Opinion
FSTCV136019968
02-06-2017
Chandrasekhar Narayanaswami et al. v. John Christian et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION FOLLOWING BENCH TRIAL
Hon. Charles T. Lee, J.
Plaintiffs Mr. Chandrasekhar Narayanaswami and his wife Dr. Iyer (" plaintiffs") commenced this action by service of a summons and complaint on defendants Mr. John and Ms. Susan Christian (" defendants") on or about September 30, 2013. The operative, amended complaint contains one count, characterized as sounding in intentional trespass and wrongful removal of trees, alleging that plaintiffs and defendants live on adjacent properties located in Wilton, Connecticut and that defendants hired a tree service to enter plaintiffs' property in September 2011 and cut down thirteen large trees without plaintiffs' permission. The complaint seeks damages for the loss of the trees, damage to the property, the costs of replacement of the trees and repairing the property, and diminution of the value of the property as a result of the loss of screening and privacy caused by the removal of the trees. Plaintiffs also seek treble damages under General Statutes § 52-560 and injunctive relief enjoining defendants from trespassing on their property, or trimming, cutting or removing their trees or otherwise interfering with their peaceful use and enjoyment of their property.
On or about May 5, 2016, defendants filed a revised, amended answer, with special defenses and three counterclaims. In their answer, defendants admit that their tree service removed or trimmed trees " on or near the property line." Defendants allege a first special defense of adverse possession, claiming that they had been accessing the trees for maintenance purposes since shortly after acquiring their property in 1992, as well as depositing yard waste and allowing their children to play on and over the shared property line; and further alleging that, after the plaintiffs purchased their property in 2008, they did not express any objection to defendants' use of the property. Because defendants felt they had a right to do so, in 2011, they hired a tree service to trim or remove trees they considered to be unsightly or unhealthy which were located on plaintiffs' property, after notice to the plaintiffs. The defendants claim an area of adverse possession within plaintiffs' property, which is 0.053 acres in size and is configured as an isosceles triangle with a side running 230 feet along the western boundary of plaintiffs' property and ending at a base 21 feet wide on the plaintiffs' southern boundary.
The second special defense asserts the existence of a prescriptive easement on an adjacent area of plaintiffs' property, based on comparable allegations but adding that " The Ross family [plaintiffs' predecessors in interest] acquiesced to the [defendants'] accessing their property for the purposes of trimming and maintaining the trees, the cost of which was always paid for by the [defendants]." Defendants claim an area of prescriptive easement 15 to 19 feet wide running parallel to and east of the area of adverse possession. There is no dispute that the claimed areas of adverse possession and prescriptive easement lie entirely on plaintiffs' property.
The third special defense alleges that plaintiffs gave their permission to the removal of the trees with appropriate replacements. The fourth, fifth and sixth special defenses assert estoppel, waiver and unclean hands, respectively.
Defendants' first counterclaim asserts adverse possession to the area abutting the border between the properties, based on the use of such area for more that fifteen years prior to the commencement of the litigation and claiming " such use and possession has been at all times, open, visible, notorious, adverse, exclusive, and uninterrupted, " giving defendants " sole and exclusive title to the Area of Adverse Possession." The second counterclaim alleges a prescriptive easement pursuant to General Statutes § 47-37, and the third counterclaim asserts a common-law prescriptive easement.
Plaintiffs filed responses to the amended answer, special defenses and counterclaims on or about June 24, 2016 in which they deny the material allegations of defendants' answer, except admit that, after the removal of trees, a tree service had planted twenty arborvitae trees on their property adjoining defendants' property. With respect to the claim of adverse possession, plaintiffs allege, among other things, that the defendants accessed the relevant area with the permission of their predecessors, the Rosses, and themselves. They deny giving their permission for the removal of their trees.
The matter came on for trial before the court over five days, specifically June 28, June 29, June 30, July 13 and July 14, 2016. The parties submitted post-trial briefs and replies. The court finds that plaintiffs have not prevailed on their claim of trespass because defendants established their special defense of consent. The court also finds that the defendants have not prevailed on their counterclaims of adverse possession and of statutory and common-law prescriptive easements because their use of the disputed areas was permissive, pursuant to the agreement with the prior owners of plaintiffs' property, and was never exclusive.
