Opinion
FSTCV166029295S
01-15-2020
Atlantic St. Heritage Associates, LLC v. Atlantic Realty Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Povodator, Kenneth B., J.T.R.
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#135.00, #147.00 and #168.00)
POVODATOR, JTR
Procedural Background
The plaintiff and the defendants own adjacent properties fronting on Atlantic Street in Stamford. The plaintiff claims an easement across the rear of the defendants’ properties, including an alleyway between two of the defendants’ properties leading to the rear, providing access to the parking area behind the plaintiff’s property. Originally, the complaint sounded in three counts, the first and third asserting easement rights predicated on the existence of an expressly created/conveyed easement. Those two counts have been withdrawn, such that the plaintiff is proceeding solely on the basis of an amended version of what had been the second count, asserting a prescriptive easement.
Prior to withdrawal of the first and third counts, the plaintiff filed a motion for summary judgment (#135.00) relating to the second count asserting a prescriptive easement. The defendants filed a cross motion for summary judgment as to the first and second counts. The parties submitted numerous exhibits, and the court heard argument on September 23, 2019. (The first and third counts were withdrawn, and an amended version of the prescriptive easement claim was filed, after the parties had filed their respective submissions but prior to argument; therefore, to the extent that the defendants have moved for summary judgment on a count other than the remaining second count, that portion of the motion will be disregarded as a moot.)
One procedural irregularity, discussed extensively below, is that after argument on the cross motions for summary judgment relating to the claim for a prescriptive easement, the defendants filed a second amended answer and special defenses, increasing the number of defenses to that count from five to ten.
Facts
The basic facts are not in dispute in any meaningful sense (although at times there is a degree of imprecision); the disputes are at what might be called secondary or tertiary levels of details- and especially inferences to be drawn.
The plaintiff purchased 184 Atlantic in 1982 and has been the record owner of the property since that time. Since renovations were completed in late 1982, the property has consisted of an office building fronting on Atlantic Street with a gated parking lot at the rear of the building. From 1982 through 2014, visitors to and occupants of the plaintiff’s building accessed the plaintiff’s parking lot from Atlantic Street through the alleyway between and the paved area behind the buildings on Atlantic Street immediately to the south of 184 Atlantic, i.e. between and behind the defendants’ properties/buildings. (The defendants contend that such use was intermittent if not rare.) There is another means of access to the plaintiff’s parking area, available to vehicles traveling in a northbound direction on Atlantic Street, that does not require utilization of the claimed easement area (although the alley-based access is also available to such drivers).
The defendants acquired their respective properties between 1988 and 2014, the two properties closest to the plaintiff’s property having been acquired in 2014. The defendant entities are all owned and/or controlled by members of the Yaraghi family.
In their summary judgment submission, the defendants agree with the statement of the plaintiff that 200 and 210 Atlantic Street were acquired in 2014, and they cite an affidavit from a principal of the defendants in support of an affirmative statement in their brief that the properties were acquired in 2014. However, there was deposition testimony from representatives of the defendants that one of those properties might have been acquired as early as 2005 or 2008. The difference is not material for purposes of these cross motions, but for consistency, the court will refer to both properties as having been acquired in 2014.
The alleyway in question has been described by the plaintiff as follows: "Defendants’ parcels at 252 and 234 Atlantic are separated by a 12’ wide alleyway running in an east-west direction from Atlantic Street to the rear of 234 Atlantic. At the western mouth of the alleyway is a paved area behind 234, 210 and 200 Atlantic Street (formerly known as Quintard Place) that leads directly (in a north-south direction) to the parking lot of 184 Atlantic ... This route- from the Atlantic Street entrance to the alleyway to the gate to the parking lot at 184 Atlantic- is the Easement at issue on this Motion."
Notwithstanding the recitation and the defendants’ agreement with the recitation, the court believes that the paved area to the rear of the defendants’ buildings is at the eastern mouth of the alleyway, based on the photographs submitted and the court’s general knowledge that all of the buildings are on the easterly side of Atlantic Street such that the westerly mouth of the alleyway is the sidewalk along Atlantic Street. In their objection to the plaintiff’s motion, the defendants go through the plaintiff’s recitation of claimed undisputed facts, indicating whether they agree or disagree, including explanations of any level of disagreement. With respect to the quoted description of the disputed easement, set forth in ¶9 of the plaintiff’s recitation of allegedly undisputed facts, the defendants indicate that they agree/admit the accuracy of that recitation.
Until 2014, there was no restriction on access to the lot behind the plaintiff’s property via the alleyway and rear of the defendants’ properties except for brief interruptions during renovations to the properties owned by the defendants (including, at times, work on the alleyway and paved area to the rear of the buildings themselves). In or around 2014, a locked gate was installed by the defendants at the Atlantic Street entrance to the alleyway and a chain barrier was installed and utilized at the eastern end of the alleyway, preventing access of the plaintiff to their property via the claimed easement area at such times as the defendants chose to lock the gate and/or chain. (There was some variability in the evidence presented to the court as to whether there was a period of time after the gate had been installed that it was not interfering with the plaintiff’s use but that after a matter of months, the defendants’ control over the locking of the gate did begin to interfere with the plaintiff’s use; that uncertainty, measured in months, is not a material issue of fact.)
Prior to 2014, the defendants never prevented or limited the plaintiff or its occupants, tenants and visitors from use of the alleyway and rear of the buildings for access to the plaintiff’s parking lot. Again, there were brief interruptions due to renovations and the like, but no interruptions in the sense of assertion of a right to control use as such, intending to prevent the plaintiff’s visitors from access. (The closures, as described, seemingly would have affected the defendants’ invitees as well as the plaintiff’s.) To the extent that there were changes or improvements to the claimed easement- repaving, installation of speed bumps, signage, etc.- the plaintiff never complained about the changes and the defendants never sought input or payment from the plaintiff.
At page 83 of his deposition, Michael Yaraghi, one of the principal of the defendants and testifying on behalf of the defendants, stated: "The alleyway was closed at several times for renovation, that we closed it. So not only, no one could go through it when it was renovation" (emphasis added). In response to subsequent questions, he indicated that it was "[o]ver the years, many times" and that it was "for short periods of time." The more specifically described situations would seem to have required closure of the alleyway to all traffic- repaving the alleyway, installing speed bumps on the alleyway, and the presence of scaffolding in the alleyway for work on the side of one or the other of the buildings bordering the alleyway.
The defendants’ principals started a carpet business in their initial Atlantic Street property, which expanded over the years as additional properties were acquired (in the names of distinct defendant entities). During the first 15 years or so of the defendants’ ownership of the properties on Atlantic Street, Michael Yaraghi was primarily responsible for running the business and was on site virtually daily. Later, as the business expanded to other locations, he was on site less often but still with a degree of regularity. Arash Yaraghi was more involved during periods of renovations, and was on site during the course of the renovations as they were occurring. (Both of them have submitted affidavits in support of the defendants with respect to both pending motions; the plaintiff submitted excerpts from their depositions, and the defendants submitted copies of the entire transcripts.)
Much of the transcripts of the defendants’ representatives was incomprehensible- there were extensive passages relating to markings on exhibits but those exhibits were not submitted such that the court did/does not have any way of knowing what specifically was being demonstrated/shown.
The plaintiff has asserted, by way of affidavits, that the plaintiff’s principals, employees, clients, and tenants (as well as the tenants’ employees and clients) regularly use the alleyway and rear of the defendants’ properties for access to the plaintiff’s parking lot. The defendants do not directly challenge such assertions, but rather have adopted a two-pronged approach- they state that they have seen only occasional use of the alleyway and back area for access to the plaintiff’s parking lot by the plaintiff’s principals, and that any use of the alleyway and rear of their buildings by persons heading to the plaintiff’s building is indistinguishable from use by the general public for purposes unrelated to access to the plaintiff’s building.
The second prong- that the use of the claimed easement area by persons heading to the plaintiff’s parking lot is indistinguishable from usage by the general public- is not so much a directly observed or personal knowledge type of fact, but rather at most an inference if not in the nature of an argument. As such, it will be discussed below. The first prong- that they have seen only occasional use by the plaintiff’s principals, etc.- is more in the nature of a factual statement, which requires some discussion at this point.
An assertion that the principals of the defendants- chiefly Michael- have seen only occasional (rare) use of the claimed easement by principals of the plaintiff is intended to suggest, without explicitly stating, that the usage is sporadic. Stating that an observer has only seen an event infrequently does not, without more (e.g., some sense of frequency and intensity of observation), support a reasonable inference that the event occurs only infrequently.
From a different perspective, this is a variation on the difficulties in proving a negative- this is an attempt to prove an almost-negative. Merely stating only occasional observations of the plaintiff’s principals or staff using the claimed easement area does not, without more, imply negation of regular use. Absent some level of monitoring of use of the alleyway and rear of the defendants’ buildings, or some equivalent ability to assert some absolute quality to the "occasional-ness" of the observations, the statement of only occasional observations is essentially anecdotal rather than factual in a general sense. It may be rare to see a neighbor from the far end of the street drive past one’s residence, but that would not support a reasonable inference that that neighbor only rarely or sporadically does drive on the street- except perhaps if accompanied by a statement that the observer regularly spends the day in a chair facing and observing the street. There is nothing in the record suggesting much less establishing that the defendants’ principals spend extensive periods of time watching persons driving through the alleyway and into the area behind their buildings. Indeed, they testified that there are no windows on the sides of the buildings providing a direct view of the alleyway, and that there are no windows in the rears of the buildings, such that observations would only be made at times they were physically outside and presumably to the rear of the buildings (since there would not seem to be much reason to stand in the alleyway). Without more, it would be unreasonable to infer that someone working in a commercial enterprise with no windows facing in the relevant directions can characterize the frequency of use of blocked-from-view passageways by specific drivers of vehicles.
Additionally, a principal of the plaintiff (Mr. Silver) and Jonathan Blauner ("Skip") are only a small percentage of the class of claimed users- other employees of the law firms with offices in the plaintiff’s building and their clients and invitees. And, almost trivially, persons going to the plaintiff’s building early in the morning, before the defendants’ principals arrive, would be unseen. The defendants indicated very limited familiarity with the plaintiff’s personnel- apparently knowing/recognizing only Mr. Silver and Skip (one of the plaintiff’s operational personnel). Therefore, they would have no way of knowing whether someone seen driving over the claimed easement area was a client or employee or otherwise an invitee to the plaintiff’s premises unless they made a conscious effort to watch the person so as to determine the eventual destination.
