Crandall v. Gould, 15780

• Decision Date: 28 April 1998
• Docket Number: No. 15780,15780
• Citation: 244 Conn. 583,711 A.2d 682
• Court: Connecticut Supreme Court
• Parties: Donald B. CRANDALL et al. v. Lucy Barker GOULD et al.

Page 682

711 A.2d 682

244 Conn. 583

Donald B. CRANDALL et al. v. Lucy Barker GOULD et al.

No. 15780.

Supreme Court of Connecticut.

Argued Feb. 20, 1998.

Decided April 28, 1998.

Edward B. O'Connell, New London, for appellants (defendants).

John C. Levanti, Westerly, for appellees (plaintiffs).

Before BORDEN, BERDON, NORCOTT, KATZ and PETERS, JJ.

BERDON, Associate Justice.

The dispositive issue in this certified appeal is whether the plaintiffs' use of a private way across the defendants' property occurred under a claim of right so as to allow the plaintiffs to acquire an easement by adverse use across the defendants' property pursuant to General Statutes § 47-37, ¹ when the adverse use is alleged to have violated a permanent injunction that prohibits the plaintiffs from interfering with the defendants' use and enjoyment of the property.

The plaintiffs, Donald B. Crandall and Anna Crandall, claim to have acquired an easement across a portion of property belonging to the defendants, ² Lucy Barker Gould and William S. Keegan, as a result of their adverse, continuous and uninterrupted use of that portion of the defendants' property as a means of ingress and egress to their own property for a period of approximately twenty-nine years. In 1993, the defendants erected a fence that prevented the plaintiffs from persisting in their use of the disputed portion of the defendants' property to access their own property. Thereafter, the plaintiffs filed a complaint seeking to have the defendants' continuing act of obstructing access to their property across the defendants' property enjoined. The trial court rendered judgment in accordance with the recommendations of the attorney trial referee, concluding that the plaintiffs had not acquired an easement by adverse use across the defendants' property because their use of the private way did not occur under a valid claim of right. The plaintiffs appealed to the Appellate Court, which reversed the trial court's judgment. Crandall v. Gould, 46 Conn.App. 164, 170, 698 A.2d 934 (1997). Subsequently we granted the defendants' petition for certification to appeal to this court. ³ Crandall v. Gould, 243 Conn. 928, 701 A.2d 657 (1997).

The opinion of the Appellate Court sets forth the relevant facts as found by the attorney trial referee. "The plaintiffs ... own property located at 283 River Road in the town of Stonington. The defendants ... own property, including a [private way], ⁴ that abuts the property owned by the plaintiffs.

"A fence was constructed along the [private way] in 1960. In 1960, in the case Maggs v. Crandall, Court of Common Pleas, Docket No. 16945 (November 22, 1960), [William S. Maggs] the defendants' [predecessor] in title, obtained a permanent injunction [hereinafter, 1960 permanent injunction] against Donald Crandall, a plaintiff in this action, enjoining him, his servants and agents 'from interfering with [Maggs'] use and enjoyment of said right-of-way and also from interfering with [Maggs'] construction and maintenance of a substantial legal fence or wall. ⁵

"In 1964, the plaintiffs removed a section of the fence. The plaintiffs used the front portion of the [private way] to the opening of the fence as a means of gaining vehicular access to their property from River Road. More recently, disputes between the defendants and the plaintiffs have arisen over the use of the [private way]. A chain-link fence was erected in 1993 along the boundary line between the roadway on the defendants' property and the plaintiffs' lot.

"In 1993, the plaintiffs commenced this action seeking to enjoin the defendants from interfering with their use of the [private way]. They claim that they have a right-of-way by prescriptive easement through use of the [private way] from 1964 to 1993.

"The attorney referee determined that the plaintiffs did not have a right to violate the 1960 permanent injunction order of the Court of Common Pleas. He concluded that the plaintiffs did not have a claim of right to use of the [private way] and, therefore, did not establish an easement by prescription. The attorney referee also concluded that the plaintiffs were not entitled to injunctive relief.