Findings of Fact
I. Background
At the heart of this dispute is the question of whether Dr. Iyer gave Mr. Christian permission to cause thirteen of her trees to be removed. The court heard testimony from these individuals and their spouses, and observed their demeanor, in addition to reviewing the trial exhibits. Based on the court's determination of credibility in light of the circumstances of the case, the court makes the following determinations of pertinent fact:
A. The Parties
1. Plaintiffs Dr. Iyer (" Dr. Iyer") and Mr. Narayanaswami are the owners of property located at 83 Keelers Ridge Road in Wilton. Plaintiffs purchased their property from Alan and Mary Ross by warranty deed dated February 19, 2008. Plaintiffs are well-educated professionals.
2. Defendants John and Susan Christian are the owners of property located at 97 Keelers Ridge Road. The Christians purchased their property from Marge and Al Nickel by warranty deed dated October 16, 1992. Mr. and Mrs. Christian are also well educated, and Mr. Christian practiced with a major international law firm until his retirement in 2009.
3. Both properties are located in a two-acre zone in Wilton. Plaintiffs' property is bounded to the north and east by Keelers Ridge Road, to the west by defendants' property, and to the south by property owned by Nickels. Defendants' residence is situated to the southwest of plaintiffs' residence and is at a higher elevation of approximately forty feet. The Christians' house affords sweeping views over the rear of defendants' property and that of Nickels, extending down to Long Island Sound. The growth of evergreens planted on the western and southern sides of plaintiffs' property will block defendants' view if not trimmed. This is the cause of the dispute which led to this litigation.
II. Facts Relating to the Alleged Trespass and Consent
A. The Plaintiffs' Purchase of their Property
4. Plaintiffs first visited 83 Keelers Ridge in the fall of 2007. In connection with their purchase of the Property, plaintiffs met with the Rosses and toured the property. They were advised that the Rosses had planted all the trees on the western property border and that the property line ran on the western side of the trees along their common border with the Christians. This was confirmed by Mr. Narayanaswami's examination and comparison of aerial photographs with the plot plan for the property. As a result, plaintiffs understood that the property line shared with the Christians was essentially on the far side of the pines and along the Christians' pool fence. The Rosses also commended their longtime landscaper, Mr. Raphael Angel, to plaintiffs.
5. The parties have denominated the screening trees at issue in four categories: 1) the Front Pines start near the street and run southerly along plaintiffs' driveway; 2) the Middle Pines start beside the middle of the boundary between parties; 3) the Pool Pines are two rows of pines running south of the Middle Pines and east of defendants' pool and pool fence, ending in an area at the corner of defendants' property, which is densely planted with forsythia and one offset evergreen; and 4) the Back Pines run along and inside of defendants' southern border.
6. Plaintiffs understood that the Rosses allowed the Christians to trim the Middle, Pool and Back Pines in order to preserve their views.
B. Events Prior to September 15, 2011
7. On October 14, 2009, Ms. Christian left a message for the plaintiffs advising that the Christians' tree service, Hutchinson Tree Care (" Hutchinson"), was planning to trim what are now referred to as the Middle and Pool Pines. Dr. Iyer sent Ms. Christian an email on October 15, 2009 saying, " The Rosses had told us that you take care of the trimming for that row of trees. No problem at our end with the tree co. coming. Thanks for letting us know." On October 20, 2009, Hutchinson trimmed trees at the Christians' expense. Shortly thereafter, Ms. Christian sent Dr. Iyer an email asking if she was going to trim the Front Pines. Plaintiffs obtained a proposal from Hutchinson, but decided not to do so. The Front Pines were not trimmed in 2009.
8. In 2011, the Christians considered the possibility of replacing the Pool and Back Pines on plaintiffs' land. Particularly with respect to the Pool Pines, the Christians apparently believed that they had become unsightly and were not visible from the plaintiffs' house.
