Angelo Altomari et al. v. Arlene Hall

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Superior Court of Connecticut.

Angelo Altomari et al. v. Arlene Hall

FSTCV074012591S

Decided: August 25, 2010

MEMORANDUM OF DECISION

This is a sequel to Hall v. Altomari, 19 Conn.App. 387 (1989), in which certain rights were determined concerning a fifty-foot-wide private road owned by the defendant herein over which the plaintiffs herein have certain deeded rights.   This case presents two issues for resolution.   They are:  (1) what legal affect does Hall v. Altomari have on the issues of this case, and (2) whether the plaintiffs herein have proved that they have acquired an easement by prescription over the private road which entitles them to (i) maintain a lawn and walk ways on the land area between their northerly property line and the paved portion of the private road, and (ii) unrestricted access over and across the lawn at all points.   The controversy arises out of a letter which the defendant wrote to Angelo Altomari on July 27, 2007 in which she advised him that “I intend to install a fence along our respective property lines.”   The plaintiffs seek a declaratory judgment establishing their rights and a permanent injunction preventing the erection of the fence.

On the first day of trial plaintiffs filed a request for leave to amend their complaint by deleting a count and revising another in which they allege an easement by prescription to maintain the lawn, walkways and driveway in their present condition.   The court reserved decision on the motion.   The court notes that the right to maintain the driveway is not involved in this case because there is no evidence whatsoever that the defendant intends to interfere in any way with the plaintiffs' driveway.   The defendant does not object to the request but urges that it be allowed with prejudice to avoid further litigation of the issues.   The court declines to impose any such qualification.   The court now grants the request to amend.

Before addressing the substantive issues the court must decide whether it is authorized to grant declaratory relief pursuant to the first count.   Declaratory judgments are governed by § 52-29 of the General Statutes and sections 17-54 through 17-59 of our rules of practice.   Section 17-55, in pertinent part, provides as follows:  “a declaratory judgment may be maintained if all of the following conditions have been met:  (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

It is clear from the third count of the complaint as well as the evidence adduced at trial that immediate redress of the plaintiffs' rights can be provided by injunctive relief.   Therefore, the court is of the opinion that injunctive relief can offer the plaintiffs full, complete and immediate redress of their rights and that a declaration of their rights is unnecessary.

As a further preliminary matter the court must decide whether this action is barred by the doctrines of collateral estoppel or res judicata as asserted in the defendant's special defenses.

“[C]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action ․ For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action.   It also must have been actually decided and the decision must have been necessary to the judgment ․ The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.”  (Citations omitted;  internal quotation marks omitted.)  Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).  “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact, determined ․ 1 Restatement (Second), Judgments § 27, comment (d) (1982).   An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.”  (Internal quotation marks omitted.)  Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 32-33, 633 A.2d 1368 (1993).  “In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding ․ [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.  (Internal quotation marks omitted.)  Aetna Casualty & Surety co. v. Jones, supra, 297.”  New England Estates, LLC v. Branford, 294 Conn. 817, 838-39 (2010).

This court must determine therefore whether the issues litigated in this case are identical to any of the issues litigated and necessarily decided in Hall v. Altomari, supra.

“An issue is ‘actually litigated’ if it is properly raised in the pleadings, submitted for determination, and in fact determined.”  State v. Ball, 226 Conn. 265, 276 (1993).   Furthermore, there is a strong basis for the rationale behind the rule that an issue must be essential or [necessary] to the judgment before it can be barred by collateral estoppel.   In Halpern v. Schwartz, 426 F.2d 102, 105 (2d Cir.1970), the court gave two reasons why an issue must be essential to the judgment before collateral estoppel applies:  “First, the decision on an issue not essential to the prior judgment may not have been afforded the careful deliberation and analysis normally applied to essential issues, since a different disposition of the inessential issue would not affect the judgment ․ Second, the decision on an inessential issue in the prior judgment was not subject to the important safeguard as to its correctness, to wit:  a contested review on appeal.”   Thus, “collateral estoppel can be applied only to bar relitigation of facts that were formally put in issue and ultimately determined by a valid, final judgment.”  Carnese v. Middleton, 27 Conn.App. 530, 542 (1992).

At pages 389-90 of the opinion in the prior case the Appellate Court clearly framed the issues litigated in the following language.

The plaintiffs' complaint alleged that the defendant and his tenants were parking as many as five cars on the private road without permission and further alleged that the business of the plaintiff Merrill Lynch Realty-Fairfield, Inc., was being harmed by the defendant's use of the private road for parking.   The complaint sought, inter alia, a temporary and permanent injunction restraining the defendant and his tenants from parking on the private road.

The defendant sought, by way of counterclaim, damages for the obstruction and interference with his alleged right-of-way over the road.   The counterclaim necessitated a determination as to whether the plaintiffs had obstructed the defendant's right to use the private road by allowing parking on it and, in addition, whether the defendant had acquired certain rights by adverse possession to park on the plaintiffs' road.

