Opinion
No. TTD CV 07-5001553-S
May 23, 2011
MEMORANDUM OF DECISION
This case involves a boundary dispute between neighbors in Columbia, Connecticut. The dispute arose shortly after the defendants, Thomas and Elaine Burns ("defendants"), purchased their property on Lake Road in Columbia and attempted to repossess a strip of land along the eastern border of their property that their neighbors, the plaintiffs, Wesley Gregonis and Sally Robinson-Gregonis ("plaintiffs"), were using as their own. The Gregonises filed suit. The plaintiffs' complaint contains four counts and seeks to quiet title and permanently enjoin the defendants from entering or interfering with certain property that they claim they acquired by adverse possession. They also seek to quiet title and permanently enjoin the defendants from interfering with the plaintiffs' use of certain property to which they claim they have acquired by way of a prescriptive easement.
I. FACTS AND PROCEDURAL HISTORY
The plaintiffs are the record owners of real property known as 26 Lake Road ("the Front Lot") and 26A Lake Road ("the Rear Lot") (collectively "26 Lake Road Properties") in Columbia, Connecticut. Defendants Thomas and Elaine Burns are the record owners of 28 Lake Road and 14A Lake Road (collectively "28 Lake Road Properties") in Columbia, Connecticut. The 26 Lake Road Properties are situated to the east of the 28 Lake Road Properties.
The plaintiffs purchased the 26 Lake Road Properties in 1998. This land is encumbered by a mortgage to which Sovereign Bank is the mortgagor and the plaintiffs are the mortgagees.
The defendants purchased the 28 Lake Road Properties in 2005. This land is encumbered by a mortgage to which defendant, J. P. Morgan Chase, N.A. ("Chase") is the mortgagor and the defendants are the mortgagees.
Given the nature of the plaintiffs' claims, a title history of these properties is relevant and appropriate. In 1957, Walden Melo, the defendants' predecessor in title, purchased 28 Lake Road. In 1961, Ben Hochberg, the plaintiffs' predecessor in title, bought the 26 Lake Road Properties; the Rear Lot borders Colombia Lake and the Front Lot sits to the south of the Rear Lot, to the east of the 14A Lake Road lot and borders Lake Road. At the time Hochberg purchased the 26 Lake Road Properties, the 14A Lake Road lot was owned by Herbert Brown and was a strip of land containing a paved right of way.
In or about 1961, Hochberg built a cottage ("Cottage") on the southwest corner of the Front Lot on the 26 Lake Road Properties. To the west of the Cottage, he built a fenced-in dog run which was attached to the Cottage, paved a driveway leading to the Cottage, installed an electrical utility pole to facilitate electricity to his home, planted various shrubbery throughout this area and planted an apple tree to the south of the driveway and a garden to the north of the driveway. The area where these improvements were made, however, was not on Hochberg's property but on Herbert Brown's land immediately west of the Front Lot. This area is described in a 1962 land map entitled "Land of Columbia Sales, Inc." and is referred to as a "30' Right of Way". This area extended 30 feet, more or less, from the Front Lot's property line, beginning at the Town right of way adjacent to Columbia Lake Road and extending northwesterly a distance of 117 feet, more or less, being a portion of Brown's parcel. This area, which measures 30 feet by 117 feet, more or less, is known as the "Corner" and forms the basis of the plaintiffs' adverse possession claim in this case.
At or about the same time Hochberg made these improvements to the Corner, he also began using another portion of Herbert Brown's property, a common driveway described in the 1962 Map as a "20' Right of Way" ("Right of Way"), a paved road immediately to the west of the Corner, as a means of ingress and egress to and from the Corner. This Right of Way forms the basis of the plaintiffs' prescriptive easement claim in this case.
Hochberg used the Corner and the Right of Way consistent with the residential nature of the property. In the Corner, he used the driveway to facilitate access from the Right of Way to the Cottage, parked his cars in the driveway, kept his dogs in the fenced-in dog run, gardened the area to the north of the driveway mowed the lawn and maintained the plantings.
In 1968, Brown conveyed the 14A Lake Road property to Melo by way of a quitclaim deed. At the time of the conveyance, Melo had been aware of Hochberg's use of the Corner and the Right of Way. Following the conveyance, Melo and Hochberg had a contentious meeting in which Melo expressed his opposition to Hochberg's use of, among other things, the Right of Way.