9. The Christians consulted with Mr. Robert Hutchinson, the principal of the Hutchinson tree service, who provided a proposal to trim the trees as he had in the past, as well as one to remove the Pool Pines in their entirety. Upon learning that the cost would be roughly the same, the Christians requested a more detailed proposal and decided to proceed with removal of the Pool Pines. In July 2011, Mr. Christian and Rob Hutchinson went on plaintiffs' property to inspect the trees without requesting or receiving permission from the plaintiffs. On August 22, 2011, Hutchinson sent Mr. Christian a proposal which included the following: " 1. Remove 5 Pines between Nickels and neighbor . . .; 2. Prune remaining Forsythia/renovate those along the fence/prune new growth from the row south; 3. Remove 13 Pines east along the fence in neighbor's yard."
10. There was substantial conflict in the evidence presented at trial as to communications between the parties prior to the removal of the trees on September 15th.
11. The evidence showed that, on August 3, 2011, Ms. Christian attempted to email Dr. Iyer, but sent the email to an incorrect email. On August 4, 2011, Ms. Christian called and reached Dr. Iyer and asked if it was acceptable to trim the Middle, Pool and Back Pines and told her that Mr. Christian wanted to speak with her. Dr. Iyer thought the purpose of the requested meeting was for Mr. Christian to try to get the Plaintiffs to trim the Front Pines, which had not been trimmed in 2009.
12. Mr. Christian and Dr. Iyer met briefly in the backyard of plaintiffs' home. Mr. Christian said he wanted to trim the trees and Dr. Iyer agreed. Dr. Iyer did not give Mr. Christian a conclusive answer as to trimming the Front Pines.
13. On the evening of August 4th, Dr. Iyer called Mr. Christian, thanked him for the copy of a New York Times article about the Keeler Ridge development, which he had placed in their mailbox, and said Mr. Narayanaswami agreed to the trimming, including of the Front Pines so long as the trimming did not make them as small as the backyard pines.
14. The plaintiffs testified that there was no discussion in either of the phone calls or in the meeting of removing any of the pines.
15. The Christians maintain there was no meeting on August 4th but rather they had two short phone calls with Dr. Iyer during which she gave her permission to remove the Pool Pines with replacements to be paid for by the Christians. The Christians did not confirm the alleged permission in writing or share any proposals or invoices regarding the replacement trees.
16. As part of the same project, the Christians sought permission from the Nickels to trim and remove trees on the Nickel's property which lies to the south of both parties' property. They were friends with the Nickels and exchanged several emails with them discussing the removal of trees on their property. At one point, as requested by the Nickels, the Christians caused the trees that were to be removed to be marked with ribbon so the Nickels could better understand the scope of the project. The Christians did not take these steps with the plaintiffs.
17. On August 7, 2011, Mr. Christian went on plaintiffs' property without their permission or consent to take photographs of the bordering trees.
18. The Christians claim Mr. Christian and Dr. Iyer met around August 15th wherein Dr. Iyer purportedly gave them permission to remove the Pool and Back Pines, asked about the type and height of replacement trees for the Pool Pines, and was informed of the final height of the replacement trees.
19. The plaintiffs deny that this meeting took place, and their recollection is corroborated by Mr. Narayanaswami's scan of the New York Times article on August 5th. For the reasons set forth below, it is unnecessary for the court to resolve this discrepancy.
20. On September 14, 2011, Mr. Christian left a message with plaintiffs asking if it was acceptable for Hutchinson to come the next day to work on the property. Dr. Iyer called back and, according to her, Mr. Christian explained that Hutchinson would be (i) cleaning storm damage, (ii) trimming the trees as in the past, and (iii) trimming the branches of the Pool and Middle Pines that were growing into each other. Dr. Iyer agreed and told Mr. Christian she would not be home the next day.
21. The defendants claim that permission to remove the trees was again given by Dr. Iyer in this call, which plaintiffs deny. Mr. Christian claims he informed Dr. Iyer that the plan was to transplant forsythia from the southwest corner of the property to replace the Back Pines in order to preserve plaintiffs' privacy.
