Mierzejewski v. Brownell

• Decision Date: 17 July 2007
• Docket Number: No. 26990.,26990.
• Citation: 102 Conn.App. 413,925 A.2d 1126
• Court: Connecticut Court of Appeals
• Parties: Charles D. MIERZEJEWSKI v. Crary BROWNELL.

925 A.2d 1126

102 Conn.App. 413

Charles D. MIERZEJEWSKI v. Crary BROWNELL.

No. 26990.

Appellate Court of Connecticut.

Argued January 16, 2007.

Decided July 17, 2007.

William Howard with whom was David J. Tycz, Middletown, for the appellant (plaintiff).

Scott W. Jezek, Moodus, for the appellee (defendant).

FLYNN, C.J., and DiPENTIMA and ROGERS, Js.

FLYNN, C.J.

The plaintiff, Charles D. Mierzejewski, appeals from the judgment of the trial court rendered in favor of the defendant, Crary Brownell, in this action seeking to extinguish the defendant's right-of-way over the plaintiff's property. On appeal, the plaintiff claims that the court improperly found that he had not proven the extinguishment of the right-of-way. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The parties are the owners of adjoining parcels of land in East Haddam that each abut Lake Bashan. The plaintiff is the owner of an improved parcel of land located at 133 Bashan Road. The defendant's parcel, which is located behind the plaintiff's parcel, is unimproved and landlocked, except for a deeded right-of-way over the plaintiff's property.¹

On October 8, 1958, Arthur Foreman and Lillian M. Foreman acquired approximately 13.2 acres of land from Constance Sauer Cuthbertson by warranty deed, which was recorded in volume 72, page 435, of the East Haddam land records.² On that same day, the Foremans subdivided the 13.2 acre parcel and conveyed 3.1 acres to Nathan Brownell and Crary Brownell by warranty deed, which was recorded in volume 72, page 436. This deed further described the parcel conveyed as "Parcel No. 1" on a map entitled, "Map showing property of Constance S. Cuthbertson," to which we hereinafter refer to as the Cuthbertson map.³

The Brownell parcel had no direct access to any public street. Therefore, the deed from the Foremans to the Brownells granted a right-of-way for the benefit of the Brownells and their heirs and assigns. The deed provided in relevant part: "Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway⁴ and enters upon the granted premises. Said right of way shall be [twenty] feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises." Ultimately, the title passed to Helen Brownell, the defendant's mother, by quitclaim deed, dated April 6, 1983, and recorded in volume 174, pages 109-110. The defendant acquired the property in 1997, from his mother by a quitclaim deed, dated December 12, 1997, and recorded in volume 421, pages 108-109. All deeds in the defendant's chain of title contain a legal description of the property, together with a right-of-way.

The Foremans further subdivided their property, conveying additional portions. Specifically, on August 8, 1986, the Foremans conveyed what is now the plaintiff's property to Norbert Pomeranz by warranty deed, which was recorded in volume 217, pages 74-76. The Foreman to Pomeranz deed stated that the property was subject to "all easements and rights of way" shown on the Cuthbertson map. The court found that shortly after Pomeranz acquired 133 Bashan Road, he had a septic system installed, without obtaining proper municipal permits, under a portion of the Brownell right-of-way and covered it with fill, forming an elevated area. The court also found that the elevated area did not contain any indication that a septic tank was located beneath it, such as a pump, manhole cover or standpipe. Further, the court found that the surrounding land was wooded, sloping and uneven and that the area above the septic tank had trees and other vegetation growing on it.

Thereafter, in April, 1991, Pomeranz conveyed the parcel, subject to the right-of-way in favor of the Brownell property, to Ronald Swan and Karoline Swan by warranty deed, which was recorded in volume 301, pages 171-73. The plaintiff purchased the property from the Swans in 1994, and the warranty deed, recorded in volume 362, pages 271-72, specifically stated that the property was subject to the right-of-way described in the Foreman to Brownell deed that was recorded in volume 72, page 436.

