Opinion
No. CV 01 0185864 S
June 29, 2004
MEMORANDUM OF DECISION
This action arises out of a claim by the plaintiff to possess a prescriptive easement over residential premises owned by the defendants located at 29 Contentment Island Road in Darien. The defendants' premise are in the shape of an isosceles triangle bounded on the north by Contentment Island Road, on the south east by the plaintiff's residence at 23 Contentment Island Road, and on the southwest by other property owned by the plaintiff having an address of 2 Shennamere Road.
In connection with his residence at 23 Contentment Island Road, the plaintiff, along with others, enjoys the use of an easement over the defendant's property shown on several recorded maps as "old right of way." The defendants purchased their residence in 1997 from the estate of Elizabeth Paget. Prior to her death Elizabeth Paget had resided in the dwelling on that property for many years. The defendants do not dispute the right of the plaintiff, as the owner of 23 Contentment Island Road to use the "old right of way."
The property at 2 Shennamere Road was acquired by the plaintiff on November 29, 2000 from the trustee of a pourover trust established by the late Margaret S. Sinon. Prior to Margaret Sinon's death in June 2000, she had resided in a residence on that property for nearly 35 years. Shortly after acquiring the Sinon property, the plaintiff had the residence razed. The Sinon property enjoys no deeded rights to any easements or rights of way over the defendants' property.
The plaintiff claims to be the owner, by way of prescriptive easement, of a two-foot wide pedestrian right of way over a path on the defendants' property running from former Sinon's property to the "old right of way," a distance of approximately 24 feet. The defendants dispute this claim and have taken action to prevent the plaintiff's use of the path. Those actions included the posting of a "No Trespassing" sign in the path, the placing of boulders obstructing the path, and the service and filing of a notice pursuant to General Statutes § 47-38 in April 2001.
"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 September 2001, the plaintiff filed this action. In his first count the plaintiff requests a declaratory judgment pursuant to General Statutes § 47-37fn1 and § 52-29 establishing the existence and location of his claimed right of way over the defendants' property and the extent of its permissible use. In his second count the plaintiff seeks a judgment pursuant to General Statutes § 47-31, determining the rights of the parties in or to the claimed right of way and settling the interests and respective rights thereto. The defendants' answer denied the essential allegations of the plaintiff's complaint. After the pleadings were closed and discovery completed, the parties agree to try the case to the court.
"(2) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.
"The declaration shall have the force of a final judgment."
"(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or reminder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.
"Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property."
At trial, the plaintiff's surveyor Jeffrey W. McDugall testified as to a plot plan he prepared fixing the location of the footpath on the defendant's property. The plot plan was admitted into evidence, without objection, as exhibit #20. The court finds that the plot plan accurately depicts the location and dimensions of the claimed easement.
The evidence shows that Margaret Sinon, the plaintiff's predecessor in title, purchased her residence in 1965. For many years before that purchase, Elizabeth B. Paget, the defendants' predecessor in title, had resided in the neighboring property. From 1978 until her death in 2000, Margaret Sinon employed Steven Ivan as a handyman and gardener. Ivan was called as a witness by the plaintiff and testified that from 1978 until the present, a post and rail fence was located on the Sinon property just inside the boundary with the Paget property. Approximately fifty feet north of the end of the fence there was a gap two feet in width. A hinged wire gate was set in the gap. A path paved with flagstones ran from the back of the Sinon's residence to the gap in the fence.
Mr. Ivan testified that Margaret Sinon used the gap in the fence to walk and ride a bicycle across the defendants' property along a "well beaten path" about twenty-five feet in length from the gap to the "old right of way." The path was also used by trash haulers, meter readers, deliverymen and domestic help to reach the Sinon's residence. Mr. Ivan's testimony was corroborated by the testimony of Frank Sparagna, Maragret Sinon's former trash hauler, and by Noemi Pocasangre, the cleaning lady that Margaret Sinon employed for the last twenty years of her life. The testimony established that the pedestrian use of the path continued on virtually a daily basis from 1978 to 2000.
