Opinion
NNHCV195045221S
11-21-2019
John Maturo et al. v. Frederick Digiola et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Corradino, Thomas J., J.T.R.
MEMORANDUM OF DECISION IN RE PLAINTIFF’S REQUEST FOR TEMPORARY INJUNCTION
Thomas Corradino, JTR
On September 25, 2019 the court held a hearing on a request for a Temporary Restraining Order brought by the plaintiff.
The plaintiff owns a piece of property on Short Beach Road in East Haven. This property abuts the defendant’s property which is operated as a boatyard and borders Long Island Sound. The area in dispute is a triangular piece of land between the two properties. Along the right side of the triangle and within it there is a driveway which the plaintiff uses to access his house. There is no dispute that the entire triangular area, according to deeds and maps introduced into evidence, lies within the defendant’s property.
In a complaint dated March 4, 2019 the plaintiff brought an action to quiet title pursuant to a claim based on adverse possession under Section 52-575 of the General Statutes. In a second count there is a claim for prescriptive easement under Section 47-37 of the General Statutes.
(1)
The court will first discuss the requirements for obtaining a Temporary Restraining Order and then discuss the prerequisites for establishing a claim for adverse possession and a claim for a prescriptive easement.
(a)
For a Temporary Restraining Order to issue a litigant must establish (1) irreparable and imminent injury (2) lack of an adequate remedy at law (3) the likelihood of success on the merits and (4) that a balancing of the equities favors the granting of the injunctive relief requested, Waterbury Teacher’s Association v. Freedom of Information Commission, 230 Conn. 441, 446 (1994), Konicki v. Vickstrom 2009 WL 2358297 (Hadden, J.). In Bozrah v. Chirnurynski, 303 Conn. 676, 682 (2012), the court said: "The purpose of a temporary injunction is to (maintain) the status quo while the rights of the parties are being determined, while a permanent injunction effects a final determination of those rights," also see Grace Farms Foundation, Inc. et al v. Planning and Zoning Commission, 2018 WL 6982693 (Berger, J.).
Agleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97 (2010), sets forth the standards for granting a temporary injunction which parallel the considerations, noted previously, governing whether a temporary restraining order should be granted. Judge Berger in the Grace Farms case was dealing with a temporary restraining order under section 8-8 of the general statutes and noted that courts addressing temporary restraining orders use tests similar to those applied in determining whether a temporary injunction should be granted. In that regard a comment at page 99 of the Agleh case should be noted: "Moreover, the extraordinary nature of injunctive relief requires that the harm complained of is occurring will occur if the injunction is not granted. Although absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm," 299 Conn. page 99. These claims form the basis for the ultimate relief requested by the plaintiff. The motivation for the Temporary Restraining Order is to preserve the status quo between the parties until a judicial evaluation of the legal claims are made.
(b)
Before examining the facts of the case as it relates to the relief being asked for it is necessary to define adverse possession and prescriptive easement. That is the only way to decide whether the requirements for a Temporary Restraining Order have been established.
(i)
The ancient doctrine of adverse possession permits a party who openly possesses another’s land for more than fifteen years to acquire title to that land. The owner is in effect divested of title. In our state the doctrine is codified in Section 52-575 of the general statutes which establishes a fifteen-year statute of repose. That section provides that: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs shall be utterly disabled to make such entry afterwards."
In O’Connor v. Larocque, 302 Conn. 562, 581 (2011), the court set forth the doctrine. There the court said: "To 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 ... A finding of adverse possession is to be made out by clear and positive proof ... The burden of proof is on the party claiming adverse possession."
The elements of adverse possession are (1) ouster of possession, (2) continuous and uninterrupted use, (3) exclusive use, (4) adverse use without license or permission and (5) notorious, open and visible use- all the elements existing for fifteen years. See for example Robertson v. Aubin, 120 Conn.App. 72, 74 (2010), Kramer v. Petisi, 53 Conn.App. 62 (1999).
As to the requirement that establishment of adverse possession must be for fifteen years as set forth in § 52-575, the plaintiff did not acquire title to this property until 2008 which is only eleven years to the date this action commenced. But under the case law the plaintiff can "tack" on his adverse possession to that of his predecessor in title. The plaintiff is considered in privity with the person he bought the property from- this relationship can be established by showing a transfer of ownership, Camruris et al. v. Troy et al., 300 Conn. 297, fn 14, Smith v. Chapin, 31 Conn. 530, 531-32 (1863), cf McBurney v. Cirillo, 276 Conn. 782, 813 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health 281 Conn. 277, 284-89 (2007).
