Jespersen v. Jespersen
| Decision Date | 23 August 2018 |
| Docket Number | LLICV176015099S |
| Court | Connecticut Superior Court |
| Parties | Peter H. JESPERSEN v. Donald R. JESPERSEN, Jr. et al. |
UNPUBLISHED OPINION
This matter involves claims of adverse possession and prescriptive easement. The plaintiff, Peter H. Jespersen, brings this action against the defendants: his brother, Donald R Jespersen, Jr. (hereinafter "defendant") and his sister-in-law, M. Dawn Jespersen. The parties have owned adjoining parcels of land for more than thirty years.
In the first count of the complaint, dated March 7, 2017, the plaintiff alleges that he has openly, exclusively continuously and hostily occupied, maintained and enjoyed, under claim of right, a strip of land owned by the defendant commencing from a point approximately four feet (4′ ) south of the northwesterly most corner of the defendant’s property, thence running easterly approximately 274.43 feet along the entire length of the parties’ common property line. The use includes, but is not limited to, the plaintiff’s installation and use of his driveway which partially occupies said four-foot (4′ ) wide strip of land, and all of such usages have been continuous and uninterrupted for approximately thirty-five (35) years, and the plaintiff has thereby acquired all legal right and title to the use, enjoyment and ownership of said strip of land as above-described. Furthermore, the use includes the plaintiff’s mowing, planting grass and flowers, snow plowing, raking leaves and re-seeding areas every time they were disturbed by his plowing. The plaintiff seeks a court judgment quieting title in the plaintiff as against the defendants to all those portions of the four-foot (4′ ) strip of land occupied as a driveway area, including the remainder of said strip of land used, maintained, and enjoyed by the plaintiff as hereinafter described.
In the second count, the plaintiff alleges that as a result of such possession and the continuous use of the driveway area as the plaintiff’s only means of ingress and egress to his property, he has acquired a prescriptive easement as to the entire driveway area and/or to those portions of the driveway area continuously used by the plaintiff that are a part of the defendant’s property.
The plaintiff requests that the court: quiet title to the disputed area in favor of the plaintiff; find that the plaintiff has acquired title to the disputed area by way of adverse possession; find that the plaintiff has acquired a prescriptive easement upon and around the areas of the defendants’ property where plaintiff’s driveway is located; award money damages; and such other and further relief as the Court deems just and appropriate.
The defendants deny the plaintiff’s claims of adverse possession and prescriptive easement.
The matter was tried on May 10, 2018. In considering the evidence, in addition to evaluating the testimony, the court also drew reasonable inferences from the facts established in this case. The court took into consideration, as well, all direct and circumstantial evidence presented. The court evaluated the witnesses who came before it, taking into account not only their spoken testimony, but also their ability to perceive the things about which they testified; their ability to recall relevant facts and events; any interest that they may have had in the outcome; the reasonableness of their testimony; and any contradictions that arose between their testimony and other evidence introduced at the hearing. The court’s conclusions are based upon all of the foregoing factors.
For the reasons stated below, the court finds that the plaintiff has failed to prove his claims of adverse possession and prescriptive easement by the requisite standard of proof.
The plaintiff is the owner of the real property located at 86 Old North Road, Barkhamsted, Connecticut. The plaintiff first acquired title to his property by a deed dated June 30, 1983 and later by a quit claim deed from his ex-wife dated, November 20, 1984. The defendants are the owners of the real property at 84 Old North Road, Barkhamsted, Connecticut. The defendants acquired title to their property by a deed dated September 23, 1976. Peter and Donald are brothers and both acquired the respective properties from their parents (now deceased).
The parties share a common property line approximately 274.43 feet in length. The southern portion of the plaintiff’s property borders the defendants’ property. The disputed area is roughly five feet wide and runs the length of the plaintiff’s property. Old North Road runs to the west of the properties. The eastern edge of the property line is woods.
