Opinion
No. CV07-5004110S
January 20, 2009
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Gino and Luzviminda Sciortino, instituted this action pursuant to § 47-37 of the Connecticut General Statutes. They claim to have acquired, through adverse use and enjoyment, a prescriptive easement concerning a portion of property currently owned by the defendant, Jaroslaw Kruk.
Section 47-37, C.G.S. — "No person may acquire a right-of-way or other easement from, in, upon or over the land of another, by adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years."
In 1973, the Sciortinos purchased an undeveloped parcel of land in a rural section of the Town of Oxford. They built a home on the property, and constructed a driveway, in order to access Park Road, a public street.
The original driveway, which roughly corresponds to what is now Old English Lane, was 1,000 feet long, and was constructed in segments (TR. p. 19). It is shown as "bit. road" (bituminous) on Exhibit 1. The area where the dwelling was constructed in 1973 is shown on Exhibit 1 as property owned by Linda H. Abbels and Michael B. Abbels.
In order to gain access to Park Road via the driveway, Gino Sciortino was required to cut though an area of woods. He cleared an area along the east side of what is now Old English Lane, which is labeled "bit. road" on Exhibit 1, and was described as a "half moon" area. The "half moon" area is shown on Exhibit 19, and is part of the cross-hatch area (Ex. 19) which is the subject of the claim of a prescriptive easement.
Exhibit 1 shows what appears to be a tree line, which corresponds to the cross-hatch area on Exhibit 19. The plaintiff, Gino Sciortino, testified that he cut trees, removed stumps, and bulldozed the area while he was building his home in 1973 (TR. p. 18-19). The area is approximately 25 feet wide.
At the time the area was carved out in 1973, there were no other homes on what is now Old English Lane, between the Sciortino home, and Park Road.
Beginning in 1973, the plaintiffs used the area for parking cars in the winter, when a snow or ice storm occurred. This was necessary, due to the steep grade between the cross-hatch area, and the plaintiffs' dwelling.
During this tine, 216 Park Road, the property now owned by Jaroslaw Kruk, was unimproved. It is shown on Exhibit 1 as "Land of Walter R. Archer, Jr. And Walter P. Archer III," and has frontage on both Park Road and Old English Lane.
In 1979, the plaintiffs moved "up the hill" and constructed the home in which they currently reside. The house is accessed by two driveways off of Old English Lane, which are across from the "half moon" and cross-hatch areas (Ex. 1; Ex. 19).
The plaintiff Gino Sciortino testified that the area is used by members of his family to park cars. Guests of the Sciortinos also use the area for parking.
The plaintiff also maintained that he uses the area when exiting his driveways, and for turning, in order to travel on Old English Lane.
In addition to the plaintiffs and members of their family, guests use the area for parking, and other persons have utilized the area from time to time since 1978 (TR. p. 29-32). Gino Sciortino testified that he maintained the area, which has the appearance of a private road.
In order to maintain the area, Gino Sciortino testified that he would remove trash and debris, and that gravel and oil were placed on the surface. Michael Abbels, who purchased the original Sciortino home in 1978, shared in the oil expenses (TR. p. 32). The Abbels parked their cars in the area during adverse winter weather conditions.
According to Gino Sciortino, others would use the space for parking of vehicles on occasion. Cars would also enter into the area in order to allow vehicles to pass, when two cars were heading in opposite directions on the driveway, which is now Old English Lane.
Utility companies and the Town of Oxford would also park vehicles in the area. This occurred primarily after the Town of Oxford accepted Old English Lane as a public road, in 2005. (TR. p. 33.)
In 2000, a residence was constructed on 216 Park Road, the property which the defendant now owns. A driveway from Park Road was built in order to provide ingress and egress. There is no driveway to the dwelling from Old English Lane.
216 Park Road was purchased by Jaroslaw Kruk in April of 2004. (Ex. D.) Prior to 2004, Richard Krueger and Cynthia L. Epperson resided in the home.
The Sciortinos used the area in question for the parking of vehicles on a daily basis beginning in 1979, and also used the property to aid in the turning of vehicles at the same time. This pattern of behavior continued until July of 2007.
In the summer of 2007, a load of foul smelling material was dumped in the area, in front of the plaintiff's driveway. (TR. p. 45.)
According to the defendant, he was contacted by Gino Sciortino, and informed that the material had been deposited on the property (TR. p. 55-56). The defendant denied any knowledge of the dumping.
It was subsequently learned that Walter Archer, the former owner of 216 Park Road, had dumped the material on the area used for parking and turning. The material was tested by the Department of Environmental Protection (DEP) and was removed from the site (TR. p. 45.)
After the material was removed, Gino Sciortino again contacted the defendant, and offered to purchase from him an easement, concerning use of the property on which cars were parked. The plaintiff offered Jaroslaw Kruk $500 in consideration for the written easement. The document had been prepared by Gino Sciortino's attorney. (Ex. A. TR. p. 40.)
The defendant refused to sign the easement, and the plaintiffs initiated this action.