The court will now set forth what some cases have said concerning each of these elements. In its opinion the court will discuss other cases under each element as they relate, in the court’s estimation, to the facts of this case.
(1) Owner Ousted
"Ouster has been defined clearly in the 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." Ebehart v. Meadow Heaven, 111 Conn.App. 636, 644-45, (2008); see also Boccanfuso v. Green, 91 Conn.App. 296, 313-14 (2005).
In Roche v. Fairfield, 186 Conn. 490, 498 (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." At page 502 the court went on to say that "the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use."
The elements of ouster and exclusive use are necessarily connected. As said in the 3 Am.Jur.2d article on "Adverse Possession," Section 63 "A possession that does not amount to an ouster of the owner of land is not sufficiently exclusive to support adverse possession." 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. § 69 pp. 144-45, see New York Annual Conference of United Methodist Church v. Fisher, 182 Conn. 272, 291-92 (1980).
(2) By Possession that is Continuous and Uninterrupted
"[T]he possession must be connected and continuous." Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51 (2006). Bridgeport Hydraulic Co. v. Sciortino, 138, 690, 695 (1952), indicates where the activities of the claimant are interrupted by the property owner adverse possession will not be found.
"It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons." Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51 (2006).
(3) By Possession that is Exclusive
"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." (Citations omitted; internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 642 (2008).
"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, 89 Conn.App. 260, 289 n.23 (2005). The use of the word exclusive can add to the confusion in this sometime confusing area of the law. But as opposed to the preceding two requirements for adverse possession, this one refers solely to the acts of the claimant pursuant to the case law.
(4) By Possession that is Adverse or Hostile (i.e., Under a Claim of Right, or With Intent to Use as if it was his Own, Without License or Consent of Owner)
"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, 111 Conn.App. 636, 641-42 (2008).
"A claim of right does not necessarily mean that the adverse possessor claims that it is the property title holder, but that it had the intent to disregard the true owner’s right to possession." Schlichting v. Cotter, 109 Conn.App. 361, 366 n.4 (2008); Eberhardt v. Imperiral Construction Services, LLC, 101 Conn.App. 762, 768 (2007).
In order to demonstrate the element of hostility, a claimant must establish that his possession of the disputed land was "without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period." Mulle v. McCauley, 102 Conn.App. 803, 813-14 (2007); Woodhouse v. McKee, 90 Conn.App. 662, 672-73 (2005).
Hostility does not "imply animosity, ill will or bad faith." Mulle v. McCauley, 102 Conn.App. 803, 813-14 (2007). The possession is "opposed and antagonistic to all other claims ..." id. At 814.
(5) By Possession that is Open and Visible, and "Notorious"
The open, visible and notorious requirements require 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. Schichting v. Cotter, 109 Conn.App. 361, 368 (2008), citing, 3 Am.Jur.2d 139, Adverse Possession § 63 (2002).
"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).
Prescriptive Easement
The court will now discuss prescriptive easements. What should be noted is that "claims of adverse possession and prescriptive easements, through requiring proof of similar elements, are nevertheless distinct causes of action ... The proper inquiry (however) in evaluating a claim that easement rights have been acquired by prescription is whether the claimant adversely used the property at issue and not whether he adversely, possessed that property," Smith v. Muellner, 283 Conn. 510, 536 (2007).
Section 47-37 authorizes the acquisition of an easement by adverse use or prescription. The statute provides: "No person may acquire a right of way or any other easement from, in, or upon the land of another, by the adverse use or enjoyment thereof unless the use has been continued uninterrupted for fifteen years." Unlike adverse possession claims, a party need not establish an easement by clear and convincing evidence. Proof by a preponderance of evidence is sufficient.
The elements necessary to establish a prescriptive easement are (1) continuous and uninterrupted use, (2) adverse use (without license or permission) and (3) notorious, open and visible use.
Thus, in Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 47 (2010), the court said: "a party claiming to have acquired an easement by prescription must demonstrate that the use (of the property) has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." The court in Hoffman Fuel Company of Danbury v. Elliot, 68 Conn.App. 272, 277-78 (2002), said that: "to be open must be without attempted concealment ... It must be so open, visible and apparent that it gives the owner of the servant tenement (party against whom claim made) knowledge and full opportunity to assert his (or her) rights. The circumstances of possession must be sufficient to put a prudent person on inquiry." Unlike adverse possession a party moving under the prescriptive easement statute need not show an ouster of possession and need not show the use was exclusive, Boccanfuso v. Green, 91 Conn.App. 295, 310, 312 (2005). Thus a claimant who fails on an adverse possession claim because the use was not exclusive may still be able to establish a prescriptive easement over property of the owner, id. But the use must still be adverse in the sense that "the use must occur without license or permission and must be unaccompanied by a recognition of (the right of the owner of the servant tenement) to stop such use.