The defendant relies heavily upon the preclusive effect of the prior litigation on the present litigation.   In doing so, she invites the court to engage in a comparative analysis of both cases and the records which form their bases.   In doing so, the defendant places at risk interpretations which she has favored in the intervening years.

The prior case involved a single subject, namely, the right of the defendant therein to park on the private road.   The court concluded that Altomari's easement did not give him the right to park on the private road and left standing the trial court's determination that Altomari did not acquire the right to park by adverse possession.   The court also left standing the trial court's adoption of the Attorney Trial Referee's (ATR's) recommendation that both parties be enjoined from obstructing the sixteen-foot traveled portion of the road.

By contrast, this case involves neither parking on the road nor obstructing the traveled portion of the road, but rather the right of the plaintiffs to maintain (a) a lawn area with amenities within the southern most untraveled portion of the private road, (b) unrestricted access over and across lawn area as it runs along the southerly boundary of the private road.   Neither of these issues were addressed in the prior litigation either in the pleadings or in the evidence referred to by both the ATR and the Appellate Court.   The court agrees with the plaintiffs that these issues simply were not litigated because they were not necessary for the trial court's or the Appellate Court's judgment on the issues before them.   Furthermore, the gravamen of the plaintiffs' cause of action in the present case is a prescriptive easement which could not have ripened at the commencement of the first case in 1984 because the named plaintiffs did not acquire their property until 1976 far less than the 15-year period required by § 47-37 of the General Statutes.

The defendant next claims that this action is barred by the doctrine of res judicata.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.”  (Emphasis added;  internal quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007).  “The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.”  Fink v. Golenbock, 238 Conn. 183, 191, 680 A.2d 1243 (1996).

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata.  [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.   What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage ․ In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.”  (Citations omitted;  internal quotation marks omitted.)  DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 294, 659 A.2d 162 (1995).  New England Estates, LLC v. Branford, supra at 482-83.

Since this court has already determined that the issues presented in this case were not involved actually in the prior case, it remains to be determined whether the plaintiffs' claims herein “might have been made” in the prior case.

By following the guidance provided in our case law, the court has compared the complaint in this action with the pleadings and judgment in the prior action and finds that not only was the existence of a prescriptive easement to maintain a lawn and unrestricted access over it not claimed by any party, but it could not have been claimed under any circumstances because as stated above the plaintiffs' right to claim such an easement could not have come into existence until 1991, seven years after the prior action was commenced.   So, the question of the specific easement claimed in this case as compared to claimed rights of Altomari's adverse possession to park on the private road could not possibly have been involved in the prior litigation.   Furthermore, unlike the facts in Weiss v. Weiss, 97 Conn. 446, 465, n.13 (2010), where the material operative fact was in existence at the time of the prior litigation, the material operative fact in the present litigation did not arise until seven years later.

The defendant further argues that reference to the record in the prior case shows that Altomari's brief to the trial court claimed a right to maintain a lawn area.   As noted above, there is no indication in either the ATR's report or in the Appellate Court opinion that there was any evidence offered on this point.   It has always been improper in Connecticut to raise an issue for the first time in a trial brief when no evidence on that issue was offered at the trial itself.  Pandolphe's Auto Parts v. Manchester, 181 Conn. 217, 225, n.7 (1980).   Any claim that rights to the lawn area might have been made is refuted by the fact that the sole issue in the prior case related to parking in areas other than the lawn.

Although not contained in a special defense, the defendant offers a third reason why plaintiffs should be prevented as a matter of law from acquiring or even asserting a prescriptive easement.   Defendant contends that pursuant to Crandall v. Gould, 244 Conn. 583 (1998), plaintiffs are prohibited from claiming a prescriptive easement of any type in any portion of the private road because in the prior litigation the court let stand an injunction against obstructing the traveled portion of the road, denied Altomari the right to park on the road, and allowed Hall the right to park on the untraveled portion of the road.   In Crandall, the court held that “a permanent injunction necessarily operates so as to preclude an enjoined party from asserting a claim of right to an enjoined use in an attempt to acquire an easement by adverse use.”  Id., at 593.   The defendant attempts to extend the scope of this principle beyond its intended limits.

