Gioielli v. Mallard Cove Condominium Ass'n, Inc.

• Decision Date: 16 May 1995
• Docket Number: No. 13719,13719
• Citation: 37 Conn.App. 822,658 A.2d 134
• Parties: Edmond G. GIOIELLI, Jr. v. MALLARD COVE CONDOMINIUM ASSOCIATION, INC.
• Court: Connecticut Court of Appeals

Page 134

658 A.2d 134

37 Conn.App. 822

Edmond G. GIOIELLI, Jr. v.MALLARD COVE CONDOMINIUM ASSOCIATION, INC.

No. 13719.

Appellate Court of Connecticut.

Submitted on Briefs March 17, 1995.

Decided May 16, 1995.

Frank C. White, Jr., Middletown, filed a brief for the appellant(defendant).

Robert L. Curzan, Middletown, filed a brief for the appellee(plaintiff).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and HENNESSY, JJ.

DUPONT, Chief Judge.

The defendant appeals, after a trial to the court, from a judgment for the plaintiff, granting him an easement by prescription and enjoining the defendant's interference with that easement.¹

The defendant claims that the plaintiff did not sustain his burden of proof and that the trial court improperly (1) granted a permanent injunction when the plaintiff had no prescriptive easement, ²(2) found that any additional use of the right-of-way at issue after 1986 was not an overuse of any previously acquired right, and (3) excluded from evidence an aerial photograph of the property.We affirm the decision of the trial court.

When the factual basis of a trial court decision is challenged, our scope of review is limited to a determination of whether the facts set out in the memorandum of decision are supported by the evidence, or whether, in light of the evidence and pleadings in the whole record, those facts are clearly erroneous.Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 558, 524 A.2d 667(1987).The elements of prescriptive use are questions of fact for the trial court and should not be disturbed absent a finding, upon review, that the facts were legally and logically inconsistent with the subordinate facts.Wad Realty, Inc. v. Licamele, 1 Conn.App. 371, 372, 472 A.2d 352(1984).The defendant's claims that the plaintiff did not sustain his burden of proof and that the court should have found an overuse of the right-of-way are attacks on the factual findings of the court from which the court concluded that the plaintiff had established an easement by prescription.We review those claims, therefore, against the background of the procedural facts of the appeal and the facts that the court found or could have found reasonably from the testimony and evidence.

The plaintiff filed suit against the defendant because the defendant blocked the plaintiff's access to a portion of a private road known as Carrier Road.The plaintiff claimed that he had acquired a right-of-way over Carrier Road by prescriptive easement.The defendant condominium association is the owner and possessor of a parcel of land that includes Carrier Road.Carrier Road borders the plaintiff's tract of land on the west and the north.Approval for the construction of the Mallard Cove condominium complex was granted on May 23, 1986.

The plaintiff is the owner and possessor of a certain parcel of land known as 27-29 East High Street in the town of East Hampton.The East High Street property is a commercial building that was once partially used as a restaurant, but since 1952 has been used by the plaintiff and his immediate predecessor in title, his father, for a dry cleaning business and a video store.In 1986, the plaintiff improved 27-29 East High Street by adding a second floor.The plaintiff and his father have owned and exercised dominion over this property since 1952.The plaintiff received the property from his father in 1985.

The plaintiff's property also includes a triangular parcel of land acquired in 1952 by the plaintiff's father from the Carrier family by quitclaim deed.This parcel is bound on the west by Carrier Road.Its other boundaries are 27-29 East High Street and Route 66, a public highway that passes the plaintiff's land on the south side.We will refer to both of these parcels as the plaintiff's property.The portion of Carrier Road bordering the plaintiff's property and leading to Route 66 is the portion of land over which the plaintiff claims to have acquired a prescriptive easement.

In the 1930s and 1940s, the public frequently used Carrier Road for, among other things, access to a casino, a skating rink, and a nearby lake.The public use of Carrier Road declined through the 1940s and 1950s and by the mid 1960s, there was little public use.Previously, there were houses and an automobile dealership on Carrier Road.The residents of those houses and the automobile dealer made frequent use of Carrier Road.Carrier Road has at all times been a private road.There was testimony that both the town and the automobile dealership had plowed the road.