Finally it should be noted that Section 47-37 of the General Statutes provides, as in an adverse possession claim, that a requirement for establishing a prescriptive easement claim is that a claimant thereto must establish a use that "has continued interrupted for fifteen years." But as with the same requirement in the adverse possession statute, under Section 47-37 it has been held that "if one party’s period of use or possession is insufficient to satisfy the fifteen year requirement, that party may ‘tack on’ the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights," McBurnly v. Cirillo, 276 Conn. 782, 813 (2000).
(2)
a.
Given the adverse possession claim being made in this case and the facts presented to oppose and support such a claim the question becomes is the request for a temporary restraining order, pursuant to that claim justified. Again to procure the issuance of a temporary Restraining Order a party must show (1) irreparable and immanent injury (2) lack of a remedy at law (3) the likelihood of success on the merits and (4) that a balancing of the equities favors the granting of the injunctive relief requested.
(i)
Irreparable and Imminent
As to any irreparable and imminent injury given the nature and use of the land encompassed in the triangular area which survey maps indicate is part of the defendant’s property, two issues are presented. Part of this area is a driveway which the plaintiff claims has been used by him and for his benefit exclusively and this exclusive use is claimed to have existed prior to his purchase of his home by his predecessor in title. Such use is a practical necessity argues the plaintiff because the driveway on his own property is said to be unsafe and thus an impractical way of accessing the plaintiff’s home.
If the driveway on his own property was capable of being readily used by him or those coming to his property for social or business purposes such as deliveries, or for general work on his property or portions of the entire triangular piece of land, it could hardly be said that a temporary restraining order was necessary to avoid irreparable and immediate injury. A Mr. Wilmes testified; he is a land surveyor licensed in our state and several other states. Mr. Wilmes was hired by Mr. Maturo and he went to the Maturo property driving a four-wheel-drive pick up truck. He attempted to use the alternative driveway on the Maturo property. He testified that this driveway "goes up steeply but also leans." Mr. Wilmes testified that he then backed his truck down because he "didn’t want to roll over." He waited until he could use the "regular driveway" which is the subject of this motion and the dispute between the parties. He further testified he did not even feel safe parking his truck on the alternative driveway located on the Maturo property because "it drops off beside so you don’t want to go off the edge." Mr. Maturo testified this alternative driveway is only eight feet wide and is quite steep with a granite base that does not provide sufficient traction. He also testified the driveway tilts to one side. Mr. Maturo also testified that he had arranged for a delivery of lumber to his house and observed the truck delivering it unsuccessfully try to use the driveway on his property to access his property and deliver the lumber. Also an ambulance called for his wife’s medical emergency could not access the house by use of this driveway.
The physical descriptions of the driveway on the Maturo property were not challenged. The complaint was filed in the beginning of March 2019 and the hearing on the temporary restraining order took place at the end of September 2019, almost seven months later. Practice Book Section 13-9 gives a party the right to request permission to enter an adversary’s land to prepare for claims that might be made in litigation. This option was not exercised by the defendant.
However, the defendant did challenge the claim that the driveway on the Maturo property (Maturo driveway) was not a viable alternative that could be used by Mr. Maturo and his wife and by social and business visitors to the property. Mr. DiGioia maintains the Maturo driveway was usable. Joseph Cannizzaro testified for the defendant for whom he has worked for the last five and one-half years before the hearing. He testified that he has seen cars entering and exiting the Maturo driveway although he did say the driveway was narrow. Mr. DiGioia also testified to the effect that he has seen cars using the Maturo driveway; he said he doesn’t see this everyday but he has seen this. He has seen cars parked on his driveway "many, many times."
On the other hand Karen Tucker, called by the plaintiff, testified she had occasion to drive by the Maturo property at 28 Short Beach Road, since 1959 and the disputed driveway on DiGioia land was always in use. Also Charlene Massey testified for the plaintiff. Her family lived in the 28 Short Beach Road house since the ‘70s and she had occasion to go to the present Maturo home frequently since the 1990s when it was split off by sale from the boatyard property. Both witnesses testified that the driveway used to access the 28 Short Beach Road property was the driveway on the defendant’s land. Ms. Massey more specifically testified that from 1978 to 2008, when the property was sold to Maturo she agreed that she never saw "anybody other than family and people they invited use that driveway"- referring to the driveway on DiGioia property and the subject of the plaintiff’s claims in this case.