They claim to have acquired a prescriptive easement to use the area for the parking of vehicles, and for turning when exiting their driveway.
ELEMENTS OF AN EASEMENT BY PRESCRIPTION
A prescriptive easement is established by proof of the use of the land of another, which is open, visible, continuous, and uninterrupted for a period of fifteen years, made under a claim of right. § 47-37, C.G.S., Putnam, Coffin Barr, Inc. v. Halpern, 154 Conn. 507, 515 (1967); CT Page 1802 McCullough v. Waterfront Park Ass'n., Inc., 32 Conn.App. 746, 753 (1993). Use under a claim of right means use that is without recognition of the rights of the owner of the servient estate. Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 464 (1973).
In order to be adverse, the use must be such as to give a right of action in favor of the party against whom it has been exercised. Whiting v. Gaylord, 66 Conn. 337, 344 (1895). To establish a claim of right, it is not necessary that a claim be actually made and brought to the attention of the owner in fee. Robert S. Weiss Co. v. Mullins, 196 Conn. 614, 618 (1985). However, there can be no claim of right unless the use is unaccompanied by any recognition of the right of the owner of the servient tenement to stop such use. A use by express or implied permission or license cannot ripen into an easement by prescription. Sachs v. Toguet, 121 Conn. 60, 66 (1936).
In this jurisdiction, property rights cannot be extinguished or impaired by prescription, unless the party claiming to have acquired an easement, has satisfied each stringent condition. Westchester v. Greenwich, 227 Conn. 495, 501 (1993).
The elements necessary to establish a prescriptive easement, are virtually identical to those which must be established in order to prove title to realty through adverse possession. Schulz v. Syvertsen, 219 Conn. 81, 92 (1991). However, because the doctrine of adverse possession involves a claim of title to real property, a party claiming under adverse possession must establish the claim by clear and positive proof, or clear and convincing evidence. Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42 (1989); Roche v. Fairfield, 186 Conn. 490, 498 (1982). Clear and convincing evidence is evidence which induces, in the mind of the finder of fact, a reasonable belief that the facts asserted are highly probably true. Dacey v. Connecticut Bar Association, 170 Conn. 520, 536-37 (1976).
Because title to real property is not at issue in a claim asserting the existence of a prescriptive easement, all that is required is a showing of proof by a fair preponderance of the evidence. Reynolds v. Soffer, 190 Conn. 184, 188 (1983).
THE REQUEST FOR A WRITTEN EASEMENT DOES NOT NEGATE THE PLAINTIFFS' CLAIM FOR A PRESCRIPTIVE EASEMENT, AND IT IS NOT INCONSISTENT WITH THAT CLAIM
After the load of noxious material was dumped on the parking area in July of 2007, Gino Sciortino asked the defendant, Jaroslaw Kruk, to grant him an easement to use the area. He requested a written easement, Exhibit A, and offered to pay $500 in consideration for the grant of the written easement.
Had the defendant acceded to the request, the plaintiffs and their successors in title, would have been the possessors of an express easement.
An easement by prescription is more limited in nature than one which is created by express grant. Birdsey v. Kosienski, 140 Conn. 403, 412 (1953); Lichteig v. Churinetz, 9 Conn.App. 406, 411 (1986).
While the scope of an easement by express grant, which has been reduced to writing, is defined by the terms of the written agreement, where an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. Gioielli v. Mallard Cove Condominium Ass'n., 37 Conn.App. 822, 831 (1995).
There is nothing inconsistent between the plaintiffs' desire for a written easement, suitable for recording on the land records, and the belief that an easement by prescription had previously been acquired though adverse use.
A written easement is more definite, and would cure any ambiguity which might exist concerning the establishment of a prescriptive easement, should the claim be challenged in the future.
Furthermore, it would serve to more clearly define the rights and obligations of the parties to the agreement, as well as their successors in interest.
It is therefore found that the request for an express easement by Gino Sciortino, does not establish that he was using the area in question pursuant to a license from the owner of the property.
The evidence revealed that no permission was ever obtained from any of the defendant's predecessors in title.
Although there was some suggestion that the permission of the previous owner of the home might have been obtained, any such permission would have been obtained well after the fifteen-year period had expired.
It is found that the plaintiffs did not obtain the permission of any owner of the property at 216 Park Road between 1979, and the time the house was constructed at 216 Park Road.
It is further found that the better evidence establishes that no permission was ever obtained by the plaintiffs from any of the defendant's predecessors in title.
THE AREA OF THE EASEMENT IS DEFINED WITH REASONABLE CERTAINTY
The defendant maintains that the plaintiffs have not acquired an easement for the parking and turning of vehicles, because the area of the claimed easement is not defined with reasonable certainty.
While it is true that a prescriptive use or right cannot be acquired unless the use defines its bounds with reasonable certainty; Kaiko v. Dolinger, 184 Conn. 509, 511 (1981); the plaintiffs have satisfied this requirement, based upon the evidence presented.
Both Exhibit 1 and Exhibit 19, coupled with the photographs (Ex. 3 5) presented, and the testimony at trial, provide reasonable certainty for the limits of the prescriptive easement.
