Opinion
CV116009869.
12-18-2012
Elaine P. GAGNIER v. Lawrence E. PERKINS, et al.
UNPUBLISHED OPINION
SEYMOUR L. HENDEL, J.T.R.
This is an action in which the plaintiff, Elaine P. Gagnier, seeks a declaratory judgment finding that the plaintiff possesses a right-of-way on property owned by the defendants, Lawrence E. Perkins and Kim D. Perkins, pursuant to the plaintiff's claims for easements by prescription, implication and necessity. The plaintiff claims that she demonstrated by a fair preponderance of the evidence that she is entitled to judgment pursuant to each of the three legal theories of easements. The defendants argue that the plaintiff did not meet her burden in regards to the exclusivity of her use of the right-of-way, and failed to prove that the use was not permissive during any portion of the requisite fifteen-year period.
On September 15, 1994, the plaintiff purchased a parcel of land located at 60 Old Colchester Road in Quaker Hill, Connecticut (the plaintiff's property). On June 28, 1996, the defendants purchased a parcel of land located at 62 Old Colchester Road in Quaker Hill, Connecticut (the defendants' property). Both properties were portions of a three-lot subdivision created by the parents of Elaine Gagnier and Lawrence Perkins. The subdivision map, entitled " Building Lots Owned by Owen J. Perkins and Dorothy E. Perkins, Old Colchester Road, Waterford, Conn. Scale 1'=30, ' dated Sept. 1962" references a fifty-foot strip of land as a right-of-way. The right-of-way includes a paved portion that has been used by the plaintiff as a driveway to access her property since she purchased the land in 1994. On July 9, 1996, an attorney involved in the purchase of the defendants' land notified the plaintiff that she had no deeded right-of-way or easement of record to the driveway. The plaintiff did not think the letter was correct. The defendants never gave or denied the plaintiff permission to use the driveway. If the plaintiff does not have use of the right-of-way, she could with great difficulty cut into a slope on her property to create a driveway to her property.
I
Prescriptive Easement
" [General Statutes § ]47-37 provides for the acquisition of an easement by adverse use, or prescription, as follows: " 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." In applying § 47-37, our Supreme Court repeatedly has explained that " [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." (Internal quotation marks omitted.) Frech v. Piontkowski, 296 Conn. 43, 49-50 (2010). " The burden is on the party claiming a prescriptive easement to prove all of the elements by a preponderance of the evidence." (Internal quotation marks omitted.) Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 47 (2010).
" 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. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement ... Concealed ... usage cannot serve as the basis of a prescriptive claim because it does not put the landowner on notice." (Internal quotation marks omitted.) Frech v. Piontkowski, supra, 296 Conn. at 55. " The requirement that the use be continuous is satisfied if it is proven that the use was uninterrupted for a period of at least fifteen years." Id., at 57.
" 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." (Internal quotation marks omitted.) Id., at 58-59.
" It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it ... The prescriptive right extends only to the portion of the servient estate actually used ... and is circumscribed by the manner of its use ... A prescriptive right cannot be acquired unless the common and ordinary use defines the bounds of the claimed easement with reasonable certainty. " (Citations omitted; emphasis in original; internal quotation marks omitted.) Germain B. v. Hurd, 128 Conn.App. 497, 502 (2011).
In the present case, the evidence before the court reveals the following. The plaintiff used the driveway on a daily basis to access her property and to park vehicles, and the plaintiff did not conceal her use of the driveway from the defendants. The plaintiff's use of the driveway began in 1994, the year that she purchased her property, and continues to the present day, totaling seventeen years of continuous usage. The plaintiff was aware that the driveway was part of the defendants' property, but the plaintiff never asked, nor was she given, permission by the defendant, to use it.
Pursuant to the foregoing, and in light of the relevant case law, the court finds the plaintiff has presented credible evidence that her use of the driveway has been open, visible, continuous and uninterrupted for fifteen years and under a claim of right. Therefore, the plaintiff is entitled to a prescriptive easement as to the driveway portion of the right-of-way.
II
Easement by Implication
" The law adopted in this state regarding the creation of easements by implication is well established. Where ... an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership ... there arises by implication of law a grant or reservation of the right to continue such use ... Further, in so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the portion granted ... The reason that absolute necessity is not essential is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it ..."
" The two principal elements we examine in determining whether an easement by implication has arisen are (1) the intention of the parties, and (2) if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate ... The intent of the grantor to create an easement may be inferred from an examination of the deed, maps and recorded instruments introduced as evidence ... A court will recognize the expressed intention of the parties to a deed or other conveyance and construe it to effectuate the intent of the parties ... In doing so, it always is permissible to consider the circumstances of the parties connected with the transaction ... Thus, if the meaning of the language contained in a deed or conveyance is not clear, the court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Citations omitted; internal quotation marks omitted.) Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 636-37 (2002).
In the present case, the evidence before the court reveals the following. The subdivision map references a right-of-way, defined as a fifty-foot strip of land bordering the plaintiff's property. There is no reference to a right-of-way or easement in the deeds conveying the respective properties to the plaintiff and the defendants. Furthermore, the plaintiff was made aware that she had no deeded right of way or easement of record to the driveway.
Pursuant to the foregoing, and in light of the relevant case law, the court finds that the plaintiff did not demonstrate by a fair preponderance of the evidence that she is entitled to an easement by implication, and therefore the plaintiff is not entitled to judgment on this claim.
III
Easement by Necessity
" The requirements for an easement by necessity are rooted in our common law ... [A]n easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee ... [T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity element need only be a reasonable one ... Although the requirements for an easement by necessity once included a showing of unity of ownership ... our Supreme Court has eliminated that requirement ... Moreover, although it is true that [a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel ... [t]he inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means." (Internal quotation marks omitted.) Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 27-28 (2012).
Pursuant to the testimony provided in the present case, the court finds that while it would be inconvenient for the plaintiff to install a driveway to access her property, the circumstances here do not rise to those that necessitate a finding that an easement by necessity exists. In light of the relevant case law, the court finds that the plaintiff did not demonstrate by a fair preponderance of the evidence that she is entitled to an easement by necessity, and therefore the plaintiff is not entitled to judgment on this claim.
CONCLUSION
Accordingly, the plaintiff is entitled to a prescriptive easement pursuant to § 47-37 as to the paved portion of the right-of-way located on the defendants' property, and the court enters judgment for the plaintiff as to that claim. The court enters judgment for the defendants as to the plaintiff's remaining claims.