The evidence is convincing that the driveway in dispute was constantly used by residents living in the Maturo house on 28 Short Beach Road. The fact that other vehicles on occasion may have used the driveway on the Maturo property does not contradict the conclusion nor the assertions by Mr. Maturo and Mr. Wilmes that the latter driveway presented difficulties or problems a driver would try to avoid if he could- here the avoidance would be reflected in the constant use of the driveway that is the subject of this litigation.
Given the foregoing was the injury claimed here by the plaintiff irreparable and imminent as regards use of the driveway in dispute? First the court would say that given the multitude of circumstances a party could claim injury in land dispute cases like this there is no common sense reason why "injury" must be a life altering change in a party’s circumstances and carry the import of heavy financial burden. The defining considerations are the adjectives used to define how any injury, which admittedly cannot be just a minor inconvenience or something causing no discernable harm, can be said to be "irreparable" or "imminent."
The "imminent" criteria seems to be clearly met. As the dispute between the parties concerning use of the disputed driveway by the plaintiff ripened, the defendant had boulders placed on the driveway and hired a fence installation company to install a fence which Mr. Maturo said would block access to a parking area adjacent to the driveway. Without the injunctive relief being formally granted on a temporary basis pending a trial on the merits there is no guarantee that blocking use of the driveway on his claimed property would not he an option readily engaged in by Mr. DiGioia. He exercised this option on two occasions in the fairly recent past.
The whole point of these temporary injunctions and restraining orders is to preserve the status quo- here use of the driveway- while the rights of the parties await determination in a final disposition of a case.
As to "irreparable" Webster’s Third International Dictionary defines the word in this manner: "not reparable: impossible to make good, undo, repair, or remedy." The injury claimed here is loss of "use" of the driveway- "use" here involves the ability of the plaintiff, guests and commercial delivery people to use the disputed driveway. The alternative driveway on Mr. Maturo’s property in the court’s opinion, does not offer a "use" comparable to the use of the disputed driveway nor is it adequate from the perspective of what normal use of a driveway would entail. Present and on going continued use is the use sought to be protected. But the defendant notes that failure to have vehicular access to a home is not irreparable harm. Many properties "do not have vehicular access on the site for parking, but such properties, as well as the plaintiff’s, have pedestrian access." This position, however, does not take account of the possibility and necessity of having commercial delivery access by larger vehicles which would present real difficulties here given the nature of the driveway on the Maturo property. Also the option of being confined to park his or her vehicle as a public street at all times of the day or night is not a desirable or viable alternative for many homeowners especially in the winter season.
Furthermore the Maturo home is apparently 35 feet above Short Beach Road; pedestrian access is of course possible under such circumstances but it makes some deliveries to the home difficult. In this regard there is an Exhibit 7i which was offered into evidence. After reviewing the testimony and all the photos, although exhibit 7i was not specifically identified at such, it seems apparent that this photo shows the Maturo home and "access" to the Maturo property from Short Beach Road. From the road there is an angled 10- or 11-step concrete stairway leading to a level area where a front door could be accessed. The truck delivery and emergency vehicle access by this route present obvious problems as does the ability for convenient and safe pedestrian access to the home. If this is so why would it not, practically speaking, present a substantial injury if use of the disputed driveway by Mr. Maturo is barred or substantially interfered with.
Also the fact that the disputed driveway has been consistently used for years, even if the alternative driveway has been used to some extent, indicates the great convenience of entering the Maturo home through the rear of the property as opposed to entering it from Short Beach Road.
Judge Berger in Grace Farms Foundation, Inc. v. Planning and Zoning Commission, 2018 WL 6982693 discussed the requirements for granting a temporary restraining order under Section 8-8 of the general statutes. He said quoting Agleh v. Candlerock Joint Venture II, LP, 299 Conn. 84, 97-98 (2010), that "Moreover the extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party suffering it will suffer irreparable harm."
As said in 42 Am.Jur.2d "Injunctions" at § 35, page 634: "Irreparable harm is measured in terms of the harm arising in the interim between the request for an injunction and the final disposition of the case on the merits." Jayaraj v. Scappini, 66 F.3d 36, 39 (1995), is cited. That case referring to prior case law says that "Irreparable harm ‘means injury for which a monetary award cannot be adequate compensation.’ " In fact the court goes on to say: "Therefore, where monetary damages may provide adequate compensation, a preliminary injunction should not issue." Id., page 39.
Monetary damages cannot compensate Mr. Maturo if he cannot use the disputed driveway up to the time of final disposition of this case. How on earth can a plaintiff such as Mr. Maturo be compensated for the inability to use a driveway that is safe and convenient for his own use of his property and for access to that property by others as compared to the use offered by the alternative driveway on his property as it was described?
