Opinion
MMXCV185010644S
11-27-2019
Daria Jankura v. Craig Michael McBurney
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Domnarski, Edward S., J.
MEMORANDUM OF DECISION
Domnarski, J.
The plaintiff, Daria Jankura, brought this action seeking an injunction restraining the defendant, Craig Michael McBurney, from interfering with her use of a driveway located on the defendant’s property. The plaintiff uses the driveway as the sole means of vehicular access to her property. The plaintiff alleges that she has a prescriptive easement to use the driveway. The defendant denies the plaintiff’s claim of prescriptive easement and filed a counterclaim seeking a judgment to quiet title pursuant to General Statutes § 47-31. In particular, the defendant seeks a determination that the plaintiff does not have an easement over any portion of the defendant’s property. A trial of the issues was conducted on September 18, 2019.
From the credible evidence presented at trial, the court makes the following findings of fact. The plaintiff purchased her property located at 21 Green Hill Road, Killingworth, Connecticut on or about September 13, 1999, and began living at the property soon thereafter. At the time the plaintiff purchased her property, access to the house and garage was over an existing driveway that ran from the plaintiff’s garage to Green Hill Road. Shortly before the plaintiff purchased her property, the plaintiff’s predecessor in title paid to have the driveway paved. This existing driveway also provides access to a garage and house located on an abutting parcel of land located at 19 Green Hill Road, which is to the north of the plaintiff’s property. At the time the plaintiff purchased her property, the abutting northern parcel was owned by Rita M. Lee, now deceased, and it is now owned by the defendant. The defendant purchased the property from FANNIE MAE, a/k/a Federal National Mortgage Association, by deed dated April 12, 2016. Both the plaintiff’s deed and the defendant’s deed are silent as to the driveway, and neither deed contains any language related to an easement.
A survey map of Rita M. Lee’s property was prepared by Anthony Hendricks, a licensed surveyor. The map is dated February 1, 2002, and it was recorded in the office of the Town Clerk of Killingworth on June 4, 2002. (Pl.’s Ex. 1.) On the survey map, the subject driveway is designated as an "existing driveway" and the entire perimeter of the driveway is shown by a line designated "edge of bituminous pavement." A portion of the paved driveway is in front of the plaintiff’s garage, and a portion of the paved driveway is in front of the defendant’s garage. The survey map depicts the common boundary, which is a straight line, between the plaintiff’s property and the defendant’s property. The survey shows that in the vicinity of Green Hill Road, the entire driveway is located on the defendant’s property. In the vicinity of the existing house located on the defendant’s property, approximately one-half of the driveway is located on the defendant’s property and the other half is located on the plaintiff’s property. The portion of the driveway in front of the plaintiff’s garage is almost entirely on her property. The portion of the driveway in front of the defendant’s garage is entirely on his property.
The plaintiff testified that since she moved into her property in 1999 to the present, she has used the driveway to access her property and her garage. From the time she purchased the property until the defendant wrote to her in May 2017, the plaintiff believed that the driveway was located on her land. She, however, understood that the Lees also used the driveway to access their property. The plaintiff testified that vehicles entering the Lees’ property would travel along the Lees’ side of the driveway and would park on the Lees’ side of the driveway, near the edge of the lawn. Although the plaintiff testified that she removed snow from the portion of the driveway in front of the defendant’s garage, there was no evidence presented to establish that she personally utilized that portion of the driveway to access her property.
As noted earlier, Lee, the defendant’s predecessor in title, had a survey map prepared and recorded in 2002. It is reasonable to infer that Lee became aware of the location of the common boundary line with the plaintiff’s property, and its relation to the existing driveway, after the survey map was prepared. Otherwise stated, after 2002, Lee must have known that a substantial portion of the driveway the plaintiff used to access her property was not on the plaintiff’s land. The plaintiff testified that Lee never told her that she could not use the driveway and never interrupted her use of the driveway. There was no evidence presented to establish that the plaintiff sought or received express permission to use the driveway from Lee. The court finds the plaintiff’s testimony to be credible. The defendant did not present evidence that contradicted the plaintiff’s testimony regarding her use of the driveway.
