Opinion
LLICV176015099S
08-23-2018
Peter H. JESPERSEN v. Donald R. JESPERSEN, Jr. et al.
UNPUBLISHED OPINION
Bentivegna, J.
I
STATEMENT OF CASE
This matter involves claims of adverse possession and prescriptive easement. The plaintiff, Peter H. Jespersen, brings this action against the defendants: his brother, Donald R. Jespersen, Jr. (hereinafter "defendant") and his sister-in-law, M. Dawn Jespersen. The parties have owned adjoining parcels of land for more than thirty years.
In the first count of the complaint, dated March 7, 2017, the plaintiff alleges that he has openly, exclusively, continuously and hostily occupied, maintained and enjoyed, under claim of right, a strip of land owned by the defendant commencing from a point approximately four feet (4′ ) south of the northwesterly most corner of the defendant’s property, thence running easterly approximately 274.43 feet along the entire length of the parties’ common property line. The use includes, but is not limited to, the plaintiff’s installation and use of his driveway which partially occupies said four-foot (4′ ) wide strip of land, and all of such usages have been continuous and uninterrupted for approximately thirty-five (35) years, and the plaintiff has thereby acquired all legal right and title to the use, enjoyment and ownership of said strip of land as above-described. Furthermore, the use includes the plaintiff’s mowing, planting grass and flowers, snow plowing, raking leaves and re-seeding areas every time they were disturbed by his plowing. The plaintiff seeks a court judgment quieting title in the plaintiff as against the defendants to all those portions of the four-foot (4′ ) strip of land occupied as a driveway area, including the remainder of said strip of land used, maintained, and enjoyed by the plaintiff as hereinafter described.
In the second count, the plaintiff alleges that as a result of such possession and the continuous use of the driveway area as the plaintiff’s only means of ingress and egress to his property, he has acquired a prescriptive easement as to the entire driveway area and/or to those portions of the driveway area continuously used by the plaintiff that are a part of the defendant’s property.
The plaintiff requests that the court: quiet title to the disputed area in favor of the plaintiff; find that the plaintiff has acquired title to the disputed area by way of adverse possession; find that the plaintiff has acquired a prescriptive easement upon and around the areas of the defendants’ property where plaintiff’s driveway is located; award money damages; and such other and further relief as the Court deems just and appropriate.
The defendants deny the plaintiff’s claims of adverse possession and prescriptive easement.
The matter was tried on May 10, 2018. In considering the evidence, in addition to evaluating the testimony, the court also drew reasonable inferences from the facts established in this case. The court took into consideration, as well, all direct and circumstantial evidence presented. The court evaluated the witnesses who came before it, taking into account not only their spoken testimony, but also their ability to perceive the things about which they testified; their ability to recall relevant facts and events; any interest that they may have had in the outcome; the reasonableness of their testimony; and any contradictions that arose between their testimony and other evidence introduced at the hearing. The court’s conclusions are based upon all of the foregoing factors.
For the reasons stated below, the court finds that the plaintiff has failed to prove his claims of adverse possession and prescriptive easement by the requisite standard of proof.
II
FACTS
The plaintiff is the owner of the real property located at 86 Old North Road, Barkhamsted, Connecticut. The plaintiff first acquired title to his property by a deed dated June 30, 1983, and later by a quit claim deed from his ex-wife dated, November 20, 1984. The defendants are the owners of the real property at 84 Old North Road, Barkhamsted, Connecticut. The defendants acquired title to their property by a deed dated September 23, 1976. Peter and Donald are brothers and both acquired the respective properties from their parents (now deceased).
The parties share a common property line approximately 274.43 feet in length. The southern portion of the plaintiff’s property borders the defendants’ property. The disputed area is roughly five feet wide and runs the length of the plaintiff’s property. Old North Road runs to the west of the properties. The eastern edge of the property line is woods.
The plaintiff has lived at 86 Old North Road since 1976. He purchased the property from his parents and was deeded the property in 1983. When he purchased the property, he was not aware that his father had surveys done in the early 1970s, as he was in the service at the time.
