Opinion
NNHCV166064104S
09-27-2018
Wayne LAWRENCE, Sr. et al. v. Maria F. ANTUNES
UNPUBLISHED OPINION
M. Nawaz Wahla, Judge
ISSUE
The issue presented is whether the plaintiffs, Wayne Lawrence, Sr. and Janet Lawrence, have acquired the rights of prescriptive easement over a dirt road on a portion of property owned by the defendant, Maria Antunes, which extends along the plaintiffs’ southwesterly property line, by using the dirt road in an open, visible, adverse, continuous and uninterrupted manner for at least fifteen years, and under a claim of right. The court holds that the plaintiffs have failed to prove their burden for the reasons set forth below.
PROCEDURAL CONTEXT
This matter involves a claim in which the plaintiffs allegedly contends that they have acquired a permanent easement by prescriptive right over and upon a portion of the defendant’s property, which extends along the plaintiffs’ southwesterly property line for ingress and egress to their backyard. The plaintiffs initiated this action by filing summons and one-count complaint on July 8, 2016. The summary of the facts of the complaint is as follows:
The plaintiffs refer to the disputed portion of property as the "proposed road." The defendant refers to the disputed portion of property as the "driveway." For clarity, the court will simply refer to the disputed property as the "dirt road."
On or about September 9, 1978, Mr. Lawrence purchased a piece of real property situated in the Town of Cheshire. The said parcel of the land is known as 1624 Musso View Avenue. Later, the deed was corrected and given by quitclaim and recorded in the land records.
On or about May 9, 1995, the defendant became owner of parcel of the land known as 1620 Musso View Avenue (description of the property is attached as a Stipulated Exhibit). The plaintiffs allege that the proposed street extends along with the plaintiffs’ southwesterly property line. The plaintiffs have allegedly used the proposed street for ingress and egress to their backyard.
The plaintiffs allege that the proposed use was in open, visible, notorious, adverse, continuous, and uninterrupted way and under a claim of right for more than fifteen years prior to the commencement of this action and that the plaintiffs have thereby acquired a permanent easement to the aforesaid proposed road. The plaintiffs seek a judgment of a permanent easement by prescriptive right to the proposed road in favor of the plaintiffs or any other relief the court deems just and necessary.
The defendant filed an answer and denied all the allegations by way of general denial. The defendant also filed a special defense that the plaintiffs’ use was occasional with license and permission. The court trial was held on May 9, 2018. The parties filed post-hearing briefs, respectively.
FACTUAL FINDINGS
The court heard testimony from these litigants and other witnesses and observed their demeanor, as well as reviewed the trial exhibits. Based on the court’s determination of credibility in light of the circumstances of the case and the relevant case law, the court makes the following determinations of pertinent facts.
The parties have filed a document titled as a "Stipulated Facts," which primarily pertains to the chain of title. The court, at the request of the parties, has adopted this document as an exhibit and has attached it with this memorandum of decision.
1. The plaintiffs, husband and wife, individually and/or together, have held title together to their residential property, 1624 Musso View, Cheshire, Connecticut, from 1978 to present.
2. The defendant took title to the adjoining property, 1620 Musso View, Cheshire, Connecticut, in 1995. The defendant’s property sits back and extends from Musso View Avenue to a broad area away and removed from that roadway upon which her residence was constructed.
3. Mr. Lawrence testified at trial. The salient features of his testimony are summarized as follows: Mr. Lawrence purchased his lot in 1978 for an amount of $10,000. There were no structures on the property. It was a heavily wooded lot and was bordered southwesterly property line- which Mr. Lawrence claims was a proposed road. Mr. Lawrence asserts that the proposed road/street is referenced in his deed- exhibit 3 admitted into evidence shows the location of lot number 61, 62 and 63. Mr. Lawrence owns lot numbers 62 and defendant owns lot 36.
