Chase & Chase, LLC v. Waterbury Realty, LLC, AC 33532

• Decision Date: 25 September 2012
• Docket Number: AC 33532
• Court: Connecticut Court of Appeals
• Parties: CHASE AND CHASE, LLC v. WATERBURY REALTY, LLC, ET AL.

CHASE AND CHASE, LLC v. WATERBURY REALTY, LLC, ET AL.

AC 33532

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 15, 2012

officially released September 25, 2012

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(Appeal from Superior Court, judicial district of

Waterbury, Hon. Joseph H. Pellegrino, judge trial

referee.)

James R. Winkel, with whom, on the brief, was William T. Blake, for the appellant (named defendant).

Bridget C. Gallagher, with whom was Jared D. Cantor, for the appellee (plaintiff).

Opinion

LAVINE, J. This appeal centers on an easement for shared use of a commercial driveway over one parcel of land in Waterbury to access an adjacent parcel. The defendant Waterbury Realty, LLC,¹ appeals from the judgment of the trial court, rendered in favor of the plaintiff, Chase & Chase, LLC. On appeal, the defendant claims that the trial court improperly found that (1) the plaintiff was entitled to a prescriptive easement over the driveway, (2) the plaintiff was entitled to an implied easement over the driveway² and (3) the defendant's actions in placing a fence in front of the driveway constituted a malicious erection of a structure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Prior to 1973, the plaintiff's parcel and the defendant's parcel constituted a single parcel of land owned by Great Brook Realty, Inc. (Great Brook). In 1973, Great Brook subdivided the property into two parcels, one known as 40 East Farm Street (East Farm property) and the other known as 730 North Main Street (North Main property). In 1973, Great Brook transferred the East Farm property to Marktel Realty. After various conveyances,³ the plaintiff acquired title to the East Farm property in 1997. In 2001, Great Brook conveyed the North Main property to the defendant.

The East Farm property borders East Farm Street to its north and Orange Street to its east. It contains two structures: a large main building located at the corner of East Farm Street and Orange Street, and a smaller garage to the south of the main building. The North Main property is west of the East Farm property and also borders East Farm Street to its north. There is approximately twelve feet between the western side of the East Farm property main building and the North Main property boundary line.

A driveway located mostly on the North Main property opens onto East Farm Street and leads south adjacent to the western side of the East Farm property main building.⁴ The owners and occupants of both properties use the driveway to access the properties. From at least the time of the subdivision to the present, the only means of ingress and egress for vehicles using the East Farm property has been the driveway.⁵ Tenants, customers and suppliers, using various sized trucks, travel on the driveway to access loading docks attached to the main building on the East Farm property. Additionally, tenants, customers and suppliers travel on the driveway to access parking spaces on the west and south side of the main building. Because there is only twelve feet between the western side of the main building and the North Main property boundary line, trucks and smaller vehicles also cross onto the North Main property when parked at the loading docks or the parking spaces onthe west side of the main building. These uses of the defendant's property have been continuous from 1973 until the time of trial.

Since at least the time of the subdivision, the entranceway to the driveway has had a locked gate. The lock's purpose was to keep trespassers off the North Main and East Farm properties at night. The last person to leave the premises locked the gate at night, and the first person to arrive in the morning unlocked it. The owners of both properties gave their respective tenants keys to the lock. The owners of the East Farm property replaced the lock over the years. At least one tenant of the North Main property replaced the lock on his own initiative without obtaining the consent of the owner of the North Main property. In 2004, the defendant replaced the gate with a new one and distributed keys to the tenants of the North Main property and to the plaintiff and the tenants of the East Farm property.

In February, 2009, the defendant informed the plaintiff that the defendant intended to erect a fence on the driveway along the boundary between the two parcels. The fence would prevent all vehicular traffic from accessing the main building on the East Farm property. The plaintiff's attorney informed the defendant that the plaintiff claimed to have a prescriptive easement over the driveway. Despite this claim, the defendant erected the fence.⁶ The plaintiff then brought this action against the defendant alleging that it had acquired a prescriptive easement and an implied easement over the driveway, and seeking to quiet title to its easements and injunctive relief in accordance with the easements. The plaintiff also alleged that the defendant maliciously erected a fence over the easement area and sought injunctive relief in accordance with its malicious erection of a fence claim.⁷

Following a trial to the court, during which the court heard testimony from, among others, current and former tenants, relatives of deceased predecessors in interest, and agents of predecessors in interest, the court found that the plaintiff had established that it acquired a prescriptive easement and an implied easement over the driveway. The court found that the scope of the two easements was depicted in the plaintiff's exhibit number one, a surveyor's map entitled ''Map Showing Historic Truck Access Off Of East Farm Street,'' and the plaintiff's exhibit 1A, which described the proposed easement area in metes and bounds.⁸ The court also explained that ''[t]he plaintiff's use of said easement shall include the right to pass and repass and to maneuver and park trucks, including trailer trucks, within said easement while using the loading docks all as shown on [the] plaintiff's exhibit [number one].''

Regarding the prescriptive easement, the court found that since 1973, the use of the easement area was open, visible, continuous and uninterrupted for fifteen yearsand made under claim of right. The court also found that the defendant did not meet its burden of proving, as a special defense, that the plaintiff's use was permissive. Specifically, the court found that ''[t]here is no credible evidence that [the defendant] or its predecessors in interest installed a lock before 2004, well after the plaintiff acquired its prescriptive easement. Additionally, there is no evidence that before 2004, [the defendant] or its predecessors in interest ever exercised any dominion over the driveway, ever gave permission to the plaintiff to use the driveway or ever told the plaintiff that it could not use the driveway.''

The court also found for the plaintiff on its malicious erection of a fence count, explaining that the plaintiff proved the necessary elements under General Statutes § 52-480. Specifically, the court found: (1) the defendant erected a fence that ''was useless to it''; (2) the defendant ''erected the fence with the intention to injure the enjoyment of the plaintiff's East Farm property''; and (3) ''the erection of the fence has impaired the plaintiff's use of its East Farm property and its value because the fence prohibits the plaintiff, its tenants and their customers from accessing the loading docks of the main building.'' The court granted the plaintiff a permanent injunction barring the defendant ''from constructing any obstacle that would interfere with the plaintiff's use and enjoyment of said easement'' and ordered the defendant to remove the remainder of ''the fence that it constructed on the boundary of the North Main and East Farm properties and [to] restore the East Farm Street driveway to its former condition in the area where the fence was constructed.''

I

The defendant first claims that the court improperly found that the plaintiff was entitled to a prescriptive easement. Specifically, the defendant argues that the plaintiff's use of the driveway was not under a claim of right, was permissive and was the same as that of the general public. The defendant also argues that the plaintiff did not establish the scope of the easement to a reasonable degree of certainty. The plaintiff argues that there was adequate evidentiary support for the court's findings.

The following principles of law and standard of review govern this claim. General Statutes § 47-37 ''provides for the acquisition of an...