Further, there is an additional factor that is not addressed- seemingly at all- by the defendants. The plaintiff does not claim that all persons attempting to access the parking lot behind its building use or must use the easement area for access. Rather, there is something of a nuance- the claim is only that drivers heading southbound on Atlantic Street essentially must use the alleyway for access due to the configuration of the roads. Only partially discernible on the overhead view from Google maps as attached to one of the affidavits submitted by the defendants, there is a physical divider between northbound and southbound traffic on Atlantic Street, extending roughly to or beyond the middle of the intersection with Bank Street. (It is shown more clearly on Exhibit F to the plaintiff’s submission (#137.00) and other drawings that have been submitted.) As a result, unless a southbound driver chooses to make a U-turn in the middle of Atlantic Street- a heavily traveled road that among other things is a major accessway to the Town Center Mall- a left turn into the alleyway is the only other available means of readily accessing the plaintiff’s parking lot for southbound drivers. The failure to observe particular drivers using the alleyway, then, could only be of any significance if it were known that the driver was headed southbound on Atlantic Street- a northbound driver likely would never be seen by the defendants’ principals or witnesses but the failure to observe such individuals would be of no significance to the regularity of use.
The defendants’ suggested alternative routes, as the court understands them (especially from deposition testimony), involve significant additional distance and inconvenience bordering on the absurd- a southbound driver could drive down Atlantic Street about a block further (two if measured by streets feeding into Atlantic Street from the right) to Tresser Blvd., making a left turn onto Tresser and then exercise one of two options- drive about a block to the mall entranceway, turn into the entranceway and branch off to a roadway that is claimed to lead back to the rear of the plaintiff’s building, or drive about a block and then make a U-turn on Tresser, come back to Atlantic Street, and then approach the building from the south, using the accessway to the plaintiff’s property available to northbound traffic on Atlantic Street. Another suggested option, as the court understands it, would be to enter the mall from Atlantic Street and make a few turns- at least one of which the plaintiff asserted would involve going the wrong way on a one-way roadway.
Additionally, in this regard and in certain other respects, the plaintiff, in its reply brief, argues that the court should adopt the sham affidavit rule and disregard portions of the affidavits of the defendants’ principals, and in this regard, specifically Mr. Yaraghi’s statement relating to having seen less than a handful of instances of persons driving over the claimed easement area to the plaintiff’s property. The plaintiff points out that statements such as the assertion that Mr. Silver and Skip had been seen using the claimed easement area only a couple of times- over decades- is grossly disparate from the testimony given during his deposition that he had seen regular use of the claimed easement area for purposes of access to the plaintiff’s property.
While Connecticut cases have recognized the existence of a sham affidavit rule in federal jurisprudence, it does not appear to have been adopted, as yet, by any appellate court in this state. See, e.g., DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 617-19, 2 A.3d 963 (2010); Kenneson v. Eggert, 176 Conn.App. 296, 310-12, 170 A.3d 14 (2017). Both cases determined that the rule, even if adopted in Connecticut, would not have applied to the situations before those courts, chiefly because the rule is intended to address only the most glaring situations, not ones that are potentially due to a need for explanation or some level of imprecision. The case at hand, however, does not have a disparity that can be explained away as imprecision or a clarification of earlier testimony- it essentially is a recantation to suit the needs of opposition to summary judgment.
The court is reluctant to adopt the rule, notwithstanding its seeming applicability to the situation, especially with respect to the glaring disparity as to testimony relating to usage of the claimed easement area. For reasons stated elsewhere in this opinion, the court believes that the statement made by Michael Yaraghi in this respect is conclusory rather than factual, absent any indication of regularity and frequency of observations. Absent a foundation, his opinion as to frequency is not competent evidence. The court prefers to rely on established rules of evidence rather than attempting to create new law where not necessary.
Were the sham affidavit rule be adopted in Connecticut along the lines of the discussion in the two Appellate Court decisions cited, the court would have no hesitation about determining it to be applicable here.
Absent a foundation, a statement as to frequency of use (and especially, limited to only two of the people who worked in the building, and ignoring the unknown drivers he might have seen heading to the plaintiff’s building as actual or potential clients), is no better than conclusory if not speculative. Absent a foundation, statements as to claimed frequency of use must be rejected pursuant to Practice Book § 17-46.
Therefore, while the evidentiary submission by the defendants appears to be intended to suggest a (material) issue of fact as to frequency of usage, the court cannot find there to be a basis for not accepting as factual, for purposes of this proceeding, that the claimed easement area has been used consistently, over the 32 years from 1982 through 2014, by tenants, employees of tenant, invitees of tenants, etc. of the plaintiff, for access to the plaintiff’s parking lot.
Legal Principles
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The courts are in entire agreement that the moving party ... has the burden of showing the absence of any genuine issue as to all the material facts ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue ...
(Internal quotation marks and citation, omitted.) Smith v. Marshview Fitness, LLC, 191 Conn.App. 1, 8, 212 A.3d 767, 771-72 (2019).
General Statutes § 47-37, which sets forth the requirements for acquiring easements by prescription, 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." We have explained that this section requires that a person claiming 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 and citation, omitted.) Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002). McBurney v. Cirillo, 276 Conn. 782, 812-13, 889 A.2d 759, 778 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).
A party claiming a prescriptive easement cannot rely upon the conduct of unrelated parties; Wheeler v. Beachcroft, LLC, 320 Conn. 146, 166 n.20, 129 A.3d 677, 690 (2016); McBurney, supra; inferentially, the inability of unrelated parties to pursue such a claim does not impact the ability of a party asserting such a claim to succeed in that endeavor.
"A party seeking an easement by prescription must demonstrate these requirements by a fair preponderance of the evidence." (Internal quotation marks and citation, omitted.) Cirinna v. Kosciuszkiewicz, 139 Conn.App. 813, 819, 57 A.3d 837, 842 (2012).
Additional principles will be discussed in the discussion of relevant points, below.
Discussion
The parties are in general agreement that there are three elements that the plaintiff must prove in order to establish a prescriptive easement. The plaintiff contends that it has established all three elements, beyond any material issue of fact. Not surprisingly, the defendants contend not only that the plaintiff has not established all three elements but affirmatively claims that they have negated one or more of those elements beyond any material issue of fact thereby entitling them to judgment.
The court believes it appropriate to focus on the defendants’ analysis. The plaintiff’s submission clearly sets forth a prima facie case of entitlement to a determination in its favor as to the existence of a prescriptive easement. If the defendants are correct in establishing a material issue of fact as to even one of the elements that the plaintiff must prove, then the plaintiff cannot obtain summary judgment. If the defendants are able to negate, beyond any material issue of fact, any of the elements the plaintiff must prove, then the defendants will have proved that they are entitled to judgment in their favor as they will have disproved the plaintiff’s claim to the existence of a prescriptive easement.
I. Claim of Right
The defendants’ initial contention is that there is a material issue of fact as to whether the plaintiff’s use of the claimed easement area was under a claim of right. The defendant cites County of Westchester, N.Y. v. Town of Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993) for the proposition that "[t]here can be no claim of right unless the use is unaccompanied by any recognition of his right [of the servient tenement] to stop such use." (Internal quotation marks and citation, omitted.) Before addressing how that proposition applies to this case, the court must note that in the cited case, that principle was of particular significance in that the court concluded that there could be no prescriptive easement because the owners of the servient estate had no legal right to stop the usage in question as a matter of federal aviation law.
Segueing into this case, here the defendants clearly do have a right to seek to prevent the plaintiff’s usage and have done so- that is the essence of their defense. The issue as presented by the defendants is whether the plaintiff’s use is "unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use," (citing Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682, 686 (1998).
The defendants cite additional appellate authority for variations and expansion of this legal principle. They especially rely upon Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936), wherein the court stated: "Where there is neither proof of an express license or permission from the landowner, nor of an express claim of right by the person using the way, the character of the use, whether adverse or permissive, is to be determined from the circumstances of the parties and the nature and character of the use."
The defendants’ relatively extensive discussion of Sachs starts with the observation that in "analyzing the character of use, in Sachs, the Court found that the plaintiff’s recognition of the defendant’s right to use the subject property indicated lack of a claim of right." Nowhere in the defendants’ relatively extensive discussion of the case is there any mention of a critical underlying fact- there was an underlying deeded easement to the area in dispute, and the issue was a claimed expansion of the right to use that easement area ("The certificate of distribution to the predecessors in title of the parties created a right of way by deed in each over a 5-foot strip of land of the other" (121 Conn. 63)). Therefore, the underlying fact-pattern in Sachs was the not-uncommon situation of a right-of-way separating two properties, in which each owner of abutting property owned half of the width of the right-of-way, such that some level of cooperative use was required given the overall width of the right-of-way- not wide enough for two vehicles to pass each other or even be stationary (side by side) at the same time.
The court must note that the defendants do not seem to address a portion of the language quoted above- "nor of an express claim of right by the person using the way." While the defendants may have challenged the validity of any such express claim of right (and if they didn’t, there would be no dispute for the court to resolve), they have not identified or offered any evidence tending to negate the existence of such a claim of right (regardless of its validity). Indeed, to the contrary, #144.00, one of the evidentiary submissions submitted by the defendants in support of their positions, contains a copy of the deed by which the plaintiff acquired 184 Atlantic Street, and after a metes and bounds description of the property, the deed states "[t]ogether with a right of way over Quintard Place as set forth in a warranty deed ..." There is also a later curative deed obtained by the plaintiff, relating to a belatedly discovered omission in the original deed relating to the conveyance of easement rights. Whatever defects there might have been and whatever defects may still exist, the deeds supports the existence of a basis for the plaintiff’s express claim of right, in addition to the conduct of actual use. While the defendants challenge the legal validity of that claim, they have not created a material factual issue as to there having been a basis for assertion of such a claim (or that such a claim/belief actually existed prior to this litigation).
The defendants have submitted additional documents relating to the issue of validity of a deeded easement, but as a tautology, those documents go to the validity of the easement as a deeded easement; they do not negate the existence of a claimed right and a facial basis for asserting such a claimed right.