C. The September 15th Tree Removal
22. The Christians engaged Hutchinson to do tree work on the various properties, including removal of the Pool and Back Pines.
23. At approximately 12:20 p.m. on September 15th, Dr. Iyer returned home and heard noise in her backyard. She went to check and saw workers in and around the Back Pines. They seemed unsupervised, unruly, and noisy, so she gestured to them to stop. She went inside and called Mr. Christian to be sure that he was home and supervising these workers.
24. Dr. Iyer left a voicemail as 12:25 on the Christians' phone before Mr. Christian picked up. The message said,
Hi John. This is Dr. Priya, your neighbor. Um--the, uh, tree people are, said they were cutting down the pines between our property and Al [Nickel]'s property and I guess we had questions 'cause, uh, I thought those were not going to be cut down, --just, the, just the line of pines, between yours and ours, not the ones between ours and Al Nickel's.
Um--I don't know what's planned for that area, so if, uh, you could speak with me that would be great. Uh, I am at home right now; otherwise you can reach me at [cell phone number].
Uh, as of now, we've just told the men to not cut those pines down' cause, uh, you know, I, uh, out of privacy concerns I'd like that row of pines to remain, uh, or an evergreen, uh grove there to remain.
So let me know when you get a chance so we can talk. Thanks, bye. [Plaintiffs' Exhibit 63.]
25. Mr. Christian picked up the phone at the end of the message, and he and Dr. Iyer decided to meet in plaintiffs' backyard right away. According to Dr. Iyer, Mr. Christian explained that the workers were cleaning up debris and branches all around, and they talked about the recent storm and the damage it caused, including uprooting two trees in plaintiffs' front yard, and that Dr. Iyer was looking for replacements. Mr. Christian showed Dr. Iyer several different trees, including an arborvitae in the front of his garage as possible replacements. Dr. Iyer said she was glad he was home to supervise the workers because she couldn't be. Dr. Iyer testified that she understood that the tree workers would be cleaning up debris and fallen branches in the area between the two properties, the pines that were growing into each other were going to be reduced in size and volume so they were safer, and the Back, Pool, Middle and Front Pines were going to be trimmed as in prior years.
26. After the conversation, Dr. Iyer went back to her house, finished lunch and left at about 1 PM to perform various obligations and errands. After she returned home at about 4:30, she discovered that Hutchinson had removed five Back Pines and eight of the Pool Pines.
27. Defendants presented a different version of the mid-day conversation on September 15th. Mr. Christian testified that he reminded Dr. Iyer of her earlier consent to removal of the Back Pines. Dr. Iyer expressed reservations about their removal, being concerned about the preservation of her family's privacy. Mr. Christian testified that he took Dr. Iyer to see the arborvitae on his property as an example of what he had ordered to replace the Pool Pines and to explain that they could be used to screen plaintiffs' southern border. After seeing the arborvitae and discussing the possibility of using junipers to replace the Back Pines, Dr. Iyer consented to the removal of the Back Pines and their replacement with arborvitae or junipers. After their conversation, Mr. Christian went over to the workmen standing around the Back Pines and told them to cut them down. They started up their chainsaws and proceeded to do so.
28. The court finds Mr. Christian's version of the conversation to be the more credible, for a variety of reasons. First, Dr. Iyer's phone message acknowledges her previous consent to the removal of the Pool Pines, although she had previously said that she never agreed to the removal of any of the trees. Second, inspecting the arborvitae on the defendants' property is consistent with considering replacements for the Back Pines, especially in light of credible testimony at trial that any storm damage had already been cleared off the plaintiffs' property. Third, having observed Mr. Christian's demeanor over several days, the court does not believe that he brazenly lied to his neighbor, and then directed workmen to clear-cut her border. Fourth, the fact that Dr. Iyer remained on the property while the workmen were getting under way with their chainsaws and that she was to return later that afternoon buttresses the conclusion that Mr. Christian required and obtained Dr. Iyer's consent to proceed. For these reasons, the court finds that Dr. Iyer agreed to the removal of the Back Pines and Pool Pines in the middle of the day on September 15th.