4. The proposed road is 30 feet wide with trees, bushes, leaves, and debris on the side. Mr. Lawrence’s testimony showed that he was a builder and has a familiarity with the reading maps. He claimed that proposed road had not changed since he purchased his property in 1978. Through Mr. Lawrence’s testimony, exhibit numbers 5, 6 and 7 were submitted in support of his assertion about the proposed road. Mr. Lawrence asserted that two homes were in existence when he purchased his lot in 1978. Mr. Lawrence affirmed that the defendant and her husband purchased their lot in 1995. Mr. Lawrence testified that he started to build a house on his lot in either 1978 or 1979 and finished building in 1980. Mr. Lawrence claimed that he used the proposed road for cutting the timber, clearing the land, and hard wood, which he brought heavy equipment on the road to do it. Lawrence also testified that in 1980, upon completion of building of the house, he transferred the house by a quitclaim deed to Ms. Lawrence. Mr. Lawrence further claimed that during the occupancy of his property, he built a retaining wall behind his house, including a kai fish pond and a garden. Mr. Lawrence further testified that he used the proposed road for visiting two neighbors over the years since building of his house.
5. The essence of Mr. Lawrence’s testimony attempted to point out that he did not seek anyone’s permission to use the proposed road up until 2017 when the defendant put up a barricade. He contended that he was not able to access the back of his property via motor vehicle because the defendant had put up a barricade with landscapes and trees planted there. Additionally, the crux of his testimony was that subsequent to the defendant’s purchase of her property, he and his wife continued to use the proposed road to maintain their property, to gather firewood, and to access the wood shop, mulch, stone, top soil, garden, pool, kai fish pond, etc., without permission.
6. During the cross examination, Lawrence conceded that the proposed road was not heavily treed but similar to what it is now. He also conceded that at some point the proposed road stopped and became forest back in 1978, and he was aware of the parameters of his property based on the information contained in the deed.
7. Mr. Lawrence was asked during the cross examination whether he knew who owned the proposed road. His response was that he did not know, and he further clarified that he did not know whether the defendant owned it or not. (Transcripts page 58.) Mr. Lawrence conceded that although exhibit 3 refers to the proposed road, any reference to it stops after it reaches the end of the boundary line.
8. It was elicited from Lawrence’s testimony that he did not own the title to the property that touches and abounds the proposed road- hence he is just a resident at the house. That implies that he may not have standing to bring this claim. But the record shows that Mr. Lawrence’s standing has not been challenged in any shape or form.
9. Mr. Lawrence conceded that in addition to the obstruction created in and around October of 2017, there was a small fence and a small bush planted in the driveway. He was pressed to remember the time line on when this obstruction was created. Mr. Lawrence replied that he did not recall. Mr. Lawrence was further pressed as to the time line, as to whether the fence was placed there ten years ago. He responded, "no, I do not believe it was ten years ago." (Transcripts page 69.) The court did not find him credible on this point because on direct examination, he had been able to recount every tiny details since 1978.
10. Under cross examination, Mr. Lawrence also conceded that by crossing over the proposed road when the plaintiffs visited their neighbors, they are not claiming easements to come down.
11. As noted above, Mr. Lawrence was emphatic in his testimony during the direct examination that he never asked anyone, i.e., the defendant or her ex-husband, for permission to use the proposed road. But during the cross examination, he conceded again that there was a point in time where "he informed the defendant that he was bringing a truck and a trailer and some guys down there." (Transcripts page 73.) Lawrence further admitted that "on other occasion there were issues with the landscapers who have gone over the proposed road with their lawn-mowers, he had discussions with the defendant and her ex-husband about the property-boundary, which was blocking the access to other neighbors ... There were discussion about the ownership of dirt road ... which we both agreed on and the way it is written versus possibly their paperwork looks was always a grey area ..." (Transcripts pages 73-74.) It is noteworthy for the court to draw a reasonable inference that he would not have engaged in such discussions and informed the defendant that he was bringing a truck and trailer down if the plaintiffs’ use was adverse, hostile, and under a claim of right. Additionally, the court noted that Mr. Lawrence became very guarded in his testimony about the time line as the cross examination progressed.
12. Mr. Lawrence attempted to explain that his discussion with the defendant’s ex-husband were about the other folks’ use of road but not about his use. Mr. Lawrence was categorically asked whether he had ever asked the defendant’s ex husband for permission to use the dirt road. Mr. Lawrence’s answer was that he did not recall. The court noted his demeanor and found him not to be credible. Likewise, Mr. Lawrence could not recall when the defendant’s ex husband moved out- whether it was in 2007 or 2010. The court infers that he was avoiding a break in the time line, a prerequisite for prescriptive easement.