The defendants rely upon both affirmative and negative fact-based arguments, in support of their claim that the plaintiff’s use was not under a claim of right. They assert that they exerted control over the claimed easement area during intermittent closures during the course of renovations, without challenge from the plaintiff: "At no time did the plaintiff object to or inquire about the closure." (Brief at page 15.) Notwithstanding the obligation to give the non-moving party the benefit of all reasonable inferences, the court cannot conclude that the inference sought to be drawn by the defendants is a reasonable one.
The closure of sidewalks, roads, rights-of-way, etc., incidental to construction activities on an adjacent property have nothing to do with a right of control or exclusion over such sidewalks, roads, rights-of-way, etc. Such closures have two purposes- facilitating access for the ongoing construction/renovation and creating a zone of safety around the area of construction/renovation. More pointedly, there is nothing in the defendants’ submission that suggests much less states that during the periods of closure during renovations, the defendants’ own employees and invitees were not also excluded. In other words, the only reasonable inference is that the closure was not a matter of asserting control over who can and cannot use the claimed easement area, but rather declaring it off limits to anyone but construction-related vehicles and personnel.
The defendants then move on to the negative:
The Plaintiff never took any action that was adverse to the Defendants’ established and required manner of use of the Alleyway. The plaintiff never parked a car or otherwise blocked the Alleyway as if it had the right to do so. While Defendants install the sign at the entry of the Alleyway indicating that the Safavieh parking is located in the back, Plaintiff never sought to do the same to direct its customers down the Alleyway and in the back of its building. Plaintiff never close the Alleyway for repairs of their own building. Additionally, Plaintiff never objected to or inquired about any of the improvements installed in the Alleyway by Defendants, in their sole discretion. The Plaintiff never changed the posted traffic signs in the Alleyway or attempt to cause the removal of the speed bumps as if it had the right to do so.
This passage reflects a triumph of an advocate’s zeal over analytic rigor. Fundamentally, the defendants have skipped over the essential premise of an easement including (if not even more so) an easement by prescription- there is no claim of a fee interest in the property and the owner of the fee interest may make use of the servient property so long as it does not interfere with the dominant estate’s use of the easement (within the scope of those easement rights).
Addressing these allegations in order: what possible rational reason would there be for the plaintiff to park a car or otherwise block the alleyway? The alleyway is multiple properties away from the plaintiff’s actual property such that loading or unloading a vehicle, or dropping off a passenger, is remote to the point of being infinitesimal. Further, there is no explanation by the defendants as to how a right of passage over the easement area, including through the alleyway, might be perceived by the owner of the dominant estate as including the right to block the alleyway for any or no reason (other than perhaps loading and unloading).
In Sachs, supra, that was a claimed basis for expansion of easement rights.
The fact that the defendants chose to post a sign indicating that patrons of their store could park in the back, creates no obligation on the part of the plaintiff to do likewise in order to continue asserting easement rights. There also is the more fundamental problem- where could they post such a sign? They could not post a sign attached to either of the buildings bordering the alleyway (without permission from the defendants), and the alleyway is sufficiently narrow that a sign on a post totally within the alleyway would make passage more difficult for larger-width vehicles (trucks)- in addition to the dubious proposition that a right of passage includes a right to erect signs.
The observation that the plaintiff never closed the alleyway for repairs of its own building is patently unreasonable in terms of relevance to the dispute before the court. First of all, there is no evidence before the court that the plaintiff undertook any significant renovations or repairs during the relevant timeframe- after they had concluded their major renovations in 1982 and before its prescriptive easement rights had matured in or around 1997. Second, there is no rational reason why an alleyway, three buildings removed from the site of repairs/renovations would need to be closed to vehicular traffic for such a purpose (and the same for the paved area to the rear of the defendants’ buildings).
The defendants advance no reason why the plaintiff might or would have objected or inquired about what the defendants characterize as improvements- presumably the speed bumps and one-way sign(s). There is no suggestion that the plaintiff would have had a basis to have objected, particularly if they are, as the defendants characterize them, improvements. Again, the owners of a servient estate has a right to utilize their property so long as it does not interfere with the use by the dominant estate, within the scope of its easement rights, and the defendants have not suggested a reason why a reasonable owner of a dominant estate would object to speed bumps and/or traffic-control signs and/or other such improvements. And there is the temporal aspect that defendants repeatedly seem to overlook- the speedbumps and one-way signs were posted long after 1997 when the plaintiff’s easement rights would have matured, and the evidence presented is that the actual installation work occurred somewhere around 2014.
The defendants then return to the already-rejected contention that their closure of the easement or alleyway in conjunction with renovation work, without objection from the plaintiff, signifies the plaintiff’s recognition of the defendants’ superior rights. Again, there is no suggestion or basis for inference that the closures did not affect everyone including the defendants and their invitees, closures necessitated by the construction/renovation work. As discussed above, the court does not believe that such brief and universal interruptions for such purposes implicate the type of control that would interrupt or prevent the assertion of an easement by prescription. Or. is sheer coincidence that the only times that the defendants claim to have asserted their superior rights prior to 2014 was in conjunction with construction-type activities?
The defendants then move on to the claim that an inference is to be drawn from the fact that the plaintiff did not pay for ongoing maintenance of the easement area, including snow removal. The defendants have not suggested why such an inference is reasonable, given the defendants’ concurrent use of the alleyway and easement area coupled with their obligations as owners of the underlying fee. This is not a situation involving a deeded or contractual easement where there might be an allocation or assignment of responsibility for maintenance including snow removal; this is a claim that an easement arose by prescriptive use. This is not a situation analogous to an easement for a rear lot where part or all of the easement is used primarily if not exclusively for access to the dominant estate; the plaintiff, at least so far as the record reflects, never has claimed the rights or obligations of the owner of a fee nor has it claimed any exclusivity of use of the alleyway or any other portion of the claimed easement. (There was testimony that the plaintiff did engage in snow removal in at least some areas of the claimed easement- that might present a factual issue but not a material factual issue.) Indeed, the defendants seem to be proposing a hybrid prescriptive-cooperative easement- acting without regard to the fee owner’s rights but contributing to maintenance. (A contribution towards maintenance likely could give rise to an inference of acknowledgment of the superior rights of the owner of the fee.)
In their argument, the defendants perhaps inadvertently blur the distinction between owner of a fee interest and the possessor of an easement by prescription: "The Plaintiff never arranged for or paid its own third party to carry out the same maintenance work, as any reasonable party using the Alleyway might have if the character of their use was synonymous with ownership rights ..." (Page 17; emphasis added.) Later in that same paragraph, the defendants assert: "Yet, they never maintained that which they purport to own." The plaintiff is not claiming ownership rights, only a right of passage over the easement area. (And again, they claim that they did perform some maintenance (especially snow removal) over a portion of the claimed easement area- which may be a factual issue but not a material factual issue.)
Later in that same paragraph, the defendants state that the plaintiff "never objected to any improvements installed by the Defendants or to any limitation of use imposed by the Defendants." Yet again, the court does not understand why the defendants seem to expect the owner of a right of passage over an easement to object to improvements. Other than the installation of the gate and chain- which did elicit a relatively immediate reaction from the plaintiff once it interfered with the plaintiff’s access to its property, since they were not improvements but rather barriers from the plaintiff’s perspective- the defendants do not identify any limitations that might be reasonably perceived as objectionable by the plaintiff. Yet again, the improvements cited- one-way sign and speedbumps- occurred in or around 2014, more than 15 years after the claimed prescriptive easement would have come into existence (in or around 1997); whether the plaintiff abided by or objected to these improvements is irrelevant given the commencement of the prescriptive period at or around the end of 1982.
Given the fact that the plaintiff’s primary concern appears to have been access (ingress) for southbound traffic on Atlantic Street, limiting traffic to one-way ingress would not give rise to any obvious reasonable objections to a limitation of traffic in that manner. The defendants have not suggested any possible reasonable objection- they simply identify the absence of any objection in something of a vacuum. Absent any attempt at enforcement, anyone might well disregard the signage without knowledge of the principals of any party (unless it was a principal doing the driving). A limitation of the alleyway to one-way traffic might seem to be eminently reasonable- a 12-foot wide passageway cannot easily handle simultaneous ingress and egress such that there would be a likelihood of periodic situations where one driver would have to back up to allow the driver in the opposite direction to proceed. This would be especially problematic for a driver to back up back into Atlantic Street if an exiting vehicle was almost to the sidewalk when an entering driver made the turn into the alleyway. And, of course, if the defendants’ principals rarely saw any use by the plaintiff’s invitees, they would have no knowledge as to whether unseen users obeyed the one-way signs.
The defendants close out this section of their memorandum by addressing the now-withdrawn claims that the plaintiff had an easement based on the land records.
As a final point, the Plaintiff discussed in its various Affidavits Plaintiff’s prior erroneous belief in its rights under its own warranty deed to use the Alleyway as though such a fact alone, if taken as true, would qualify Plaintiff’s purported adverse use.
Belief of ownership, or the belief of legal justification to use the easement, is not the qualifying factor to establish adversity under the claim of right element. Instead, the court has noted:
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. Nevertheless, it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified . 5 Restatement, Property, Servitudes § 458, comment (d) (1944). Instead, the "essential quality" is that the use not be made in subordination to those against whom it is claimed to be adverse . Id." (Internal quotation marks omitted; emphasis as in defendants’ brief.) Crandall v. Gould, 244 Conn. 583, 591, 711 A.2d 682, 686 (1998).
The court believes that the defendants have attempted to convert a statement that the absence of a particular factor is not dispositive into a diminution of the possible significance if not importance of the presence of that factor. This is confirmed, at least in part, by the balance of the paragraph from which the defendants have quoted, as set forth above:
A use which is not made in recognition of and in submission to a present authority to prevent it or to permit its continuance is adverse though made in recognition of the wrongfulness of the use and, also, of the legal authority of another to prevent it. Thus, one who uses the land of another in defiance of the owner is none the less an adverse user though he admits his lack of legal justification in making the use. Id.
