Klar Crest Realty, Inc. v. Rajon Realty Corp.

• Decision Date: 24 May 1983
• Citation: 190 Conn. 163,459 A.2d 1021
• Court: Connecticut Supreme Court
• Parties: KLAR CREST REALTY, INC. v. RAJON REALTY CORPORATION, et al.

Page 1021

459 A.2d 1021

190 Conn. 163

KLAR CREST REALTY, INC. v. RAJON REALTY CORPORATION, et al.

Supreme Court of Connecticut.

Argued March 8, 1983.

Decided May 24, 1983.

William F. Gallagher, New Haven, with whom, on brief, were Leonard J. Powers, Meriden, and Elizabeth A. Dorsey, New Haven, for appellants-appellees (named defendant et al.).

Nancy Conaway-Raczka, Middletown, with whom, on brief, were Joseph E. Milardo, Jr., and Ivar A. Jozus, Middletown, for appellee-appellant (plaintiff).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

In this action the plaintiff sought damages and an injunction against the defendants for interfering with its use of a pent road in East Haddam which crossed the land of the defendant Rajon Realty Corporation and provided access to thirty-three acres of land owned by the plaintiff, referred to by the parties as the Mount Tom lot. The individual defendant Raymond Schmitt was the owner of Rajon Realty Corporation. The trial court, on the basis of the answers given by the jury to two interrogatories submitted to them and their verdict for damages of one dollar, rendered judgment awarding such damages to the plaintiff and enjoining the defendants from interfering with its use of the pent road. The defendants have appealed, raising three claims of error: (1) that there was insufficient evidence to establish the elements necessary to find an easement by prescription; (2) that, although the jury failed to determine the bounds of the prescriptive easement, the court, nevertheless, did so; and (3) that the verdict was inconsistent because the jury found against both defendants on a count directed against only one of them. The plaintiff filed a cross appeal because the jury failed to find in its favor upon an alternative ground. We find no error on the appeal and, therefore, find it unnecessary to consider the issues raised by the cross appeal. ¹

There is no significant dispute about the facts which the jury could reasonably have found from the evidence. The title of the land owned by the corporate defendant, which is crossed by the pent road, was traced back to Caleb Chapman, who conveyed it to Timothy Chapman on October 12, 1773, with a reservation of a pent highway laid out upon the property. A pent highway is a road which is blocked or fenced at its terminal points. Several deeds in the chain of title refer to the pent highway. In 1935, one of the predecessors in title, Elsie Johnson, conveyed to Yetta Klar, the mother of the officers of the plaintiff corporation and the owner at that time of the Mount Tom lot, a right of way over the pent highway. Apparently the purpose of this grant was to enable Yetta Klar to obtain a mortgage loan to be secured by the Mount Tom lot as well as by other land which she held. Twenty days after acquiring the right of way she executed such a mortgage, which refers to the right of way received from Elsie Johnson. In 1932, however, Elsie Johnson had transferred to the Neptune Twine and Cord Company the southerly portion of the land crossed by the pent road, and her grant of a right of way, therefore, was effective only for the portion of the pent road which crossed the land she retained, the northerly piece. ² The defendant corporation has acquired both these parcels of land.

The pent road extends westerly for a distance of about a half mile, from a public highway in East Haddam, Johnsonville Road, where it is fenced by a gate, to a brook, and it bounds the Mount Tom lot owned by the plaintiff on the east. The road is unpaved but its course is readily discernible. Several witnesses who had lived in East Haddam testified that they had used the road at various times over a period of more than fifty years, sometimes with and sometimes without permission of the landowners, for various recreational purposes, such as fishing in the brook to which it led, hiking and hunting. David Klar, president of the plaintiff corporation, testified that he and other members of his family had used the road since 1933, when the Mount Tom lot was purchased and was used in conjunction with the operation of a dairy farm by the Klar family. Cows were grazed on the Mount Tom lot from 1933 to 1949 and the road was frequently traveled in attending to these animals. During the 1940's the family used the road to haul wood from the Mount Tom lot in a truck. At some time during the 1950's a lock was placed on the gate by the owners of the northerly piece of land, which was later acquired from the estate of Mary Dougherty. Mr. Dougherty, who had chained the gate, told David Klar that he could obtain the key at any time. David Klar, however, never requested the key and ceased using the gate. He continued, however, to use the pent road by going through a narrow opening on the right side. His use of the pent road was mainly on foot after the gate became locked. By this time the Mount Tom lot was being used only for recreational purposes. On two occasions, once in 1949 and once in the 1950's, he broke the chain on the gate and drove a vehicle on the pent road. About ten years before trial the individual defendant, Raymond Schmitt, had bulldozed the lower portion of the pent road and had rendered it impassable by vehicle.

The jury answered the two interrogatories which were submitted to them as follows: "(1) Did Klar Crest Realty, Inc. or its predecessors in title acquire a right to use the so called pentway by deed or, conveyance, or reservation? No. (2) Did the plaintiff Klar Crest Realty, Inc. and its predecessors in title make an open and visible use of the pathway under a claim of right continuously and without interruption for a period of fifteen years? Yes." The jury rendered a verdict for one dollar against both defendants.

In claiming a deficiency in the evidence supporting the finding of a prescriptive easement in accordance with General Statutes § 47-37, ³ the defendants focus entirely upon the requirement that the use be under a "claim of right" in order to satisfy the statute. "To acquire a right of way by prescription, there must be a user which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431, 151 A.2d 881 (1959). There can be no claim of right unless the use is without recognition of the rights of the owner of the servient tenement. Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). "A use by express or implied permission or license cannot ripen into an easement by prescription." (Citations omitted.) Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936). "Where the use depends on authority from the owner, it involves a recognition of his right to terminate, which negates the adverse character of the use." (Citation omitted.) Putnam, Coffin & Burr, Inc. v. Halpern, supra, 154 Conn. 515-16, 227 A.2d 83.

The defendants claim that the testimony that numerous residents of the area used the pent highway creates an inference that the public had implied permission to do so and that the use of the road by members of the Klar family was indistinguishable from that of the public. "Where the use of a right of way is in common with the public, that common use is regarded as negating a presumption of grant to any individual use. In such a case the individual user must, in order to establish an independent prescriptive right, perform some act to the knowledge of the servient owner clearly indicating his individual claim of right." Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 464, 338 A.2d 470 (1973); Missionary Society v. Coutu, 134 Conn. 576, 582, 59 A.2d 732 (1948).

We are satisfied from our review of the evidence that the trier of fact could reasonably find that the use of the pent road made by members of the Klar family was sufficiently distinct from that of the general public to indicate a claim of right. Their use was not simply for recreational purposes, like that of others who testified, but from 1933 to 1949 it was in conjunction with their operation of a dairy farm which utilized the Mount Tom lot for grazing. Thereafter, they continued to use the road for access to their property from Johnsonville Road. Most significantly, the grant of a right of way was obtained from Elsie Johnson purporting to give Yetta Klar a right to use the road for its entire length, and she, in turn, included this means of access to the Mount Tom lot in a mortgage deed which she executed containing the usual covenants of seisin and right to convey. Although this grant may have been ineffective with respect to any portion of the road located upon the southerly piece, which Elsie Johnson had previously transferred, it does indicate that the use of the road by the Klar family was under a claim of right. "[W]here the use began as the result of an ineffective or invalid grant, that fact does not negate its adverse character but tends rather to emphasize that it was made under a claim of right." Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951); Alling Realty Co. v. Olderman, 90 Conn. 241, 247, 96 A. 944 (1916). We have frequently recognized the...