After the defendant informed the plaintiff of his intentions to clear the right-of-way in 2003, the plaintiff commenced this litigation, filing an amended two count complaint. In count one, the plaintiff claimed to have acquired title to the right-of-way from the defendant by adverse possession. In the second count, the plaintiff alleged, in the alternative, that he had acquired title to the use and enjoyment of the disputed area by prescriptive easement. The plaintiff requested a judgment establishing that he had acquired title to the right-of-way and determining the rights of the parties in and to the area and settling title thereto. The defendant subsequently filed an answer, five special defenses and a five count counterclaim, including easement by necessity, easement by estoppel, implied appurtenant easement, easement by prescription and right-of-way pursuant to General Statutes § 13a-55.

A trial to the court was held on May 18 and 19, 2005. On September 15, 2005, the court issued a memorandum of decision,⁵ concluding that the plaintiff had not established the necessary elements of adverse possession or prescriptive easement so as to extinguish the defendant's right-of-way over the plaintiff's property.⁶ The plaintiff now appeals from the judgment of the trial court.

The plaintiff argues that the court improperly determined that he had failed to prove the extinguishment of the right-of-way. In support of this argument, the plaintiff presents two claims, namely, that the court improperly determined that he had not extinguished the right-of-way by (1) adverse possession or (2) prescription. For the reasons that follow, we disagree with both of his claims.

I

We first address the plaintiff's claim that the court improperly determined that he had not established an open and visible interference so as to extinguish the defendant's right-of-way by adverse possession. Subordinate to this claim, the plaintiff also argues that it was improper for the court to "[blend] together its consideration of the plaintiff's adverse possession claim and his prescription claim into one . . . determination" because the two doctrines require that different legal elements be proven under different standards of proof. We disagree.

Although in its memorandum of decision the trial court stated that "[the plaintiff] has failed to prove either adverse possession or a prescriptive easement"; (emphasis added); our case law makes clear that a claim of extinguishment of a right-of-way properly is established through prescriptive use. See Boccanfuso v. Conner, 89 Conn.App. 260, 283, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005); Public Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn.App. 380, 385-86, 567 A.2d 389 (1989).

In Boccanfuso v. Conner, supra, 89 Conn.App. at 283, 873 A.2d 208, this court acknowledged that "at times, litigants and the courts conflate the concepts and underlying elements of adverse use and adverse possession. . . ." The Boccanfuso court, however, went on to state that "it is clear that these are distinct doctrines and equally apparent that the proper theory under which to establish the extinguishment of an easement is through adverse use by the servient estate holder. See 2 Restatement (Third) Property, Servitudes § 7.7, comment (b) (2000) (`[a]dverse uses meeting the requirements of §§ 2.16 and 2.17 that unreasonably interfere with easements or violate covenants, if continued throughout the prescriptive period, extinguish the benefit of the servitude to the extent of the adverse use'); 5 Restatement (First) Property, Servitudes § 506 (1944) (`[a]n easement is extinguished by a use of the servient tenement by the possessor of it . . . provided (a) the use is adverse as to the owner of the easement and (b) the adverse use is, for the period of prescription, continuous and uninterrupted'); 4 R. Powell, supra, § 34.21[1] (`The servient owner can extinguish an easement in whole or in part by adverse uses continued for the prescriptive period. As in the case of the creation of an easement by prescription . . . the uses must be adverse, continuous, uninterrupted, and for the prescriptive period.')." (Emphasis added) Boccanfuso v. Conner, supra, at 283, 873 A.2d 208.

In the present case, despite its use of the term "adverse possession," the court cited to case law applying the legal principles of prescription in determining whether the right-of-way had been extinguished. Guided by Connecticut case law and relevant legal principles, as well as the trial court's citation to case law concerning prescriptive use, we conclude that adverse possession is an inapplicable theory under which to analyze the plaintiff's claim of extinguishment. Accordingly, we review his claim of extinguishment under the doctrine of prescription in part II.

The plaintiff also contends that it is unclear from the trial court's memorandum of decision whether the court applied the proper standard of proof to his claim of extinguishment by prescription. In a footnote in its memorandum of decision, the court properly stated that "where the owner of a servient estate claims to have extinguished or diminished an easement . . . he need only satisfy the preponderance of the evidence standard. . . ." See Public Storage, Inc. v. Eliot Street Ltd. Partnership, supra, 20 Conn.App. at 385-86, 567 A.2d 389 (holding that extinguishment of easement by adverse use established by preponderance of evidence). We therefore conclude that the court properly applied the preponderance of...