In other words, the court was trying to address the antipode of the usual scenario- a situation in which not only does the user of the claimed easement area not act under an affirmative claim of right of use (or to use the defendants’ terminology, belief of right of use) but actually is acting in knowing defiance of the lack of any right of use. The point being made was that even when dealing with that type of scenario, so long as there was no acknowledgment of (submission to) the true owner’s authority- a situation in which there is at least, in a literal sense, an absence of a claim of right- a prescriptive easement may nonetheless arise.
Thus, the court does not believe that this adds to the analysis of this particular factor in this particular case. Rather, it highlights the fact that this is not an extreme or outlier situation but rather one in which the plaintiff had, until recently, acted under the belief that there was a deeded right to use and even if that belief now has been undermined, the use of the property (certainly from 1982 through 1997) was both in a legal and literal sense, under a claim of right.
The court, then, concludes that the defendants have not established that there is a material issue of fact as to whether the plaintiff was acting under a claim of right, much less has it established the negative of that proposition to the required level of certainty (no material issue of fact) needed to entitle the defendants to summary judgment in their favor.
II. Implied Permission/Neighborly Consent
The defendants correctly state that implied consent/permission can, in appropriate circumstances, negate the adverse quality of the use of property, thereby defeating a claim of prescriptive use. The court does not see any of the specific instances identified by the defendants, however, as establishing a material issue of fact for purposes of defeating the plaintiff upon its motion, much less establishing the existence of such implied permission/consent with the requisite level of certainty (no material issue fact) as to entitle the defendants to summary judgment.
Specifically, the defendants start off by stating:
Since at least 2008, Defendants would use Plaintiff’s parking lot for its customers over the weekend. Foremost, the Defendants recognized and were aware since the time the plaintiff moved into their building that they were using the alleyway as a short cut to their parking lot. It is pointed out in the transcripts of the [defendants’ principals] that such use was in plain sight. Moreover, there are instances of documented pleasantries shared between the parties.
The first sentence has multiple problems. The claimed adverse use started in 1982, such that events "since at least 2008" would be events occurring, at their earliest, approximately 10 years after the adverse use is claimed to have matured into a prescriptive easement. Further, the fact that the plaintiff allowed the defendants to make use of the plaintiff’s parking lot on weekends, while indicative of a neighborly attitude, says nothing about neighborly permission or acquiescence on the part of the defendants relating to the plaintiff’s use of the claimed easement area. (While there is some question about the recited starting date, the evidence establishes that the parties are in agreement that there was a mutuality of accommodation- in exchange for the defendants using the plaintiff’s parking lot on weekends, the plaintiff was allowed to use the few parking spots behind 200 Atlantic Street. While on one level this was neighborly, on another level this was a mutually beneficial agreement, with a quid pro quo.)
As noted elsewhere, there is some uncertainty as to when the defendants acquired 200 Atlantic Street and 210 Atlantic Street. In their submissions concerning summary judgment, the defendants seem to accept 2014 as the appropriate year of acquisition of both parcels, whereas in depositions, the defendants’ principals indicated that one of the parcels may have been acquired much earlier, by a matter of several years (but long after 1997). This may be a factual issue but not a material factual issue.
The next sentence seems garbled to an unknown extent, since the plaintiff purchased and began using its building in 1982, years before the defendants purchased the first of their buildings, such that there is no basis for the defendants to have been aware of anything at the time that the plaintiff began using its building. If the intent is that the defendants became aware of the plaintiff’s use from the time the defendants acquired their first building, several years after the plaintiff had commenced use of the alleyway/easement area, the defendants do not explain how their acquisition of their initial and subsequent buildings somehow transformed the plaintiff’s pre-existing use into permissive or consented-to use. In effect, the defendants are conflating the element of open and apparent use by the plaintiff with the notion of consent by the defendants. That the use was in plain sight again is an element of the openness of use. Implicitly, the defendants are espousing a heads-I-win-tails-you-lose approach. If there is open use that is observed by the fee owner, and the fee owner takes legal action, that cuts off the running of the statutory period for establishing a prescriptive easement. If there is open use that is observed by the fee owner, and the fee owner takes no legal action, then that is indicative of consent by the owner, again cutting off the running of any claim of prescriptive easement.
Returning briefly to the issue of sham affidavit: This sentence ("Foremost, the Defendants recognized and were aware since the time the plaintiff moved into their building that they were using the alleyway as a short cut to their parking lot.") seems to indicate that even defense counsel is rejecting the assertion in the affidavit submitted on behalf of the defendants stating that the use of the easement area by the plaintiffs was infrequent- they acknowledge, here, the plaintiff’s ongoing use of the alleyway (and necessarily also, the area behind the buildings) as a means of access to the plaintiff’s parking lot.
Lastly, the defendants contend that there are documented pleasantries having been exchanged between the principals of the plaintiff and the defendants. The mere existence of civil interchanges between abutting property owners says nothing about the existence of adverse use (or permissive use) for purposes of a prescriptive easement. Or. are the defendants suggesting that a prescriptive easement can only exist between property owners that are constantly uncivil to each other?
The discussion of the claimed existence of consent continues with a series of re-formulations of the foregoing- the parties were civil and exchanged pleasantries, and the plaintiff allowed the defendants to use the plaintiff’s parking lot, at times, on weekends. None of this creates a material issue of fact, much less establishes to the requisite level of proof, that there was implied consent by the defendants to the plaintiff’s use of the claimed easement.
Adding to the somewhat non sequitur quality of these contentions, it is clear from the defendants’ own framing of the facts that explicit consent was sought and obtained for the defendants to make use of the plaintiff’s parking lot. There is no explanation as to why a situation involving the defendants asking for consent from the plaintiff is suggestive of implied consent by the defendants to the plaintiff in a different context, particularly when the defendants provided consideration to the plaintiff- the right to use a few parking spaces behind 200 Atlantic Street.
The defendants’ final argument in this section of their brief is that because the plaintiff abided by the one-way sign and speed bumps, it was not utilizing the alleyway in an adverse manner. There are a number of problems with this contention.
First, in terms of classification, this is not an argument that goes to the issue of consent but seems more a matter of whether the use was adverse. Second, it is not clear how one can choose not to abide by speed bumps- or to use the defendants’ alternate terminology, can choose to ignore speedbumps. Third, there is a substantial conclusory quality to any assertion of abiding with the one-way sign- there is no evidence of active monitoring of the direction of traffic on the easement before and after the signs were posted, and particularly differentiating between those coming from the plaintiff’s building and those coming from the defendants’ buildings (or other sources of traffic). Fourth, the defendants do not identify any reason why the one-way sign would be systematically or regularly ignored since, as already noted, one-way traffic would be eminently reasonable in a narrow alleyway (assuming an alternate means of egress). Finally, Michael Yaraghi, in his deposition transcript attached to #144.00 (one of the defendants’ submissions relating to summary judgment), stated at pp. 79-80 that he believed the one-way signs were installed after the gate had been installed and that is consistent with other evidence- assuming that chronology to be accurate, the signs were installed at a time after the defendants had challenged the plaintiff’s right to use the claimed easement area such that the dispute was full-blown at that point (or just a few months before it became full-blown, depending on the differing details (by months) as to the relevant chronology). And, of course, all of this is in addition to the ever-present threshold problem with respect to the defendants’ evidence- the 15-year period of time under General Statutes § 47-37 had long since expired at the time of these events, such that while these events brought the issue into focus, they do not address (potentially negate) whether the plaintiff had already established a prescriptive easement based on usage from 1982 through at least 1997.
The defendants, then, have not established the existence of a material issue of fact relating to implied/neighborly consent, much less have they established this contention to the level of certainty (no material issue of fact) necessary to entitle them to summary judgment.
III. Use by the General Public
The defendants invoke the legal principle that an adverse user whose use is indistinguishable from that of the general public cannot succeed in establishing a prescriptive easement.
Where the use of the right-of-way is in common with the public, the common use is considered to negate 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 of which the servient owner is aware in which clearly indicate his individual claim of right.Krohner v. Seyburt Associates Limited Partnership, 20 Conn.App. 298, 301 (1989).
The court then went on to note that whether an individual user’s use is sufficiently distinctive is a factual issue. As is expected, the plaintiff argues that the facts establish that its use was distinctive from that of the public, whereas the defendants argue that the plaintiff’s use was indistinguishable from that of the public.
The plaintiff correctly notes that while it doubts that there has been any consistent use by the public as claimed by the defendants, it and the court must assume it to be so (unless the court were to conclude that the defendants’ evidentiary submission in this regard is conclusory rather than factual- which it seems to be). The court does not believe that occasional driving is the kind of public usage that is invoked by this legal principle. The concept of use by the general public necessarily implies some level of regularity, and the defendants’ own use of the word "continuously" implicitly recognizes the need for more than sporadic conduct.
This invokes a threshold issue identified earlier- the extent to which the defendants "monitored" traffic and especially the ultimate destination of traffic. This would require more than simply a glance at a vehicle to see the direction in which it is moving and perhaps whether the operator is recognized as a principal or tenant of the plaintiff. The defendants did not acquire the two properties closest to the plaintiff until 2014; therefore, prior to 2014, a vehicle turning left after exiting the alleyway might have had the defendants as a destination (first building to left of alleyway) or might have the second building to the left of the alleyway as a destination or might have the third building to the left of the alleyway as a destination or might have the plaintiff as a destination- or, as the defendants now are contending is the only option to the plaintiff as a destination, an intent to continue on through either to the mall or to Tresser Boulevard, a public street. Simply looking from the rear of the building and observing a vehicle proceeding towards the mall or towards a public street such as Tresser Boulevard, without observing whether the vehicle was making an uninterrupted exit from the rear area after entering through the alleyway, leaves the insoluble ambiguity as to whether that vehicle had originated from a parking area behind any of the then-unowned buildings or the plaintiff’s building, as opposed to a vehicle being engaged in the presumed shortcut (uninterrupted passage). Observations sufficient to resolve such potential ambiguities would require several seconds of continuous observation of each vehicle, something the court finds difficult to determine to be a reasonable inference from the defendants’ evidentiary submission. That, however, might be a material issue of fact (again, unless deemed conclusory and therefore not even to be considered).
Although the defendants contend that the path taken by vehicles going to the mall or taking a shortcut to Tresser Boulevard is the same as the path to the plaintiff’s property, at least with respect to usage of the claimed easement area, a careful examination of the respective routes and especially in the context of the claimed easement area in its entirety, demonstrates otherwise, and with no possible material issue of fact.