As to the non-driveway area of the triangular parcel of property legally owned by the defendant, the court cannot make a finding of irreparable injury. The court finds it difficult to grant the relief requested. As to this portion of disputed land represented by the triangular area which also contains the driveway there is nothing to indicate that failure to grant immediate relief would interfere sufficiently with the present use of his home. The term "injury" must be satisfied by some minimal criteria which have not been offered. In fact the plaintiff seemed to recognize this dichotomy between the use of the driveway and what he called the "appurtenant" land area within the triangle. In the initial complaint it states:
(5) That the defendant on December 27, 2018, without notice; placed boulders blocking the driveway to 28 Short Beach Road which the plaintiff later removed.
(6) That the plaintiff sent a letter to the defendant on January 18, 2019, to his personal residence and also the address of record for ELAJ, LLC offering to purchase the driveway at market value in order to avoid an action to quiet title.
Mr. Maturo testified to the foregoing at trial. In any event how can the plaintiff now make a claim of irreparable and imminent injury to the "appurtenant" non-driveway portion of the triangular piece of property in dispute. Even as to future "use" there has been no history of actions by the defendant that would somehow threaten such future use of this land.
ii.
Lack of Adequate Remedy at Law
Any remedy the plaintiff may ultimately secure in this case will in all likelihood come after months of litigation. In Miller Paper Company v. Roberts Paper Company, (90 S.W.2d 593, Tex., 1995), the court reviewed the property of granting a temporary injunction by the trial court and applied the same standards used by our courts to determining the issue. In exercising its review the court noted that the "foremost guiding principle ... entails the existence of a probable right to the relief sought and a probable injury during the interim." Id., 597. The court went on to say the second element that must be established before a temporary injunction may issue "is proven by tendering evidence of imminent harm, irreparable injury and inadequate legal remedy.’ "
On the issue at hand the court went on to say that "(a) legal remedy is inadequate if, among other things, damages are different to calculate or their award may come too late cf. Wellswood Cobimlra, LLC et al v. Town of Hebron, 327 Conn. 53, 60 (2017). In Local Union 499 v. Iowa Power and Light Company, 224 F.Supp. 731 (S.D. Iowa, 1964), the court was also evaluating the property of issuing a temporary injunction. The defendants argued that there was no showing of irreparable injury, neither has it been shown the plaintiff did not have an adequate remedy at law. Focusing on the issue of an adequate remedy at law and what it entails the court said: "Money damages are normally an adequate remedy but not always. An adequate remedy at law means a remedy which is plain and complete and as practical and efficient to the ends of justice and its prompt administration as a remedy in equity by injunction. Where ascertainment of damages is nearly impossible or nearly so ... or where there is a likelihood of such recurring and consistent remedy damages may not be an adequate remedy." Id., pp. 734, 738.
Applying the foregoing reasoning to the issue of whether there is an adequate remedy at law if the plaintiff is barred from use of the disputed driveway, it seems clear that it would be impossible to calculate the harm to the plaintiff in monetary terms. This litigation has just begun and may take months to complete before a final decision is reached and how does one calculate the cost of inconvenience for not being able to use a driveway which presents a constant interference in rights the plaintiff wishes to exercise.
From that perspective, even if the plaintiff were to prevail on his legal claims to use of the driveway by adverse possession or prescriptive easement at some unascertainable date in the future; how does that compensate him for the imminent possibility of not being able to use the disputed driveway in the interim- to ask the question, at least for the court, provides the obvious negative answer. In lieu of a temporary order to permit the plaintiff to use the disputed driveway until the time of the final decision in this matter there is no other adequate remedy at law.
For the court at least it is much more difficult to find that there is no adequate remedy at law justifying a temporary restraining order as to portions of the disputed triangle not containing the driveway. Quiet title is advocated under an adverse possession claim as to the entire triangular piece of land on dispute but the purpose of the temporary restraining order really only serves to preserve the ongoing use value of the driveway for the plaintiff.