D. Subsequent Events
29. After returning from work around 6:30 p.m., Mr. Narayanaswami learned from his wife about the removal of the trees. She explained that the Christians had removed trees in the backyard, and she tried to reassure her husband that he need not worry because Mr. Christian was going to put in replacement trees and would remedy the situation. Both plaintiffs expressed their shock that this had happened.
30. Mr. Narayanaswami sent an email to Mr. Christian at 11:49 that evening, in which he said, " I was surprised to see that the pines between the Nickel's and our properties had been taken down as it was my wife Dr. Iyer's understanding that they would be left in." He acknowledged Mr. Christian's promise to replace them with evergreens, and expressed an interest in using arborvitae. He also expressed cautious approval of Hutchinson's trimming the Front Pines, so long as it would not be " as drastic as the former pines in the back." Implicit in Mr. Narayanaswami's email is that they had consented to removal of the Pool Pines. A few days later, with plaintiffs' consent, Hutchinson removed the remaining Pool Pines.
31. In the days that followed, the parties conferred and corresponded about various plantings to replace the missing trees, and the defendants apologized several times for any misunderstanding between them. Eventually, the Christians paid for a single row of arborvitae and a spruce where the Pool Pines had been, which were planted on September 21st, replacing eighteen-foot trees with six- to eight-foot trees. However, discussions relating to the replacement for the Back Pines produced a series of proposals, changes of direction, rejections of cost, and ultimately did not produce an agreement, especially when defendants insisted that any such trees be pruned in the future to preserve their views. Ultimately, plaintiffs told defendants that they did not want them to interfere any further with their property, and efforts relating to replacements for the Back Pines ceased.
32. In November 2011, plaintiffs purchased 22 spruce trees for $7, 660, which they had planted for an additional cost of $6, 050. Eleven of the trees were planted in the Pool Pines area, eight in the Back Pines area, and the remaining three trees were planted just outside the Back Pines area to provide greater screening.
33. In August 2013, Ms. Christian wrote to Dr. Iyer saying that the Christians wanted to trim the Front Pines. Dr. Iyer responded by denying them permission, stating that they were not allowed to come on the plaintiffs' property and that all of those pines belonged to the plaintiffs. Ms. Christian then sent an email on August 4, 2013 saying that some of the Front Pines were actually on the defendants' property, and she referenced a marker, which she said that was in the front of plaintiffs' property and marked the property line. Dr. Iyer asked for the location of a second or other markers on the property line so they could determine where it ran. Ms. Christian did not respond.
34. In August 2014, after the present lawsuit had been commenced, Mr. Christian trimmed the tops of four of the replacement arborvitae presumably to maintain his views, resulting in the plaintiffs calling the police.
III. Facts Concerning Adverse Possession and Prescriptive Easement
A. The Plaintiffs' Predecessors, the Rosses
1. Alan and Mary Ross were the first owners of 83 Keelers Ridge, buying in 1984 and selling to plaintiffs on or about February 19, 2008.
2. When the Rosses purchased the Property in 1984, their neighbors on the west from 1984 to October 1992 were Al and Marge Nickel; and from October 1992 to February 2008 were the Christians. Their neighbors on the south from 1994 to 2008 were Al and Dana Nickel. 83 Keelers Ridge was " pretty bare" and essentially a " meadow" in 1984 when purchased by the Rosses.
3. To create screening, in the 1980s the Rosses planted white pine trees along the western border between their property and the Christians' property, i.e., the Front, Middle and Pool Pines, as well as on their southern border (the Back Pines). They also planted forsythia in the area between the Back and Pool trees in the southwest corner of the Property.
4. Mr. Ross took care of maintenance of the property and supervised Mr. Angel, their landscaper. During the time they owned the property, Mr. Ross maintained the Front, Middle, Pool, and Back trees. Mr. Angel was hired by Mr. Ross and worked for him from 2002 until they sold the property to the plaintiffs in 2008.