It is critical to have the configuration of the properties and driving areas and parking areas in mind, to undertake any such analysis. The layout is most clearly set forth in Exhibits C and F to #137.00, as confirmed by other drawings and photographs in the parties’ submissions.
Viewing the properties from the rear boundaries, and working from left to right, 252 Atlantic Street is to the extreme left and is separated by the alleyway in question from 234 Atlantic Street. Those are the two properties initially acquired by the defendants. Working further to the right comes to 210 Atlantic Street and then 200 Atlantic Street, both of which properties were acquired by the defendants in or around 2014. Finally, to the extreme right is 184 Atlantic Street, the property owned by the plaintiff since 1982.
Returning to the extreme left and focusing on the paved areas behind the buildings, there is no indicated parking behind 252 Atlantic Street (at least as part of that property). There is parking behind 234 Atlantic Street and 210 Atlantic Street- each have parking immediately abutting the rear of the building and parking on the far side of the area intended for vehicle passage, which is part of what was at one time known as Quintard Place (a private road). The parking on the side of the traveled area behind and furthest from 210 Atlantic Street (abutting the rear boundary) does not extend the full width of the building- as one moves from left to right along that area, approximately halfway or more along the width of the building, the parking area that is not abutting the building ends and gives way to a driveway occupying the remainder of the width of the property. That driveway (in some drawings identified as a bituminous driveway) provides a connection to the mall and eventually Tresser Boulevard. (In some testimony, this driveway, shown on some drawings as a bituminous driveway, was identified as Quintard Place- but not the private and/or abandoned areas of Quintard Place that make up the paved area running along the back of 234 Atlantic St, 210 Atlantic Street and 200 Atlantic Street, and then extending behind the plaintiff’s property.)
Continuing to the right, there is an area immediately adjacent to the rear of 200 Atlantic Street that is usable for parking. There is a large parking area on the far side (from the building) of what formally was Quintard Place behind 200 Atlantic Street, extending behind the plaintiff’s property as well, surrounded by a sidewalk such that there is no way out, except to retrace one’s steps either to the alleyway or to the driveway behind 210 Atlantic Street. (The plaintiff’s gated parking area includes this area and the area behind the plaintiff’s building.) The area immediately abutting the building at 200 Atlantic contains the four or so parking spots that the parties agreed that the plaintiff could use; the large parking lot behind 200 and 184 Atlantic Street is the plaintiff’s gated parking lot.
As reflected by the line drawn (by hand) on Exhibit F, the claimed easement area extends the length of the alleyway starting at the Atlantic Street end extending to the rear of the buildings, and then makes a turn behind the buildings at 234 Atlantic Street, 210 Atlantic Street, 200 Atlantic Street, and extending into the plaintiff’s gated parking area. Anyone seeking to go to the mall or Tresser Boulevard, however, would have to branch off from that indicated easement area at the driveway that is behind 210 Atlantic Street, as that driveway provides the needed access to the mall and/or Tresser Boulevard- unless one were to turn around and go back down the alleyway, and circle around via Atlantic Street.
The point of this verbal description is to emphasize that there is effectively a fork- a visitor to the plaintiff’s property, after traversing the alley and making a left turn, continues straight behind 200 Atlantic Street and into the gated area behind the plaintiff’s property. Anyone wishing to take the shortcut identified by the defendants- to the mall or to Tresser Boulevard- would have to turn right, into the bituminous driveway - for vehicular traffic, going straight (past the turn for the driveway (a/k/a public Quintard Place) leads to a vehicular dead-end at the gate to the plaintiff’s parking lot. Additionally, drivers wishing to exit the defendants’ properties- and that would seem to include persons leaving the plaintiff’s property and/or the rear of 200 Atlantic Street- would also use the driveway, turning off the former private/abandoned Quintard Place for that purpose. This confluence of drivers using the driveway to exit the areas behind these buildings and any drivers who might be taking a shortcut reinforces the need for some level of monitoring rather than simply glancing out a window and seeing a vehicle driving on the public driveway and concluding that the person is a member of the public taking a shortcut.
With respect to people going to the mall, there is at least some level of ambiguity/uncertainty. At times, the focus of defendants’ concerns appears to be on people parking behind their buildings and walking to the mall. At other times, there is a sense that there also may be a concern about people driving to the mall via the claimed easement area. Pedestrians walking to the mall are readily distinguishable from drivers to the plaintiff’s property on at least two levels- they are parking their cars behind the defendants’ buildings on defendants’ property rather than driving through to the plaintiff’s property, and they are getting out of their cars on the defendants’ property such that they are observable as pedestrians on the defendants’ property. (Since pedestrians are not constrained by sidewalks and curbs in the same way that motor vehicles are, the precise route taken by such pedestrians might or might not be the same as taken by motor vehicles if they were to use the alleyway as a shortcut to the mall.) The issue before the court, however, relates to vehicular traffic.
The fork quality at the driveway creates a readily observable separation between members of the public who might be taking a shortcut to the mall or to Tresser Boulevard, and visitors to the plaintiff’s building. While there is certainly a partial overlap between the area used (claimed to be used) by the public and the area used by visitors to the plaintiff’s premises, the portion of the claimed easement area behind 200 Atlantic Street could have served no purpose to members of the public and inferentially would/could not have been used by members of the public (except perhaps somebody who was lost or missed the necessary turn onto the driveway). That type of distinction would be readily-perceivable to owners of the properties across which the easement ran. (To the extent that the defendants identify pedestrians parking and going to the mall or elsewhere on foot, that is irrelevant- the issue is vehicular traffic and in particular the focus is on vehicular traffic continuing past/behind 210 Atlantic Street and 200 Atlantic Street and reaching 184 Atlantic Street.) That ability to distinguish is precisely the factor that allows there to be a prescriptive easement over a passageway also used by the public.
Assuming such shortcuts exist- at least in part, the plaintiff challenged various aspects of these claimed shortcuts. For purposes of this analysis, such shortcuts must be assumed to exist.
The defendants cite and generally rely upon Krohner v. Seyburt Associates Limited Partnership, 20 Conn.App. 298 (1989); the plaintiff cites and relies upon Gioielli v. Mallard Cove Condominium Association, Inc., 37 Conn.App. 822, 658 A.2d 134 (1995), cases with similar fact patterns but differing outcomes. The cases are similar in that both cases involve the defendant owners of property across which members of the public regularly traversed, with the plaintiff claiming a right of access over the defendant’s property to the plaintiff’s property which in each case was located somewhere along the route taken by the public, i.e., not at either end point. Both cases were appellate review of a trial court’s determination of the merits. A modestly distinguishing feature is that in Gioielli, the claimed right-of-way was on a well-defined private road whereas in Krohner, the claimed right-of-way was across a somewhat disused parking lot (intended for a supermarket no longer operational).
Although the Appellate Court did not reach the issue, the trial court also had concluded that there had been an inability on the part of the plaintiff to sufficiently define the parameters of the claimed prescriptive easement, presumably because the use of a parking lot to get from one street to another would not allow the court to define the scope of any easement that might be found to exist with requisite precision.
These cases present the court with a number of issues. Most obviously, given their similarity, how does the court distinguish between the two in terms of applicability to/control of the case currently before this court? Other than that the Krohner case involved a claimed easement with imprecise (or no discernible) boundaries, the chief distinction appears to be how the trial court in each instance evaluated the underlying evidence. That, however, leads to a second major issue- in connection with the pending motions for summary judgment, the court is not acting as a fact finder but rather as an issue-spotter. If this case requires an exercise of the court’s factfinding function, then it is ill-suited for summary judgment.
The court believes that there is a factor that distinguishes this case from both Gioielli and Krohner . Before addressing it in detail, the court believes it appropriate to identify a predicate problem with a substantial portion of the defendants’ arguments in this regard. The actual language used in a portion of this argument demonstrates that the point to be made is not based on a single inadvertency.
Therefore, much like Krohner v. Seyburt, both the public and the plaintiff use the Alleyway in question for convenience to reach the back area of 234, 210 and 200 Atlantic Street. The plaintiff, and its employees, guests, clients and invitees purportedly use the Alleyway as a shortcut for convenience to park and frequent the Plaintiff’s place of business, and at some point in time, these same individuals have likely used [the] Alleyway to gain access to Tresser Boulevard the public uses the Alleyway as a shortcut for convenience to park, and frequent the shopping mall which is also a place of business, or to more easily access Tresser Boulevard. Simply because the Plaintiff uses the Alleyway to gain access to its own parking lot, much like the plaintiff in Krohner v. Seyburt used the [claimed easement] to gain access to the loading docks, does not make the Plaintiff’s use here so different or unique that it would have put the defendant on notice of a use different from that of the general public.
The defendants used the term "Alleyway" here- the court has substituted a more appropriate if general term, since the identified case did not have an alleyway but rather a somewhat unused parking lot (the store intended to be serviced by the parking lot no longer being in business).
Throughout this passage, the defendants seem to treat "Alleyway" as a synonym for "claimed easement" in describing the area over which the plaintiff is claiming a prescriptive easement. While it may be a convenient shorthand for some purposes, for purposes of anything approaching a rigorous analysis of the issues needing to be adjudicated, the scope of the claimed easement is far in excess of the alleyway. In a qualitative rather than a quantitative sense, the alleyway is only half of the claimed easement- in addition to the alleyway, the easement is claimed to include the area behind all of the defendants’ buildings over which vehicular traffic flows (what is shown on some drawings as abandoned and/or private Quintard Place). If a more accurate if general term such as claimed easement is substituted for the inappropriate use of "Alleyway," the quoted paragraph now reads:
Therefore, much like Krohner v. Seyburt, both the public and the plaintiff use the claimed easement in question for convenience to reach the back area of 234, 210 and 200 Atlantic Street. The plaintiff, and its employees, guests, clients and invitees purportedly use the claimed easement as a shortcut for convenience to park and frequent the Plaintiff’s place of business, and at some point in time, these same individuals have likely used [the] claimed easement to gain access to Tresser Boulevard the public uses the claimed easement as a shortcut for convenience to park, and frequent the shopping mall which is also a place of business, or to more easily access Tresser Boulevard. Simply because the Plaintiff uses the claimed easement to gain access to its own parking lot, much like the plaintiff in Krohner v. Seyburt used the [parking lot] to gain access to the loading docks, does not make the Plaintiff’s use here so different or unique that it would have put the defendant on notice of a use different from that of the general public.