The evidence also established that Margaret Sinon and Elizabeth Paget were close friends and that both of them would use the path to visit each other on a regular basis. Elizabeth Paget would often use the pool located on the Sinon property along with other friends of Margaret Sinon. When Elizabeth Paget became older and more infirm she arranged with Margaret Sinon to have a ringer installed in the Sinon home so that Eliabeth Paget could ring her neighbor if she needed anything.
The Supreme Court, in a recent case, summarized the elements of an easement by prescription:
. . . 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." A party claiming an easement by prescription must prove that the use "has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993); Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). 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." Klein v. DeRosa, 137 Conn. 586, 588-89, 79 A.2d 773 (1951).
Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002).
In this case the evidence clearly demonstrates (and the defendant does not seriously dispute) that the use of the footpath from the gap in the fence on the former Sinon property to the "old right of way" was open, visible, continuous and uninterrupted for a period greater than fifteen years. The defendant does, however, deny that the plaintiff's evidence establishes that use was made under a claim of right.
The defendant claims that the evidence of the friendship between Margaret Sinon and Elizabeth Paget and their mutual use of the footpath to facilitate visits gives rise to an inference that the use of the path by Margaret Sinon and her employees and contractors was permissive rather than adverse. The defendant urges that the court find that the use made by Margaret Sinon was not "under a claim of right," but rather a use by express or implied permission or license.
The defendant relies on Phillips v. Bonadies, 105 Conn. 722, 727, 136 A. 684 (1927), in which the court stated: "Use by express or implied permission or license cannot ripen into an easement by prescription." However, in that the court noted that
In the very nature of the case, however, every such user is by permission of the owner of the servient tenement in the sense that he permits it to continue without exercising his right to terminate it. A permissive user therefore as distinguished from one exercised under a claim of right, is not to be inferred from mere passive acquiescence. The facts and circumstances must be such as to warrant the inference of a license exercised in subordination to the rights of the owner of the soil and which he may revoke at any time.
Id. 726. In the case before it, the court found neither proof of an express license or permission from the landowner, nor proof of an express claim of right by the person using the way. The court held that "the character of the use, whether adverse or permissive, is left to be determined as an inference from the circumstances of the parties and the nature and character of the use." Id. 727.
The plaintiff does not have the burden of disproving the existence of a license or other permissive use of the footpath. Under such circumstances, the law does not require that the plaintiff prove a negative. The plaintiff's burden is to prove that the use made during the prescriptive period was made under a "claim of right." Lisiewski v. Seidel, 72 Conn. App. 861, 873, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002).
The concept of "claim of right" has been discussed by our appellate court in two recent decisions. In McManus v. Roggi, 78 Conn. App. 288, 295, 826 A.2d 1275 (2003), the court explained that:
"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." (Internal quotation marks omitted.) (Citation omitted)." "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. 4 R. Powell, Real Property (1997) § 34-10, pp. 34-111 through 34-133." (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 159, 783 A.2d 1226 (2001)."
In Berubs v. Nagle, 81 Conn. App. 681, 692, 841 A.2d 724 (2004) the court stated:
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.
In this case there is no evidence that either express or implied permission was granted by Elizabeth Paget to Margaret Sinon for the extensive and continuous use made of the footpath over the years. At best the evidence shows no more than the "passive acquiescence" discussed by the court in Phillips, supra. The use of the footpath by Margaret Sinon, her employees and contractors over he years was of such character and continuity that the court must conclude that it was made under "a claim of right" rather than with the permission of Elizabeth Paget. Accordingly, the court finds that the plaintiff has proven by a fair preponderance of the evidence that the use of footpath was made under a "claim of right" and that all elements required to prove an easement by prescription have been satisfied.
Judgment will enter for the plaintiff declaring that he is the owner of the two-foot-wide easement shown on exhibit #20, attached hereto (which may be incorporated into the judgment file) and that the use of the easement is limited to pedestrians and bicyclists traveling between the former Sinon property and the "old right of way" on the defendants' property.
The deeds presented in evidence at trial do not establish that the Sinon property benefitted from any deeded rights to use the "old right of way" located on the defendants' property. The pleadings in this case do not contain any claims of a prescriptive easement over the "old right of way," in favor of the former Sinon property. Accordingly, the judgment of the court does not address nor determine the rights of the parties with respect to the "old right of way."
The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter."