Gallo-Mure v. Tomchik

• Decision Date: 19 August 2003
• Docket Number: (AC 22606)
• Court: Connecticut Court of Appeals
• Parties: FRANCINE M. GALLO-MURE v. JAMES TOMCHIK ET AL.

78 Conn. App. 699

829 A.2d 8

FRANCINE M. GALLO-MURE v. JAMES TOMCHIK ET AL.

(AC 22606)

Appellate Court of Connecticut

Argued May 30, 2003.

Officially released August 19, 2003.

Schaller, Flynn and West, Js. Brian P. Daniels, for the appellants (defendants).

Vincent N. Amendola, Jr., for the appellee (plaintiff).

Opinion

FLYNN, J.

The defendants, James Tomchik, Maureen Tomchik, Frank Bisecco and Betsy Bisecco, appeal from the trial court's judgment determining that the plaintiff, Francine M. Gallo-Mure, holds a prescriptive easement over the defendants' premises. The defendants argue on appeal that the court acted improperly in two ways: (1) its factual finding of "implied consent" in its first articulation was inconsistent with its judgment granting a prescriptive easement; and (2) the court's finding of continuous use of the property was clearly erroneous in light of the evidence presented that a fence had blocked the plaintiff's access from 1971 through 1986. We are not persuaded by either claim and therefore affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff has lived on her property at 15 Annawon Avenue in West Haven since May, 1971. The defendants all reside on Ocean Avenue, which runs perpendicular to Annawon Avenue. The Biseccos moved to 185 Ocean Avenue in 1996, and the Tomchiks moved in next door at 183 Ocean Avenue in 1999. These two lots are adjacent to each other and are bordered on the south by Long Island Sound. The defendants share a common driveway that allows them to access Ocean Avenue. This driveway runs behind the rear of the plaintiff's property on Annawon Avenue. The underlying claim ensued when the Tomchiks began constructing a fence that would have blocked the plaintiff's access to the driveway.

The plaintiff claimed that she had prescriptive easement rights to drive on the defendants' driveway and to park her vehicles on it because she had used the property openly, visibly, continuously and uninterrupted for more than fifteen years under a claim of right. The plaintiff sought and was granted a temporary injunction until such time as the matter could be resolved.¹ At the ensuing trial to the court, the plaintiff testified that she had been using the driveway as a right-of-way to access the rear of her property and to park her vehicles since she moved to Annawon Avenue in 1971. The plaintiff testified that she had never sought nor received permission from any of the Ocean Avenue property owners and denied the allegation that a fence had ever blocked her from accessing the right-of-way. The defendants presented testimony and evidence, which the plaintiff disputed, that the plaintiff had sought and received permission from some of the owners of the Ocean Avenue properties, and that a fence had existed until the plaintiff commenced renovations on her property in 1986.

The court made the following findings. First, the court found that the plaintiff had begun using the right-of-way immediately upon moving to the property in 1971 and that this use was made without objection from her then neighbor, Robert Squeglia, one of the predecessors in title to the Tomchiks. Second, the court found that the plaintiff "at all times" indicated that she had a right to use the driveway for access and that "no one was going to stop her." Third, the court found that the plaintiff had sufficiently proved that her use of the right-of-way was continuous by a preponderance of the evidence, despite the evidence presented by the defendants that a fence formerly had extended across the rear of the plaintiff's property, blocking her access to the right-of-way. On the basis of its findings, the court concluded that the plaintiff had shown by a fair preponderance of the evidence that she had made use of the common driveway in an open, visible, continuous and uninterrupted manner in excess of fifteen years under a claim of right. However, the court found that the plaintiff did not meet her burden of proof in establishing the elements of a prescriptive right to park her vehicles on the driveway, stating in particular that "[w]hen asked to move [her] vehicles, [she] did so even to the extent of her husband parking his vehicle on Annawon Avenue when asked to remove it." Posttrial, the defendants filed a motion for articulation of the memorandum of decision. The court subsequently issued two articulations, one of which contains the basis of one of the defendants' claimed errors.

I

We first address the defendants' claim that the court's factual finding of implied consent in its first articulation was inconsistent with its ultimate finding of a prescriptive easement. The court's finding read: "As for the issue of implied consent, the testimony of Mr. Squeglia and [Donna] Buonfiglio indicates that there was an implied consent on their part. In fact, both Squeglia's and Buonfiglio's testimony showed an acquiescence as to her use of their property. Mr. Squeglia even asked her to participate in the cost of snow removal since she was making use of the property." (Emphasis added.) The defendants argue that the court's use of the term "implied consent" requires a reversal of the court's decision because this term is inconsistent with the legal conclusion that a prescriptive easement existed.² We conclude that the court's findings of fact were not legally or logically inconsistent with its conclusion that a prescriptive easement existed and, therefore, its conclusion was not improper.

There is a dispute among the parties regarding the standard of review for the defendants' claim. The defendants argue that we must use plenary review to determine whether the trial court's conclusion that a prescriptive easement existed is legally and logically correct and finds support in the facts set forth in the memorandum of decision. The plaintiff argues that the establishment of a prescriptive easement is a question of fact, and, therefore, the clearly erroneous standard of review is appropriate. The plaintiff is correct that, generally, "[w]hether 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." (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). However, except as to the defendant's claims as to a fence interrupting the necessary fifteen year continuous use to establish a prescriptive easement, the court's factual findings in the present case are not challenged by either party. The only issue raised by the defendants' first claim is whether the trial court's conclusion that a prescriptive easement existed was inconsistent with its subordinate factual findings. Therefore, we apply the following standard of review to the first claim. "[Findings of fact] that there had been an open, visible, continuous and uninterrupted use for fifteen years under a claim of right, as found by the trial court, are not reviewable unless the subordinate facts on which they are based are legally and logically inconsistent or are insufficient to support the conclusion that they exist." Wadsworth v. Zahariades, 1 Conn. App. 373, 376, 472 A.2d 29 (1984).

We begin our analysis by setting forth the elements necessary to establish a prescriptive easement. "[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence." (Citation omitted.) Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995). "To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised.. . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use." (Citation omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 159, 783 A.2d 1226 (2001). "Use by express or implied permission or license cannot ripen into an easement by prescription." Phillips v. Bonadies, 105 Conn. 722, 725, 136 A. 684 (1927).

After reviewing the memorandum of decision, the court's articulations, the record and the parties' briefs, we have reached three conclusions. First, the word "consent" is not synonymous with the word "permission" in its legal application to easements. Second, there is a cognizable difference between permissive use of property and "passive acquiescence" by owners in the use of their property. Third, and finally, the court did not find that the plaintiff's use was permissive, but rather, it found that such use was with the acquiescence of the owners of the servient tenement, which, under our law, does not negate a claim of right. Therefore, the court's judgment that there was a prescriptive easement is not illogical or inconsistent with a finding of implied consent.

In examining this issue, we first address whether "permission" equates to "consent" under the law. Although in everyday use, the words are often used interchangeably, our case law uses "permission" when reviewing prescriptive easement claims. To defeat a finding of use as a claim of right, which is required to establish a prescriptive easement, the word "permission" is invariably used. See Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 860, 786 A.2d 436 (2001).³ "Permission" generally is preceded by the term "license" in prescriptive easement cases. See id. However, the word "consent" is not listed with these two terms. The defendants improperly have equated "implied consent" with "permission" without citing to one instance in which "implied consent"...