In 1998, the plaintiff removed the existing house and began building an entirely new house. The plaintiff originally testified that he did not think a survey was done until 2016, although he later acknowledged that an as-built survey was done around the time that he built his new house. Defendant’s Exhibit No. A is an as-built survey completed in October 1998. It was needed to locate the new home on the plaintiff’s property and obtain local approval. The as-built survey was done by the surveying firm where his brother worked. The defendant did field work for the survey and Robert Sterling prepared the map. The new house was not built on the same footprint but was positioned more centrally.
During this period, the plaintiff also rebuilt the driveway on the same footprint, which is close to his brother’s property. He used material from the old house for the base and gravel for the top. The driveway is the only means of access to the plaintiff’s property. He does not think that the driveway has migrated towards the defendants’ property over time.
The credible evidence showed that when the new house and driveway were being built, the plaintiff asked the defendant for permission to take down a large tree that was at least partially in the disputed area. After the tree was cut down, the defendant helped clean up and used the trunk/branches for firewood.
Over time, the defendants developed the property bordering the plaintiff’s property. They planted lilac bushes and evergreens. They also built a wood fence enclosure to keep animals. One side of the wood fence was on the same line as the lilac bushes and evergreens. The plaintiff thought that the lilac bushes, evergreens and enclosure fence were on the property line.
The plaintiff did general maintenance of the disputed area north of the line of lilac bushes/evergreens/wood fence, including mowing and raking. He re-seeded the grass when needed. He used a tractor to maintain the gravel driveway. His brother never told him to stop maintaining the disputed area. Although the plaintiff claimed that he never saw the defendants come over to the disputed area and do any maintenance, the defendants testified to the contrary. The credible evidence showed that although the plaintiff mostly maintained the disputed area, which was closer to his home, the defendants also maintained the area over the years.
As a hobby, the plaintiff restores old cars and motorcycles. He does work in his garage and has parked vehicles in the disputed area. On Tuesday evenings, several of his friends would usually come over to talk and work on the old vehicles.
In 2016, the plaintiff had a survey done because he planned to swap some property with his neighbor to the north. Around the same time, the brothers’ relationship deteriorated after their parents passed away and there were some family disagreements regarding the parents’ estate. The defendants also had a survey done and later put up stakes. After the defendant put up stakes, the plaintiff removed a pile of wood and a section of fence that was on the defendants’ property. The defendants subsequently put up a six- and one-half-foot vinyl fence along the property line. The plaintiff thought that the vinyl fence was put up on his side of the property line, but it was actually one foot or so from the property line. The plaintiff testified that the defendants never gave him a reason for putting up the vinyl fence. The plaintiff claims that the vinyl fence impedes the use of his driveway. However, he is still able to use his tractor to maintain the gravel driveway but has to be careful not to hit the vinyl fence.
The plaintiff’s significant other, Karen Palmer, has lived at 86 Old North Road for fourteen years. She planted flowers along the wood fence. The flower bed was 2-3 feet wide and 10-12 feet in length. She helped the plaintiff maintain the disputed area. In 2016, she observed the defendant and another person survey the property line and put in pins and stakes. At some point before the vinyl fence was installed, the defendant mowed the flower bed. The flower bed was on the defendants’ side of the pinned/staked area. Since the vinyl fence was installed, Palmer has difficulties turning around in the driveway because the fence is so close to the plaintiff’s driveway.
The plaintiff’s friend, Dale Smith, helped with the construction of the new house and driveway. He has known the brothers for a long time and has been visiting the plaintiff since the 1970s. Smith thought that the line of lilac bushes/evergreens/wood fence was the property line. Smith observed the plaintiff maintain the disputed area.
The plaintiff’s neighbor to the north, Howard Ives, has lived there basically all of his life. He has participated in the Tuesday night gatherings. Over the years, he has observed the plaintiff maintain the disputed area.
The defendant purchased his lot at 84 Old North Road in 1974 and built his home sometime in 1975. He has lived there since. The defendants were married in 1976. The defendant is a land surveyor by profession. He knew where the property line was when he purchased the property. He found pins on the property line that had been there since 1973. The front pin got knocked out at some point.
