McManus v. Roggi

• Decision Date: 29 July 2003
• Docket Number: (AC 21035).
• Citation: 826 A.2d 1275,78 Conn. App. 288
• Court: Connecticut Court of Appeals
• Parties: PATRICK J. MCMANUS ET AL. v. LINDA D. ROGGI

78 Conn. App. 288

826 A.2d 1275

PATRICK J. MCMANUS ET AL. v. LINDA D. ROGGI

(AC 21035).

Appellate Court of Connecticut.

Argued March 31, 2003.

Officially released July 29, 2003.

Lavery, C. J., and West and Stoughton, Js.

Mark W. Dietz, for the appellant (defendant).

Dwight D. Weed, for the appellees (plaintiffs).

Opinion

LAVERY, C.J.

The defendant, Linda D. Roggi, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, Patrick J. McManus and Kathleen M. McManus. On appeal, the defendant claims that the court improperly found that (1) the plaintiffs had obtained a prescriptive easement over the paved area located between the houses of the parties, (2) the paved area was a part of Owens Lane in Glastonbury, (3) the plaintiffs did not abandon a portion of the existing express right-of-way, (4) the defendant was estopped from denying the plaintiffs the right to cross a portion of an earthen dam and bridge located on the defendant's property, and (5) the defendant was not entitled to nominal damages for the plaintiffs' trespass. We affirm in part and reverse in part the judgment of the trial court.

The court found the following facts. The plaintiffs and the defendant own adjoining pieces of property in Glastonbury. The defendant acquired title to property known as 79 Owens Lane by warranty deed, dated March 29, 1994, from Jose R. Lujambio and Katherine Lujambio. The Lujambios had obtained title to the property from Walter J. Traskos and Frances M. Traskos.

The plaintiffs own property known as 80 Owens Lane. The plaintiffs obtained title to that property on December 9, 1994, by a warranty deed from Harriet Beech. Beech had obtained title to the property on May 15, 1979, from Clifford W. Wood and Judith Ann Wood.¹ The Woods took title by a warranty deed dated June 10, 1968, in fee simple. On November 5, 1968, the Woods obtained an easement and a right-of-way, by means of a quitclaim deed, from the Traskoses. Additionally, the Woods received, on May 15, 1979, a warranty deed from Walter Traskos that included a twenty foot right-of-way.² That right-of-way was for the purpose of ingress and egress from Owens Lane to the plaintiffs' property.

Owens Lane connects the properties with Hebron Avenue and is approximately two-tenths of a mile long. Owens Lane³ intersects the north border of the defendant's property. At the beginning of that intersection is a paved area⁴ between the parties' homes, part of which is the location of the twenty foot right-of-way.

After the plaintiffs moved into their residence in early 1995, the parties enjoyed a friendly relationship. Kathleen McManus rented a horse stall in the defendant's barn. Furthermore, the plaintiffs requested and obtained permission from the defendant to expand a dam and bridge further onto the defendant's property.

In 1998, the relationship between the parties began to deteriorate. The defendant took in additional horse boarders and, in a letter dated March 1, 1999, terminated the boarding agreement with Kathleen McManus and requested that she remove all of her personal property as of April 1, 1999. In a letter dated March 15, 1999, the defendant informed Patrick McManus of several instances in which she claimed that he had acted in an inappropriate manner, including accusations of sexual harassment. In August, 1999, the defendant filed a police report, claiming that Kathleen McManus had trespassed on her land for ten to fifteen minutes.

In June, 1999, the defendant began to complain about the plaintiffs' use of the paved area. Previously, she had never attempted to restrict the plaintiffs' use of the paved area to the twenty foot right-of-way. The defendant began to obstruct the plaintiffs' use of the paved area by installing fencing and leaving parked vehicles to prevent use outside of the twenty foot right-of-way. As a result of those actions, delivery vehicles stopped service to the plaintiffs, and the town ceased plowing the area.

On September 13, 1999, the plaintiffs initiated an action by serving a five count complaint on the defendant. The plaintiffs sought to obtain an injunction prohibiting the defendant from interfering with their prescriptive easement that included the entire paved area. The defendant responded by filing an answer, special defenses and a four count counterclaim.⁵ The court issued a memorandum of decision on April 14, 2000, which addressed only the plaintiffs' application for an injunction. The court granted the plaintiffs "full and unfettered use of all the paved area in question, including but not limited to town of Glastonbury maintenance and plowing, and the use by vehicles making deliveries and any necessary parking to unload same." In a memorandum of decision issued on June 21, 2000, the court adopted all of its previous factual findings and legal conclusions, rendered a permanent injunction and awarded the plaintiffs $200 in damages. Furthermore, with respect to the defendant's counterclaim, the court rendered judgment for the plaintiffs.

The defendant timely filed a motion for articulation, requesting that the court (1) define the scope of the plaintiffs' easement, (2) determine whether the paved area located between parties' houses was a part of Owens Lane and (3) explain the nature of the damages award. The court granted the motion and issued its articulation. The court stated that the easement was a right-of-way for travel and that the previous memorandum of decision had set forth the scope of the easement, the paved portion located between the homes was a part of the town road and that damages were awarded for the unnecessary interference with the plaintiffs' use of their rights. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found that the plaintiffs had obtained a prescriptive easement⁶ over the paved area between the homes of the parties. Specifically, the defendant argues that the plaintiff failed to provide evidence that the use of the easement was continuous and uninterrupted under a claim of right. We disagree. At the outset, we set forth the legal principles and standard of review necessary for the resolution of the defendant's appeal. We begin our analysis of the issue by setting forth the requirements for establishing a prescriptive easement. General Statutes § 47-37 concerns the acquisition of easements by adverse use or prescription. Section 47-37 provides: "No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years." "In applying that section, this court repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." (Internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 576-77, 800 A.2d 1102 (2002).

"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. . . . 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. . . . In such cases, the trier's determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached." (Citations omitted; internal quotation marks omitted.) Hoffman Fuel Co. of Danbury v. Elliott, 68 Conn. App. 272, 275-76, 789 A.2d 1149, cert. denied, 260 Conn. 918, 797 A.2d 514 (2002).

Finally, we note that although the court found clear and convincing evidence of a prescriptive easement in favor of the plaintiff, such a high evidentiary hurdle is not required.⁷ Our Supreme Court has stated that "with respect to a claim to a prescriptive easement, [a]ll that is required is a showing by a fair preponderance of the evidence that the use was adverse." (Internal quotation marks omitted.) Schulz v. Syvertsen, 219 Conn. 81, 91, 591 A.2d 804 (1991); see also Hoffman Fuel Co. of Danbury v. Elliott, supra, 68 Conn. App. 277. With the foregoing principles in mind, we now address the merits of the defendant's argument.

A

The defendant argues that the plaintiffs failed to offer evidence of a continuous and uninterrupted use under a claim of right for the necessary fifteen year period. Specifically, the defendant claims that Kathleen McManus testified that she believed that she could use the entire paved area; however, the plaintiffs lived at the property only since 1994. Clifford Wood, who owned the property until 1979, testified that he believed he could use the entire area. Harriet Beech, however, the owner from 1979 until 1994, did not testify. Thus, the defendant argues that there was no evidence that Beech had used the entire area without permission, express or implied, from either the defendant or her predecessors in title for the required time period.

"A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement. . . . 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." (Internal quotation marks omitted.) Hoffman Fuel Co. of Danbury v. Elliott, supra, 68 Conn. App. 279. "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. 4 R. Powell, Real Property (1997) § 34-10, pp. 34-111 through 34-133." (Internal quotation marks omitted.) Kelley...