Faught v. Edgewood Corners, Inc.

• Decision Date: 01 May 2001
• Docket Number: (AC 19629)
• Citation: 63 Conn. App. 164,772 A.2d 1142
• Parties: KATHLEEN T. FAUGHT v. EDGEWOOD CORNERS, INC.
• Court: Connecticut Court of Appeals

63 Conn. App. 164

772 A.2d 1142

KATHLEEN T. FAUGHT v. EDGEWOOD CORNERS, INC.

(AC 19629)

Appellate Court of Connecticut.

Argued November 1, 2000.

Officially released May 1, 2001.

Lavery, C. J., and Mihalakos and Zarella, Js. William F. Gallagher, for the appellant (defendant).

John J. Resnik, with whom was Emily Resnik Conn, for the appellee (plaintiff).

Opinion

LAVERY, C. J.

The defendant, Edgewood Corners, Inc., appeals from the judgment, rendered after a trial to the court, declaring that a prescriptive easement exists in favor of the plaintiff, Kathleen T. Faught,¹ and permanently enjoining the defendant from obstructing the plaintiffs use of that easement. The defendant claims that (1) the evidence is insufficient² to establish that the use was adverse, open and notorious,³ or that the use was made under a claim of right, and (2) a lis pendens and tax liens filed in connection with prior foreclosures on the defendant's property extinguished any prescriptive easement that may have existed.⁴ We affirm the judgment of the trial court. In its memorandum of decision, the court set forth the following facts and procedural history. In November, 1998, the plaintiff filed an action seeking a temporary and permanent injunction, as well as a declaratory judgment, regarding a claimed easement over adjoining land. The defendant, the owner of the adjoining land, opposed such relief.

The plaintiff owns property located at 372 and 374 Whalley Avenue in New Haven. The defendant owns the adjacent property at 376-386 Whalley Avenue. In 1998, the defendant acquired title under a deed from Edgewood Elm Housing. Edgewood Elm Housing took title under a deed from the city of New Haven, and the city took title by foreclosure of tax liens. In 1988, the defendant's predecessor in title filed a notice of prevention of acquisition of an easement on the land records.⁵

The defendant's property includes a building that fronts Whalley Avenue. Behind the building, the defendant's property also includes a large parking area that runs along Norton Street (Norton Street lot). Two curb cuts allow entry from Norton Street into the Norton Street lot. The easement in question is a right-of-way from the first curb cut on Norton Street that runs straight back to a parking area directly behind the 374 Whalley Avenue building.

The history of the properties is instructive. In 1979, the plaintiff began living at 374 Whalley Avenue. Prior owners Max Greenberg and Yale Greenberg sold 374 Whalley Avenue to the plaintiff in 1984, and 372 Whalley Avenue in 1998. The Greenbergs' father owned 374 Whalley Avenue and operated a tailor shop in the building since before World War II. Shortly after the war, the Greenberg brothers bought 372 Whalley Avenue and ran a juvenile furniture store in the building until 1997.

Behind 374 Whalley Avenue, there is room to park several cars. During the entire time that the Greenbergs' father owned and operated the tailor shop, he used the area behind the building to park cars. The Greenberg brothers also drove across the lot and parked in the space behind 374 Whalley Avenue when they owned and operated their furniture store. In addition, while the plaintiff was a tenant at 374 Whalley Avenue and before she bought the building, she and the other tenants routinely drove across the Norton Street lot and parked their cars in the spaces behind the building. The Greenbergs charged tenants a sum in addition to the rent to park there.

The issue in question arises because the only way to get to the parking area behind 374 Whalley Avenue is to drive through the Norton Street lot, which the defendant owns. In November, 1998, the defendant began to build an eight foot fence around the Norton Street lot to prevent the plaintiff and her tenants from reaching the parking area behind her building, and the plaintiff commenced the underlying action. The plaintiff sought both permanent and temporary injunctions, and a declaratory judgment to the effect that a prescriptive easement exists across the defendant's property. The court granted the temporary injunction and directed the parties to make further proposals for the court's approval regarding notice to encumbrancers. The court subsequently rendered a final judgment declaring the existence of the easement and permanently enjoining the defendant from interfering with the plaintiff's use of that easement. The defendant appealed from that judgment.

