Opinion
No. CV97-0084200-S
April 25, 2006
FINDINGS OF FACT AND CONCLUSION OF LAW
PROCEDURAL HISTORY
Plaintiffs Darryl Johnson, Denise Myers, Darlene Graves, Lori Johnson Jerome, and the Estate of Walter Rochette (Joan Rochette and Dawn O'Dell trustees) (hereinafter from time to time referred to as the "Johnson/Rochettes") have brought this action claiming a deeded right of way and a prescriptive easement over lands of defendants Thanongchit Sourignamath and his wife, Bounthavy Sourignamath, the owners of a parcel of land in Old Saybrook, and D. Scott Ward and his wife, Kathleen A. Ward, the owners of an adjoining parcel of land (hereinafter from time to time referred to as the "Sourignamath/Wards").
The complaint was in two counts. Count one alleged that the Johnson/Rochettes enjoyed a deeded right-of-way over the Sourignamath/Wards' land. Count two alleged that the Johnson/Rochettes enjoyed a right-of-way by adverse possession.
After a trial ("the first trial") before Daniel Spallone, Senior Trial Referee, the court determined that the Johnson/Rochettes enjoyed a deeded right-of-way over the property as alleged in the first count of the complaint and, having made that finding, that the second count should be dismissed. The Sourignamath/Wards appealed, arguing that, whatever might be contained in the deeds in the Johnson/Rochette chain of title, there had never been a conveyance of such an easement, and there was no reference to any such easement in the Sourignamath/Ward chain of title. Following briefing and argument, the Appellate Court remanded the case to the trial court for the taking of further evidence. It also ruled that plaintiffs' count two should not have been dismissed. That count was reinstated. Johnson v. Sourignamath, 75 Conn.App. 403, 816 A.2d 631 (2003). On remand ("the second trial"), the parties agreed that the transcript and exhibits from the first trial would be admitted into evidence. Additional evidence was taken; the trial court viewed the property; and after extensive briefing, the trial court issued a memorandum of decision, holding that "the plaintiffs have proved their right of access by deed and that the deeded right of way has not been extinguished. See Connecticut General Statutes 47-33e." Johnson v. Sourignamath, Superior Court, judicial district of Middlesex, Docket No. CV97-0084200 (November 24, 2003, Aurigemma, J.). The Sourignamath/Wards appealed.
The Appellate Court ruled for the Sourignamath/Wards, finding that the Johnson/Rochettes had no deeded right of way over the Sourignamath/Ward property and remanded the case for trial on count two, the claim of easement by prescription. Johnson v. Sourignamath, 90 Conn.App. 388, 877 A.2d 891 (2005).
On remand plaintiffs and defendants stipulated as to the admissibility of the transcripts of the two earlier trials and the exhibits introduced during those trials. The Court heard additional evidence and viewed the property where the plaintiffs claim that a prescriptive easement exists.
FINDING OF FACTS The history of the Johnson/Rochette property.
1. The Johnson/Rochette property is an unimproved lot of land of approximately ten acres, located partly in Old Saybrook and partly in Essex, with no direct frontage on any road.
2. The Certificate of Devise by which the Johnson/Rochettes acquired the Johnson/Rochette property includes in the conveyance a transfer of "the ordinary right of way for passing and repassing to and from said lot of land to the highway that has always been used by the owners of said tract of land."
3. The Johnson/Rochette property is surrounded by a number of other properties in Old Saybrook, including those of Sanstrom, Harlow, Hull, Heifetz and Sourignamath in Old Saybrook, and by properties in Essex as well.
4. In the chain of title to the Sourignamath/Wards' properties, there is no reference whatsoever to any right of way in favor of the Johnson/Rochette property.
History of the Sourignamath and Ward properties from 1988 to the present.
5. In 1988, Salvatore Zimmitti subdivided the land into the Sourignamath, Ward, Redway and Davidson parcels. He built a private street in order to provide access to the Sourignamath and Ward parcels, to which each parcel would enjoy an undivided half interest. This is the private street over which the Johnson/Rochettes now claim to have a right-of-way.
6. At the time Mr. Zimmitti purchased the parcel in 1987, the area over which the private street now passes was impassible. There were huge boulders and the area close to Bokum Road was covered with wetlands. A stream flowed along the area of the private street all of the way to Bokum Road and the remainder of the private street was forest land, covered with stones, brush and trees.
7. When Mr Zimmitti sought to gain access to the Sourignamath and Ward lots, he would either walk up the well-established driveway on the Harlow property or over the unpaved trail which led to the Johnson/Rochette cabin.