Hochberg died shortly after that the meeting. His will devised the 26 Lake Properties in trust to his children, but he gave a life estate to his sisters Lill and Bess Hochberg. The sisters moved in and they continued to use the Corner as their own, including using the dog run for their dogs, parking their cars in the driveway adjacent to the Cottage. They and others who assisted them also gardened the area north of the driveway, mowed the lawn, plowed the driveway and maintained the plantings in the Corner. In 1970, the Hochberg sisters engaged counsel to challenge Melo's verbal opposition to their use of the Right of Way. Despite Melo's opposition, the Hochberg sisters continued to use the Corner and the Right of Way.
After the sisters died in 1994, another relative, Carol Hochberg, Ben Hochberg's daughter, lived in the Cottage. After Carol left, a tenant lived in the Cottage. These individuals continued to use the Corner and the Right of Way consistent with the residential nature of the property described herein.
The plaintiffs' purchased the 26 Lake Road Properties December 31, 1998 from the Hochberg Family Trust, a trust devised through Ben Hochberg's estate. Prior to the sale of the 26 Lake Road Properties, Ben Hochberg's son, Michael Hochberg, advised the Melos of the Trust's intent to sell the 26 Lake Road Properties and of the continued use of the Right of Way. For over a year, correspondence was exchanged between Michael Hochberg and the Melos' attorney. This correspondence reveals that the Melos had not granted permission to use the Right of Way and had no intention of granting such permission in the future. The plaintiffs were aware of Melo's position but bought the 26 Lake Road Properties anyway. Prior to the sale, they walked the property with Michael Hochberg who showed them the Corner and the Right of Way. Following the purchase, they moved in, and they, too, continued to use the Corner and the Right of Way consistent with the residential nature of the property described herein.
In 2002, Walden Melo passed away. He left his property to Diane King, Thomas M. Melo, John W. Melo, Judith A. Melo and Cynthia L. Somes. In 2005, these individuals sold the 28 Lake Properties to the defendants. Prior to the sale the defendants were aware of the plaintiffs' use of the Corner and the Right of Way. Shortly after the purchase, defendant Thomas Burns and plaintiff Wesley Gregonis met by the mailbox at the foot of the Right of Way. During that first seemingly neighborly encounter, Gregonis informed Burns that Burns was probably responsible for snow plowing and maintaining the common driveway because he bought it, but that the Gregonises had the right to use it. After that, written correspondence was exchanged declaring and contesting rights to the Corner and Right of Way. Finally, in a letter written by the defendants' attorney in July 2006, the defendants warned the plaintiffs that unless they removed their improvements from the Corner by August 2006, the defendants would do it for them.
The improvements were not removed, and the defendants made good on their threat. They entered the Corner and among other things, tore down the dog run, cut trees and put a chain across the front of the driveway in the Corner to block the plaintiffs' use of the driveway. The plaintiffs called the police, who declined to make any arrests and told them it was a civil matter.
On or about May 21, 2007, the plaintiffs filed the instant lawsuit against the Gregonis defendants seeking, among other things, to quiet title to the Corner and the Right of Way and to obtain a temporary and permanent injunction. On or about July 18, 2007, the defendants filed an answer denying the substantive allegations contained in the plaintiffs' complaint. On November 5, 2007, following a hearing, the court (Vacchelli, J.) granted the plaintiffs' request for a temporary injunction.
On April 16, 2009, the plaintiffs moved to cite in Chase and to amend their complaint. The basis of the motion to cite in Chase was that the 28 Lake Road Properties were encumbered by a mortgage to which Chase is the mortgagor and the defendants are the mortgagees. This mortgage encumbers 28 and 14A Lake Road, including both the Corner and Right of Way. The court (Sferazza, J.) granted both of these motions and on May 28, 2009, the plaintiffs filed an Amended Complaint which was later revised on August 31, 2009.
On November 4, 2010, the plaintiffs amended their complaint again and this is the operative pleading in this action. This complaint contains four counts; the First Count claims interference with property acquired by adverse possession, namely, the Corner; the Second Count claims interference with the plaintiffs' use of the twenty (20) foot Right of Way to which the plaintiffs claim they have a prescriptive easement; the Third and Fourth Counts seek to quiet title to the Corner and the Right of Way. The defendants denied the substantive allegations of the complaint.