5. Specifically, along the western boundary in and along the Front, Middle, and Pool Pines, generally twice a year and/or as needed, Mr. Ross and/or Mr. Angel would (i) weed, (ii) keep the area clean, (iii) cut dead branches, (iv) cut the grass, (v) fertilize, (vi) spread weed killer, and (vii) remove vines. Mr. Ross told Mr. Angel to clean as far as the trunks of the pines, which were close to the Christians' pool fence
6. Mr. Ross also maintained the forsythia between the Pool and Back area from the time they were planted until he sold the property. Mr. Angel trimmed the forsythia and the grass next to it.
7. Mr. Ross created and used a private sitting area with space to walk around in the southwest corner of plaintiffs' property around a Norway spruce tree and the forsythia. This area was regularly mowed by Mr. Angel.
8. The above areas where Mr. Ross planted trees and regularly maintained them, individually or through Mr. Angel, encompass virtually all the claimed areas of adverse possession and prescriptive easement.
9. The Christians' house affords the views of the horizon, and the Christians wanted the trees trimmed to preserve those views.
10. Mr. Ross testified at his deposition, portions of which were admitted into evidence at trial, about a relevant agreement between the Rosses and the Christians pursuant to which the Christians trimmed the pines:
Q. Did there come a time when there was some sort of arrangement with the Christians with respect to trimming of certain of the pine trees?
A. Yes.
Q. What is your recollection of when that occurred?
A. Well, let see, you're going to have to help me now. The Christians moved in in 1993, '2?
MR. CHRISTIAN: October '92. Can I say that?
THE WITNESS: Close enough. We moved in in 1984. I would guess it was sometime a year or two after that maybe we basically reached--basically reached an agreement that we needed screening. He would like the trees when they got tall enough to be topped off so it didn't block his view and we kind of, equivalent of over a beer, agreed that's what he did, simple as that. Figuratively over a beer. I don't think we had a beer.
11. Ms. Ross confirmed that the Christians trimmed the trees as an " accommodation" and that " we just agreed as neighbors." Ms. Christian would also leave a message or speak to her before Hutchinson would come to trim the pines.
12. In connection with their sale to the plaintiffs, in their Residential Property Condition Report dated June 26, 2007, the Rosses answered " No" to the question, " Does anybody other than yourself have any right to use any part of your property or does anybody else claim to own any part of your property?" Ms. Ross also signed a title affidavit on February 19, 2008, stating, among other things, that to the best of her knowledge there were no disputes or disagreements as to the location of any boundary lines for the property.
B. Plaintiffs' Use of the Backyard and the Pines
13. Two weeks after moving in, during the weekend of March 15, 2008, Mr. Narayanaswami, his sons, and his brother-in-law played several sports in their backyard. This included Frisbee, using the Christians' pool fence as a backstop when playing baseball, retrieving the baseball from under the Pool and Middle Pines and from the pool fence, using branches retrieved from the Middle Pines area to mark bases, and retrieving a basketball from the Middle pines near their stone wall. Plaintiffs' sons and their friends also used the Middle Pines area to play hide and seek.
14. During the winters, the plaintiffs and their sons would sled from the forsythia and under the Pool Pines to the lower part of their yard.
15. After they purchased the Property, the plaintiffs continued to have Mr. Angel do the same work he had done for the Rosses, which included maintenance and cleaning of all the trees along the common border with the Christians. Mr. Narayanaswami personally cleared brush from under the Middle and Pool Pines.
16. Following the tree removal in September 2011, plaintiffs directed their energies to the restoration of the so-called adverse possession and prescriptive easement areas. Dr. Iyer supervised installation of the replacement arborvitae. Mr. Narayanaswami watered the arborvitae after they were planted and in the weeks that followed. Mr. Narayanaswami also fertilized the arborvitae throughout the spring of 2012.
17. Mr. Narayanaswami planned and supervised the planting of the twelve- to sixteen-foot spruces in the affected areas (Pool and Back) in November 2011. Immediately after their planting and during spring, summer, and fall of 2012, Mr. Narayanaswami watered and fertilized them. Plaintiffs also put wood chips in the Pool Pine area following storm damage in October 2011. All of the new trees planted along the western boundary are in the claimed area of adverse possession.