"The attorney referee supplemented his decision, granting the plaintiffs' motion to correct in part and denying it in part. He corrected a number of subordinate factual findings, but did not change his conclusions and recommendations. The trial court denied the plaintiffs' exceptions to the attorney referee report, and rendered judgment in accordance with the report as supplemented by his decision on the plaintiffs' motion to correct. [The plaintiffs'] appeal [to the Appellate Court] followed." Crandall v. Gould, supra, 46 Conn.App. at 165-67, 698 A.2d 934.

The defendants claim that the plaintiffs could not have acquired an easement by adverse use across the defendants' property because the plaintiffs could not have used the property under a valid claim of right in light of the existence of the 1960 permanent injunction. At trial, the defendants did not contest that the plaintiffs had openly, visibly and continuously used the private way across the defendants' property for the length of the statutorily defined period. Instead, they argued then, as they do now, that the 1960 permanent injunction prohibiting the plaintiffs from interfering with the defendants' use and enjoyment of their property precludes the plaintiffs from asserting a valid claim of right to use the private way. Conversely, the plaintiffs contend that the 1960 permanent injunction does not preclude them from asserting a claim of right to use the private way because a claim of right requires only that the use be unaccompanied by any recognition of the rights of the owner of the servient tenement to prevent the use, and such a lack of recognition of the rights of the defendants to prevent the use was present here.

As a threshold matter, we first must determine whether the plaintiffs' conduct in fact violated the 1960 permanent injunction. The plaintiffs argue that their use of the private way did not violate the specific terms of the permanent injunction that was issued in 1960 enjoining the named plaintiff, Donald B. Crandall, his servants and agents from interfering with the use and enjoyment of the private way by Maggs, the defendants' predecessor in interest, and from interfering with Maggs' maintenance of a substantial legal fence or wall. The Appellate Court did not address this argument because it concluded that the existence of the permanent injunction did not bar the plaintiffs from asserting that the use occurred under a claim of right. The trial court and attorney trial referee did not address this argument explicitly, but appear to have decided the parties' claims under the assumption that the plaintiffs' use of the private way from 1964 until 1993 constituted a violation of the permanent injunction. We conclude, as a matter of law, on the basis of the facts found by the attorney trial referee, that the plaintiffs' use of the private way from 1964 until 1993 violated the permanent injunction.

The attorney trial referee determined that the permanent injunction barred " 'Donald B. Crandall, and his servants and agents' " from " 'interfering with [Maggs'] use and enjoyment of said right-of-way and also from interfering with [Maggs'] construction and maintenance of a substantial legal fence or wall.' " Although the plaintiffs argue that the injunction enjoined only the named plaintiff from the specified acts, the attorney trial referee determined that the plaintiff Anna Crandall, the named plaintiff's wife, was acting as the named plaintiff's agent under the circumstances of this case. The plaintiffs have not demonstrated that finding to be clearly erroneous. See Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 714, 687 A.2d 506 (1997). Therefore, the injunction applies equally to Anna Crandall.

The attorney trial referee further determined that in 1960 a fence was constructed by Maggs; that in 1964, the named plaintiff caused a break to be made in the fence; and that subsequently, from 1964 until 1993, the plaintiffs commenced using the private way to gain access to their own property. Although the attorney trial referee did not include a finding in his report that the fence that was constructed in 1960 was "substantial," the plaintiffs do not argue that it was not substantial.

We fail to understand, under these circumstances, how the plaintiffs' actions in removing a portion of that fence and resuming their use of the private way could have occurred without interfering with the defendants' right to maintain a fence and their right to use and enjoy the private way. Although the attorney trial referee, whose report was summarily affirmed by the trial court rendering judgment on it, did not expressly conclude in the report that the plaintiffs' conduct violated the injunction, the factual findings that the referee made compel that conclusion. Therefore, on the basis of those findings, we conclude as a matter of law that the plaintiffs' use of the private way from 1964 until 1993 constituted a violation of the permanent injunction.

The plaintiffs argue that even if their use of the private way during the prescriptive period violated the 1960 permanent injunction, they nevertheless have acquired an easement by adverse use because the injunction did not preclude their use from occurring under a claim of right. In determining the effect of the 1960 permanent injunction on the plaintiffs' ability to assert a valid claim of right, the trial court reasoned that, as a matter of law and equity, the plaintiffs could not claim a right to use the private way because such a claim would amount to a claim of right to violate a permanent injunction ordered by the court. The Appellate Court reversed the trial court judgment because it determined that the existence of the injunction supported a...