II. LEGAL DISCUSSION
The court will first address the plaintiffs' quiet title claims. Quiet title actions are authorized by General Statutes § 47-31. That statute provides that: "The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property." General Statutes § 47-31(f). The relief afforded by the action to quiet title is a full determination of the rights of the parties in the land. Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967); DeVita v. Esposito, 13 Conn.App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).
A. Plaintiff's Quiet Title and Adverse Possession Claims Relating to the Corner
The plaintiffs seek to quiet title to the Corner and claim that they have obtained title to the Corner by adverse possession. "Where a party pursuant to General Statutes § 47-31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title . . . The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of the adverse possession of the other." Clark v. Drska, 1 Conn.App. 481, 488-89, 473 A.2d 325 (1984).
In addition to a claim under General Statutes § 47-31, General Statutes § 52-575(a), the statute of repose, is applicable here. That statute provides in relevant part: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards . . ." "The effect [of adverse possession] may be, and often is, to destroy a valid claim and to make valid one previously invalid." Ruick v. Twarkins, 171 Conn. 149, 159-60, 367 A.2d 1380 (1976). "By such adverse possession, the true owner is barred by a statute of limitations; General Statutes § 52-575; from making entry into the subject lands." Id. at 155.
In order to establish a claim to disputed property by adverse possession, a claimant must establish, by clear and positive proof, "each element of actual, open, notorious, hostile, continuous and exclusive possession for the full fifteen year statutory period." Mulle v. McCauley, 102 Conn.App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007), see Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 763, cert. denied, 284 Conn. 904 (2007); Woycik v. Woycik, 13 Conn.App. 518, 520, 537 A.2d 541 (1988); C.G.S. § 52-575. The burden of proof is on the party claiming adverse possession. Schlichting v. Cotter, 109 Conn.App. 361, 366 (2008). Clear and positive proof, also referred to as clear and convincing proof, is a higher standard of proof than that used in civil actions, but is lower than the standard used in criminal matters. Eberhardt v. Meadow Haven, 111 Conn.App. 636, 640 (2006); Lisiewski v. Seidel, 95 Conn.App. 696, 701 (2006). Simply stated, a plaintiff claiming title by adverse possession must prove that the facts are "highly probably true."
"A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession." Eberhardt v. Imperial Construction Services, LLC, 101 Conn. App. at 767, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007).
Adverse possession claims are "highly fact and context specific." Rudder v. Mamanasco Lake Park Assoc., 93 Conn.App. 759, (2006). "The location and condition of the land at issue must be taken into consideration and the alleged acts of ownership must be understood as directed towards those conditions." Id. (citing Roche v. Fairfield, 186 Conn. 490, 501 n. 11 (1982)). The requirements for adverse possession "vary according to, and it is necessary to consider, the nature and situation of the property. To determine whether the particular acts constitute adverse possession, it is sometimes necessary to consider the character of the property and the purposes for which it is suitable, the circumstances attending the possession, the acts and declarations of the claimant while in possession, and the relation of the holder of the legal title to the claimant." Id. (citing 2 C.J.S. 459, Adverse Possession § 33 (2003)).
In the present case, the court finds that the plaintiffs are the record holders of 26 and 26A Lake Road in Columbia, Connecticut. The court further finds that the defendants are the record owners of 28 and 14A Lake Road in Columbia, Connecticut, including the Corner and the Right of Way. The court must next determine whether the plaintiffs have established adverse possession of the portion of the defendants' land known as the Corner.
1. Open, Visible and Notorious
The open, visible and notorious requirements require a fact finder to examine the extent and visibility of the claimant's use of the record owner's property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own. Schlichting v. Cotter, 109 Conn.App. 361, 368, 952 A.2d 73 (2008); see 2 C.J.S. 482, Adverse Possession § 53 (2003) ("The purpose of the `open,' `visible,' and `notorious' requirements . . . is to provide the true owner with adequate notice that a trespass is occurring, and that the owner's property rights are in jeopardy. Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership."); 3 Am.Jur.2d 139, Adverse Possession § 63 (2002) ("the words `open and notorious possession' . . . mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her own.").