13. As far as the ownership of the proposed road is concerned, Mr. Lawrence asserted that he did not know who owned it. He explained that upon the defendant’s request, about four years ago he went to the town and inquired/confronted the town officials regarding the conditions of the proposed road, the issues facing the parties, and the defendant’s claim concerning the proposed road. Mr. Lawrence’s own testimony is telling as he put it in his words: "they shrugged their shoulders and pretty much laughed in my face and said: no way, you are going to have to get an attorney ..." (Transcripts page 80.) The court can draw a reasonable and logical inference from this answer that there was an ongoing dispute about the use of proposed road.
14. Mr. Lawrence also conceded that the defendant had objected to the plaintiff’s son’s lawn-care business in terms of a pickup truck coming over to her property. Mr. Lawrence was asked that it was about 12-15 years ago when his son has lawn-care business, or sometime in 2006. His answer was a grudging admission, the way he put it was that "it is hard for me to go all the way back from 2018, okay." The court found this answer sort of ironic because as far as the time line to support his claim was concerned, Mr. Lawrence had painstakingly provided each and every tiny detail pertaining to the purchase of lot, the construction of the house, retaining wall, fish pond, etc. But he could not recall when his son had a lawn-care business and was stopped from using the proposed road. His answer did not set well with the court and seemed very rehearsed. The court found him not to be credible.
15. Ms. Lawrence’s testimony was pretty much along the lines of Mr. Lawrence’s testimony. She provided the testimony about the name change and contended that no permission was sought to use the proposed road. She testified that she helped Mr. Lawrence with whatever he needed.
16. Theresa Mastronunzio was called as a corroborating witness for the plaintiffs. Mastronunzio is the owner of 1610 Musso View Avenue; she bought her property in 1960, under the last name of Ouellette (her first husband) and continues to reside there. Mastronunzio purchased two lots: lot 64 and lot 65. Exhibit 21 and 22 was admitted into evidence to show the ownership of the lots. Mastronunzio’s testimony showed that in the 1960s the plaintiffs’ lot looked like trees, shrubs, and weeds etc. Mastronunzio’s deed has specific language, which states a right to pass/re-pass over the proposed street. She testified that since she has been there, the plaintiffs have continued to use the proposed street. During the cross examination, however, she was asked whether she knew who owned the proposed street, and she answered "no one." Mastronunzio testified that the defendant and her ex-husband sometimes tried to stop her when she attempted to use the proposed street. She was further asked if she has sought the assistance of the court in bringing a lawsuit against the defendant. Mastronunzio answered, yes but explained that it was cleared up because it was in her deed to pass/re-pass over the proposed road. When she pressed to answer as to who were the defendant in that action in court, Mastronunzio was evasive and purposely avoided the time line, such as when the suit was brought. The court did not find her to be credible either.
17. Mastronunzio, like Mr. Lawrence, conceded that there was not an end point to the proposed road.
18. The defendant testified that she and her ex-husband purchased 1620 Musso View Avenue in 1995. In 1996, the defendant and her family moved onto the property after the construction of their house was complete. The defendant was subsequently divorced in 2007. Exhibit 25 was admitted into evidence, showing a deed to the defendant’s property, with specific language, stating that the property was subject to easement to pass/re-pass for any and all purposes what so ever upon a so called 1995 proposed street. (Transcripts page 133.) Despite the specific language in the deed, the defendant was emphatic in her testimony that it is not a road anymore but was her driveway, which she paid taxes on.
19. The defendant provided testimony concerning Mastronunzio’s deed, as noted above, which grants right to pass/re-pass over the proposed street. The defendant explained that she brought an action against the Mastronunzio’s use of the driveway but subsequently dropped the lawsuit because she did not have financial resources to continue with it. She further explained that she was going through a divorce and had young children to take care. (Transcripts page 134.) The court has reasonably inferred from her testimony that by filing an action, she was objecting to Mastronunzio’s use, (despite the fact that the use was permitted by the deed). The court finds that this goes to show that the defendant made every attempt to prevent the use of the proposed road or driveway.