The defendants used the term "Alleyway" here- the court has substituted a more appropriate term, since the identified case did not have an alleyway but rather a somewhat unused parking lot (the store intended to be serviced by the parking lot no longer being in business).
Once a more appropriate term is used to describe the area claimed by the plaintiff for prescriptive rights, this paragraph no longer comports with reality. Again in a qualitative rather than quantitative sense, only half of the area behind the buildings- what used to be known as private Quintard Place- would be used by people taking a shortcut to the mall or taking a shortcut to Tresser Boulevard. After traveling approximately half of the distance from the alleyway to the plaintiff’s property, such drivers would have to make a right turn onto the bituminous driveway leading away from the parties’ buildings (which seems to be known as a public portion of Quintard Place). There is no outlet (other than making a U-turn), once a member-of-the-public driver reaches 200 Atlantic Street and/or the plaintiff’s property.
Again, assuming such shortcuts exist- at least in part, the plaintiff challenged various aspects of these shortcuts. For purposes of this analysis, such shortcuts must be assumed to exist.
In Gioielli and Krohner, drivers intending to go to the respective plaintiffs’ properties would turn off from a path that continued on beyond the point of turnoff, while other drivers would continue straight through. Since each plaintiff had an alternate means of access to its respective property, the owner of the claimed servient estate would only know if a vehicle was using its property for access if the turn onto the respective plaintiff’s property was actually observed; merely observing a driver on the claimed easement area would not allow the servient owner to know whether the driver was a member of the general public as opposed to an intended user of the respective plaintiffs’ property.
Here, however, once a driver makes the left turn from the alleyway, and does not make a right turn onto the driveway heading in the direction of the mall and Tresser Boulevard but instead proceeds straight towards the rear of 200 Atlantic Street, there are only two possible destinations- 200 Atlantic Street (now owned by the defendants) or the plaintiff’s property. This is far more than the well-defined driveway that separated visitors to the plaintiff’s property in Gioielli from members of the general public and the ill-defined if not undefined separation of path across the parking lot in Krohner. Anyone- everyone- who drove onto the area behind 200 Atlantic Street either was intending the defendants’ property as a destination or was intending the plaintiff’s property as a destination; there was no possible alternate destination for members of the public. There is no need to distinguish members of the public from visitors to the plaintiff’s property, once the driveway is passed and the area behind the building at 200 Atlantic Street is entered. The only distinction that might be drawn is between the defendants’ visitors/invitees and the plaintiff’s visitors/invitees, and that is not a requirement for establishment of a prescriptive easement- there must be a distinction between use by the public and use by the plaintiff. (Again, to the extent that the defendants identify pedestrians parking and going to the mall, that is irrelevant- the issue is vehicular traffic such that pedestrian behavior is irrelevant and in particular the focus is on vehicular traffic continuing past/behind 210 Atlantic Street and 200 Atlantic Street and reaching 184 Atlantic Street.)
To put it more bluntly: no member of the public would/could drive over the area behind 200 Atlantic Street to get to the mall or to get to Tresser Boulevard or for any other possible purpose that the defendants might hypothesize. The only possible destinations are 200 Atlantic Street (a property now owned by the defendants) and 184 Atlantic Street (the plaintiff’s property). Even a minimally observant owner of the servient estates, watching traffic, would readily be able to observe the distinctive nature of the traffic heading to the plaintiff’s property, and especially the non-public nature of that traffic.
This analysis does not require factfinding by the court. It is a matter of common sense that people who use shortcuts know or believe that the shortcut will save them time and/or distance (or perhaps frustration) in getting to a destination. No one will reasonably attempt to use a shortcut that actually is a dead end/cul-de-sac/no outlet situation, for the anti-tautological reason that it is not a shortcut to anywhere (other than that dead-end/cul-de-sac/no outlet).
Therefore, while there is a partial overlap between the claimed public use of the claimed easement area and the use by the plaintiff, that overlap is only partial and the non-overlap portion of that path taken by visitors to the plaintiff’s property is sufficiently distinctive to any observer (non-selective observer) so as to prevent the plaintiff’s use from being subsumed in the general public use.
This is not a situation such as in Gioielli (where a prescriptive easement was found to exist) where the plaintiff’s use immediately branched off the public use- here there is a section of the claimed easement area, owned by the defendants (and previously owned by their predecessor in title) that is not utilized by the public at all for vehicular purposes but rather is a necessary link to the plaintiff’s property. There is no room for any claimed material factual issue in this regard.
Special Defenses
In order to prevail on its motion for summary judgment, not only must the plaintiff demonstrate the absence of any material issue of fact with respect to its affirmative claims, but must also establish the absence of any material issue of fact with respect to the defendants’ defenses. That, in turn, the court requires the court to resolve something of a procedural issue not raised by either of the parties.
When the plaintiff initially moved for summary judgment, a three-count complaint was the operative pleading, and the second count was the count asserting a prescriptive easement. The motion for summary judgment only related to that second count. The defendant filed an answer and special defenses on or about October 20, 2016. In 2017, the plaintiff sought to file an amended complaint which added new parties, which complaint, as served, became the operative complaint (#120.00, filed December 8, 2017). The defendants filed their first amended answer and special defenses on July 26, 2019 (and then, only after a motion for default for failure to plead had been filed, directed to the new parties who had not been parties at the time of the earlier answer (the 200 and 210 Atlantic Street entities)).
The plaintiff filed its second amended complaint which became operative on September 9, 2019 (#165.00; see #166.01), in order to conform the pleadings to the withdrawal of two counts (#165.00). The defendants waited more than 10 days after the second amended complaint became operative (Practice Book § 10-61) before filing their second amended answer and special defenses, addressed to that second amended complaint (#159.01 filed October 15, 2019). Pursuant to Practice Book § 10-61, having already filed an answer and special defenses to an earlier version of the complaint, the defendants had 10 days in which to file a pleading addressed to the amended complaint as a matter of right. Otherwise, the defendants would be required to use one of the procedures set forth in Practice Book § 10-60. No motion or request to amend appears to have been filed, and there is no indication that the plaintiff consented in advance to the filing of such an amended pleading. (The plaintiff did not retrospectively object, and it filed a reply to those defenses.)
The "problem" is that the second amended answer and special defenses were filed after argument on summary judgment (September 23, 2019) and increased the number of special defenses from five to ten. Although the plaintiff filed a reply to the defenses (#171.00 filed November 15, 2019), the plaintiff clearly had no opportunity to address in its summary judgment submissions the substance of any new issues that might have been raised, since written submissions were long since filed and argument long since concluded. The plaintiff’s last amended complaint narrowed the issues and was filed prior to argument such that- aside from narrowing rather than broadening the scope of issues- the parties had an opportunity to incorporate any possible changes into their arguments and if perceived to have been needed, could have asked for additional time to submit additional materials in support of their respective positions. The defendants’ new special defenses were filed three weeks after argument. In part because the defendants did not file their amended pleading within 10 days; Practice Book § 10-61; (which would have been before argument on the summary judgment motions) and did not file a motion for permission to file their second amended answer more than 10 days after the plaintiff’s amendment; Practice Book § 10-60; the court only learned of the new issues when it thoroughly reviewed the pleadings in connection with preparation of the portion of this decision relating to special defenses.
The result of this is that the parties did not brief the issues in the special defenses that were added, did not have an opportunity to submit evidence relating to the new issues (or identify "old" evidence already before the court that would be relevant), and did not have an opportunity to argue the issues presented by the new special defenses. In the defendants’ submission, they did not address any of the special defenses, per se- rather, although there was overlap, their brief was structured as challenging the requirements plaintiff needed to satisfy in order to establish its claim. In Greene v. Keating, 156 Conn.App. 854 (2015), the court held that a decision on a motion for summary judgment must be based on issues actually raised in the motion; here the court is dealing with issues that did not even exist in the case at the time of the motion was briefed and argued.
Under these unique if not bizarre circumstances, the court believes it appropriate to reject the new special defenses that were added as a matter of fundamental fairness. Nonetheless, the court will address the merits of the special defenses as set forth in defendants’ second amended special defenses. (The "old" special defenses will be identified, as they do not suffer from the procedural anomalies identified above.)
The first special defense is new- it states that "[t]he allegations of the Plaintiff’s [initial and first amended complaints] claim the Plaintiff has deeded rights to use the ‘Easement’ (as designated by the Plaintiff in the Second Amended Complaint) which precludes the Plaintiff’s claim for a prescriptive right." This defense suffers from numerous flaws. First, it is clear that in the initial and first amended complaints, the plaintiff was pleading in the alternative. While a party generally cannot simultaneously prevail on inherently inconsistent theories of recovery, generally there is no prohibition on asserting such inconsistent claims, with the plaintiff able to pursue such claims simultaneously.
A second problem is that the plaintiff is not pursuing the claims simultaneously but has instead abandoned the claim of deeded rights such that there is no inherent inconsistency. As reflected by cases such as Rockstone Capital, LLC v. Sanzo, 175 Conn.App. 770, 787-88 (2017); affirmed in part and appeal dismissed in part, 332 Conn. 306, 210 A.3d 554 (2019), an amended complaint renders an earlier version of the complaint of only historical value- it has no role in framing the issues.
Finally, the defendants are blurring the distinction between claims and proof. As reflected by the wording of this defense and the fact that this defense was first asserted after the plaintiff had withdrawn/abandoned claims predicated on the existence of deeded rights, there is no claim and would be no evidence relating to such deeded rights, as deeded rights would be outside the scope of the plaintiff’s current claims. Unless the defendants intend to assume the burden of proving (and therefore offering evidence of) a deeded right, evidence and claims of a deeded right are not currently before the court.
The court believes the situation is analogous to that present in contract-based claims, where there often is a claim of unjust enrichment and/or quantum meruit as alternatives to the basic claim of breach of contract- the existence, whether past or present, of a claim of breach of contract, does not prevent a plaintiff from prevailing on an unjust enrichment claim, should the plaintiff be unable to prevail on the breach of contract claim.
