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Hum v. Silvester

Court of Appeals of Connecticut

July 17, 2018

CHI HUM ET AL.
v.
MARK S. SILVESTER ET AL.

          Argued April 19, 2018

         Procedural History

         Action 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.

          Lloyd L. Langhammer, with whom, on the brief, was Shruthi Reddy, for the appellants (plaintiffs).

          F. Jerome O'Malley, for the appellees (defendants).

          Lavine, Alvord and Beach, Js.

          OPINION

          LAVINE, J.

         This 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.[1]

         The 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.

         Not 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 driveway.

         Regarding 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.''

         The 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.[2] 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 unpersuaded.

         ‘‘[General 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).

         It is 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, ...


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