18. Following the tree removal to the present, at Mr. Narayanaswami's direction Mr. Angel has continued to keep the Middle and Pool Pine areas clean and maintained, including mowing and trimming of the remaining forsythia in the southwestern corner of the Property.
19. As mentioned above, in August 2014, Mr. Christian trimmed the tops of four of the arborvitae without permission and complained to the police.
C. The Property Line and the So-Called Areas of Adverse Possession and Prescriptive Easement
20. A 2013 survey shows that the property line between the plaintiffs and defendants runs to the west (i.e., on the defendants' side) of the Front, Middle and Pool Pines.
21. The Christians claimed the property line ran between the double lines of the Middle and Pool Pines based on their visual extension of a curtain drain they claim ran along the property line. In paragraph 10 of their original counterclaims, the defendants allege: " The Christians understood that a portion of the Front Pines and the Middle Pines were part of the Christian Property and the B[ack] Pines were on the Plaintiffs' property."
22. The Christians acknowledged, and the court agrees, that the Middle and Pool Pines appeared to have been planted as part of a common scheme or plan.
23. As discussed above, the Hutchinson proposal to remove the Pool Pines, as well as the invoice regarding the tree removal states: " Remove 13 Pines east along the fence in neighbor's yard." PX 30, 31.
24. Neither the area of adverse possession nor the area of prescriptive easement was ever fenced, delineated, or demarcated to keep the Rosses, the plaintiffs or their landscapers out.
D. The Christians' Use of the Areas of Adverse Possession and Prescriptive Easement
25. The Christians claim to have removed a dead hemlock in March 1993 that was located on plaintiffs' property. The removal allowed access to the area between the twin rows of Pool Pines. The Christians claim that their son regularly played in that area and drove a go cart between the trees, as well as occasionally using the area for other, incidental uses. Neither the Rosses nor the plaintiffs objected to such uses.
26. The Christians' primary claim to property rights over the plaintiffs' land arises from defendants' maintenance of the border pines and, occasionally, the forsythia. Ms. Christian does not recall how the Christians came to trim the trees in 1995. However, as mentioned above, Mr. Ross testified to an agreement the Rosses had with the Christians which allowed the Christians to trim the pines to preserve their views.
27. Based upon invoices from Hutchinson, the Christians trimmed the Middle and Pool Pines in 1995, 1997, 1999, 2001, 2003, 2005, 2007, 2009 and the Back Pines in 1995, 2001, 2005, 2009. Mr. Hutchinson's testimony confirms that the Rosses had agreed to the trimming done by the Christians. In fact, Mr. Ross was present at several of the trimming sessions. For Hutchinson to trim trees on the Rosses' land, he said he needed assurance from Mr. Christian that he had permission.
28. After the removal of the trees in September 2011, the Christians claim that they maintained the replacement trees in the Pool Pines area, until the 2013 survey established that they were on the plaintiffs' property.
Discussion
A. Trespass and Consent
Plaintiffs' cause of action sounds in trespass. In City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007), our Supreme Court reiterated the elements of this tort: " The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916); 75 Am.Jur.2d, Trespass § § 3, 8, 14, 25, 35 [1991]."
These elements are satisfied by the evidence adduced at trial. Plaintiffs own the property at 83 Keelers Ridge Road. Defendants directed the Hutchinson tree service to enter plaintiffs' property for the purpose of cutting down their trees. The instructions were given intentionally, and they caused injury to plaintiffs' property.
As their third special defense, defendants contend that their actions were not actionable because Dr. Iyer consented to the cutting of the trees. Our case law establishes that the consent of the property owner is a defense to an action in trespass. In Hanson v. Carroll, 133 Conn. 505, 508, 52 A.2d 700 (1947), our Supreme Court said, " At common law every unwarrantable entry by one upon the land of another was a trespass. See 52 Am.Jur. 844, § 12. The word 'unwarrantable' has some significance. In the early case of Champion v. Hartshorne, 9 Conn. 564, 568, we said, 'The entry of one man upon the lands of another, without his consent, is, prima facie, a trespass, and requires to be justified' . . . A party may justify entering onto someone's property by establishing consent of the owner, and in such a case trespass does not exist."