There is an adequate remedy at law regarding the plaintiff’s claim of adverse possession as to the non-driveway portion of the land in dispute- i.e. ultimate success on the adverse possession claim as to that portion of the triangular piece of land. Failure to grant a temporary restraining order as to that specific area does not raise the danger of imminent and irreparable harm to that area or to Mr. Maturo. Mr. Maturo’s use of the area is limited. He mows the lawn area, and cleared the area of some structures on it. He has had dumpsters on this portion of the land apparently in the two years after his purchase of the property. But none of this should establish the right to a temporary restraining order unless we were to take the position that every time an adverse possession claim is made such an order should follow as to the disputed area of land. Mr. DiGioia said his son had boats put on this portion of the triangular property and let a car dealer put cars there too. But there is no evidence this was observed by Mr. Maturo since he purchased the property in 2008. Unfortunately, the son passed away in 2011. Thus there appears to be no danger that there is an imminent threat, as with fences and boulders threatening driveway use, that the part of the disputed area would even be used in any substantial way before a trial and ensuing decision on this matter.
iii.
The Likelihood of Success on the Merits
First the court will discuss of the issue of likelihood of the plaintiff’s success on the merits as to the adverse possession claim. The elements of adverse possession as set forth in Kramer v. Petisi supra, are, as noted, (1) ouster of possession (2) continuous and uninterrupted use (3) exclusive use (4) adverse use without license or permission (5) notorious, open and visible use- with all the elements existing for fifteen years. What must be taken into account in making a temporary restraining order analysis of likelihood of success on the merits is the requirement that the party advancing an adverse possession claim must establish all the elements of that claim by a clear and convincing evidence standard. The court will now discuss each of the five elements necessary to establish an adverse possession claim.
A.
(a)
Ouster of Owner
As said previously, Roche v. Fairfield supra, states that 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," "An adverse possession cannot share the disputed property with the true owner," see Section 65, 3 Am.Jur.2d in "Adverse Possession" article, also see New York Annual Conference v. Fisher, 182 Conn. 272 (1980).
The court will analyze this factor in terms of two portions of the disputed property, the driveway and the area of land appurtenant to the driveway which constituted a yard area.
As to the yard area adjacent to the driveway and to meet the 15-year requirement the owner prior to Maturo had a shed on the land and a dog house, hardly the action of a party not acting under a claim of right. And after purchase of the property Mr. Maturo said he had dumpsters on the yard area for several years, mowed the land and cleared the property of the shed and dog house, and leveled the area.
Problems however, can be raised under the clear and convincing standard given the continued 15-year use requirement- at least given the evidence presented under the one-day pretrial hearing. Mr. DiGioia testified that on occasion his son placed boats from the boatyard he purchased in 2003 within the fifteen-year period. That certainly would be a shared use of this portion of the disputed property. Mr. DiGioia’s son died in 2011 and there is no direct claim or evidence that since Mr. Maturo bought the property in 2008 boats have been placed on the property. Mr. Maturo introduced into evidence aerial photos of the boatyard showing spaces in the boat yard where boats could be placed without having to go to the yard area but that does not rebut the claim entirely since the photos were at intermittent times over the years. Also Mr. DiGioia said that his son allowed a car dealer to place cars on the yard area sometime after he purchased the property in 2003- but this was not explored on cross examination. All of the foregoing interferes with the 15-year requirement for adverse possession.
It is true that it has been held that "sporadic use" by the record owner of property will not defeat a claimant’s exclusive possession, see section 63 of Adverse Possession article in 3 Am.Jur.2d, also see Nutting v. Reis, 326 N.W.3d 127, 130 (MO, 2010) But the evidence was not sufficiently developed on this theme for the court to apply the clear and convincing evidence standard in the plaintiff’s favor.
Mr. DiGioia also testified he noticed a dumpster on the Maturo property and had it removed hardly the action of one who had been ousted from the property. This assertion was not contradicted by Mr. Maturo.
But the owner ousted element seems to be clearly established as to the driveway on the defendant’s property. The evidence is unchallenged that this driveway was used by the Talmage property owners from the mid 1990s when that property was split off from the boat yard property as the result of a sale. The contention that the driveway on the Maturo property was used by Maturo and perhaps even the previous possessors of the Maturo property does not defeat the Maturo adverse possession claim to the driveway on this element. Furthermore, there is no evidence that the defendant, his son or any other employee of the boatyard ever used or tried to use the disputed driveway for any use or purpose.
(b)
Possession that is Continuous and Uninterrupted
If in the years after the defendant bought the boatyard in 2003 up until the time Mr. Maturo bought his home in 2003 the defendant’s son stored boats on the yard area and/or allowed a car salesman to place cars on this property it could not be said the claimed adverse possession of this property was continuous and uninterrupted for a fifteen-year period.
As to the disputed driveway and its use by Maturo and the people who occupied his house before it was sold to him there is no evidence that activities of these "claimants" was interrupted. The defendant certainly knew how to do that, in 2018 he placed boulders on the driveway.