In Clark v. Drska, 1 Conn.App. 481, 488-89, 473 A.2d 325 (1984), our Appellate Court stated: "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." (Citations omitted.) As required by Clark, the court here initially determines that the defendant is the record title owner of the land over which the plaintiff claims a prescriptive easement.
In considering the plaintiff’s claim of prescriptive easement, the court is guided by the following: "[General Statutes § ]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. 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 ... 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 ...
"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." (Citations omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 427-28, 984 A.2d 734 (2009).
"Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered." (Internal quotation mark omitted.) Id., 426. "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 prescriptive right cannot be acquired unless the common and ordinary use defines the bounds of the claimed easement with reasonable certainty." (Emphasis in original.) St. Germain v. Hurd, 128 Conn.App. 497, 502, 17 A.3d 516 (2011).
The court concludes that the plaintiff has established, by a preponderance of the evidence, a prescriptive easement to use a portion of the existing driveway located on the defendant’s land for all purposes of passage of persons and vehicles in order to access her property.
The evidence establishes that the plaintiff has used the driveway to access her property for the requisite fifteen-year period after she purchased the property in 1999. This use was open and visible, continuous and uninterrupted. This use was adverse to the defendant’s predecessor in title and was "as of right."
The plaintiff credibly testified that she believed she owned the driveway until she was informed to the contrary by the defendant. There was no evidence presented to establish that the plaintiff asked for permission from the defendant’s predecessor in title to use the driveway, and there was no evidence to establish that the defendant’s predecessor in title gave permission to the plaintiff to use the driveway. In Slack v. Greene, supra, 294 Conn. 435-36, our Supreme Court stated, "It is well established that evidence that the party claiming a prescriptive use never asked for or was given permission to use the property will support a finding that the use was adverse." Although there was evidence to establish that the plaintiff and Lee had a neighborly relationship, that does not give rise to a reasonable inference that Lee must have given permission for the plaintiff to use the driveway.
In this case, the task of delineating the bounds of the plaintiff’s prescriptive easement is made easier by the survey map of the former Rita Lee property, now owned by the defendant. As noted earlier, the driveway, which was in existence when the plaintiff purchased her property, is depicted on the map. The plaintiff has established her prescriptive right to use all of the existing driveway, shown on the survey map, that is located on the defendant’s land, with the exception of that portion of the existing driveway that provides exclusive access to the defendant’s garage, as also shown on said survey map.
Judgment may enter as follows: The defendant, Craig Michael McBurney, is the record title owner of premises known as 19 Green Hill Road, Killingworth, Connecticut, as described in a Special Warranty Deed recorded in Volume 265, page 304 of the Killingworth Land Records. The plaintiff, Daria Jankura, the owner of premises known as 21 Green Hill Road, Killingworth, Connecticut, as described in a Warranty Deed recorded in Volume 157, page 425 of the Killingworth Land Record, has established a prescriptive easement to pass and repass over the land of the defendant for all purposes of passage of persons and vehicles. Said prescriptive easement area is more particularly described utilizing a map entitled "Property Survey, Map Depicting Property of Rita M. Lee, 19 Green Hill Road Killingworth, CT 06417, February 1, 2002, Scale 1 inch = 20 ft," designated as Map No. 1721, and was filed on June 4, 2002, with the Town Clerk of Killingworth.
The easement is over a portion of the "existing drive" as shown on said map, which is located on the defendant’s land. The easement area is all of the existing driveway located upon the defendant’s land, with the exception of that portion of the existing driveway that exclusively serves the defendant’s garage, shown on said map, which is located on the defendant’s land.
The plaintiff did not establish that the defendant has obstructed or restricted her use of the driveway. For this reason, the court declines to issue prospective injunctive relief. The court has determined that the plaintiff has an easement by prescription over the defendant’s land. If, in the future, the plaintiff claims that the defendant is interfering with her easement rights, she may bring the matter to the attention of the court.