The evidence clearly and convincingly establishes that the plaintiffs have satisfied the open, visible and notorious requirements with regard to the Corner. These elements were satisfied in 1961 when Ben Hochberg began using the Corner in a manner consistent with its residential nature. Although the evidence suggests that Hochberg's use of the Corner began as a mistake, such mistake does not preclude a finding of adverse possession. "[A] mistaken belief, entertained by one who enters upon land and continues in possession thereof, that he is in fact its lawful owner, will not defeat a claim of adverse possession, because the very act of entering and taking land as one's own is deemed to be an assertion of one's own title, and thus tantamount to a denial of the title of all others." E.G. Mascolo, A Primer on Adverse Possession, 66 Conn. B.J. 303, 308 (1992), citing Loewenberg v. Wallace, 151 Conn. 355, 357-58, 197 A.2d 634 (1964); Searles v. DeLadson, 81 Conn. 133, 135-36, 70 A. 589 (1908).
Hochberg and his successors in possession continued to use and occupy the Corner, uninterrupted, until 2007. Use of the Corner in an open, visible notorious manner consisted of paving, plowing and maintaining a driveway leading to the Cottage, using the driveway to access the Cottage and to park cars, planting, cultivating and maintaining a garden to the north of the driveway, erecting a fenced-in dog pen and keeping dogs in the pen to the south of the driveway, planting and maintaining shrubbery to the south of the driveway and mowing and maintaining the lawn area. These activities could clearly be seen by others, including Herbert Brown, Walden Melo and the defendants especially since these individuals lived at 28 Lake Road (adjacent to the Rear Lot) and accessed this property using the Right of Way. Hochberg's and his successors' use of the Corner was to the exclusion of others, was open and notorious and put the defendants and their predecessors on notice that the property area was being occupied by Hochberg and his successors as if it were their own.
2. Hostile
In order to demonstrate the element of hostility, a claimant must establish that his possession of the disputed land was "without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period." Mulle v. McCauley, 102 Conn.App. at 813-14; Woodhouse v. McKee, 90 Conn.App. 662, 672-73, 879 A.2d 486 (2005). Hostility does not "imply animosity, ill will or bad faith." Mulle v. McCauley, 102 Conn.App. at 813-14. The possession is "opposed and antagonistic to all other claims, and . . . conveys the clear message that the owner intends to possess the land as his or her own." Id. at 814.
Here, the evidence establishes that in 1961, Ben Hochberg made improvements in the Corner without the permission or consent of Herbert Brown and that he used and occupied the Corner without the permission or consent of Herbert Brown or Walden Melo, Brown's successor in title. Lill and Bess Hochberg continued the occupation of the Corner until 1994, demonstrating their intent to claim it as their own through their use of the Corner to park their cars, garden the landscape and pen their dogs. Carol Hochberg, the subsequent tenant of the 26 Lake Properties and the plaintiffs continued to use the Corner in a similar fashion until 2007 when the defendants, among other actions, tore down the dog pen, cut trees and put a chain fence across the driveway.
Although there were several verbal and written expressions of displeasure with Hochberg's and his successors' occupancy of the Corner, the record is devoid of any evidence to establish that prior to 2007, there was any act or entry that reinstated Brown or his successors into possession of the Corner. Although Walden Melo threatened in 1968 to oust Hochberg from the Corner, he never made good on his threat to do so. "Merely apprising the plaintiffs of the defendants' claim to the disputed area does not disturb the plaintiffs' possession, because there has been no `entry' as required by [General Statutes § 52-575] . . . and because the plaintiffs could have maintained no action on account of it." Woycik v. Woycik, 13 Conn.App. 518, 525-26, 537 A.2d 541 (1988).
3. Exclusivity
When determining whether a claimant's possession is "exclusive", courts consider whether the alleged actions "would ordinarily be exercised by an owner in appropriating land to his use and the exclusion of others." Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 641 (2008) (quoting Roche v. Fairfield, 186 Conn. 490, 502-03, 442 A.2d 911 (1982)). Possession does not need to be "absolutely exclusive; it need only be a type of possession which would characterize an owner's use . . . It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." Id. at 641-42.