(c)
By Possession that is Exclusive
As the court noted, the language of the Eberhart v. Meadow Haven, Inc. case defines this element- "exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership ..." The acts of the Talmage occupiers and Maturo appear to be acts which "would ordinarily be exercised by an owner." As to the yard area the predecessors in title appeared to have used it as "owners" placing on the land a shed and a dog house; and having a garden on it, Mr. Maturo said he leveled the land, removed the shed and dog house and generally cleared it. This also certainly seems to describe the behavior of an ordinary possessor besides giving notice to the owner of legal title.
As to the disputed driveway its constant and exclusive use by Mr. Maturo and his immediate predecessor in title for over fifteen years would appear to satisfy this element.
(d)
Adverse or Hostile Possession
As to both the appurtenant land to the disputed driveway and the driveway itself the use of each was made without permission, license or consent of the owner Talmage and Maturo just used this land as they wanted.
(e)
Open, Visible, and Notorious Possession
As said in Schichting v. Cotter, supra "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."
At one point in his testimony Mr. DiGioia appeared to say he could not see what was going on in the triangular piece of property at issue because trees blocked his view from the boatyard property. This is hard to fathom since his son apparently complained to Mr. Maturo in 2009 that his father, Mr. DiGioia, was bothered by the fact that Mr. Maturo was encroaching on his land. Also Mr. DiGioia had occasion to drive down Short Beach Road and said he noticed a dumpster in the yard area of the Maturo property and had it removed- if he did so he observed the yard and why not the driveway. At one point he said he observed cars parked in the driveway on Maturo’s property and going up and down that driveway. He also said he had occasion to drive by the Maturo property on a regular basis to make these observations- could he not also have observed the disputed yard property and driveway as he passed the Maturo property? Ms. Massey and Mr. Maturo said the disputed property on the defendant’s land was used on a regular basis and Mr. Maturo presented evidence of many deliveries over the years by vehicles using the driveway on the defendant’s land which is the subject of the dispute between the parties.
The net result of the foregoing discussion is that for the reasons stated the court cannot at present conclude on a clear and convincing proof standard that given the evidence presented that there is likelihood that the plaintiff will prevail on the merits as to the adverse possession claim to the land appurtenant to the driveway. See just finished discussion on ouster of possession and continuous and uninterrupted elements of adverse possession. This in no means suggests that the plaintiff may not be able to prevail at trial on this issue but the court must confine itself to the record presented in this hearing, concentrating on the evidence presented and not speculating on what could or could not or may or may not be presented at trial.
The driveway is a different matter and for the foregoing reasons- there is a likelihood the plaintiff will prevail on the adverse possession claim as to the driveway. Merely because the area in dispute is the whole triangular area this should not mean separate areas cannot be treated differently within that triangular area on an adverse possession claim. The uses on the driveway area and on the appurtenant land are completely different and are not related to one another in any way involving the exercise of each use.
See for example Brault v. Yanavich 2012 WL 4747823.
(iv)
Balancing of the Equities
Balancing of the equities would seem to favor the granting of injunctive relief as to the plaintiff’s right to use the driveway on an adverse possession claim. There is not an iota of evidence presented at this hearing to indicate the defendant, his company or agents ever used the disputed driveway which is admittedly on his property. On the other hand inability to use the driveway or interference with its use would cause the plaintiff inconvenience which under the circumstances is not a fair resolution. Or. to put it another way, the plaintiff use of the driveway under this temporary order, will not from the evidence presented, practically harm the defendant in any way. The key word is temporary and the trial judge can disagree with this order and the reasoning on which it is based and can end its operation in a relatively short period of time from the date of this court’s order.
B.
In the second count of the amended complaint the plaintiff makes a claim for prescriptive easement. Paragraph 12 refers to the 4786-square-foot parcel to which this claim is said to apply which in fact is the whole triangular area in dispute- the driveway and the land appurtenant to the driveway. As noted the elements necessary to establish a prescriptive easement under section 47-37 of the general statutes are (1) continuous and uninterrupted use (2) adverse use in the sense of being without license or permission and (3) notorious open and visible use. The burden of proof to establish such an easement is by a preponderance of evidence, lesser than the clear and convincing evidence standard to establish adverse possession.
Given the nature of a claim in prescriptive easement the question becomes whether the plaintiff has met standards for a Temporary Restraining Order. Some of the considerations discussed in the adverse possession claim apply here so the observations made are often repetitive.
(1)
Irreparable and Imminent Harm
It is difficult to see how failure to recognize a prescriptive easement claim as to the land appurtenant to the driveway now used by the plaintiff would cause the harm envisaged under this requirement.
