Opinion
No. 4000916
May 11, 2006
MEMORANDUM OF DECISION
The plaintiff claims an easement by adverse possession and an easement by necessity. The defendants deny the claim and seek to have the premises settled free and clear of the claimed right-of-way of the plaintiff.
The plaintiff, Ellen V. Aidinoff, formerly known as Ellen Newberg, claims to be the owner of a strip of land which consists of a driveway approximately 25 feet wide from the road across the brook to the property owned by the plaintiff. The defendants are Jason Lathrop and Jennifer Lathrop who are the present owners of the land across which the alleged driveway runs. The driveway in fact runs from the road to land owned by the plaintiff. There is no dispute that the Lathrops own the land across which the driveway is located and there is no question that the plaintiff owns the land on the other side of the driveway.
The various maps, surveys and photos show that the land purchased by the plaintiff on July 30, 1979 is adjacent to Sterling City Road, but can only be reached by crossing land formerly owned by Francis Rand and Anthony R. Angelo and then transferred back to Rand. The land owned by Rand is a 25 wide strip which runs parallel to the road. A gravel driveway crosses the Rand land to the land of the plaintiff. There is no dispute that the driveway across the Rand land was never owned by the plaintiff, however, she claims the right to cross it to have access from the road to her property by way of adverse possession for a period of over 15 years. She also alleges that she has an easement by necessity because the only other possible access to the property is impossible to use because of wetlands and a brook.
Although both parties have provided numerous maps and deeds as to the chain of ownership of the properties involved, the only dispute is whether or not the plaintiff has the right to use the driveway by adverse possession.
She claims that she used it from 1979 until the Lathrops purchased the Rand property on April 2, 2003. Subsequent to purchasing the property, the Lathrops have blocked the driveway and prevented the plaintiff from using it to access her property. She alleges that they have no right to do so because she has used it for over 15 years and such use has been open and notorious during that time and that the defendants' predecessors in title had notice of such use and possession and took no action to oust the plaintiff.
There is ample evidence from witnesses that the plaintiff used the driveway as claimed from 1979 until the purchase of the land by the Lathrops in 2003, a period of well over 15 years. The sole objection raised by the defendants is that the plaintiff and her family were using the driveway with the permission of Francis H. Rand. The defendants referred the court to the deposition testimony of Rand (Def. Ex. 19, p. 39). The court has carefully reviewed the entire deposition of Rand and the testimony regarding the issue of permission.
In his deposition, Rand said ". . . I own the property all the way down to the brook and that the driveway going in there that I don't mind if they used it to go in there . . ." (Def. Ex. 19, p. 39, Deposition of Francis H. Rand.) He further testified, when asked as to the plaintiff's response to his comments as follows:
I don't think there was any response to it. I think we just had the conversation and I had said that I owned the property down to the brook, across the brook, and that as far as I was concerned I had no problem with them going, using, you know, to go there if they wanted to. I mean I wasn't . . . but I just let her know that I did own the property and it was not an open way for everybody to go through.
Rand also testified in his deposition that the plaintiff, whom he called Mrs. Newberg, said that she called him in New Jersey not too long ago and said that she wanted to discuss the questions about the property and then she wanted to know if I ever felt that I gave her permission, telling her that they have the right to go in there, it was all right and I said we did have a conversation at one time, I explained the conversation to her and she said well it was so long ago I am not sure, I can't say whether I remembered or not, and she said but so this whole case depends on whether you said you gave me permission or whether you didn't give me permission, and she asked me to call her back and let me know what my decision was (sic) and I never called back. (Quoting from Def. Brief, p. 7.)
In response to these statements that the plaintiff argues that she used the property before the above conversation and that even Rand's testimony did not amount to a grant of permission to use the right-of-way. Furthermore, the chain of title indicates that Rand did not own the property for eighteen years while the driveway was being used by Rose Cunningham. The conversation described in Rand's deposition occurred about a year after the plaintiff purchased the property. (Def. Ex. 19, p. 40.) The plaintiff had already been using the driveway since her purchase of the property in July 1979. The plaintiff argues that a single conversation with the plaintiff regarding the right-of-way is not sufficient to amount to a grant of permission to use the right-of-way.
DISCUSSION
The plaintiff asserts that she has acquired an easement to use the subject driveway in its existing configuration by prescription by adverse use. C.G.S. § 47-37 provides that a person may acquire an easement in, upon or over the land owned by another by adverse use or enjoyment thereof, for an uninterrupted period of fifteen years. The statute states as follows:
No person may acquire a right-of-way or any other easement from, in, upon or over the land of another by adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.
The evidence establishes that Aidinoff and her family have openly used and enjoyed the subject property for access for at least 25 years prior to the commencement of this action with full knowledge of the owners of the servient estate under claim of right. Both parties agree that there is no issue with respect to these facts. In order to prove her prescriptive easement, the plaintiff has the burden of proving the elements of prescriptive use by a preponderance of the evidence. Roman v. Johnson, 48 Conn.App. 498, 502 (1998); Reynolds v. Soffer, 190 Conn. 184, 188 (1983). In this case, there was no evidence which contradicts the evidence of adverse use of the driveway since 1979 by the plaintiff and before that her predecessor.
