Opinion
CV116003241S.
11-30-2012
Penny A. NEWBURY v. John BEMIS et al.
Schrager Samuel L. & Associates LLC, Storrs, for Penny A. Newbury. Waller Smith & Palmer PC, New London, for John Bemis et al.
UNPUBLISHED OPINION
Schrager Samuel L. & Associates LLC, Storrs, for Penny A. Newbury.
Waller Smith & Palmer PC, New London, for John Bemis et al.
THE COURT.
The plaintiff, Penny Newbury, filed this case seeking injunctive relief and damages against the defendants, John and Isabelle Bemis, alleging that the defendants interfered with the right-of-way over her property and prevented her from using her property. The defendants counterclaimed in three counts against the plaintiff.
A trial on the merits of the plaintiff's amended complaint and the defendants' counterclaims was held on April 25, 2012. The plaintiff and the defendants testified before the court. In addition, Michael Chapel, Linda Gorman and Randy Thompson testified at the request of the plaintiff, and Paul Archer testified at the request of the defendants. The record closed on August 3, 2012, when the plaintiff submitted her post-trial brief.
FINDINGS OF FACTS
The plaintiff owns real property located at 367 South Bigelow Road, Hampton, Connecticut. (Exs.1, E.) The plaintiff purchased her property on August 2, 2006, by way of a fiduciary deed from the estate of Victor L. Wolmer. The plaintiff's property is comprised of two adjoining parcels of land. Tract one, the larger of the two parcels, consists of approximately seventeen acres and is located to the south of Cohantic Road. The legal description of tract one makes no mention of an easement.
The plaintiff and the defendant additionally refer to this road as " Old Cohanti Road" or " Cowhaniks Road." For simplicity, this area will be referred to as Cohantic Road throughout.
The second tract is approximately thirteen-hundredths of an acre. It is also located to the south of Cohantic Road and contains the plaintiff's home. The second tract, unlike the first, is subject to a right-of-way. The right-of-way is described in the plaintiff's fiduciary deed: " The above described premises are subject to a right of way over the northerly portion thereof and known as the old Nipmuck Trail or Path." (Exs.1, E.) The town of Hampton conveyed the second tract to the plaintiff's predecessors in title, Sydney and Beatrice MacAlpine, by a warranty deed dated May 10, 1971. This conveyance was recorded in the Hampton land records. (Ex. F.) The tract two right-of-way exists only in the plaintiff's chain of title.
The defendants are the owners of certain real property known as 349 South Bigelow Road, Hampton, Connecticut. (Ex. A.) The defendants acquired title to their property, like the plaintiff, by way of a fiduciary deed from the estate of Victor L. Wolmer. (Ex. A .) The defendants' property lies to the north of the plaintiff's.
Cohantic Road is situated directly between the properties of the plaintiff and the defendants, and was established by the town of Hampton somewhere between 1817 and 1820. Nearly a century later, at a town meeting held in October 1922, Cohantic Road was discontinued as a public road. (Ex. P.)
Believing that the defendants had superior rights to Cohantic Road, the plaintiff requested their permission to engage in activities on the northern side of the road. She planted a flower garden, mowed the grass, installed a bench and stored firewood. The plaintiff ceased these activities when the defendants objected to her use of Cohantic Road.
The plaintiff was aware of the history of the use of Cohantic Road for a period in excess of twenty-five years. In the past, the plaintiff used Cohantic Road to access the rear portion of her property. Because of the location of her well, and as a result of topographical features of her property (i.e., a hill, ledge, sand and wetland), Cohantic Road is the sole means by which the plaintiff has access to her well. Further, Cohantic Road provides the sole way to access the rear of her property to collect firewood for heating her residence. Both activities require the use of trucks and excavators utilizing the entire road.
Michael Chapel, the first selectman for the town of Hampton, testified that the town of Hampton currently owns one and one-half acres near Cohantic Ledges and Cohantic Road. Chapel testified that Cohantic Road is used to access vistas of Cohantic Ledges, a Native American historical site. Chapel further testified that the town of Hampton has not expressly directed the public not to use the road, and the town of Hampton has no policies prohibiting the use of Cohantic Road. Finally, Chapel testified that Cohantic Road is frequently used by hikers, bicycles, all-terrain vehicles (ATVs) and was used as a logging road in the past.
Randy Thompson, a member of the Hampton Town Planning and Zoning Commission and the Conservation Commission, and a fifty-two-year resident of Hampton, testified that the public has used Cohantic Road consistently, and the town of Hampton has never objected to use of the road. Thompson testified that over the last twenty years the public has used Cohantic Road for hiking, cross-country skiing and logging, and it continues to be used by ATVs. Finally, Thompson testified that these activities on Cohantic Road date prior to the defendants' predecessor in title, and the activities have remained constant throughout the years.