Because defendants pleaded consent as a special defense, they have the burden of proving it, and the court concludes that they have done so. As more fully discussed above, the court finds that Dr. Iyer gave her permission to Mr. Christian to allow the cutting of the Pool and Back Pines during their conversation on her property on September 15, 2011. As a result, the court finds against plaintiffs on the allegations of their complaint.
B. Adverse Possession
Defendants have asserted a first counterclaim sounding in adverse possession over a portion of plaintiffs' property. In Benjamin v. City of Norwalk, 170 Conn.App. 1, 17-18 (2016), the Appellate Court recently set forth the standards applicable to a claim of adverse possession:
" 'Where title is claimed by adverse possession, the burden of proof is on the claimant . . . 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 without license or consent of the owner . . . The use is not exclusive if the adverse user merely shares dominion over the property with other users . . . Such a possession is not to be made out by inference, but by clear and positive proof . . . In the final analysis, whether possession is adverse is a question of fact for the trier . . . The doctrine of adverse possession is to be taken strictly.' (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 498-99, 442 A.2d 911 (1982)."
The Appellate Court continued, " '[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner.' (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 364-65, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008)." Benjamin v. City of Norwalk, supra, 170 Conn.App. 19-20 (2016).
In this case, the court finds that the defendants have failed to demonstrate these requirements by clear and positive proof. First, they have not proven ouster, that is that the Rosses and the plaintiffs were kept out of the property they claim to be in the area of adverse possession. Rather, given the testimony relating to the use of the area by the Rosses and the plaintiffs, the use and dominion of the area was shared, at various times, which defeats the claim of adverse possession. Second, the maintenance of the area, to the extent performed by defendants, was with the consent of the Rosses and then the plaintiffs. This too is fatal to a claim of adverse possession.
C. Prescriptive Easement
Defendants claim they gained a prescriptive easement over a larger area of plaintiffs' property in their second counterclaim by operation of General Statutes Section 47-37 and in their third counterclaim by operation of the common law.
The court notes that Section 47-37 does not define any substantive components relating to the acquisition of a prescriptive easement other than to provide (in its entirety) that, " 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." As a result, the court will consider the merits of the second and third counterclaims together.
In Boccanfuso v. Green, 91 Conn.App. 296, 309, 880 A.2d 889 (2005), the Appellate Court set out the requisite elements of a prescriptive easements as follows:
" [A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right . . . The standard of proof that is required is a fair preponderance of the evidence." (Citation omitted.) Gioielli v. Mallard Cove Condominium Ass'n., Inc., 37 Conn.App. 822, 829, 658 A.2d 134 (1995). " To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use. (Citation omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn.App. 146, 159, 783 A.2d 1226 (2001). Use by express or implied permission or license cannot ripen into an easement by prescription. (Internal quotation marks omitted.) Gallo-Mitre v. Tomchik, supra, 78 Conn.App. at 705, 829 A.2d 8.
Here, the court finds that defendants' use of the so-called area of prescriptive easement was permissive. Further, the court finds that the other uses in the area established by defendants were not sufficiently open and visible, and were too sporadic and incidental, to be considered continuous for fifteen years. Finally, the boundaries of the area of the claimed easement are not supported by sufficient or persuasive rationale and so are without adequate definition. McCullough v. Waterfront Park Ass'n, Inc., 32 Conn.App. 746, 758, 630 A.2d 1372 (1993) (the boundaries of a prescriptive easement must be defined with reasonable certainty). Accordingly, the counterclaims for a prescriptive easement on plaintiffs' property are also rejected.
Because the court has affirmed plaintiffs' undisturbed rights to their property, it finds that there has been no demonstration of irreparable harm and lack of adequate remedy at law sufficient to justify the entry of a permanent injunction restraining the defendants from entering upon plaintiff's property for any purpose without permission.
Conclusion
Based upon the findings and reasoning set forth above, the court finds against the plaintiffs upon the claim set forth in their complaint, and the court finds against the defendants upon the claims set forth in their first, second and third counterclaims.