When the plaintiff's father purchased the property in 1952, there was a discernable driveway between his property and Carrier Road.³At present, there is a paved driveway.The plaintiff testified that he paved the driveway, but he did not testify as to when.

Since 1952 and until the commencement of this action, the plaintiff and his father openly used the driveway and its access to Carrier Road for the conduct of their businesses.The plaintiff testified that his father began using the road because it was used by the public.⁴The driveway and Carrier Road were also used by customers and by service and delivery people for both ingress and egress to 27-29 East High Street.The trial court found that the second story addition to 27-29 East High Street did not cause a noticeable increase in the use of the driveway and Carrier Road for ingress and egress to the premises, even though the video store has a drop box in the back of the building.The plaintiff testified that a maximum of ten to twelve cars per day use the driveway for access to Carrier Road.

The driveway that extends from the plaintiff's premises to Carrier Road is approximately twenty feet wide.Through the years, it has had its area of abutment with Carrier Road paved by both the town and others.Carrier Road is slightly elevated over the plaintiff's driveway.The driveway is not fused with Carrier Road.

In February, 1986, when the plaintiff filed an application with the East Hampton zoning commission for site plan approval to add a second floor to the premises, the driveway was noted on the zoning records.The plaintiff's application, introduced into evidence during the trial as a public document, included a map that distinctly outlined the driveway and its access to Carrier Road as well as the triangular piece of land bordering Carrier Road, where the plaintiff represented that there were four to five parking spaces for his customers.The plaintiff's application was approved in March, 1986.

In October, 1986, the defendant's predecessor in title filed a declaration for the purpose of creating the Mallard Cove Condominium Complex.The declaration was recorded in the East Hampton land records on November 6, 1986, and was also introduced into evidence during the trial as a public document.The real property described in the declaration included the private roadway known as Carrier Road.The declaration included several surveys and attachments.One survey lists easements and has the notation "Rights to use private drive for egress to East High Street in favor of Gioielli."The record does not indicate who made that notation on the document.East High Street, also known as Route 66, is the roadway that runs in front of the plaintiff's premises.

Neither the plaintiff nor his predecessor in title ever inquired or sought permission to use Carrier Road, nor was permission ever granted by anyone to the plaintiff to use this roadway for access to the rear of the plaintiff's property.The plaintiff testified that he had once been approached by a local land developer about the plaintiff's purchasing a right-of-way.⁵The plaintiff declined the offer, believing that he and his father had used Carrier Road for so long that he did not need one.

In 1992, the defendant attempted to block the plaintiff's driveway, and consequently the plaintiff's access to Carrier Road, by planting trees on Carrier Road.Prior to the defendants' actions in 1992, Carrier Road was never blocked and the plaintiff was never denied access to Carrier Road.The defendant attempted to break up the pavement at the end of the driveway with a jackhammer to plant the trees.The plaintiff's father called the police.The plaintiff immediately obtained an injunction against the defendant and thereafter brought this action.The plaintiff testified that for a brief time after he had told the defendants not to break up the driveway, the defendant placed sawhorses in front of the driveway to prevent access to and from the plaintiff's premises via Carrier Road.The plaintiff removed the sawhorses and eventually the defendant stopped placing them there.

At trial, after the conclusion of the plaintiff's evidence, the defendant made a motion to dismiss for failure to make a prima facie case.The court denied the motion.The defendant thereafter did not produce any of its own evidence, although it had tried unsuccessfully to introduce an aerial photograph of the plaintiff's premises during the cross-examination of the plaintiff.

The trial court found that the plaintiff's use of the portion of Carrier Road abutting the plaintiff's driveway was open, visible, and continuous since 1952, and used under a claim of right to the extent that it put the owner of the fee to Carrier Road on notice of the distinct and adverse use being made of this southern portion of Carrier Road by the plaintiff and his predecessors in title.The trial court also found that there is a discernible, regularly used route of travel followed by the plaintiff, its customers, and others, on the portion of Carrier Road leading to the plaintiff's driveway, for the distinct purpose of access to the plaintiff's property.The court also found that anyone traveling on Carrier Road could easily distinguish the driveway entrance to the plaintiff's property as a distinct and separate use of that portion of Carrier Road.

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