Before the plaintiff built his new house in 1998/1999, he asked the defendant for permission to remove some bushes and a large tree. The defendant gave his permission, and they worked together to cut down the tree and clean up afterwards. When the plaintiff re-built the driveway, the defendant knew it was close to the property line but did not have any concerns. The parties were getting along at the time.
The plaintiff never put anything permanent in the disputed area. Vehicles were parked by the plaintiff’s garage on and off. The defendant never told the plaintiff to move any vehicles parked in the disputed area because the brothers were getting along and it did not hurt anything.
The defendant knew that the flower bed was on his property. The defendant did not have any problem with the flower bed. The defendants did not have a problem with them trying to make the area look better. The parties were getting along at the time, and the defendants lived with the flower bed to keep the peace. He mowed over the flower bed after a confrontation with the plaintiff about the property line and before the vinyl fence was installed.
The wood fence was part of a sheep corral built for the defendants’ children when they were in 4-H. The wood fence was not intended as a property line.
The lilac bushes were planted over a long period of time when Mrs. Jespersen would receive a bush from one of their children as a gift. The defendants planted the bushes away from the property line knowing that they would grow and did not want them to encroach into the plaintiff’s property. The defendants would trim and fertilize the lilac bushes as needed during the year.
The defendant thought his relationship with his brother was good until a recent family dispute regarding their parents’ estate. Before the vinyl fence was installed, the defendant and someone he worked with surveyed the property. They found the preexisting pin behind the garage. After they staked the property, the plaintiff pulled out the stakes. There was a subsequent confrontation between the brothers, during which the plaintiff came out yelling and screaming at the defendant about the property dispute. After the defendant re-staked the property line, the plaintiff again removed the stakes and drove the pins down flush. The defendant went to see the Resident State Trooper and reported what happened but did not want the plaintiff arrested. There were no further problems related to the stakes/pins. However, as a result of the dispute, the defendants decided to put up a privacy fence.
In October 2016, the plaintiff’s former attorney sent a letter to the defendants offering to buy the disputed area, indicating that if they could not work out a deal the plaintiff would file an adverse possession claim. That letter was the first time that the plaintiff asserted a claim to the disputed area. Before the letter, the defendants never thought that the plaintiff was making such a claim. The defendants discussed the offer but decided that they did not want to sell the property. They installed the vinyl fence for privacy. The defendants also had noise concerns related to the plaintiff’s restoring vehicles hobby, including the revving of engines. When they installed the vinyl fence, it was installed 1.3 feet south of the property line. They believed that they had a right to install the fence right on the property line but chose not to do so. The defendants do not think that the vinyl fence impedes the use of the plaintiff’s driveway.
The defendants recognized that the plaintiff had regularly mowed the disputed area over the years. The plaintiff mowed the area during the week, but the defendant and members of his family would mow on the weekend if it was needed. During the last thirty years, the defendant or one of his family members mowed the disputed area six to ten times per year.
The defendant thinks that the plaintiff’s driveway has migrated towards the defendants’ property over the last thirty years by a few feet. But the plaintiff’s driveway is still within the plaintiff’s property and not over the property line into the defendants’ property. The defendants believe that if the plaintiff’s driveway has migrated towards the defendants’ property, it is the plaintiff’s problem to fix.
III
DISCUSSION
A
Adverse Possession
"[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n.13, 887 A.2d 872 (2006); see also General Statutes § 52-575(a).
"To acquire title to a disputed piece of property by adverse possession, a plaintiff must: (1) Oust an owner from possession of the property and possess the property himself in a way that is: (2) actual; (3) open/visible; (4) hostile to the rights of the owner; (5) exclusive; (6) made under a claim of right; and (7) made without the consent of the owner; (8) for an uninterrupted fifteen-year period. [citing] Alexson v. Foss, 276 Conn. 599, 614 n.13 (2006)." M. Taylor & D. Krisch, Encyclopedia of CT Causes of Action (2018), § 1A-3, p. 4; see also E. Mascolo, "A Primer on Adverse Possession," 66 Conn. Bar J. 303, 304-06 (1992) ("The essential elements of an adverse possession under Connecticut law are that the legal owner shall have been ousted of his possession and kept out uninterruptedly for the statutorily required period of fifteen years under a claim of right by an open, visible, and exclusive possession by the claimant without a license from or the consent of the owner ... Among the factors that may be considered in assessing the existence of adverse possession are (1) the purchase in good faith of land and the receiving of a deed of title thereto; (2) the survey of such land by the purported owner-possessor; (3) the payment of taxes on the property by such person; and (4) attempts by the claimant to exclude others, such as trespassers, and to otherwise attend to the land. As these factors clearly imply, the mere uninterrupted possession of land, without the other essentials of adverse possession, is not sufficient to divert the owner of his title to the property ... In sum, there is no balancing of equities in adverse possession proceedings, and proof of the constituent elements of adverse possession must be clear and positive ... [I]t is the nature of the hostile possession, and not the intent of the adverse claimant when he takes possession, that constitutes the warning deemed essential to warrant a protective response by the owner of record").
"Adverse 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 305, 12 A.3d 984 (2011). Under Connecticut case law, a person’s mistaken belief that a disputed property is theirs is enough to support a claim of adverse possession. See Loewenberg v. Wallace, 151 Conn. 355, 357-58, 197 A.2d 634 (1964).
"It cannot be disputed that adverse possession claims are highly fact and context specific. In evaluating such claims, [t]he location and condition of the land [at issue] must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions ... In sum, when determining whether the necessary elements of adverse possession exist, each claim must be decided on its own particular facts. The requirements vary according to, and it is necessary to consider, the nature and situation of the property. To determine whether 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." (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Ass’n, Inc., 93 Conn.App. 759, 775, 890 A.2d 645 (2006). "It should also be noted that treatment of the constituent elements of adverse possession dictates a certain redundancy, due to the overlapping concepts developed by the courts out of a concern for preserving the property interests of the holder of legal title." E. Mascolo, "A Primer on Adverse Possession," supra, 66 Conn. Bar J. 306.
The elements of ouster, actual, and exclusive use are necessarily connected. "Ouster has been defined clearly in case law. By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits. As otherwise stated: An entry ... on the land of another, is an ouster of the legal possession arising from the title ... if made under claim and color of right ... otherwise it is a mere trespass ... The intention guides the entry, and fixes its character." (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn.App. 296, 313-14, 880 A.2d 889 (2005); see also Eberhart v. Meadow Heaven, 111 Conn.App. 636, 644-45, 960 A.2d 1083 (2008). In Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982), the court said, "The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant ... The use is not exclusive if the adverse user merely shares dominion over the property with other users." (Citation omitted.)
"In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others ... Thus, the claimant’s possession need not 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." (Internal quotation marks omitted.) Mulle v. McCauley, 102 Conn.App. 803, 814, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007); Roche v. Fairfield, supra, 186 Conn. 502-03.
"In adverse-possession doctrine, the exclusivity requirement describes the behavior of an ordinary possessor and serves to give notice to the owner." Boccanfuso v. Conner, supra, 89 Conn.App. 289 n. 23. "A possession that does not amount to an ouster of the owner of land is not sufficiently exclusive to support adverse possession because in the absence of ouster, the owner of the legal title constructively possesses the property. Thus, an adverse possession cannot share the disputed property with the true owner." 3 Am.Jur.2d "Adverse Possession" § 69 pp. 144-45, citing New York Annual Conference of United Methodist Church v. Fisher, 182 Conn. 272, 291-92, 438 A.2d 62 (1980); see also Aramony v. District of Chapman Beach, 144 Conn.App. 514, 533-34, 72 A.3d 1252 (2013).
"The legal significance of the open and visible element [of adverse possession] is not ... an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner’s property as his own. Rather, the open and visible element requires 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." (Internal quotation marks omitted.) Anderson v. Poirier, 121 Conn.App. 748, 753-54, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). "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." Schlichting v. Cotter, 109 Conn.App. 361, 368 (2008) (citing 2 C.J.S. 482, Adverse Possession § 53 [2003] ).
The elements of hostility to the rights of the owner and made without the consent of the owner are necessarily connected. "The word ‘hostile,’ as employed in the law of adverse possession, is a term of art; it does not, despite some troublesome early cases, imply animosity, ill will or bad faith. Nor is the claimant required to make express declarations of adverse intent during the possessory period. Conversely, in order to obtain title by adverse possession one need not be under a good faith mistake that he or she had legal title to the land ... Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Citation omitted; internal quotation marks omitted.) Mulle v. McCauley, supra, 102 Conn.App. 814.
To acquire title by adverse possession, the possession must be hostile from its inception. Kramer v. Petisi, 53 Conn.App. 62, 71, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). To show hostility, a claimant must establish that his possession of the disputed land was "without permission, license or consent of the owner ..." Mulle v. McCauley, supra, 102 Conn.App. 813-14. Hostility does not "imply animosity, ill will or bad faith." (Internal quotation marks omitted.) Id. Rather, hostile possession is "possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Internal quotation marks omitted.) Id.
"[T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other ... Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it ... Such an acknowledgement of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew." (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn.App. 62, 71, 728 A.2d 1097 (1999).
"Possession that is permissive in its inception may become hostile ... If the original entry on land is by permission of the owner or under some right or authority derived from the owner, the possession does not become hostile until the permission or authority has been clearly repudiated by the occupant. To change the character of the possession from permissive to hostile, the disavowal of the record owner’s title and the assertion of an adverse claim must be shown by some clear, positive, and unequivocal act brought home to the owner, such as an explicit disclaimer." (Internal quotation marks omitted.) Woodhouse v. McKee, 90 Conn.App. 662, 675, 879 A.2d 486 (2005). If there is no repudiation, such use will continue to be presumed permissive. Top of the Town, LLC v. Somers Sportsmen’s Ass’n, Inc., 69 Conn.App. 839, 846, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
Additionally, in assessing whether hostility exists, "the relation that the [alleged] adverse possessor occupies with reference to the owner is important." Woodhouse v. McKee, supra, 90 Conn.App. 673. The court in Woodhouse opined "that [t]he original familial ownership of these adjacent properties directly affects the analysis of [the defendant’s] claim that the use of the disputed area was permissive and not hostile or adverse." Id., 670-71. In reversing the trial court’s finding of adverse possession, the Appellate Court, quoting 3 Am.Jur.2d 124, Adverse Possession § 180 (2002), stated: "It is a general principle that members of a family may not acquire adverse possession against each other in the absence of a showing of a clear, positive, and continued disclaimer and disavowal of title ... The existence of a family relationship between the parties will prevent or rebut a presumption of adverse holding." (Internal quotation marks omitted.) Id., 673. "In determining what amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is important . If the parties are strangers and the possession is open and notorious, it may be deemed to be hostile. However if the parties are related, there may be a presumption that the use is permissive ." (Emphasis added; internal quotation marks omitted.) Id. ; see also MuIle v. McCauley, supra, 102 Conn.App. 811-12.
However, "[a] family relationship between parties is only one of the facts to be considered [with other facts] ... [A] family relationship without more is insufficient to support a finding that the use at the time was with permission ... [S]tanding alone a familial relationship neither puts an end to the inquiry regarding permissive use nor shifts the burden of proof ... Nevertheless, the familial relationship may be an important factor when evaluated in the context of all the other relevant factors guiding the Court in its resolution of the ... claim." (Citations omitted; internal quotation marks omitted.) Mulle v. McCauley, supra, 102 Conn.App. 814-15.