I

The defendant claims that the plaintiff did not establish an easement by prescription over its property. Specifically, the defendant's claim is that the evidence is insufficient to establish that the use was adverse, open and notorious. "Whether a right-of-way by prescription 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." Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). 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. McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). We conclude that there was sufficient evidence to find that the plaintiff has a right-of-way by prescriptive easement to use the Norton Street lot.

The well established statutory elements necessary to establish an easement by prescription are that the use is "(1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right." Zavisza v. Hastings, 143 Conn. 40, 45, 118 A.2d 902 (1955); see also Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). "A prescriptive easement must be proved by a fair preponderance of the evidence." Simonds v. Shaw, 44 Conn. App. 683, 687, 691 A.2d 1102 (1997).

The Greenbergs and their tenants used the easement across the Norton Street lot for over fifty years. The Greenberg brothers parked their cars in the parking spaces behind 374 Whalley Avenue six days a week for over fifty years while they operated a business in the building. The evidence presented established that the use of the easement has been continuous since World War II and that the prescriptive easement was established long before the plaintiff purchased 374 Whalley Avenue in 1984.

In addition, there is no question that the use was open and visible. The Norton Street lot is an open lot, and the path from the curb cut to the parking spaces behind 374 Whalley Avenue is plainly visible. Both the Greenbergs and the plaintiff testified that they openly drove from Norton Street to the parking spaces behind 374 Whalley Avenue for many years. Given the layout of the property, it would be impossible to get from the street to the parking area without detection.

The defendant also argues that the use was not open and visible because the right-of-way over the paved parking lot was not a clearly delineated path and, thus, the defendant did not have sufficient notice that the plaintiff was using its property under a claim of right.⁶ We disagree.

For more than fifty years, the plaintiff and her predecessors in title had absolute access to the parking area behind 374 Whalley Avenue from the first curb cut set back 112 feet from the intersection of Whalley Avenue and Norton Street in a straight line to the parking area. Indeed, the plaintiff and her predecessors have turned off Norton Street at the first curb cut to drive across the lot to access the parking spaces for over fifty years without interruption. The evidence showing that the only route to the parking lot behind 374 was across the defendant's parking lot, together with the evidence showing that cars have been parked behind 374 Whalley Avenue during all of this time, provided a sufficient basis for the court's conclusion that the defendant had notice of the use.

II

The defendant next claims that the plaintiffs use was not made under a claim of right. We disagree. A use made under a claim of right is a use made "without recognition of the rights of the owner of the servient tenement." Zavisza v. Hastings, supra, 143 Conn. 46. "The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use.... The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement." (Citation omitted; internal quotation marks omitted.) Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). "Whether the requirements for [a claim of] right have been met in a particular case presents a question of fact for the trier of facts.... The trier's determination of facts will be disturbed only when those findings are clearly erroneous." (Citations omitted; internal quotation marks omitted.) DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986).

The use of the lot by the plaintiff and her predecessors was not permissive and was made without any recognition of the defendant's rights to prevent it. The Greenbergs never asked for permission to cross the Norton Street lot to access the parking spaces on their property. In addition, no one ever gave the Greenberg family permission to use the Norton Street lot to access their parking area. A former owner of the Norton Street lot testified that he knew that the owners of the adjoining property were driving across his property to reach their own. The former owner also acknowledged that he never gave permission to cut across his lot to access the parking area behind 374 Whalley Avenue.

The actions of defendant's predecessor in title provide further proof that the plaintiff and the Greenbergs acted under a claim of right. In 1988, the defendant's predecessor in title served on the plaintiff...