The plaintiffs have met their burden of establishing the exclusivity requirement. The acts of Hochberg and his successors in title openly and publicly indicated an assumed control of the Corner. Examples of this include the use of the fenced-in dog pen which, by its very construction (attached to the Cottage), could have only been used by Hochberg and his successors. Other examples include the use of the driveway which was constructed so that Hochberg and his successors could access the 26 Lake Properties, the installation of the utility pole which supplied electricity to the 26 Lake Properties, the care and maintenance of the garden area and the landscaping of the Corner.
The court is not persuaded by the defendants' argument that Melo's actions in the Corner are sufficient to defeat the exclusivity requirement. There was evidence in the case that the Melos occasionally cut grass alongside the driveway in the Corner and plowed the driveway as a courtesy to Lill and Bess Hochberg (when it had not been done by others). There also was testimony that the Melos occasionally parked in, or near, the Corner during bad snowstorms when they could not get to their property. These actions, however, are not sufficient to defeat the plaintiffs' case. "To be exclusive, the disseisor must establish that others do not have possession. This does not mean that sporadic use by others defeats the claim, since it need only be the type of possession exercised by an owner in his use of the land." E.G. Mascolo, A Primer on Adverse Possession, 66 Conn.B.J., supra, 309-10. Moreover, an owner's entry in order to effect an interruption of a claimant's adverse possession must be made with the intention of repossessing or retaking possession. Here, the evidence establishes that the sporadic use of the Corner by the Melos was not for the purpose of reclaiming their right to the Corner as evidenced by their continued acquiescence to the adverse use of the Corner.
4. Continuous
"It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons . . . [T]he possession [however] must be connected and continuous." Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51, 905 A.2d 1256 (2006). Where the hostile acts are infrequent and done at irregular intervals, adverse possession will not be found. Id. at 706 (citing Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690 (1952)).
Although the plaintiffs' possession of the Corner is not sufficient to satisfy the fifteen (15) year statutory period, the tacking doctrine permits those who have owned property for less than fifteen years to tack on the time the property was held in adverse possession by their predecessors in title. See, Marguis v. Drost, 155 Conn. 327, 331, 231 A.2d 527 (1967). To qualify under the tacking doctrine, the claimant must show that their predecessors in title intended to convey the disputed parcel to them. Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. at 651-52 (No tacking where predecessor in title expressly disavowed any claim of right to the disputed parcel). As discussed previously, the adverse possession of the Corner continued, uninterrupted between 1961 when Ben Hochberg began occupying the Corner until 2007 when the defendants forcibly entered the Corner under a claim of right. Title to the Corner ripened into and therefore became vested in 1976 (when the statutory period of limitation expired) during Lill and Bess Hochberg's adverse possession of the Corner. The evidence further establishes that prior to the plaintiff's purchase of the 26 Lake Road Properties, they met with Michael Hochberg who showed the plaintiffs the Corner and the Right of Way and that Hochberg advised them that, although it was not on his deed, the Corner and the Right of Way had been used by his predecessors in title since 1961 as their own, and that they could do the same. See, Schlichting v. Cotter, 109 Conn.App. 361, 366 n. 4 (2008); Eberhardt v. Imperial Construction Services, 101 Conn.App. 762, 768 (2007) ("A claim of right does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it had the intent to disregard the true owner's right to possession").
The defendants argue that the sometimes sporadic use of parts of the Corner is not sufficient to satisfy the continuous requirement. For example, the defendants identify that Ben Hochberg and his successors did not park their cars in the Corner driveway every day and they didn't plant the same flowers and vegetables in the garden to the north of the driveway. This argument fails however, because the important consideration is whether the adverse claimant has asserted and exercised dominion and control over the contested property. Roche v. Town of Fairfield, 186 Conn. 490, 501 n. 11, 442 A.2d 911 (1982). In short, continuous possession does not mean continuous presence. What constitutes continuity of possession will depend primarily on the circumstances of each case. Id. Here, the evidence clearly supports a finding that even though Hochberg and his successors may not have been present every day in all areas of the Corner, they exercised dominion and control over the Corner for the statutory period.
B. Plaintiffs' Quiet Title and Prescriptive Easement Claims Pertaining to the Right of Way
The Court will next address the plaintiffs' claims pertaining to the Right of Way. Conn. Gen. Stat. § 47-37 provides for the acquisition of an easement by adverse use, or prescription. That section 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." Conn. Gen. Stat. § 47-37. In applying that section, this 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." Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 47, 3 A.3d 975 (2010); Slack v. Greene, 294 Conn. 418, 427, 984 A.2d 734 (2009). "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).
