Opinion
No. HHB CV 11 6009420 S
July 29, 2011
MEMORANDUM OF DECISION
On July 20, 2011, this action was tried to the court. The following facts were found by a preponderance of the evidence.
The plaintiff, Laura Cirinna owns property at 75 Winthrop Street in New Britain, Connecticut. The defendant, Rafal Kosciuszkewicz owns adjacent property at 77-79 Winthrop Street. As is typical for the block, a driveway exists between the properties which, for decades, has been used by the occupants of both properties to gain access to parking in the rear of the respective properties without conflict or incident. The driveway is wholly situated on the defendant's property.
The plaintiff grew up at 75 Winthrop Street, a two-family home. Her parents purchased the property in July 1974. Plaintiff's Exhibit 14. The plaintiff obtained ownership of the property from her mother in October 2008. Id. The plaintiff does not now live at the property. It is occupied by her sister on the top floor and tenants on the bottom floor. For as long as any of the family members can remember, they had use of the driveway.
The defendant purchased his two-family property in February 2008. The defendant spent most of his first two years away from the property. For over two years, the defendant was not concerned about the use of the driveway by his eastern neighbors. He did not deem it to be a problem until December 2009, when he became upset because the neighbors didn't help him remove the snow. During the summer of 2010, he became further upset at the reckless driving of, and loud music emanating from, the vehicle of someone who was using his driveway to gain access to the plaintiff's property. The defendant also felt unsafe when removing snow from the driveway because of the speed of that vehicle. Additionally, at some point, someone caused damage to a retaining wall on the defendant's property. The defendant did not identify these drivers as the plaintiff's tenants or family members. Additionally, the defendant did not identify any significant change in the volume or nature of use of the driveway.
In the fall of 2010, while pursuing an unrelated insurance claim, the defendant obtained a property survey, Plaintiff's Exhibit 10. From this survey, the defendant learned for the first time that the driveway was solely on his property.
During the next three months, the defendant had posts and a fence erected along the edge of the driveway to prevent the occupants of the plaintiff's property from accessing the property's parking lot and garage. Since that time, the plaintiff's family and tenants have been forced to park on the street or in a municipal garage.
There is no mention of any right of way or easement in the chain of title for the plaintiff's property. There is mention of right of way and easement in the chain of title for the defendant's property, contained in Plaintiff's Exhibit 13. A warranty deed recorded at volume 873, page 308 in the land records of the New Britain Town Clerk's office notes "Said premises are subject to: . . . Right of way and easement to driveway east of the above-referenced property." A warranty deed recorded at volume 808, page 456 likewise states, "Subject to and together with right-of-way and easement to driveway, East of the above described property." A warranty deed recorded at volume 422, page 170 states "Together with and subject to rights of way and/or easements — to — the driveway to the east of the property herein conveyed." A warranty deed recorded at volume 624, page 240 states, "together with and subject to rights of way and/or easements to the driveway to the East of the property herein conveyed." Id. The two most recent deeds in the chain of title do not mention the easement or right of way. The nature and scope of the easement are not specified. There is no evidence the easement was reduced to writing.
Surveys obtained by both parties establish that the subject driveway is on the eastern portion of the defendant's property, which borders the plaintiff's property. There is no other driveway on either property. Plaintiff's Exhibits 10 and 11. The court finds the references of right of way and easements contained in the several recorded deeds of Exhibit 13 refer to the subject driveway.
The plaintiff and defendant have never spoken to each other or made any attempt to resolve their issues prior to the installation of the fence or the instigation of legal action. The plaintiff brought this action against the defendant in three counts. The defendant filed special defenses and a counterclaim. All will be discussed seriatim.
A. The plaintiff's claims:
CT Page 16816
FIRST COUNT: EASEMENT BY PRESCRIPTION
In the first count, the plaintiff has alleged an easement by prescription. The plaintiff has failed to comply with Practice Book § 10-3(a), which states, in relevant part, "Whenever any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." "However, it is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. It is our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Citations omitted; internal quotation marks omitted.) Thurlow v. Hulton, 130 Conn.App. 1, 8 (2011). As there is no common-law relief to the plaintiff for easement by prescription, the court presumes that the plaintiff grounds this cause of action on General Statutes § 47-31, which states, "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."The standard of proof that is required to establish an easement by prescription is a fair preponderance of the evidence. St. Germain v. Hurd, 128 Conn.App. 497, 502, 17 Conn.App. 516 (2011). "The burden is on the party claiming a prescriptive easement to prove all of the elements by a preponderance of the evidence." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
A party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. The purpose of the open and visible requirement is to give the owner of the servient land knowledge and full opportunity to assert his own rights. To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. Open generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. Slack v. Greene, 294 Conn. 418, 427-28, 984 A.2d 734 (2009).