Linda Graham testified that she used Cohantic Road to walk her dog and watched other persons utilize the road. She testified that she watched Newbury repair her well and saw her use the same road for logging.
The defendants called Paul M. Archer, a licensed land surveyor since 1998, to testify regarding their counterclaim. Archer completed a class A-2 survey at the request of the defendants. Archer searched the defendants' chain of title from 1902 to the defendants' deed. He did not search the plaintiff's chain of title and the title to Cohantic Road. Finally, Archer assumed that Cohantic Road belongs to the town of Hampton.
In her amended complaint dated January 12, 2012, the plaintiff claims an express easement, or a prescriptive easement in the alternative. On March 13, 2012, the defendants filed an amended answer to the plaintiff's amended complaint and counterclaims. The defendants' first counterclaim alleges that the plaintiff trespassed upon their land and interfered with their use of their property. The second claim seeks an injunction prohibiting the plaintiff from entering upon the defendants' property. The third claim alleges that the plaintiff claims an estate or interest in the defendants' land which is adverse to their title and interest. The defendants seek damages and a temporary and permanent injunction against the plaintiff's trespass.
Additional facts will be discussed as necessary.
DISCUSSION
I
The defendants moved to dismiss both counts of the plaintiff's amended complaint under Practice Book § 15-8 claiming that the plaintiff failed to establish a prima facie case against the defendants. The court reserved decision on the motion and directed the defendants to proceed with their counterclaims.
Practice Book § 15-8 provides, in relevant part: " If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such a motion if the plaintiff has failed to make out a prima facie case."
Our Appellate Court recently discussed Practice Book § 15-8 motions in cases tried to the court. " [T]he question before us is not whether the evidence was sufficient to present the claim to a finder of fact, but whether, having presented its case to the fact finder at trial, the plaintiff sustained its burden of proof. In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ... Accordingly, in such instances a trial court confronted with a motion to dismiss for failure to establish a prima facie case is permitted to conclude that the plaintiff did not sustain its burden of proof." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 135 Conn.App. 167, 178, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012).
As found by this court, the plaintiff has failed to sustain her burden of proof on both counts of her amended complaint. The plaintiff's deed establishes an easement in favor of others, but does not provide an express easement over land belonging to the defendants. In addition, she failed to establish a prescriptive easement over the defendants' property. The plaintiff's amended complaint is dismissed for the reasons set forth in this opinion.
A
Express Easement
The plaintiff's property is subject to a right-of-way which is located on her second tract of land and expressed in her deed. An easement is " [a]n interest in land owned by another person, consisting in the right to use or control the land ..., for a specific limited purpose (such as to cross it for access to a public road)." Black's Law Dictionary (9th Ed.2009). " An express easement is created by an express grant by deed or other instrument satisfying the statute of frauds. J. Bruce & J. Ely, Jr., The Law of Easements and Licenses in Land (1995) § 3.04, pp. 3-9 through 3-10." Martin Drive Corp. v. Thorsen, 66 Conn.App. 766, 773, 786 A.2d 484 (2001).
The plaintiff acquired title by fiduciary deed on August 2, 2006, subject to an express right-of-way for the benefit of others. (Ex. 1.) The prior deeds in the plaintiff's chain of title refer to the same easement in the same location. (Exs.3-9.) The right-of-way is described as the " Nipmuck Trail or Path." The plaintiff's deed establishes that she owns the land under Nipmuck Trail.
For simplicity, this will be subsequently referred to as " Nipmuck Trail."
The defendants own the abutting property to the north of the plaintiff's property. However, their deed does not contain an express right-of-way. In count one of her amended complaint the plaintiff does not allege that she owns an easement. Instead, the plaintiff alleges that her property was " subject to a right of way in favor of the Defendants." (Pl.'s Am. Compl., ¶ 2.) The defendants are included as " others" and have a right to pass over Nipmuck Trail. The plaintiff and the defendants testified that Nipmuck Trail was not Cohantic Road, but the evidence did not establish the exact location of Nipmuck Trail. Based upon the proximity of the plaintiff's residence to Cohantic Road, however, the court concludes that Nipmuck Trail is wholly or partially located on Cohantic Road.
In conclusion, the plaintiff failed to prove an express easement in her favor. She offered no evidence to establish that she owns an express easement over the defendants' property as alleged in her amended complaint, see Martin Drive Corp. v. Thorsen, supra, at 773, 786 A.2d 484.