Any of the uses on this portion of the triangular area legally owned by the defendant, described in the previous section do not directly affect the uses of the driveway or the rest of the Maturo property. The land was used for placing dumpster when Mr. Maturo first bought his house and on occasion afterward when he cleared the land, also removing a dog house and shed. But it is hard to conclude the possibility of what are apparently numerous deliveries to the house would be impaired irreparably or imminently by failure to issue an order respecting the entire area of land in addition to the driveway. Delivery trucks and vans can park in the driveway or the parking area constructed by Mr. Maturo.
But for reasons previously discussed when the court attempted to address the adverse possession claim, failure to grant a temporary restraining order under a prescriptive easement claim would have an imminent and irreparable harmful effect if use of the disputed driveway which the court has concluded is a necessary adjunct use to Mr. Maturo’s house were not to be temporarily protected by this order.
(2)
Lack of Adequate Remedy at Law
If the court errs in a failure to grant a temporary restraining order as to the non-driveway portion of the disputed land area it can be corrected by the trial or appellate courts. What is involved is simply possible shared uses of land.
But for the reasons that have been discussed failure to grant a temporary restraining order as to the driveway presently used by Maturo would cause irreparable and imminent harm.
(3)
Likelihood of Success on the Merits
Especially given the lower preponderance of evidence standard of proof, success on the merits of the plaintiff’s prescriptive easement claim appear to be likely as regards use of the driveway. That use by Mr. Maturo and his predecessor in title and him has been continuous and uninterrupted. It certainly has not been with Mr. DiGioia’s permission; in fact his son on at least one occasion voiced the defendant’s objection to Mr. Maturo’s use. And the use was open and visible. Testimony indicated anyone going by the Maturo home on Short Beach Road could observe the driveway and its use. Interestingly when asked whether Mr. Talmage and the people who visited him used the driveway in dispute he said it was mostly wooded and if he saw a car he "didn’t pay much attention to it because he knew where the property line was"- hardly a defense to this aspect of such a claim. The Talmage use of the driveway and the Maturo use for the reasons discussed would satisfy the 15-year requirement for a prescriptive easement.
As to the land appurtenant to the driveway in the fifteen-year period that is a prerequisite for a prescriptive easement claim, evidence was presented that the party who owned the property prior to Maturo used a shed and a dog house on that area and Mr. Maturo testified he used the property in the sense that he cleared it of the shed and the dog house and generally cleared it. Under the tacking on doctrine the 15-year requirement for a prescriptive easement would appear to be met.
Testimony was also presented that Mr. DiGioia’s son stored boats on the property. Mr. DiGioia also saw fit to have a dust bin he saw on the portion of the appurtenant property to the driveway removed after Maturo acquired the property. There appear to be shared uses.
(4)
Balancing of the Equities
For the reasons previously stated in the adverse possession discussion of the use of the driveway the equities, at least to the court, clearly warrant temporary injunctive relief granting the Maturos use of the driveway.
As to the land appurtenant to the driveway it should be noted that the prescriptive easement doctrine has usually been applied to claims of a right to use a driveway or access route over another’s property, see Smith v. Muelliner, 238 Conn. 510, 536 (2007), Slack v. Green 294 Conn. 418, 429 (2009), Brault v. Yanavich 2012 WL 4747823 (Corradino, J.T.R., 2012). Although theoretically it could be applied to a parcel of land not meeting the foregoing definition of Zhang v. 56 Locust Road, LLC, 2016 WL 624045 (Povodator, J. 2016), the difficulty of granting a Temporary Restraining order on the basis that there is a likelihood of success on the merits to this portion of the land in dispute seems apparent. Not only must one show likelihood of success on the merits, but irreparable and imminent harm and lack of an adequate remedy at law must be shown, which the court has discussed.
Conclusion
In light of the foregoing discussion the court will grant a Temporary Restraining Order as to use of the driveway by Mr. Maturo on the basis of his adversary possession claim. Such a claim necessarily incorporates the prospective easement claim but it would serve no useful purpose to also issue an order based on this theory.
The court’s order as to the driveway permits exclusive use of the driveway to Mr. Maturo as well as use of the parking area he constructed for use of the driveway. This order also provides the defendant shall do nothing to prevent the plaintiff’s use of the driveway or said parking area or make their use more difficult or impractical. This would include an order that the defendant’s use of the appurtenant land adjacent to the disputed driveway shall not be used in such a way to accomplish such a result.
Likewise the plaintiff shall not use the driveway or parking area in such a way as to interfere with any use of the land appurtenant to the driveway as to which the court has issued no order in the plaintiff’s favor.