8. Mr. Harlow, who had lived in the area since 1950, testified that in the 1950s, the Rochettes had a sawmill on their property where they made railroad ties and brought logs down via the Anthos cart path. The Anthos cart path is not the location of the right-of-way claimed by the plaintiffs.
9. When Mr. Zimmitti was planning to construct the private street, he went to the town clerk's office and obtained the name of the then-owners of the Johnson/Rochette property. He received from the tax collector an address for the first-listed owner, Thelma Johnson, looked up the owner's telephone number, and called the number.
10. The voice answering the telephone identified herself as one of the owners of the Johnson/Rochette parcel and said that other family members also owned it. Mr. Zimmitti explained that he was planning on constructing the private street and he might be interested in purchasing the Johnson/Rochette property.
11. A short time later, Mr. Zimmitti spoke again with the same voice. Although the voice's response to Mr Zimmitti's offer was excluded as hearsay, Mr. Zimmitti did not purchase the Johnson/Rochette property.
12. During the course of this conversation, Mr. Zimmitti also made the following offer: if the owners of the Johnson/Rochette property would share in the cost of building the private street, he would convey to them a right of way over the property, and extend the roadway to the Johnson/Rochette property line.
13. Although the voice's response to this offer was not admitted during the original trial, Mr. Zimmitti testified without contradiction that never during the course of his ownership of the land did any owner of the Johnson/Rochette property — or anyone else — suggest to him that the owners of the Johnson/Rochette property claimed that they in fact already enjoyed a right-of-way over the area of the private street, an assertion that logically might have been made when Mr. Zimmitti offered to convey for a price a right of way that the owners of the Johnsoh/Rochette property now suggest that they have always owned.
14. Mr. Zimmitti testified that the owners of the Johnson/Rochette property did not contribute to the building of the private street.
15. Mr. Zimmitti also testified that during the lengthy and public town regulatory process to obtain approval for the private street, no Johnson/Rochette property owner appeared, played any part, or suggested in public hearings or to Mr. Zimmitti privately that the Johnson/Rochette property owners had any interest in the matter whatsoever.
16. In 1991, Salvatore Zimmitti conveyed the Sourignamath parcel to Thanongchit Sourignamath and Bounthavy Sourignamath. The deed contains no reference to any right of way.
17. When the Sourignamaths purchased their property, there was no indication on the land itself that anyone had used the property in order to gain access to the Johnson/Rochette property.
18. It was easier to gain access by traversing the well-maintained Harlow driveway, over which the Johnson/Rochette property does seem to have a right-of-way, which runs parallel to the private street, a few yards to the west, and continues to the Johnson/Rochette property after the private street has ended.
19. In 1992, the Connecticut National Bank foreclosed on the property that would become the Ward property. Connecticut National Bank became the Shawmut Bank and quitclaimed the property to Scott and Kathleen Ward. There is no reference in their deed to any right of way, nor is there the general reference to "such easements as may of record appear" that is found in the Sourignamath deed.
20. During the 1990s, the Johnson/Rochette property was logged. The owners of the property did not use the private street to remove the logs from the property, and did not even discuss with the Sourignamaths that possibility.
21. Since they have resided there, neither the Sourignamaths nor the Wards have ever observed anyone utilizing the private street in order to gain access to the Johnson/Rochette property.
22. In 1993, Thelma Johnson, one of the owners of the Johnson/Rochette property, requested that Mr. Sourignamath convey a right of way in favor of the Johnson/Rochette property. Mr. Sourignamath declined.
23. The first time that the Sourignamaths or Wards had any idea that anyone claimed a right of way over their property was shortly before the filing of the complaint in this case, when plaintiff Darryl Johnson knocked on the Sourignamath's door and told Mr. Sourignamath that he thought he had a right-of-way over the private street. Mr. Sourignamath responded that Mr. Johnson was wrong.
24. This action was commenced almost immediately thereafter.
25. There is, in fact, an unpaved roadway that leads from a cabin on the plaintiff's edge of the Johnson/Rochette property, across a corner of the Sourignamath property, across the Redway property, to Bokum Road.
26. During its viewing of the site, the Court saw that there is a deep depression between the Sourignamath and Johnson/Rochette property.
27. A way across the wetlands to gain access to the Johnson/Rochette property is the Harlow driveway to the west, over which the Johnson/Rochette property enjoys a right of way, at least according to a survey commissioned by the family. The Court observed in its view, the woods and depression between the Sourignamath and Johnson/Rochette property.
28. To pass across the end of the private street to the center of the Johnson/Rochette property, one must cross, as the Court has seen, an extensive area of woods and lowlands.