The situation might have been different if the first and third counts of the original complaint still were pending. An argument certainly could be made that while such claims were pending, the factual existence of such explicit easement rights could be characterized as material issues of fact relating to entitlement to a prescriptive easement.
The historical existence of past claims of deeded easement rights is not a defense to the prescriptive easement claim before the court.
The second special defense also is new and is related to the first special defense. Here, it is even more critical to quote the precise language: "The use of the ‘Easement’ (as designated by the Plaintiff in the Second Amended Complaint) by the Plaintiff, its members, employees, tenants and invitees over the rear portion of the properties located at 210 Atlantic Street and 200 Atlantic Street was pursuant to a deeded right which precludes the Plaintiff’s claim for a prescriptive right."
At the outset, as applicable to all of the new special defenses, there is no identification of evidence in support of this defense, and the court does not recall any evidence specifically identified in any brief suggesting the existence of a limited explicit/deeded easement. There was deposition testimony from Arash Yaraghi that there might have been some public easement in that general area, but the precise area of such an easement was not described verbally, and the drawings on which he made various designations were not submitted to the court- and again, that was in the context of a public easement rather than a deeded easement in favor of the plaintiff.
More substantively, the court must assume that this is intended to be distinct from the first special defense quoted above. The most likely interpretation is that this appears to be an affirmative statement by the defendants that there is a factual deeded easement in favor of the plaintiff, over a portion of the area on which the plaintiff claims an easement by prescription. This leads to a number of problems/irregularities which in turn are consequences of the procedural irregularity identified at the outset of this section.
This appears to be the first- literally first- place in the record where the defendants seem to have acknowledged the existence of a deeded easement, even for a portion of the easement claimed by the plaintiff. In their pleadings as well as in their memorandum of law relating to summary judgment, there is no such granularity- there is simply a denial of the existence of any deeded easement rights in favor of the plaintiff, across the entire area claimed by the plaintiff as a prescriptive easement. Although the defendants focus primarily on the alleyway, the entire area behind the buildings once one makes a left turn exiting the alleyway unambiguously is part of the plaintiff’s claim, and the court recalls no reference anywhere in the record, prior to this special defense, of a recognition of a deeded right to any portion of the area claimed by the plaintiff to constitute an easement in its favor. Only after the plaintiff abandoned any claim of express/deeded easement rights did the defendants have an epiphany and decide that, despite consistent prior denials, the plaintiff actually did have a partial deeded easement.
As identified above, there are a number of problems raised by this belated attempt to create an issue. First, there is the inherent unfairness of raising an issue after the summary judgment motion and cross motion had been fully briefed and argued; there is an ambush quality to raising an issue that had not even been suggested by the defendants’ filings- seemingly had been negated by all prior filings.
The plaintiff, of course, had no way to know that this issue would be raised and therefore could not have presented any evidence in opposition. No one has pointed out any specific provision of any deed that was submitted to the court that sheds light on this issue- hardly unexpected given the unorthodox manner in which the issue has been presented to the court. This does not appear to be a situation where the pleading was amended to conform to proof- at least not as far as the court can determine. It would be unfair, then, to deny summary judgment based on an issue that neither party addressed in their briefs and about which neither party seems to have submitted evidence.
Further, the court notes that this is, from the plaintiff’s perspective, an application for declaratory relief. If the defendants truly are admitting that there is a record easement in favor of the plaintiff across the rear of 200 and 210 Atlantic Street, the plaintiff still would be entitled to relief of the general nature being claimed, subject to a modification that a portion of the claimed easement is not prescriptive in nature but rather based on explicit deeded rights. The claim for an injunction against interference with easement rights would remain the same, subject to the variance that a portion of those easement rights are based on deeded rights and the balance based on prescriptive rights. A necessary consequence of the irregular manner in which the issue has been raised is that the defendants have not explained why the plaintiff would not be entitled to relief, if perhaps on a slightly modified basis, were this special defense deemed to have been proven.
The mere fact that the defendants have made a factual assertion such as this does not have any evidentiary weight for purposes of summary judgment; Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015). While ordinarily the burden would be on the plaintiff to refute special defenses, Nationstar Mortgage, LLC v. Mollo, 180 Conn.App. 782, 796 (2018), the procedural posture of this case made that impossible; if the court were to consider such a defense, the burden would have to be on the defendants to come forward with evidence supporting such a contention, which as noted above, is not present.
The court cannot conclude that the second special defense is a basis to deny the plaintiff its motion for summary judgment, nor is it a basis to grant summary judgment in favor of the defendants.
The third special defense asserts that by the plaintiff’s own admission, the plaintiff’s use of its claimed easement "was in common with the public which negates the Plaintiff’s claim for prescriptive easement." This appears to be a restatement of what used to be the first special defense to the second count which stated that the claim for a prescriptive easement "fails to state a claim as a matter of law by reason of, inter alia, general public use and otherwise as required by statute under Conn. Gen. Stat. § 47-37 and in accordance with controlling case law." The court already has addressed this contention and rejected it. (Certainly, to the extent that there is an assertion that this is by the plaintiff’s admission, there is no such admission of which the court is aware- the plaintiff denied the use of the claimed shortcut and at most there was a recognition of a partial overlap.) There is no material issue of fact relating to this defense.
The fourth special defense asserts that the plaintiff’s right to use the claimed easement area "was pursuant to permission provided by a prior owner of the Defendants’ properties which permission was subsequently revoked." Quite simply, the court does not recall any evidence whatsoever suggesting that any predecessor to the defendants- with respect to any of the defendants’ properties- gave explicit permission to the plaintiff for use of any portion of the claimed easement (assuming this does not include the relatively recent agreement between the defendants and the plaintiff to allow cross use of the parking area behind 200 Atlantic Street and the plaintiff’s parking lot). The discussion, above, of the plaintiff’s claim of right also negates any implicit permission and there is no evidence from which the court could affirmatively find implicit permission, especially as relates to a former owner of any of the defendants’ properties. There is no evidence of revocation of permission, explicitly or implicitly, until at least 2014.
Although this special defense was not filed until after the close of submissions and arguments, something in the plaintiff’s reply brief warrants mention in this regard. In that reply brief, the plaintiff explicitly stated that a claim of permission, as had been argued as negating a claim of right in the defendants’ brief in support of its cross motion as well as opposing the plaintiff’s motion, could not be asserted absent a special defense to that effect. (The plaintiff also noted that it previously had articulated a similar position such that it was not something new in terms of the plaintiff’s position and the defendants’ notice of such a contention.)
The plaintiff’s reply, articulating this position, was filed in advance of argument. Nonetheless, the defendants did not attempt to take prompt action to seek to allege a special defense predicated on permission until after argument had concluded. This timing tends to reinforce the ambush quality of the late filing of the special defenses.
The fifth special defense states that the "Plaintiff’s conduct in failing to utilize any claim to right of easement, by admission and otherwise, constitutes the relinquishment of a known right, as otherwise claimed by Plaintiff, constituting waiver." As worded, the court has difficulty understanding this special defense. The court does not understand what is intended by stating that the plaintiff, in some fashion, failed to utilize any claim to a right of easement. This appears to be nothing more than an attempt to back into a claim of waiver, utilizing a statement of the requirements for waiver, and then attempting to add language seeming to relate to this case. The court is unaware of any evidence whatsoever suggesting any waiver by the plaintiff of any rights. For more than 30 years after acquiring its property at 184 Atlantic Street, the plaintiff continuously used what it has characterized as an easement for purposes of access to its property under a claim of right. Shortly after the defendants installed a gate for which the plaintiff was not provided a key, thereby interfering with its use of its claimed easement, this action was commenced. There is no evidence from which the court might possibly find waiver.
The sixth special defense appears to be another instance of trying to force fit the facts of this case into a theoretical defense, this time, estoppel.
The doctrine of estoppel prevents Plaintiff from exercising any claimed right of easement that might otherwise exist by reason of, inter alia, traffic patterns, safety concerns and separate, undeniable and proper access to the rear of Plaintiff’s commercial building by other means that render, in the aggregate, any claimed right to the additional, unsupported, undocumented easement claim of convenience, not necessity, unavailable by estoppel.
Despite the use of numerous legal buzzwords and other terminology, the defense is missing anything suggesting any level of reliance by the defendants, a necessary requirement for estoppel (presumably, equitable estoppel).
There are two essential elements to an estoppel: the party [against whom it is asserted] must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist. (Internal quotation marks and citation, omitted.) Fischer v. Zollino, 303 Conn. 661, 668, 35 A.3d 270 (2012).
(The court has focused on the absence of any possible reliance; there also is lacking any suggestion of any conduct by the plaintiff intended to induce reliance.)
Not only is this defense lacking both required elements for estoppel, but the evidence also likewise is lacking. There is no evidence in the record, that the court could discern, relating to any reliance by the defendants on conduct of the plaintiff. There also is no evidence in the record relating to anything that the plaintiff might have done to induce reliance. This defense, then, is wholly without merit for purposes of this motion.
The seventh special defense is another instance of attempting to force fit the facts of this case into a theory of defense, here, unclean hands. Indeed, the defense is worded specifically as it was in the original special defenses, explicitly referencing the first count of the then-three counts of the original complaint. (The original answer did explicitly incorporate four of the defenses to the then-first count as defenses to the then-second count.)
Putting aside what might be discounted as a typographical error, this defense asserts that the claims of the plaintiff interfere with the defendants’ ownership rights including rear parking privileges, and constitutes an admission of trespass, leading to a claim of unclean hands. In effect, the defendants are attempting to invert the requirements of open and obvious ("notorious") use into a defense to a claim of prescriptive easement. Any unauthorized use of property under a claim of right would potentially be a trespass. Any adverse use of property might impinge on the fee owner’s rights of use. This defense effectively abrogates the concept of prescriptive use.
Further, from an evidentiary point of view, it appears to be undisputed that until 2014, the defendants never voiced any objection to the plaintiff’s use of the claimed easement and never took any steps to limit or prevent such use. (The court already has explained why the brief closing of portions of the easement area due to renovation/construction/improvements was not directed to the plaintiff and instead seemed to be applicable to everyone including the defendants’ own invitees.) The court is unaware of any evidence- and none has been pointed out- indicating that the plaintiff’s use of the claimed easement materially interfered with any use of the same area by the defendants. There is no evidence or claim in the record that the plaintiff did anything other than use the easement area in an adverse way sufficient to establish prescriptive easement rights, that might support a claim of unclean hands. There is no material issue of fact relating to this defense.