"Possession under a claim of right means that the entry by the claimant must be in accordance with a claim to the property as the claimant’s own with the intent to hold it for the entire statutory period without interruption." Eberhart v. Meadow Haven, supra, 111 Conn.App. 643. "A claim of right does not necessarily mean that the adverse possessor claims that it is the property titleholder, but that it had the intent to disregard the true owner’s right to possession." (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 366 n.4, 952 A.2d 73 (2008); Eberhardt v. Imperial Construction Services, LLC, supra, 101 Conn.App. 768. "[A] user as of right is one in disregard of the rights of the legal owner. Put another way, an intention to claim ownership will be made manifest where one enters upon another’s land and uses it openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner." (Internal quotation marks omitted.) E. Mascolo, "A Primer on Adverse Possession," supra, 66 Conn. Bar J. 307.
"[T]he possession must be connected and continuous." Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51; 905 A.2d 1256 (2006). Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 695, 88 A.2d 379 (1952), indicates where the activities of the claimant are interrupted by the property owner adverse possession will not be found. However, title will vest "if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons ... [T]he possession ... must be connected and continuous ..." (Internal quotation marks omitted.) Skelly v. Brucher, 134 Conn.App. 337, 340, 38 A.3d 261 (2012). "Among the ways that the continuity of adverse possession may be broken are by (a) an act of the legal owner, (b) an intrusion of a stranger, and (c) the abandonment of the premises by the claimant." E. Mascolo, "A Primer on Adverse Possession," supra, 66 Conn. Bar J. 311.
The plaintiff argues that he has acquired title, by way of adverse possession, to at least a five-foot strip of the defendants’ land running the entire length of the common boundary line. As to the grass area, his claim is based on the possession, use and maintenance of the land on the plaintiff’s side of the line formed by the lilac bushes, evergreen plantings and the former wooden fence. As to the driveway, the plaintiff’s claim is supported by the leveling of the driveway with his tractor each year and raking the area to reclaim the gravel. The plaintiff argues that the fence must be moved to allow for the plaintiff’s adverse possession claim to title of the five-foot strip of land referred to as the disputed area.
Based on the evidence presented, the plaintiff has failed to satisfy all the elements of an adverse possession claim by clear and convincing evidence. The evidence does not sufficiently support the plaintiff’s claim that he possessed the property himself in a way that is: actual, open and visible, hostile to the rights of the owner, exclusive, made under a claim of right, and made without the consent of the owner, for an uninterrupted fifteen-year period. See Alexson v. Foss, supra, 276 Conn. 614 n.13.
1
Ouster from Property
As to whether the plaintiff ousted the defendants from the property, the evidence does not sufficiently support the plaintiff’s claim. The plaintiff never took any actions to limit or curtail the defendants’ use or possession of the property. He did not install a boundary fence, dig a ditch, stake the property, or put up no trespassing signs. See Bennett v. Bowditch, Superior Court, judicial district of Fairfield, Docket No. CV-11-6021673-S (September 4, 2014, Gilardi, J.) (court granted plaintiff’s adverse possession claim where plaintiff showed, inter alia, fence and razor wire surrounded property at issue for over fifty years); Gregonis v. Burns, Superior Court, judicial district of Tolland, Docket No. CV-07-5001553-S (May 23, 2011, Baldini, J.) (fenced-in dog pen installed by plaintiff prevented defendant from accessing property at issue).
The plaintiff did not put anything permanent in the disputed area or make an express claim to the disputed area until 2016. Vehicles were parked in or near the disputed area while they were being worked on and stored, but there was insufficient evidence that the car repair activity was continuous for fifteen years or more. The flower bed was also not in the disputed area for fifteen years or more. During the period in question, the defendants continued to exercise normal acts of ownership, including attending to the area by mowing and cleanup when needed. They planted and maintained lilac bushes and evergreen trees in or near the disputed area. They also built an animal enclosure on that part of their property, although it was not intended as a boundary fence and did not run along the entire property line.
2
Open and Visible
The plaintiff’s possession of the disputed area was not sufficiently open and visible. While the plaintiff used and maintained the disputed area, so did the defendants. Given that fact as well as the good relations between the parties until 2014, the defendants, as reasonable owners, would not have believed that the plaintiff was using the property as his own. See Anderson v. Poirier, supra, 121 Conn.App. 753-54 ("the open and visible element requires 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"). Rather, it was more like the brothers were sharing the property or the defendants were acquiescing to the plaintiff’s use of the area.
3
Hostile Use
In terms of hostility to the rights of the owner, the plaintiff’s alleged acts of ownership must be evaluated in the context of his relationship with his brother. See Woodhouse v. McKee, supra, 90 Conn.App. 673. When the plaintiff was building his house and replacing the driveway, the defendant gave the plaintiff permission to remove a tree which was on or around the defendants’ property line. The defendant also assisted in the surveying of the plaintiff’s property. It was not until 2014, when there was a falling out related to their parents’ estate, that the relationship became unfriendly. Considering the familiar relations of the parties until 2014, the plaintiff’s use of the disputed area was not hostile, but rather consensual or permissive in nature. The plaintiff failed to establish that his possession of the disputed area was without permission, license or consent of the defendants. Based on the circumstances, the defendants did not have adequate notice that a trespass was occurring, and that their property rights were in jeopardy.
4
Exclusivity
With respect to exclusivity, although the plaintiff contends that he alone maintained the disputed area, the credible evidence was to the contrary. The defendants also attended to the disputed area by mowing the lawn, albeit, less frequently. They also planted and pruned lilac bushes and evergreens located in or near the disputed area, and also cleaned up the area by removing sticks and leaves. The wood fence built by the defendants was not a boundary fence but was part of an animal enclosure. The plaintiff did not take action sufficient to constitute exclusivity. He never built a boundary fence, dug a ditch, put up no trespassing signs, or placed boundary pins or stakes. See Bennett v. Bowditch, supra, Docket No. CV-11-6021673S; Gregonis v. Burns, supra, Docket No. CV-07-5001553-S. The small flower garden planted by Palmer did not meet the fifteen-year requirement. The parking of vehicles or a trailer was not continuous for fifteen years. The plaintiff’s driveway is, for all extent and purposes, on his property and not in the disputed area or on the defendants’ property. If the plaintiff’s driveway, filled with stones and finished with gravel, has somewhat migrated over time towards the defendants’ boundary line, that does not, in and of itself, satisfy the requirements for adverse possession. The evidence leans more toward the conclusion that the brothers were sharing the use of the property or the defendants were acquiescing in the plaintiff’s use.
5
Claim of Right
Regarding the claim of right element, the plaintiff’s actions failed to demonstrate that he was making a claim of right to, or assuming control of, the disputed area or disregarding the defendants’ right to possession. On the contrary, by his actions, the plaintiff recognized the defendants’ ownership of the disputed area. When the plaintiff was building his new house and replacing the driveway in 1998/1999, he asked the defendant for permission to remove a large tree from the disputed area. After the defendant had a survey done and put up stakes in 2016, the plaintiff removed a pile of wood and a section of his fence that was on the defendants’ property.
6
Fifteen-Year Requirement
Finally, the plaintiff failed to prove that his adverse possession was uninterrupted for the required fifteen-year period. The fact that the plaintiff attended to the disputed area is not sufficient to divest the defendants of their title to the property. The defendants also attended to the disputed area, and the plaintiff did not possess the property uninterrupted. The plaintiff’s use/possession was not hostile in its inception; see Kramer v. Petisi, supra, 53 Conn.App. 71; and was not continuously hostile at all times during the required fifteen-year period.
B
Prescriptive Easement
"[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, [our Supreme Court] repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." (Internal quotation marks omitted.) Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998).
"Although the acts necessary to extinguish an easement by prescription are described in the law similarly to those necessary to acquire an easement by prescription, extinguishment and acquisition differ fundamentally such that a given act may be considered adverse for purposes of acquiring an easement, but not adverse for purposes of extinguishing one. Specifically, a party attempting to acquire an easement by prescription generally has no ownership rights in the land in question and, therefore, no right to use it in any fashion. Thus, that 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." (Emphasis in original.) Smith v. Muellner, 283 Conn. 510, 518, 932 A.2d 382 (2007).
"The well-established statutory elements necessary to establish an easement by prescription are that the use is (1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right ... A prescriptive easement must be proved by a fair preponderance of the evidence." (Citations omitted; internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn.App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). "Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts." (Internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985).
First, "[t]he 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 ... A typical example of such a concealed use involves an asserted easement in an underground sewer or pipeline." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002).
Second, "[t]he 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." Frech v. Piontkowski, 296 Conn. 43, 57, 994 A.2d 84 (2010). "[T]he party claiming a prescriptive use may demonstrate that use by credible and probative circumstantial evidence. Moreover, the fact finder’s determination that the servient estate was used under a claim of right will be sustained unless that determination is manifestly unsupportable ... [A]dverse use or adversity simply refers to the requirement that the easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land and that such claim must be known to, and acquiesced in by the owner of the land ... Given that definition, it logically follows that adverse use or adversity will, in most instances, be proven from the same evidence by which [the] easement claimant establishes his open, notorious, exclusive, continuous and uninterrupted ... use of the easement for the full statutory period." (Citation omitted; footnote omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 433-34, 984 A.2d 734 (2009).
Finally, "[t]he 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.) Chase & Chase, LLC v. Waterbury Realty, LLC, 138 Conn.App. 289, 297, 50 A.3d 968 (2012). "There can be no claim of right unless the use is unaccompanied by any recognition of [the] right [of the owner of the servient tenement] to stop such use. [Thus, a] use by express or implied permission or license cannot ripen into an easement by prescription." (Emphasis in original; internal quotation marks omitted.) Berube v. Nagle, 81 Conn.App. 681, 692, 841 A.2d 724 (2004).
"Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions." (Internal quotation marks omitted.) Berube v. Nagle, supra, 81 Conn.App. 692. Furthermore, "[a] prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty ... However, slight or immaterial changes or deviations in a portion or portions of a way do not prevent the acquisition of a right-of-way by adverse use so long as the way remains substantially the same throughout the prescriptive period ... The exact location of a right-of-way presents a question of fact for the trial court ..." (Citations omitted; internal quotation marks omitted.) Boccanfuso v. Conner, supra, 89 Conn.App. 291. "[A] 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 use defines its bounds with reasonable certainty." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
The plaintiff argues, in the alternative, that he has acquired a prescriptive easement over the five-foot strip. This claim is supported by his everyday use of his driveway, including the turn radius, and the yearly grading, leveling, stone raking, and snow plowing of the driveway. He argues that the scope of the prescriptive easement should reflect his normal and customary use of the driveway and the five-foot area along the southerly side of the driveway necessary for turning, maintenance, and snow plowing.
Based on the evidence presented, the plaintiff has failed to establish all of the elements of a prescriptive easement claim by a fair preponderance of the evidence.
The plaintiff’s use of the disputed area was not under a claim of right. Rather, it was more like the brothers were sharing the property or the defendants were acquiescing to the plaintiff’s use of the disputed area. As Berube states, "[a] use by express or implied permission or license cannot ripen into an easement by prescription." Berube v. Nagle, supra, 81 Conn.App. 692. The plaintiff also did not use the property without recognition of the defendants’ rights. As previously noted, when the plaintiff was building his new house and replacing the driveway in 1998/1999, he asked the defendant for permission to remove a large tree from the disputed area. After the defendant had a survey done and put up stakes in 2016, the plaintiff removed a pile of wood and a section of his fence that was on the defendants’ property. In addition, the plaintiff failed to establish the boundaries of the easement to a reasonable degree of certainty. See Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 124. Moreover, if the plaintiff’s driveway, which is on his property, has somewhat migrated over time towards the defendants’ boundary line, that does not satisfy the requirements for a prescriptive easement. The plaintiff did not adversely use the disputed area for the statutory requisite of fifteen years to establish an easement by prescription. See Berube v. Nagle, supra, 81 Conn.App. 69.
IV
CONCLUSION
For the above-stated reasons, the court enters the following orders:
1) First Count, Adverse Possession, judgment is entered for the defendants. 2) Second Count, Prescriptive Easement, judgment is entered for the defendants.