20. The defendant also testified that she gave permission to the plaintiffs to use the driveway. She testified as to the time line, i.e., that she purchased the property in 1995, that the house was built and was moved into in 1996, and that it was heavily wooded area and not suitable for vehicle use because it was all forest. The defendant explained that the driveway ended before the plaintiffs’ retaining wall. The defendant’s testimony elicited that in earliest of years, the defendant and her family met the plaintiffs; she described the relationship as follows: "we were friends, actually when- every time we went on vacation they would have my keys to the house ... they would watch over the place ... We had good relationship at that point." (Transcripts page 159.) The court can reasonably draw an inference from this testimony that the use was permissive or at least impliedly permissive.
21. The defendant testified that few years after the house was built, she observed a tractor/truck and trailer coming over, their visitors crossing over, lawnmower crossing over the dirt road and right then they stared objecting to such activities and shared their concerns with the plaintiffs. She was emphatic in her testimony that she urged Mr. Lawrence to go to the town and inquire whether he has any rights to cross over her property. She emphasized that the landscapers in 2006 were trespassing on her property and that she told this many times to Mr. Lawrence. The machinery they were storing there then disappeared. Also, she testified that Mr. Lawrence has asked permission for various things at various points regarding use of the driveway since 1996.
22. The defendant testified that her daughter’s fiancé (boyfriend at the time) installed a fence to block the entrance in 2009 or 2010.
23. The defendant’s son, Marco Riberio, testified that he moved into the house with his parents since he was five or six years old and continued to live there through middle and high school. He testified that he was friends with the plaintiffs’ children and spent time with them. Riberio’s testimony elicited that he witnessed when plaintiff was talking to his mother on their front porch (in or around 2009 or 2010) seeking permission to use the driveway. Riberio also contended that his father has also given permission to Lawrence to use the driveway. Marco also affirmed the fence which was put up by his sister’s fiancéin 2009 or 2010. During the cross examination, it was elicited that the fence was up for six months or so but that the plaintiffs continued to use the road.
STANDARD OF REVIEW- PRESCRIPTIVE EASEMENTS
Acquiring an easement by prescription involves proof which is similar, in some ways, to that required by adverse possession. See Boccanfuso v. Green, 91 Conn.App. 296, 310, 880 A.2d 889 (2005). Unlike adverse possession, the claimant in prescriptive easement cases acquires only an easement, rather than title to the land; the claimant in prescriptive easement cases is not required to prove exclusive use, and the standard of proof is a preponderance of the evidence, rather than the clear and convincing evidence standard applicable to adverse possession. See id.
General Statutes § 47-37 authorizes 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, "[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, 46-47, 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).
DISCUSSION
As stated above, "[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." Slack v. Greene, supra, 294 Conn. 427.
At the heart of this dispute is the question of whether the defendant and her ex-husband gave the plaintiffs permission and/or consented to use of the dirt road. "A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement ... The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use ... The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement." (Citations omitted; internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn.App. 164, 170, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001).
At trial, the defendant provided testimony that since 1996, Mr. Lawrence asked for permission to use the dirt road on many occasions. The defendant’s son provided corroborating evidence that he has witnessed Mr. Lawrence asking for permission to use the dirt road, as well as getting permission to use the dirt road. According to Mr. Lawrence’s own testimony, he has discussed with and informed the defendant regarding when he would have a truck and trailer and landscapers on the dirt road. Moreover, Mr. Lawrence testified that he has discussed the issue of ownership over the dirt road with the defendant. Both parties presented testimony that the plaintiffs have inquired town officials regarding ownership of the dirt road, and according to Mr. Lawrence, the town authority laughed in his face.
In the present case, the evidence is insufficient to find that the plaintiffs used the dirt road without a recognition of the rights of the defendant. Rather, the evidence supports the defendant’s contention that the use of the driveway by the plaintiffs was permissive. The plaintiffs’ conduct in discussing ownership of the dirt road, informing the defendant regarding use of the dirt road, and seeking permission to use the dirt road is not in accordance with use of the property under a claim of right. Accordingly, the court finds that the plaintiffs have not established by a preponderance of the evidence that they had a claim of right over the dirt road.
As the plaintiffs have not met their burden of proof in proving the element of claim of right, the plaintiffs’ claim of acquiring an easement by prescription fails. Accordingly, the court holds that the plaintiffs do not have a right of a prescriptive easement over the dirt road on the defendant’s property.
CONCLUSION
For all of the foregoing reasons, the court rules in favor of the defendant and against the plaintiffs.
EXHIBIT A JANUARY 3, 2018 STIPULATION OF FACTS 1. On September 9, 1978, the plaintiff, Wayne Lawrence, Sr., became owner and possessed a piece or parcel of land situated in the Town of Cheshire, County of New Haven and State of Connecticut bounded and described as follows: All that certain piece or parcel of land, with all the improvements thereon, situated in the Town of Cheshire, County of New Haven and State of Connecticut known as Lot # 63 on "Revised Map of Eastover Portion of Land belonging to Salvatore Musso, Cheshire, Connecticut, the A.J. Patton Co. Surveyor, Waterbury, Conn. Nov. 21, 1946" Lots # 62-66 added Jan. 1953, and being bounded and described as follows:
NORTHEASTERLY- 193.34 feet by Lot 62;
NORTHWESTERLY- 107.96 feet by Musso View Ave., being a curved line;
SOUTHEASTERLY- 119.84 feet by other land now or formerly of Salvatore Musso;
SOUTHWESTERLY- 247.38 feet by proposed road.2. Said piece or parcel of land is known as 1624 Musso View Avenue. 3. On October 21, 1980, the seller of the aforesaid property, Pauline Katherine Kopp, a/k/a Pauline Kopp, executed a Quitclaim Deed quitclaiming to the plaintiff, Wayne Lawrence Sr., a piece or parcel of land situated in the Town of Cheshire, County of New Haven and State of Connecticut bounded and described as follows: All that certain piece or parcel of land with all the improvements thereon, situated in the Town of Cheshire, County of New Haven and State of Connecticut and shown as Lot # 63 REV. on a map on file in the Cheshire Town Clerk’s Office entitled "Office of Mattson Associates Land Surveyors & Civil Engineers 449 West Main St., Cheshire, Connecticut Map Showing Revision of Lots # 62 & # 63 ‘Eastover’ Musso View Ave. Cheshire, Connecticut, Scale 1″ = 50′ October 17, 1980," being more particularly bounded and described as follows:
NORTHEASTERLY- By Lot # 62 REV 188.36 feet, as shown on said map;
NORTHWESTERLY- By Musso View Avenue 123.96 feet, as shown on said map, being a curved line;
SOUTHEASTERLY- By land now or formerly of Connecticut Land Owners, LTD, 135.84 feet, as shown on said map; and
SOUTHWESTERLY- By a proposed road 247.38 feet, as shown on said map.4. The purpose of the aforesaid Quitclaim Deed was to correct and clarify the Warranty Deed executed by Pauline Katherine Kopp a/k/a Pauline Kopp, transferring title to the plaintiff, Wayne Lawrence, Sr., on September 9, 1978. 5. On May 9, 1995, the defendant, Maria F. Antunes f/k/a Maria F. Ribeiro, became owner and possessed a piece or parcel of land situated in the Town of Cheshire, County of New Haven and State of Connecticut bounded and described as follows: All that certain piece or parcel of land with all the improvements thereon, situated in the Town of Cheshire, County of New Haven and State of Connecticut being shown as Lot 36 on a map entitled "SUBDIVISION OF LAND DEER PARK CHESHIRE, CONNECTICUT DATE: JULY 1987 FOR: BERULYNN- CHESHIRE 129 MAIN STREET NORTH WOODBURY, CONNECTICUT SCALE 1″ = 100′ DRAWN FWC BY FWC SURVEY COMPANY 250 CHRISTIAN STREET, OXFORD, CONNECTICUT, F.B. SHEET 1 OF 2 Revised 8-24-87, 12-16-87, 2-9-88, 3-28-88, 4-15-88 and 5-13-88" which map is on file in the Cheshire Town Clerk’s office as Map # 2703. Reference is also made to map # 2704 which map is also on file in the Cheshire Town Clerk’s office. 6. Said piece or parcel of land is known as 1620 Musso View Avenue.
# 437509
Mark E. Fappiano, Attorney For Plaintiffs
# 100168
Francis M. Donnarumma, Attorney For Defendant