29. The Johnson/Rochettes offered three witnesses, each of them a plaintiff in the case, as to their use of the area of the private street as a right of way.
30. Darryl Johnson, who testified in the first and second trials and before this Court in the third trial, stated that he was born in 1950 and he began visiting the property when he was approximately ten years old with his grandfather. Once each year, they would go onto the property in order to collect nuts for squirrels, which they would bring with them to their property in Maine. He testified during the first trial that he did this three or four times; he testified before this court that he did so four to six times. He also visited the property with his uncle until he went to college in the late 1960s. Following college, he moved to Massachusetts and, although his testimony on this point is vague, apparently did not visit the property again until one visit in the late 1980s. He last visited the property sometime in the early 1990s, when the property was surveyed.
31. Dawn O'Dell testified that she visited the property between the time that she was eight and twelve, in the early 1960s, about ten times. She went there with her father in order to gather firewood. With the exception of a single visit with her aunt in approximately 1987, she has not been on the property since the mid-1960s.
32. William Rochette testified that he visited the property two dozen times when he was in high school. He drove through the property in a four-wheel drive truck with his father about two dozen times. He testified that he was 42 at the time of his testimony, and 16 when he first visited the property, so that his visits were probably in his junior and senior years in high school, when he was sixteen to eighteen. The defendants, while not disputing that Mr. Rochette may well have driven his vehicle to the Johnson/Rochette property, contend that he could not have done so over the area where the private road now is since all of the witnesses, including Darryl Johnson and Dawn O'Dell, have testified that a vehicle could not have passed over that area.
33. There is no evidence that any plaintiff crossed the Ward/Sourignamath property to get to their property at any time between Mr. Johnson's survey visit in the early 1990s and the commencement of this lawsuit on December 30, 1997.
34. Both George Anthos, who lived next door to the private street, and Stephan Kanizaj, who lived nearby, testified that in the 1960s and 1970s, the area of the private street was impassible wetlands and woods covered with bushes and trees.
35. There is presently not a path that the Court could see through the woods where the private street ends.
36. The Court finds the testimony of Mr. Johnson, Ms. O'Dell and Mr. Rochette credible when they claim to have accessed their property over the right-of-way. Their testimony supports a conclusion that their combined use was fifty to sixty times over a forty-year period.
CONCLUSIONS OF LAW
1. The elements which must be proven are that the use of the land of another is (a) open and visible; (b) continued and uninterrupted for fifteen years; and (c) engaged in under a claim of right. General Statutes § 47-37.
2. The burden of proof is on the plaintiff by a fair preponderance of the evidence.
3. It is for the party who seeks to establish an easement by use to exercise his claim of right so openly as to give the owner knowledge and full opportunity to assert his right.
4. To satisfy the requirement of open, the adverse use must be made in such a way that a reasonable diligent owner would learn of its existence, nature, and extent.
5. The open use generally means that the use is not made in secret or stealthily.
6. The use must be continuous and uninterrupted for some fifteen year period between the acquisition in the 1930s to January 29, 1998, the date of the operative complaint.
7. The phrase "continuous" requires more than sporadic usage.
8. The court finds no Connecticut case factually similar to the present case.
9. New York has held that the use of a driveway once or twice a year was not sufficient to meet the continually standard. Cassorla v. Markin, 265 A.D.2d 898, 899, 696 N.Y.S.2d 328, 330 (N.Y.App.Div. 4th Dept. 1999).
10. West Virginia has held that the use of a road for a few days each year for hunting purposes is insufficient. Veach v. Day, 172 W.Va. 276, 279 304 S.E.2d 860, 863 (1983).
11. A use is made under claim of right if the use is made "without recognition of the rights of the owner of the servient tenement."
12. A claim of right, within the context of a prescriptive easement, is a use of the property by the possessor as his own.
CONCLUSION
Although the plaintiffs made no attempt to hide their occasional use, the use was not open and visible in such a way that the defendants or their predecessors-in-interest knew, or reasonably could be expected to know, about the use. At best, the use was through a wooded area with no defined path on an average of less than twice a year. While the use need be only during any fifteen-year period, there is no indication that the use was concentrated in any particular fifteen-year period.
There is insufficient evidence to support the plaintiffs' claim that such sporadic use was continuous.
There is sufficient evidence to conclude that the plaintiffs used the property under claim of right.
The court finds that the plaintiffs have failed to carry their burden that their use was open and visible, or their burden that the use was continuous. Judgment is entered for the defendants on the remaining count two of the complaint.