The area in question has been cleared of trees, stumps and debris, and a portion of the area has been surfaced with gravel and oil. The tree line left after the clearing defines the extent of the area in greater detail, as does the survey (Ex. 1) which depicts the area of the prescriptive easement.
In order to acquire an easement by prescription, it is not necessary for the claimed area to be described in specific meets and bounds. Schulz v. Syvertsen, supra, 92, 93.
Here, the area of the easement is shown on Exhibit 1, and the "cross-hatch" area on Exhibit 19. It runs along the east side of what is now Old English Lane, and is approximately 25 feet in width, and 216 feet long.
The area of the easement is further defined with the reference to the two driveways accessing the plaintiffs' residence, and additional detail is supplied by the markings and angles contained in Exhibit 1.
It is therefore found that the area of the claimed easement is defined with reasonable certainty based upon the evidence presented at trial.
THE EASEMENT BY PRESCRIPTION IS NOT ONE WHICH IS COMMON WITH THE GENERAL PUBLIC CT Page 1805
The defendant, Jaroslaw Kruk, claims that the use of the cross-hatch area (Ex. 19) by the plaintiffs was not different from the use of the area by the general public. Because others, including utility trucks, vehicles owned by the Town of Oxford, other residents of Old English Lane, and their guests used the area from time to time, the defendant maintains, the plaintiffs cannot establish a prescriptive right as a matter of law. Peterson v. Ramcke, 140 Conn. 202, 207 (1953).
The defendant further maintains that because the claimed prescriptive easement was used in common with the general public, in order to establish an independent right the plaintiffs must perform some act of which the owner of the servient tenement was aware to indicate the individual claim of right. Gioielli v. Mallard Cove Condominium Ass'n, Inc., supra, 829-30. In this case, there is no evidence that any owner of 216 Park Road actually knew of the plaintiff's use of the area, or was told of that use, prior to the time a dwelling was built on 216 Park Road.
These claims will not avail the defendant, based upon the evidence presented at trial.
The plaintiffs' use of the cross-hatch area, which is the subject of the prescriptive easement claim, was not a use in common with the general public. The fact that other persons or entities parked cars in the area from time to time is not sufficient to defeat the claim of a prescriptive easement, or to render the use one "in common with the general public."
Gino Sciortino cleared trees and stumps in the area, and created the cross-hatch area in conjunction with the construction of his private driveway, and the first dwelling. He cleared and maintained the area, and utilized it to park cars during icy winter weather conditions.
When the second Sciortino home was constructed, two driveways were positioned across the private right-of-way from the cross-hatch area, for convenient use of the area by the plaintiffs, members of their family, and their guests.
In addition to using the area for the parking of family vehicles on a daily basis, beginning in 1979, the plaintiffs used the area in order to turn vehicles which were exiting from the Sciortino driveways. During this time, Old English Lane was not a public street, because it was not accepted by the Town of Oxford until 2005.
The fact that other individuals may have used the area on occasion, and therefore the plaintiffs' use of the cross-hatch area was not "exclusive" is not sufficient, based upon the facts presented, to defeat the claim of a prescriptive easement for the parking of vehicles, and the use of the area when cars were leaving the Sciortino residence by way of a driveway. Missionary Society v. Coutu, 134 Conn. 576, 582 (1948).
In Missionary Society v. Coutu, supra, a 12-foot-wide foot and vehicular right-of-way had been used since 1900, as a "cut-through" between two public streets. The plaintiff claimed a prescriptive right-of-way in 1934, when the owner of the property sought to construct a building which encroached upon the right-of way.
The court found that the area had been used by the public, but the use by the plaintiff was distinct from that of the public. The plaintiff had utilized the area for the parking, stopping and backing of vehicles in order to discharge or unload fuel into a structure positioned adjacent to the right-of-way. The use of the area for the loading and unloading of furniture, food and other articles, was also mentioned as distinct from the use by the general public. Missionary Society v. Coutu, supra, 583.
Here, the location of the area was directly across from the plaintiff's two driveways, and was used on a daily basis since 1979. The plaintiff, Gino Sciortino created and maintained the cross-hatch area, along a private roadway for many years. The use of the area by he Town of Oxford and various utility vehicles occurred long after the 15-year period during which the plaintiff utilized the area openly, continuously and under a claim of right.
It is found that the plaintiffs, Gino Sciortino and Luzviminda Sciortino, have acquired a prescriptive easement over the area designated as the cross-hatch area (Ex. 1 Ex. 9), based upon their use, beginning in 1979, of the area. The use by the plaintiffs was open, visible, continuous and uninterrupted for a period of 15 years, and was made under a claim of right.
CONCLUSION
Judgment may enter in favor of the plaintiffs, Gino and Luzviminda Sciortino, as against the defendant, Jaroslaw Kruk.
It is found that the plaintiffs have established, by a fair preponderance of the evidence, their claim to a prescriptive easement for the parking and turning of vehicles, over the cross-hatch area.