The elements of adverse possession under C.G.S. § 47-37 provide that a person may acquire an easement in, upon, or over the land by adverse possession by adverse use or enjoyment for an uninterrupted period of fifteen years as of right. The test is a three-pronged test.
"To sustain their burden, the plaintiff's were required to establish that their use of the defendants' property was open, visible, continuous and uninterrupted for 15 years and made under a claim of right." Reynolds v. Soffer, 190 Conn. 184, 187 (1983).
Regarding the test of open use, the plaintiff need only show that her use of the property was open and obvious to an owner of the servient estate who cared to look.
The second prong requires continuous or uninterrupted use for a period of at least fifteen years. Aidinoff starting using the driveway as soon as she bought her property in July of 1979 and she drove vehicles, walked and brought animals across the area of the claimed right-of-way. She also used the power coming in over the utility lines serving the property. There is no evidence to refute the evidence of photos, maps and testimony of the witnesses and that her use continued uninterrupted for well in excess of fifteen years.
As to the question of the third prong, that the use was without recognition of the rights of the owner, the plaintiff cites the case of Putnam, Coffin and Burr, Inc. v. Halpern, 154 Conn. 507, 515 (1967), which states "use under a claim of right simply means without recognition of the rights of the owner of the servient tenement."
"The plaintiff's continuous, open user of the [way] over the years without resort to permission or license from the defendant or its predecessors in title establishes that this was a user as of right." Aksomitas v. South End Realty, 136 Conn. 277, 283 (1949). The evidence is clear that there is no presumption of permissive use. Under Connecticut law, there is no presumption of this fact "in Connecticut, although the burden of proof is on the party claiming a prescriptive easement, there is no presumption of permissive use to be overcome." Phillips v. Bonadies, 105 Conn. 722, 727 (1979). "All that is required is a showing by a fair preponderance of the evidence that the use was adverse." Reynolds v. Soffer, 190 Conn. 184, 188 (1983). "It was not, as the defendants suggest, the plaintiff's burden to establish that his use of the property was without permission. Such a rule would often charge a party with proving a negative." Lisiewski v. Seidel, 72 Conn.App. 88, 87 (2002). The court has previously discussed the issue or the factual element regarding permission and the court finds that the evidence presented is sufficient to show a claim of right on the part of Aidinoff and her predecessors. The plaintiff also argues that the unrecognized and unacknowledged "after the fact" attempts by the servient owner (Rand) to grant permission are ineffective to oust the dominant user from the acquisition of a prescriptive easement.
Even if permission were extended at some point, it would have been only after a period of time of open and notorious adverse use. Just as one originally occupying under a grant of permission has the burden to give notice to the servient estate that its use is adverse, if it intends to perfect the adverse interest; see Krohner v. Seyburt Associates Limited Partnership, 20 Conn.App. 298, 301 (1989); a party occupying under a claim of right cannot be logically set to be ousted of that right if the servient estate later grants permission, unless the claimant agrees to submit to the grant of permission. See Top of the Town, LLC v. Summers Sportsman Association, Inc., 69 Conn.App. 839 (2002).
Finally, the plaintiff argues that under the statute there was no interruption of the plaintiff's use of the driveway. Under C.G.S. § 52-575:
In order to interrupt continued adverse possession, the record owner `must assert his claim to the land, perform some act that would reinstate him in possession before he can gain what is lost.' (Emphasis added.) Id., 7, quoting Burrows v. Gallop, 32 Conn. 493, 499 (1865); Woycik v. Woycik, 13 Conn.App. 518, 525-26 (1988).
The court, therefore, finds that even if the facts of the conversation are as alleged by the defendant and Mr. Rand in his deposition, it is insufficient to oust the plaintiff or stop the running of the period of adverse use as there has been no act to disturb the continued adverse use.
The final issue in the case is whether or not the plaintiff has acquired an easement to use the subject driveway by necessity. The witnesses all testified and the mapping showed that the property of Aidinoff is bisected by the Tisdale Brook and its associated wetlands which run in an east west direction across the property of Aidinoff. Without the access of the existing driveway, the nearest access to any available roadway would be across the wetlands and the brook. The plaintiff argues and the court finds that there was sufficient evidence to show that it would be a difficult, if not impossible task, to access the property across that part of the wetlands and brook that would be required to reach the improvements which the plaintiff has on the property. "It may be, however, that while access to the property is not absolutely cut off, the circumstances of the case are such that the means of access available would not afford the land owner any real beneficial enjoyment of his property . . . Although there are cases which hold that the way must be one of strict necessity, the weight of authority supports which seems to be the better rule — that the necessity need only be a reasonable one." Marshall v. Martin, 107 Conn. 32, 37 (1927). The court, therefore, finds that the plaintiff, in addition to having a prescriptive easement is also entitled to an easement by necessity because of the clear difficulty of reaching the property across the area covered by the brook.
Accordingly, the court finds that the plaintiff has a right to an easement over the drive way as claimed. The court also will enter the order as requested by the plaintiff in his brief.