CHI HUM ET AL.
MARK S. SILVESTER ET AL.
April 19, 2018
for a judgment determining the rights of the parties as to a
claimed right-of-way on certain of the plaintiffs' real
property, and for other relief, brought to the Superior Court
in the judicial district of New London and tried to the
court, Hon. Robert C. Leuba, judge trial referee;
judgment for the defendants, from which the plaintiffs
appealed to this court. Affirmed.
L. Langhammer, with whom, on the brief, was Shruthi Reddy,
for the appellants (plaintiffs).
Jerome O'Malley, for the appellees (defendants).
Lavine, Alvord and Beach, Js.
appeal centers on an easement for shared use of a driveway
over a lot of land in Stonington providing access to an
adjacent lot. The plaintiffs, Chi Hum and Mai Lee Yue Hum,
owners of the burdened lot, appeal from the judgment of the
trial court, rendered after a trial to the court, in favor of
the defendants, Mark S. Silvester and Nancy J. Hoerrner. On
appeal, the plaintiffs claim that the trial court improperly
found on the basis of the evidence that (1) the defendants
were entitled to a prescriptive easement over the driveway,
(2) the defendants were entitled to an implied easement over
the driveway, and (3) granting an implied easement was
legally consistent with the grant of a prescriptive easement.
We affirm the judgment of the trial court.
court found the following uncontested facts. The plaintiffs
acquired their lot, 62 Wilbur Road, in 2004. The defendants
purchased the adjacent lot, 60 Wilbur Road, in 2013. The
defendants' lot contains a house that was constructed in
approximately 1986 by the previous owner. Both the
plaintiffs' lot and the defendants' lot were once
part of a larger parcel of land that was subdivided. Each lot
is shaped like a ‘‘flag lot, '' which
means that it is connected to Wilbur Road through contiguous
strips of land. The sole means of accessing the parties'
lots is the driveway located on the plaintiffs' strip of
land, which both parties used. Although the defendants have a
strip of land connecting their lot to Wilbur Road, it is
inclined, laden with trees and boulders, and never was
developed or cleared for use.
long after the defendants acquired their property, the
plaintiffs asked them to stop using the driveway. The
plaintiffs commenced the present action on August 19, 2015,
seeking an injunction prohibiting the defendants from using
the driveway and seeking damages for claimed harm to
vegetation on their property. The court found that the
defendants established that they had acquired both a
prescriptive easement and an implied easement over the
the prescriptive easement, the court found that
‘‘the defendants and their predecessors in title
have used the gravel driveway to access their lot since the
property was developed in 1986. It is reasonable and logical
to infer that since there has been no other usable access to
the defendants' lot, the owner of that lot used the
gravel driveway in a manner which was open, visible,
continuous and uninterrupted for more than [fifteen] years
and made under a claim of right.''
plaintiffs claim that the court improperly found that the
defendants were entitled to a prescriptive easement.
Specifically, the plaintiffs argue that there was
insufficient evidence of prior use of the driveway by the
defendants' predecessor in title to establish open,
visible, continuous and uninterrupted use for the court to
utilize the doctrine of tacking. According to the
plaintiffs, it was not proven that the defendants'
predecessor in title resided on the property, how the
predecessor used the driveway, and how the predecessor
accessed the property during the construction. We are
Statutes §] 47-37 provides for the acquisition of an
easement by adverse use, or prescription. That 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 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 purpose of the open
and visible requirement is to give the owner of the servient
land knowledge and full opportunity to assert his own rights.
. . . To satisfy this requirement, the adverse use must be
made in such a way that a reasonably diligent owner would
learn of its existence, nature, and extent. . . . An openly
visible and apparent use satisfies the requirement even if
the neighbors have no actual knowledge of it. A use that is
not open but is so widely known in the community that the
owner should be aware of it also satisfies the
requirement.'' (Citations omitted; internal quotation
marks omitted.) Slack v. Greene, 294 Conn.
418, 427, 984 A.2d 734 (2009).
well established that ‘‘[u]nder Connecticut law,
a party claiming a prescriptive easement may tack on the
statutory period of predecessors in interest when there is
privity of estate.'' Murphy v.EAPWJP,
LLC,306 Conn. 391, 393 n.4, 50 A.3d 316 (2012). Parties
can therefore support their claim of a prescriptive easement,
and meet the fifteen year requirement, through use of the
driveway by their predecessor in title that was open,