The plaintiffs have met their burden of establishing a prescriptive easement to the Right of Way. The evidence at trial establishes that Ben Hochberg openly and visibly used the Right of Way as if it was his own and without the permission of Brown or Melo from 1961 (when he purchased the 26 Lake Road Properties) until his death in 1969. Testimony from Jeanne Hochberg Moracini, Hochberg's daughter, establishes that Hochberg and his wife consistently and uninterruptedly used the Right of Way by, among other things, driving their cars over the Right of Way to access the Corner. Testimony from Moracini, her husband, Anthony Moracini, and Wesley Gregonis establishes that the subsequent occupants of the 26 Lake Properties, Lill and Bess Hochberg, Carol Hochberg and the Cottage tenant and the plaintiffs used the Right of Way in the same manner.
A party's open and visible use of the land, under a claim of right and absent permission from the fee owner, is sufficient to start the running of the prescriptive period. Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002). Here, the prescriptive period began to run in 1961 when Ben Hochberg began using the Right of Way and the right to a prescriptive easement became vested in 1976 when Lill and Bess used the Right of Way. Although evidence was presented to establish verbal and written opposition to Hochberg's and his successors' use of the Right of Way, Brown and Melo knowingly tolerated their open and continuous use of the Right of Way and failed to preclude the adverse use of the Right of Way.
The tacking doctrine is applicable to plaintiffs' prescriptive easement claims. See McBurney v. Cirillo, 276 Conn. 782, (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). In addition to the reasons stated in section A4 above, the record also reveals a transfer of possession rights that is sufficient to satisfy the privity requirement. Most notably, Lill and Bess Hochberg were in privity with Ben Hochberg at the time the prescriptive easement became vested in 1976 as they were life tenants of the 26 Lake Road Properties.
For these reasons, the court finds that the plaintiffs have sustained their burden of proving that they have acquired a prescriptive easement to the Right of Way and to enjoy free and unrestricted access over and across the Right of Way.
C. Plaintiffs' Permanent Injunction Claims
A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. Tighe v. Town of Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002). The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Id. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm. Id. at 88; Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980); Avalon Bay Communities, Inc., v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). We note also that, "[i]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972). The proper burden of proof for injunctive relief is by a preponderance of the evidence. Beacon Falls v. Posick, 17 Conn.App. 17 24 n. 5, 549 A.2d 656 (1988), rev'd on other grounds, 212 Conn. 570, 563 A.2d 285 (1989).
For the reasons stated herein, the plaintiffs have established by a preponderance of the evidence that permanent injunctions are warranted in this case. The plaintiffs have no adequate remedy at law and will suffer irreparable harm if injunctions are not granted. Accordingly, permanent injunctions are granted as to the Corner and the Right of Way as will be further discussed below.
III. CONCLUSION
After careful consideration of all of the testimony of the witnesses, including their credibility and demeanor and after weighing all the other evidence presented according to the relevant standards of law, the court finds that:
1. The plaintiffs have proven by clear and convincing evidence that the plaintiffs have acquired title to the Corner by way of adverse possession. The court therefore enters judgment quieting and settling title to the Corner in favor of the plaintiffs.
2. The plaintiffs have proven by a preponderance of the evidence that they have acquired a prescriptive easement to the Right of Way. The court therefore enters judgment quieting and settling title to the Right of Way in favor of the plaintiffs.
3. The plaintiffs have proven by a preponderance of the evidence that they are entitled to a permanent injunction with regard to the Corner. The defendants are permanently enjoined from entering, obstructing or interfering with the plaintiffs' use and occupancy of the Corner.
4. The plaintiffs have proven by a preponderance of the evidence that they have are entitled to a permanent injunction with regard to the Right of Way. The defendants are permanently enjoined from obstructing or interfering with the plaintiffs' use of, or passage over, the Right of Way.
5. Defendant Chase is ordered to file a release of mortgage with respect to the Corner within ninety (90) days from the date of this order.
If either party desires a judgment file that has a more detailed description of the land involved here, that party should submit an appropriate survey to the court within ninety (90) days. This invitation will not stay the appeal period of this decision. Costs are not awarded to any party to this action.
SO ORDERED.