The eighth special defense claims laches insofar as it is asserted that the plaintiff failed "to timely exercise any claimed right constitutes undue delay and otherwise deprives Plaintiff of any alleged relief according to a proper application of the doctrine of laches."
It is not clear from this defense or elsewhere in the record as to the nature of the delay that the defendants contend was undue. As set forth in the record, from the time the plaintiff acquired its property until well into the litigation phase, it was under the impression that it had deeded rights to an easement across the entire claimed easement area. It used the entire easement area under that claim of right from 1982 until approximately 2014. Only when the defendants asserted their claimed superior rights to block or limit the plaintiff’s use did the plaintiff have a need to take any steps to assert, in a formal sense, its claimed rights to an easement. As the case matured, the plaintiff initially obtained a quit claim deed from its grantor to the extent that the initial deed appears to have omitted a conveyance of certain easement rights. To the extent that there persisted challenges to those easement rights, the plaintiff chose to pursue its claim of prescriptive rights. Nowhere in this essentially undisputed history is there anything that the defendants specifically have identified/characterized as undue delay nor can the court find it reasonable to infer any undue delay from this essentially undisputed history.
Laches is an equitable defense that consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ... The mere lapse of time does not constitute laches ... unless it results in prejudice to the defendant ... as where, for example, the defendant is led to change his position with respect to the matter in question ... Thus, prejudicial delay is the principal element in establishing the defense of laches ... (Internal quotation marks and citation, omitted.) Kasowitz v. Kasowitz, 140 Conn.App. 507, 513, 59 A.3d 347 (2013).
The defendants have identified no change of position or other prejudice, in addition to the absence of any identified delay. To the extent that the plaintiff is relying upon prescriptive rights, it could not have asserted such rights until the expiration of the requisite prescriptive period. After the required 15 years had elapsed, there is nothing suggesting any further prejudice to the defendants, and nothing suggesting why or how or what the plaintiff should have done, particularly so long as it was under the arguable misapprehension that it had deeded rights to use the easement and the defendants were doing nothing to materially interfere with the use of the easement. There is no material issue of fact relating to applicability of this defense.
The ninth special defense asserts that "[t]hroughout the time of Plaintiff’s use of the ‘Easement’ (as designated by the Plaintiff in the Second Amended Complaint), there was implied permission because Plaintiff, by its conduct, recognized Defendants’ superior claim of right to the Easement." There are a number of aspects to this defense that must be considered.
Procedurally, this appears to be a new defense, and is subject to the same procedural observations/problems identified in connection with the fourth special defense, raising a permission-related defense.
Substantively, the defendants do have a superior right in the sense of having a fee ownership in the claimed easement area, which entitled them to use that area so long as it did not unreasonably interfere with the plaintiff’s use. Second if related, the claimed superior rights of the defendants that supposedly were recognized by the plaintiff appears to be the installation of speed bumps in the alleyway, posting a one-way sign on the alleyway, repaving the alleyway and other portions of the claimed easement, and brief closing (a few days at a time) of the alleyway (and perhaps portions of the easement area to the rear of the buildings) for purposes of allowing repairs, renovations, etc. to take place. (A possible additional act of the defendants that might be in mind is that the defendants posted a sign that there was parking, to the rear, for their business.) The court believes it already has discussed each and every one of these contentions, rejecting them as indicative of the defendants’ superior rights in a sense that would constitute implied permission of the plaintiff’s otherwise use of the claimed easement. For example. Closures for repaving or installation of speed bumps would affect everyone, including the defendant’s invitees, such that there is no possible inference of limitation of use directed to the plaintiff’s use. Further, only claimed evidence of permission in the 1982-1997 time frame would be relevant, as after 1997, the plaintiff’s rights would have matured into a prescriptive easement; the speedbumps and one-way signs in or around 2014 are not relevant to the issue of a prescriptive easement that matured in or around 1997.
The tenth special defense appears to be an alternate formulation of the ninth special defense, asserting that the plaintiff "always recognized Defendants’ superior claim of right to the Easement." it is not clear what this means, other than possibly a reformulation of the ninth special defense. Further, this ignores the fact that the plaintiff had commenced use of the claimed easement several years prior to the defendants owning any of the abutting properties; their use of the easement area, during the defendants’ progressive ownership of abutting properties, was a continuation of a usage predating the defendants. There has been no identified change in the usage by the plaintiff once the defendants acquired their first properties. There is no identified evidence creating a factual issue in this respect.
Five of the special defenses appear to be new; five of the special defenses are either verbatim or variations on the original five special defenses. All of the special defenses, and especially the carryover defenses, are subject to an overlay- during the deposition of the designee for the defendant entities, he was asked about any specific information relating to the then-existing special defenses. Other than the temporary closures and the very recent (relatively speaking) installation of speed bumps, signage, gate and chain, he had no information that might support any of the identified special defenses.
In sum, the court believes it is sufficiently inappropriate to introduce new defenses after the motion for summary judgment had been argued that it would be appropriate to disregard the new defenses. Even if the court considers all of the special defenses asserted in the most recently-filed answer and special defenses, the court does not find there to be any material issue of fact as to the possible applicability/validity of any of those defenses.
The only place in this case that the court finds estoppel might be applicable is with respect to the defendants’ belated assertion of their new second special defense. Their answers and prior special defenses and deposition testimony consistently denied that there was any deeded right for the plaintiff’s use of the claimed easement area. Practice Book § § 10-47 and 10-48 requires specificity in an answer such that if the defendants only denied the existence of an easement across their property in some areas but not others, that should have been set forth in their answer. Even the current answer that accompanies the new special defenses does not parse the denials in such a fashion.
Conclusion
For more than 30 years after the plaintiff acquired the premises at 184 Atlantic Street, it used the alleyway and area behind the defendants’ buildings as a regular means of access to the parking lot behind its building. For more than 30 years, that use was under a claim of right, both in the broad sense as required for a prescriptive easement as well as in the narrower sense of a belief that there was a deed-based easement for such usage.
The conduct of the defendants in and after 2014 cannot have a retroactive effect with respect to easement rights acquired by the plaintiff in the 15-year period starting in 1982. (If the gates and chain were a continuation of conduct that had started prior to the expiration of the 15-year period for prescriptive rights, the analysis might be different, precisely because of such antecedent events.) Closing the alleyway or other areas of the claimed easement during construction-type activities is not an assertion of control over traffic so much as it is a safety or practical limitation- it likely could be characterized as reckless to allow vehicles to pass in close proximity to a scaffolding set up in that alleyway and it is incomprehensible how vehicles could pass through the alleyway while it was being repaved (or speed bumps were being installed). Installation of one-way signs in or around 2014 could have no impact on the first 30 years or so of the plaintiff’s use, assuming the plaintiff were to perceive such signage as somehow limiting its right of use as opposed to being a common sense measure given the narrow width of the alleyway.
Task-based closures are not indicative of an assertion of a right to exclude but rather an assertion of common-sense prudence. Conduct occurring after 1997 would seem to be ineffectual, as a matter of law, to inform the court’s decision as to whether the plaintiff had acquired an easement by prescription. Quite literally until after the plaintiff had filed its motion for summary judgment (but before it was argued), the plaintiff acted with a claim of right to use the claimed easement based on a perception that there was a deeded easement right.
The distinction between public users of portions of the claimed easement is readily discernible by virtue of the configuration of the areas upon which vehicles could drive. There is a fork in the road- if right-angled- behind 210 Atlantic Street, and all possible public users of any portion of the claimed easement would take the fork onto a public driveway (public Quintard Place) if intending to go to the mall or intending to continue on to Tresser Boulevard (as claimed by the defendants). With the theoretical exception of someone possibly going to the rear of 200 Atlantic Street, any driver making the left turn out of the alleyway and continuing straight without turning onto that public driveway would be heading- intentionally or otherwise- only to the plaintiff’s property. That is a sufficient distinction, assuming that there is substantial public use as claimed by the defendants, to allow the plaintiff to maintain its separate claim to a right of use. This is not the arguably subtle distinctions between public use and adverse use present in Gioielli and Krohner .
With respect to the belated claim that there is a deeded easement to the area behind 200 and 210 Atlantic Street, the court believes it was raised too late to be considered for purposes of this motion, is unsupported by any identified evidence (brought to the court’s attention), and at most would convert a portion of the claimed easement from an easement by prescription to a deeded easement. Especially for purposes of an injunction against interference with the right of use of the entire area that the plaintiff claims to constitute an easement, the fact that there might be a different type of easement does not alter the plaintiff’s right to unimpeded use of the entire area.
Accordingly, the court finds that the plaintiff has established its right to summary judgment as to its claim of prescriptive easement; it has established that there is no material issue of fact and that it has used the claimed easement area in a manner that was open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. Therefore, the plaintiff is entitled to a declaration that there is a prescriptive easement running the length of the alleyway (full width) to the back end of the paved areas behind 252 and 234 Atlantic Street. The easement then turns to the left (generally northerly) along the center of the paved area behind 234 Atlantic Street, 210 Atlantic Street and 200 Atlantic Street. In the absence of any claim to the court that the parking spaces behind 234 and/or 210 Atlantic Street are properly part of the easement, the easement is a 10-foot path down the center of the paved area behind those buildings, and continuing behind 200 Atlantic Street except for the area immediately adjacent to the building that has been used for parking, up to the boundary with the plaintiff’s property. (Should there later be established that there is a deeded easement over any portion of the easement as described herein, then that deeded easement would take precedence.)
The plaintiff further is entitled to an injunction barring the defendants from unreasonably interfering with the use of the prescriptive easement; brief closures for maintenance-type activities and for construction-type activities is presumptively permissible, but locking access to any portion of the easement in a manner that interferes with the plaintiff’s use of the easement area is prohibited.
Nothing shall prevent the parties from reaching a mutually acceptable arrangement for providing security, including locking a gate or chain at either end of the alleyway, so long as it is acceptable to the plaintiff.
(In a formal sense, the plaintiff’s motion and amended motion for summary judgment are granted in accordance with the foregoing; the defendants’ cross motion for summary judgment is denied.)