Conversely, the plaintiff's property, specifically the smaller tract, is subject to an easement creating a right of travel over her property. The plaintiff admitted at trial that she understood the deed to mean that she had to allow others the right to travel over her property. Thus, the plaintiff understood that her property is the servient and not the dominant estate. It is evident that the plaintiff owns the land under the right-of-way and she can use it as she pleases so long as she does not interfere with the use of the right-of-way by others. The plaintiff testified on cross examination that her property is located to the south of Cohantic Road, but considering the physical evidence and the deed from the town of Hampton in her chain of title, it appears that Nipmuck Trail may be partially on Cohantic Road.
" Pleadings have an essential purpose in the judicial process ... The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried ... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings ... [A]ny judgment should conform to the pleadings, the issues and the prayers for relief ... The [trial] court is not permitted to decide issues outside of those raised in the pleadings." (Citations omitted; internal quotation marks omitted.) Warner v. Brochendorff, 136 Conn.App. 24, 34, 43 A.3d 785, cert. denied, 306 Conn. 902, 52 A.3d 728 (2012); Spectrum Builders, LLC v. Redner, Superior Court, judicial district of Stamford-Norwalk Docket No. CV 095011106 (November 5, 2012, Tierney J.T.R.). The plaintiff's failure to allege the existence of an express easement in her favor precludes her recovery under count one of her amended complaint.
B
Prescriptive Easement
General Statutes § 47-37 allows for the acquisition of an easement by adverse use, or prescription. The section provides: " No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years." " A party claiming an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right ... The standard of proof that is required to establish an easement by prescription is a fair preponderance of the evidence." Chase & Chase, LLC v. Waterbury Realty, LLC, 138 Conn.App. 289, 296, 50 A.3d 968 (2012).
" A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement ... The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use." (Internal quotation marks omitted.) McManus v. Roggi, 78 Conn.App. 288, 295, 826 A.2d 1275 (2003).
The plaintiff claims that she has a prescriptive easement over Nipmuck Trail. Adversity, however, is an essential prerequisite to finding an easement by prescription. The plaintiff never alleges that her use of the property was adverse. Without such an allegation, the plaintiff is not entitled to the relief that she seeks from the court.
Moreover, the evidence presented by the plaintiff fails, as a matter of law, to establish the requisite fifteen-year period of adverse use. She purchased the property in August 2006. At the time of trial, the plaintiff owned her property for six years. In order to meet the requirement of an uninterrupted fifteen-year period under § 47-37 the plaintiff would have to " tack" her use on to that of her predecessors in title to prevail.
" 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 ... [A] party may establish a prescriptive right by proving the adverse use by a predecessor in title for the requisite amount of time." (Citations omitted; internal quotation marks omitted.) 140 Main St-Derby, LLC v. Clark Dev., LLC, 116 Conn.App. 188, 192 n. 3, 975 A.2d 113, cert. denied, 293 Conn. 927, 980 A.2d 911 (2009).
Adverse enjoyment of an easement, however, cannot exist where there is a unity of seisin and possession of both estates. Manning v. Smith, 6 Conn. 289, 291 (1826); Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895) (" While this house was owned as one house by the common grantor of the parties, there was a unity of possession in the now dominant and servient estates; and the enjoyment of the quasi easement by each part of the house was in no sense adverse; and that period cannot be regarded as aiding to confer any right upon the plaintiff to its further enjoyment").
The plaintiff cannot tack on to the possessory period of Victor Wolmer, her predecessor in title. Wolmer previously owned both the plaintiff's and the defendants' property before the land was transferred to them by deed. Wolmer owned the plaintiff's property from 1968 to 2006, and the defendants' property from 1972 to 2006. Wolmer's dual ownership defeats the plaintiff's prescriptive easement claim as it negates the requirement that the use be adverse. Because Wolmer was the owner of both properties for the balance of the required tacking period, the plaintiff cannot prevail on count two.
Further, the plaintiff testified that she used the defendants' side of the disputed area for storage of pine wood, a compost bin and plantings. However, when the defendants asked her to remove the items, she complied. Such compliance is inconsistent with the plaintiff's claim that her use was adverse.
Finally, the plaintiff's three witnesses, Chapel, Gorman and Thompson, testified to the continuing use of Cohantic Road by members of the public. This testimony, however, does not aid the plaintiff in carrying her burden of proving that she had rights to use the disputed property through prescription. A " 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." (Emphasis added; internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 310 n. 14, 12 A.3d 984 (2011). Because Newbury is not in privity with members of the public, and no transfer of possession rights occurred, count two must fail.