The court finds the plaintiff has presented credible and undisputed evidence that use of the shared driveway by the plaintiff and her predecessors in interest has been open, visible, continuous and uninterrupted since 1974, well over fifteen years. The tacking doctrine is applicable to the plaintiff's prescriptive easement claims. See McBurney v. Cirillo, 276 Conn. 782, 813, 889 A.2d 759 (2006) ("If one party's period of use or possession is insufficient to satisfy the fifteen year requirement, that party may "tack on" the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights"); Smith v. Chapin, 31 Conn. 530, 531-32 (1863).
The defendant contends that the usage was not under claim of right. "The requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner . . . It means nothing more than a [use] `as of right,' that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be `under a claim of right.' . . . [When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an inference from the circumstances of the parties and the nature of the [use] . . . A trier has a wide latitude in drawing an inference that a [use] was under a claim of right." (Citation omitted; internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 418.
The plaintiff's sister credibly testified that, when she was a child, the owners of 77-79 Winthrop Street asked her parents to have a portion of its backyard paved in asphalt along with their own and reimbursed them for this expense. That portion of the backyard is a portion of the easement claimed by the plaintiff as it is a continuation of the concrete driveway which allows access to the plaintiff's garage and parking lot. This transaction is indicative of the prior owners of the defendant's property that they owned the portion of the property upon which the plaintiff seeks an easement. The court finds that use of the shared driveway by the plaintiff, her predecessors and the occupants of 75 Winthrop Street since 1974 is under claim of right. The plaintiff has proven her claim by a preponderance of the evidence. Ventres, supra.
While it is true that "[u]se by express or implied permission or license cannot ripen into an easement by prescription," (Internal quotation marks omitted.) Gallo-Mure v. Tomchik, 78 Conn.App. 699, 705, 829 A.2d 8 (2003), the court finds there was no credible evidence of any express or implied permission or license given by the owners of 77-79 Winthrop Street during the time of ownership by the plaintiff or her parents, dating back to 1974. Neither was there evidence sufficient to establish "neighborly accommodation," which might negate a prescriptive easement. See Sachs v. Toquet, 121 Conn. 60, 67, 183 A. 22 (1936). The court finds that an easement on the defendant's property located at 77-79 Winthrop Street exists, running in favor of the plaintiff's property located at 75 Winthrop Street.
Neither party presented evidence as to the precise metes and bounds of the easement, merely describing it as the "driveway." The surveys obtained by both parties, Plaintiff's Exhibits 10 and 11, depict a concrete driveway. Exhibit 11, the survey on behalf of the plaintiff, notes it as a "concrete driveway and wheel tracks." This description is verified by Plaintiff's Exhibits 1, 2 and 3. There exists at the culmination of the concrete driveway and wheel tracks a portion of bituminous pavement which leads to the parking areas for both properties. None of these are measured in the surveys, Exhibits 10 and 11.
As to scope, the court defines the area of the easement as consisting of the concrete driveway and wheel tracks existing on the eastern side of the Kosciuszkiewicz property, 77-79 Winthrop Street and so much of the bituminous pavement north of the driveway and wheel tracks as extends to the opening of the parking area and entrance to the garage, both located on the western side of the Cirinna property, 75 Winthrop Street, so as to allow access to the Cirinna property's parking area and garage. The court defines the use of the easement as allowing the occupants of the Cirinna property located at 75 Winthrop Street reasonable access to the garage and parking area located to the rear of 75 Winthrop Street.
As to this count, judgment enters in favor of the plaintiff against the defendant.
SECOND COUNT: EXPRESS EASEMENT
In the second count, the plaintiff alleges that she has an express easement, based on the language contained in four of the warranty deeds in the defendant's chain of title. The language of these is set forth above.
"In determining the scope of an express easement, the language of the grant is paramount in discerning the parties' intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered." Leposky v. Fenton, 100 Conn.App. 774, 778, 919 A.2d 533 (2007). Thurlow v. Hulton, supra, 130 Conn.App. at 10-11. The deeds, contained in Plaintiff's Exhibit 13, merely reference a right of way and easement to a driveway east of the property. Even if, as is likely, the drafters of the deeds intended to refer to a driveway which is within the defendant's property boundaries, the nature and scope of the easement are not set forth.
The right-of-way and easement language was existent from at least 1956. Plaintiff's Exhibit 13. There was no evidence as to what the situation and circumstances were at that time. It is uncertain that the intent was to make 75 Winthrop Street the dominant estate, as none of the deeds which refer to the easement state to whom or what the easement was granted. The nature, scope and use of the easement are not defined. Therefore, it is uncertain that the language constitutes an express easement appurtenant. Such vagueness is fatal to the plaintiff's claim of express easement, as the intent is not express at all. As to this count, judgment enters in favor of the defendant against the plaintiff.