The plaintiff has lived at 86 Old North Road since 1976. He purchased the property from his parents and was deeded the property in 1983. When he purchased the property, he was not aware that his father had surveys done in the early 1970s, as he was in the service at the time.
In 1998, the plaintiff removed the existing house and began building an entirely new house. The plaintiff originally testified that he did not think a survey was done until 2016, although he later acknowledged that an as-built survey was done around the time that he built his new house. Defendant’s Exhibit No. A is an as-built survey completed in October 1998. It was needed to locate the new home on the plaintiff’s property and obtain local approval. The as-built survey was done by the surveying firm where his brother worked. The defendant did field work for the survey and Robert Sterling prepared the map. The new house was not built on the same footprint but was positioned more centrally.
During this period, the plaintiff also rebuilt the driveway on the same footprint, which is close to his brother’s property. He used material from the old house for the base and gravel for the top. The driveway is the only means of access to the plaintiff’s property. He does not think that the driveway has migrated towards the defendants’ property over time.
The credible evidence showed that when the new house and driveway were being built, the plaintiff asked the defendant for permission to take down a large tree that was at least partially in the disputed area. After the tree was cut down, the defendant helped clean up and used the trunk/branches for firewood.
Over time, the defendants developed the property bordering the plaintiff’s property. They planted lilac bushes and evergreens. They also built a wood fence enclosure to keep animals. One side of the wood fence was on the same line as the lilac bushes and evergreens. The plaintiff thought that the lilac bushes, evergreens and enclosure fence were on the property line.
The plaintiff did general maintenance of the disputed area north of the line of lilac bushes/evergreens/wood fence, including mowing and raking. He re-seeded the grass when needed. He used a tractor to maintain the gravel driveway. His brother never told him to stop maintaining the disputed area. Although the plaintiff claimed that he never saw the defendants come over to the disputed area and do any maintenance, the defendants testified to the contrary. The credible evidence showed that although the plaintiff mostly maintained the disputed area, which was closer to his home, the defendants also maintained the area over the years.
As a hobby, the plaintiff restores old cars and motorcycles. He does work in his garage and has parked vehicles in the disputed area. On Tuesday evenings, several of his friends would usually come over to talk and work on the old vehicles.
In 2016, the plaintiff had a survey done because he planned to swap some property with his neighbor to the north. Around the same time, the brothers’ relationship deteriorated after their parents passed away and there were some family disagreements regarding the parents’ estate. The defendants also had a survey done and later put up stakes. After the defendant put up stakes, the plaintiff removed a pile of wood and a section of fence that was on the defendants’ property. The defendants subsequently put up a six- and one-half-foot vinyl fence along the property line. The plaintiff thought that the vinyl fence was put up on his side of the property line, but it was actually one foot or so from the property line. The plaintiff testified that the defendants never gave him a reason for putting up the vinyl fence. The plaintiff claims that the vinyl fence impedes the use of his driveway. However, he is still able to use his tractor to maintain the gravel driveway but has to be careful not to hit the vinyl fence.
The plaintiff’s significant other, Karen Palmer, has lived at 86 Old North Road for fourteen years. She planted flowers along the wood fence. The flower bed was 2-3 feet wide and 10-12 feet in length. She helped the plaintiff maintain the disputed area. In 2016, she observed the defendant and another person survey the property line and put in pins and stakes. At some point before the vinyl fence was installed, the defendant mowed the flower bed. The flower bed was on the defendants’ side of the pinned/staked area. Since the vinyl fence was installed, Palmer has difficulties turning around in the driveway because the fence is so close to the plaintiff’s driveway.
The plaintiff’s friend, Dale Smith, helped with the construction of the new house and driveway. He has known the brothers for a long time and has been visiting the plaintiff since the 1970s. Smith thought that the line of lilac bushes/evergreens/wood fence was the property line. Smith observed the plaintiff maintain the disputed area.
The plaintiff’s neighbor to the north, Howard Ives, has lived there basically all of his life. He has participated in the Tuesday night...
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