II
DEFENDANTS' COUNTERCLAIMS
The defendants bring three counterclaims against the plaintiff. In count one, the defendants allege that the plaintiff trespassed upon their land and interfered with their use of their property. In count two, the defendants seek an injunction prohibiting the plaintiff from entering upon their property. Finally, in count three, the defendants allege that the plaintiff claims an estate or interest in their land which is adverse to their title and interest. The defendants seek damages and a temporary and permanent injunction against the plaintiff's trespass.
A
Trespass
The defendants have not established the essential elements of an action of trespass against the plaintiff. " [I]n Connecticut, [t]he 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 ... [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land ... Further, [s]ince trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail ... Actual possession requires the plaintiff to demonstrate his exclusive possession and control of the land; constructive possession requires proof that the plaintiff was the owner of the land and that no one else had possession." (Citations omitted; internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 601, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).
The defendants have not established that they are the owners or have a possessory interest in Cohantic Road. During trial, the defendants introduced testimony and evidence that they own 349 South Bigelow Road, Hampton, Connecticut. (Ex. A.) The defendants' property is located on the northern side of, and bounded on the southern side by, Cohantic Road. With respect to the southerly boundary of the parcel, the legal description states that it is " bounded South by and [sic] old highway known as Cohantic Road." (Ex. A.) While the defendants' surveyor testified that he searched the land records of the Town of Hampton to ascertain title for the defendants' property, the surveyor did not search the land records to ascertain title to Cohantic Road.
Even if one were to concede that the defendants have a possessory interest in a portion of Cohantic Road, no evidence has been offered that the plaintiff's use of Cohantic Road affected the defendants' possessory interest. The plaintiff testified that she began using Cohantic Road to store wood and compost in 2004 when she moved into 367 South Bigelow Road. This use continued after the plaintiff purchased 367 South Bigelow Road in 2006 and continued well after the defendants purchased their property in 2007. The plaintiff testified that the defendants did not request that she cease using Cohantic Road to store wood and compost until she received an email from them in 2010. At this time, the plaintiff was in Afghanistan, but made arrangements with her caretaker to have the wood pile, compost bin and a bench removed in an attempt to maintain her relationship with the defendants. The plaintiff had planted a garden on the northerly side of Cohantic Road prior to the defendants' purchase of their property. After they purchased their property, the defendants informed the plaintiff that there was no need for her to remove the garden and gave her permission to plant an apple tree on their land, north of the northerly wall of Cohantic Road.
The defendants failed to present evidence that the plaintiff interfered with the defendants' claimed portion of Cohantic Road or caused direct injury to them. The plaintiff testified that she did not witness the defendants use this part of the road. John Bemis testified that he and his wife use a separate driveway to aecess their home which is several hundred feet from Cohantic Road. He also testified that his intended use of Cohantic Road was for beautification purposes. He did not testify that the plaintiff interfered with this use or that the plaintiff caused any direct injury to he or his wife. Neither of the defendants testified that they witnessed the plaintiff removing a survey pin on the property. No evidence of interference or injury was submitted at trial.
In conclusion, the defendants' count alleging trespass by the plaintiff has no merit. The defendants have not established that they maintain ownership or a possessory interest in Cohantic Road. The defendants admitted that they did not use Cohantic Road. The plaintiff's use of Cohantic Road was with the consent of the defendants. She used Cohantic Road consistently from 2004, when she moved to her residence, and eventually purchased the property in 2006. Believing that the defendants had a legal right to the property at issue, she sought their permission to use the northerly side of Cohantic Road. When the defendants withdrew their consent, the plaintiff terminated the activities in question.
B
Nuisance
Next, the court turns to the defendants' nuisance counterclaim. " A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land ... The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ... The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Berube v. Nagle, 81 Conn.App. 681, 694-95, 841 A.2d 724 (2004).
To prevail on a claim for private nuisance " a plaintiff must prove that: (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless." Pestey v. Cushman, 259 Conn. 345, 358, 788 A.2d 496 (2002).
" Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable. The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable ... Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." (Citations omitted.) Id., at 361-62, 788 A.2d 496.
In the present case, the defendants failed to establish that the plaintiff committed a private nuisance on their property. The defendants have not established that the plaintiff's use of Cohantic Road interfered or prevented them from using and enjoying their property. The defendants testified that they did not use Cohantic Road to access their residence, and their plan for the road was for the purpose of beautification. The defendants claim that the plaintiff removed a surveyor pin on the corner of Cohantic Road, but both defendants testified that they did not see the plaintiff remove the surveyor pin in dispute. Further, none of the parties had any firsthand knowledge of how the surveyor pin disappeared.
