Robert S. Weiss & Co. v. Mullins

• Court: Connecticut Supreme Court
• Writing for the Court: Before PETERS; SANTANIELLO
• Citation: Robert S. Weiss & Co. v. Mullins, 495 A.2d 1006, 196 Conn. 614 (Conn. 1985)
• Decision Date: 09 July 1985
• Parties: ROBERT S. WEISS & COMPANY v. Gerald MULLINS et al.

Page 1006

495 A.2d 1006

196 Conn. 614

ROBERT S. WEISS & COMPANY v. Gerald MULLINS et al.

Supreme Court of Connecticut.

Argued April 3, 1985.

Decided July 9, 1985.

John E. Terzis, Stamford, for appellants (defendants).

Frank H. D'Andrea, Jr., Stamford, with whom, on the brief, was Brian D. Rosenfeld, Stamford, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Associate Justice.

This appeal concerns the existence of a right-of-way that the plaintiff, Robert S. Weiss & Company, claims it has over land owned by the defendants, Gerald and Dorothy Mullins. The plaintiff claimed a declaratory judgment determining whether or not it has a right-of-way over the defendants' land and, if so, the location of the right-of-way and the extent of its permissible user. The plaintiff also sought a temporary and permanent injunction restraining the defendants from obstructing the use of the right-of-way by the plaintiff. The defendants filed an answer in which they denied the plaintiff's allegations and raised twenty-nine special defenses. They also filed a cross complaint claiming a right-of-way in their favor over the plaintiff's property and seeking declaratory and injunctive relief. The trial court found that the plaintiff has "a right-of-way over the defendants' land which lies immediately to and adjoining the west of the plaintiff['s] property measuring 10 feet wide, more or less, by 151 feet long, more or less," and enjoined the defendants from obstructing the plaintiff's use of this right-of-way. Since the defendants did not pursue their cross complaint at trial, the court rendered judgment for the plaintiff on both the complaint and the cross complaint, from which the defendants have appealed. We find no error.

From the evidence adduced at trial, the trial court found the following facts: On November 19, 1982, the plaintiff acquired title to property located at 16 West Park Place in Stamford. The plaintiff's property is immediately adjacent to 12 West Park Place, a tract of land owned by the defendants since February 18, 1982. On the defendants' land is a driveway that adjoins the plaintiff's property.

The grantor deeds in the plaintiff's chain of title, dating from January, 1955, all contain language to the effect that the property now owned by the plaintiff was conveyed together with "all the right, title and interest of the Grantors in and to the driveway adjoining said premises on the west." William J. Fitzpatrick, one of the plaintiff's predecessors in title, testified that he, his tenants and his employees used the driveway from the time he acquired title in July, 1959, until 1979, when he sold the property now owned by the plaintiff. Throughout this period, the driveway was owned by the defendants' predecessors in title. From this testimony, the court found that Fitzpatrick had "used the driveway for approximately twenty years, openly, visibly, uninterruptedly and as a claim of right." Although the defendants offered testimony to show that the use of the driveway was not uninterrupted or continuous, the trial court found that the witnesses for the defense "RANGED FROM VAGUE AND UNCERTAIN, TO RELUCTant and clearly evasive. this was so to such an extent that the trier could not accept their testimony as credible."

The court further found that the use made by the plaintiff and its predecessors in title of the driveway now owned by the defendants had been visible, open and continuous and without recognition of the rights of the owner, and that such use dated from 1955 through the present. On the basis of these facts, the court held that the plaintiff had satisfied the applicable requirements of General Statutes § 47-37, ¹ and that it was therefore entitled to a right-of-way over the defendants' driveway.

At the outset, we note that several of the issues raised by the defendants on appeal were not brought to the trial court's attention through available and appropriate means, such as objections, exceptions and pretrial and post trial motions. Nor were any of these claims listed in the defendants' preliminary statement of issues as required by Practice Book § 3012. "Pursuant to our rules of practice, we are not 'bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial....' Practice Book § 3063. In addition, issues that an appellant wishes to present to this court on appeal must be included in a preliminary, or amended preliminary statement of issues, filed with the chief clerk. Practice Book § 3012; see Presutti v. Presutti, 181 Conn. 622, 625-26, 436 A.2d 299 (1980)." Bielaska v. Waterford, 196 Conn. 151, 156, 491 A.2d 1071 (1985). Due to the defendants' failure to preserve and present these claims, in accordance with our settled rules of appellate procedure, they will not be considered. ²

Three of the four remaining claims raised by the defendants essentially challenge the trial court's factual findings and its determinations regarding the credibility of the witnesses. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, [1985], § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

To acquire a right-of-way by prescription, the party claiming the right must prove a use which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. General Statutes § 47-37; Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983); Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 168, 459 A.2d 1021 (1983). "Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts. Wadsworth Realty Co. v Sundberg, [165 Conn. 457, 464, 338 A.2d 470 (1973) ]; Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951)." Swenson v. Dittner, 183 Conn. 289, 294-95, 439 A.2d 334 (1981). 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. D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 180, 455 A.2d 833 (1983).

After a review of the entire transcript and all the exhibits in this case, we cannot conclude that the trial court's finding of a prescriptive easement in the plaintiff's favor over the defendants' driveway was clearly erroneous. The plaintiff introduced into evidence six deeds in the chain of title to 16 West Park Place dating from January, 1955. Each deed conveyed to the grantee all of the right, title and interest of the grantor in and to the driveway adjoining 16 West Park Place. This evidence furnished prima facie proof that the use of the driveway was adverse, that is, under a claim of right. Reynolds v. Soffer, supra, 190 Conn. 188, 459 A.2d 1027. Although none of the deeds in the defendants' chain of title refers specifically to a right-of-way, two of the deeds offered into evidence by the defendants contain a general provision that the property was conveyed subject to "any easements that may appear." Furthermore, the defendants' actual knowledge of the existence of the right-of-way is not a necessary element of the plaintiff's proof. "That a claim was actually made and brought to the attention of the owner of the fee is not essential in order to establish that the user was made under a claim of right. Nothing more is required than a user 'as of right,' that is, without recognition of the rights of the owner of the servient tenement." (Citations omitted.) Zavisza v. Hastings, 143 Conn. 40, 45-46, 118 A.2d 902 (1955). It is only in a case " '[w]here the use of a right of way is in common with the public ... [that] 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.' " (Citations omitted.) Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra, 190 Conn. 168, 459 A.2d 1021. There was no evidence in this case that the defendants' driveway was ever used as a right-of-way by the general public. Thus, the plaintiff was not required, as the defendants contend, "to perform some act to the knowledge of the servient owner clearly indicating its claim of right."

The plaintiff presented testimony at trial through two of its predecessors in title, William Fitzpatrick and James Colgan; an employee of Fitzpatrick, Wilbur Parham; a former...