Court files may be judicially noticed without affording a hearing.  Moore v. Moore, 173 Conn. 120-21 (1977).   Although in the present case the defendant introduced parts of the prior case, both parties argued over its meaning and effect and the plaintiffs subsequently provided the court with other parts of the record.   The only aspect of the prior litigation that could possibly have relevance to the Crandall principle is that portion of the ATR's report (adopted by the trial court) which recommended that “all of the parties should be allowed to use the premises for parking in so far as the untraveled portion of the right of way is concerned unless and until the travel right of way is widened or improved ․” As noted earlier, the remainder of the case had not even a remote connection with the issues in the present case.   The defendant relies on this statement by the ATR to argue that this constitutes an order of the court which validates her right to park on the untraveled portion of the road and therefore precludes the plaintiff from gaining prescriptive rights over the lawn area.   The plaintiffs argue that such a statement was unauthorized and unwarranted because such relief was not pleaded by Hall and because the statement is obiter dicta.   The court agrees.   Likewise, defendant's interpretation of the prior decision as conferring upon her the right to “widen or improve the road” is inaccurate.   The ATR's recommendation does not identify which party possesses that right, nor does it establish that such right even exists.   The ATR's use of the words “unless or until” denotes uncertainty and is gratuitous.

An examination of the complaint in the prior action discloses that no allegation makes reference to Hall's right to park and correspondingly, no relief was requested relating to that right.   All that was sought in that action was an injunction against Altomari parking on the road.   A judgment granting a remedy where none was sought and where no pleading raised the issue cannot survive an appeal.  Sanford v. Dimes, 3 Conn.App. 639, 640 (1985).   It is axiomatic that the right of a plaintiff to recover is limited to the allegations of the complaint.  Russell v. Russell, 91 Conn.App. 619 (2005).   The ATR's recommendation concerning parking, so far as it including Hall, was clearly dictum and not a part of the trial court's or Appellate Court's holding.

Three policy considerations support the rule that to preclude an issue on collateral estoppel grounds, the issue must be determined by and necessary to a prior judgment:  “(1) the parties' attention and efforts are likely to be focused on points and matters that are necessary to the result.  (2) The tribunal's attention is likely to be focused on the grounds necessary for its decision.   Findings that are not necessary partake of the nature of obiter dicta and the reasons for the distinction between dictum and holding in applying the rule of stare decisis also favor denying collateral estoppel effect to unnecessary findings.   Both are unlikely to receive the full judicial consideration with respect either to premises or consequences that is given to the very grounds of decision.  (3) Unnecessary findings are usually not subject to appellate review.”   F. James & G. Hazard, Civil Procedure (2d Ed.) § 11.19. (Emphasis added.)  Hansted v. Safeco Ins. Co. of America, 19 Conn.App. 515, 519, n.3 (1989).

The court concludes that this action is not barred by either the principle of collateral estoppel or res judicata.

The trial disclosed the following additional facts.   When Angelo Altomari acquired the property in 1976 1 there existed a lawn area between the northerly boundary of his property and a southerly boundary of the traveled portion of the private road.   This lawn area appears to be a natural continuation of the plaintiffs' front lawn.   Within the lawn area there was and has been to the present time a flagstone sidewalk (“walkway” as it was called at trial) approximately four feet in width which leads from front door of plaintiffs' house in a straight line through the lawn area to the traveled portion of the road.   From 1976 forward the plaintiffs have mowed the lawn, raked the leaves and removed snow from the sidewalk on a regular basis and as frequently as once per week.   Also within the lawn area there are two trees which have been there since Angelo Altomari bought the property.   Plaintiffs have pruned and trimmed these trees from time to time.   Also on a weekly basis it has been Phyllis Altomari's practice to drive her automobile on this lawn area after shopping, park on the westerly side of the sidewalk, unload her groceries and carry them into the house using the side door.   Having viewed the premises in the presence of counsel the court can appreciate the plaintiffs' desire to avoid carrying groceries from the lower driveway level.   Also within the lawn area is a concrete sidewalk which runs at approximately a 45' angle from the flagstone sidewalk to the side door.   During the heating season the plaintiffs' oil supplier has regularly parked on the traveled portion and stretched his hose across the lawn to the fill pipe.   Delivery vehicles, repairmen and emergency vehicles have also parked on the traveled way and have walked across the lawn to either the front or the side door to complete their business.   For as long as the plaintiffs have owned the property, there has never been any visible line of demarcation identifying a common boundary.

In August 2007 the defendant had the boundary line surveyed and staked.   The stake revealed that the boundary line is several feet south of the traveled way although the exact distance was never indicated.   Shortly thereafter, Robert Hall the defendant's husband informed Phyllis that the defendant intended to erect a picket type fence three to four feet high along the entire length of the common boundary as it traverses the lawn area.   The fence would contain a gate which would permit access to the side walk.   While no evidence was offered which fixes the exact distance of the proposed fence from the house, from the documents in evidence it appears that the distance will be somewhere between 12 to 15 feet.   The defendant's intention to erect this fence was memorialized in a letter which the defendant wrote to Angelo on July 27, 2007.   Relevant to the proximity of the common boundary to the house, the letter confirms that the line extends “deep into grass area” and “close to your front door.”   Exhibits 28 and 29 confirm this.