The plaintiff testified that she believed she had a right to use Cohantic Road and the defendants never contested her use of Cohantic Road until 2010. The plaintiff introduced photographs to show that her use of Cohantic Road had ceased prior to the date of trial. (Exs.2-14, 2-15.) The defendants submitted photos evidencing the same. (Exs.V, W, X.) Finally, no evidence has been submitted that the plaintiff expanded the use of Cohantic Road.
C
Quiet Title
The defendants seek to quiet title to Cohantic Road. In Connecticut, quiet title actions are governed by General Statutes § 47-31(a). Section 47-31(a) provides, in relevant part: " An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, ... or to have any interest in the property ... adverse to the plaintiff ... and to clear up all doubts and disputes and to quiet and settle the title to the property." " The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property. Under § 47-31, the claim for relief calls for a full determination of the rights of the parties in the land." (Internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 795, 986 A.2d 1072 (2010).
The defendants agree that because Cohantic Road was discontinued in 1922, the discontinuance is governed by common law and not General Statutes § 13a-55. Mackie v. Hull, 69 Conn.App. 538, 546, 795 A.2d 1280, cert. denied, 261 Conn. 917, 806 A.2d 1055 (2002). " Section 13a-55 was enacted in 1959 and it does not apply retroactively ... Therefore, if the highway at issue ... was discontinued or abandoned before 1959, the [landowners] would not have a right-of-way by operation of § 13a-55." Id., at 546-47, 795 A.2d 1280.
The defendants rely on the Archer survey and the 1922 town meeting minutes wherein the town of Hampton discontinued Cohantic Road. (Exs.P, Q.) Consequently, the defendants assert that the fee to the roadbed vested in the owners of the properties abutting the roadbed, specifically, the plaintiff and the defendants. The defendants contend, therefore, that they and the plaintiff own Cohantic Road, each to the middle of the road, free and clear of any public or private easement of travel.
Archer testified that the town's discontinuance extinguished the public easement and, as a result, vested title to the road in the abutting landowners to the midline of Cohantic Road. Archer's testimony, however, was not the only evidence presented at trial relating to the status of Cohantic Road. The other witnesses testified that Cohantic Road has been used, and continues to be used, by many persons primarily for recreational activities. Neither party, however, investigated the chain of title for Cohantic Road.
D
Injunctive Relief
" When a plaintiff seeks injunctive relief from continuing or repeated trespasses ... the plaintiff must demonstrate his continuing possession of the property at the time the injunction is issued." Boyne v. Glastonbury, 110 Conn.App. 591, 601-02, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). " The function of an injunction is to afford preventive relief, not to redress alleged wrongs which have been committed already." Roy v. Moore, 85 Conn. 159, 166, 82 A. 233 (1912).
The defendants have failed to prove that they should be granted injunctive relief. The evidence offered by the defendants is insufficient to establish that the plaintiff and others should be prevented from accessing Cohantic Road. The situation of the properties further supports this use of Cohantic Road by the plaintiff, the defendants and other persons.
By their own testimony, the plaintiff and the defendant are both abutting property owners to Cohantic Road. Cohantic Road lies north of the plaintiff's property, in close proximity to the plaintiff's residence, and south of the defendants' property. Cohantic Road is located directly between the two properties and the road runs generally east to west between the properties. This is clearly depicted by the photographs submitted by the plaintiff, and the A-2 survey and photographs submitted by the defendants. (Exs.2-1, 2-4, 2-5, 2-15, Q, S-X.)
The defendants have not proven that they are the owners of the disputed portion of Cohantic Road. The deeds evidencing the defendants' chain of title prove that the defendants are owners of the property abutting the northerly portion of Cohantic Road. (Ex. A-O.) The deeds evidencing the plaintiff's chain of title prove that she owns the property to at least the abutting southerly wall of Cohantic Road. (Exs.1, E-L.) Archer, the defendants' surveyor, testified that he searched the land records for title to the defendants' parcel, but did not search the title to Cohantic Road. Absent this search, it is probable that the town of Hampton continues to own Cohantic Road. The plaintiff testified that her use of Cohantic Road was no different than the historical use of Cohantic Road for the last twenty-five years. The plaintiff's use of Cohantic Road was to access her well for repairs and to access the rear portion of her property, and the public continues to use Cohantic Road. In addition, Archer testified on cross examination that he assumed because Cohantic Road was discontinued that the defendants had title to the midline. In the absence of proof of possession of Cohantic Road, neither party has a right to obstruct, impede, or deny the public's access to, or use of, Cohantic Road.
For example, by the erection of walls, fences, or other construction.