Madeline Avenue either as tenants (August 1, 1948, through July 6, 1950) or as contract purchasers under the bond for deed (July 7, 1950, through June 29, 1956) should not have been included in the court's determination of the length of adverse use. We disagree.

As noted by the court, "[e]asements for a specified purpose, whether express or otherwise, may be prescriptively enlarged by additional uses over time." See generally annot., 110 A.L.R. 915 (1937). To establish such prescriptive enlargement, a party with an express easement must show that it used the easement in a manner not contemplated by the terms of the grant, and that it did so openly and visibly, continuously and uninterruptedly, and under a claim of right for the prescriptive period, here, fifteen years. See Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998); Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936); see also General Statutes § 47-37. These elements must be proven by a fair preponderance...