THIRD COUNT: WILLFUL, WANTON AND MALICIOUS CONDUCT
The court finds that, while the defendant's conduct was ungracious and certainly far from neighborly, it did not arise to willful, wanton and malicious conduct. The court finds in favor of the defendant against the plaintiff as to the third count.
B. The defendant's special defenses (FIRST) SPECIAL DEFENSE
The defendant's first special defense is that, if the plaintiff has a right or rights of easement, she has forfeited such right or rights "by excessively and unreasonably overburdening the use of any such right or rights." The court finds no credible evidence that the use of the driveway by the occupants of the plaintiff's property was excessive, unreasonable or overburdened its use. The court finds in favor of the plaintiff against the defendant as to the defendant's first special defense.
SECOND SPECIAL DEFENSE
The defendant's second special defense is that the plaintiff's right of express easement or easement by prescription is unenforceable because it is "unspecific, vague and undefined."
As regards the claim of easement by prescription, the use of the driveway was open and obvious. The use was clear and contained. The court has, in considering the plaintiff's claim of easement by prescription in her first count, set forth specific definitions of the area and scope of the easement which comports with the use described by the plaintiff and her witnesses as having existed since 1974. Therefore, as it pertains to the plaintiff's first count, the court finds the defendant's second special defense in favor of the plaintiff against the defendant.
As the second special defense pertains to the plaintiff's second count, the court has found there is no express easement and has found in favor of the defendant on the plaintiff's second count. Likewise, as it pertains to the plaintiff's second count, the court finds the defendant's special defense in favor of the defendant against the plaintiff.
C. The defendant's counterclaims FIRST COUNT: ACTION TO QUIET TITLE
Both parties agree as to the first count of the counterclaim and seek an order quieting title. The court grants this relief.
An easement by prescription is found by the court. The subservient estate, a parcel of land known as 77-79 Winthrop Street, New Britain, Connecticut is subject to such easement, which runs in favor of the dominant estate, a parcel of land known as 75 Winthrop Street, New Britain, Connecticut.
As to scope, the court defines the area of the easement as consisting of the concrete driveway and wheel tracks existing on the eastern side of the Kosciuszkiewicz property, 77-79 Winthrop Street and so much of the bituminous pavement north of the driveway and wheel tracks as extends to the opening of the parking area and entrance to the garage, both located on the western side of the Cirinna property, 75 Winthrop Street, so as to allow access to the Cirinna property's parking area and garage. The court defines the use of the easement as allowing the occupants of the Cirinna property located at 75 Winthrop Street reasonable access to the garage and parking area located to the rear of 75 Winthrop Street.
SECOND COUNT: TRESPASS
In the second count of the counterclaim, the defendant alleges that the "plaintiff, her tenants, guests and invitees, have committed continual and repeated trespasses onto the counterclaim Plaintiff's property . . ." As the court has found an easement by prescription in favor of the plaintiff, this count must fail. The court finds this count in favor of the plaintiff against the defendant.
THIRD COUNT: NUISANCE
In the third count of the counterclaim, the defendant alleges that these same persons have created a nuisance by operating their vehicles at excessive and unreasonable speeds and "blasting music from vehicle sound systems while using the counterclaim plaintiff's driveway at all hours of the night and early morning." The court does not find sufficient credible evidence to support the defendant's claims. As to a third claim of nuisance, concerning a vicious, roaming dog, there was no evidence. The court finds this count in favor of the plaintiff against the defendant.
WHEREFORE,
As to the plaintiff's first count, the court renders judgment in favor of the plaintiff against the defendant. The court further orders the defendant to immediately remove, at his own expense, the fence and any other impediments to the plaintiff's exercise of right of easement as set forth above and enjoins the defendant from any future impediment of such right of easement.
As to the plaintiff's second and third counts, the court renders judgment in favor of the defendant against the plaintiff.
As to the defendant's first special defense, the court renders judgment in favor of the plaintiff against the defendant.
As to the defendant's second special defense, as it applies to the first count, the court renders judgment in favor of the plaintiff against the defendant. As it applies to the second count, the court renders judgment in favor of the defendant against the plaintiff.
As to the first count of the defendant's counterclaim, the court orders the quieting of title of property known as 77-79 Winthrop Street, New Britain, Connecticut, as set forth in Section C above.
As to the second and third counts of the defendant's counterclaim, the court renders judgment in favor of the plaintiff against the defendant.
No money damages, attorneys fees or costs are awarded to either party.