In support of her claim to this disputed lawn area the defendant asserts that she never saw the plaintiffs use the area prior to this litigation.   The defendant testified further that in a conversation 2 with Angelo held in 2002 she gave “permission” to the plaintiffs to cut the grass in the disputed area.   This version of the conversation is given a different account by Douglas Nelson, a witness at trial, who claims to have been present when the conversation took place.   His recollection of the conversation has the defendant saying to Angelo “if we keep the peace you can continue to keep your lawn area.   I won't black top it.”   Angelo denies that she said anything about keeping the peace.   The court is therefore unable to interpret this conversation as conferring permission on the plaintiffs to maintain the lawn as in the past.   Moreover, the court does not find credible the defendant's assertion that she never saw the plaintiffs utilize the disputed area in the manner which they have described.

Section 47-37 of the General Statutes provides as follows:  “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 the court did in Boccanfuso v. Green, 91 Conn.App. 296, 309 (2005), the court sets forth the elements necessary to establish a prescriptive easement.

“[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 Assn., 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.)  Kelly 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-Mure v. Tomchik, supra, 78 Conn.App. 705.

The legal criteria for adverse possession and prescriptive easements are not interchangeable.  “Prescriptive easements, unlike title gained by adverse possession, do not require exclusive use by the claimant ․” Boccanfuso v. Green, supra at 309-10.

“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.   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 ․ 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 ․ 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 ․ 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.”   (Citations omitted.)   Sciortino v. Kruk, Superior Court, Judicial district of Ansonia-Milford, Docket No. CV-07-5004110 (January 20, 2009) (Radcliffe, J.);  Jackson v. Lee, 51 Conn.Sup. 399, 413, aff'd, 121 Conn.App. 375 (2010).

To satisfy the first element, openness, the use must be such that a reasonably diligent owner would learn of its existence, nature and extent.  “Open” generally means the use satisfies the requirement even if the neighbors had no knowledge of it.  Slack v. Greene, 294 Conn. 418, 427 (2007).   Although the defendant testified that she had no knowledge of plaintiffs' use of the disputed area until this litigation commenced in October 2007, the court does not find this statement credible.   The evidence showed and the court confirmed by its view of the premises that a parking area in the rear of the defendant's property is diagonally across the private road from the disputed area.   There is no plausible way in which the defendant could have missed the activity in that area and the plaintiffs' consistent and uninterrupted use of it as if it were a piece of their own property.   The evidence is compelling that plaintiffs have exercised dominion and control over the property to the same extent as if they owned it.   In fact, it defies belief that the defendant neither saw the plaintiffs' mowing the lawn nor heard the noise produced by a lawn mower when it was done on a weekly basis during the mowing season.

The present case is not unlike the Pennsylvania case of Klos v. Molenda, 513 A.2d 490, 492 (1986).   Except for the statutory period of maturity, the elements of prescriptive easement are essentially the same as Connecticut's.   With respect to the element of open and “notorious” the court stated:  “On appeal, Mrs. Molenda's principal contentions are that the Klos possession was (1) sporadic rather than continuous, and (2) permissive and neither hostile nor adverse.   We reject these arguments.   The evidence disclosed that appellees had continuously maintained the strip of land in lawn between 1952 and 1984, when their maintenance of the lawn was prevented by the fence which Anne Molenda had erected.   The use of land for lawn purposes and the continuous maintenance thereof in connection with a residence, it has been held, are sufficient to establish adverse possession.”

The defendant challenges the adverse nature of the use, claiming that the defendant permitted the plaintiffs' usage by not objecting, and in 2002 gave her express permission to maintain the lawn.

“The requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner ․ It means nothing more than a[use] ‘as of right,’ that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be ‘under a claim of right.’  ․ [When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an inference from the circumstances of the parties and the nature of the [use].”  (Citation omitted.)   Gregory's, Inc. v. Baltim, 142 Conn. 296, 299-300, (1955).  (Alternate citation omitted.)  “A trier has a wide latitude in drawing an inference that a [use] was under a claim of right.”  Id., 300.  Slack v. Greene, supra at 428.

The court rejects this challenge for several reasons.   First, the court has already deemed the defendant's claim of express permission to lack credibility.   Second, even if such a statement were made it cannot be construed to embrace unrestricted access by pedestrian and vehicular travel.   Next the defendant's conduct in “not objecting” to plaintiffs' use cannot be equated with permission.

“There is a distinction made in our case law between the terms ‘permission’ and ‘acquiescence’ in the context of a prescriptive easement claim.   On this point, the following excerpt from Phillips v. Bonadies, supra, 105 Conn. 726, is particularly illuminating:  ‘In the very nature of [prescriptive easement] case[s] ․ every such user is by permission of the owner of the servient tenement in the sense that he permits it to continue without exercising his right to terminate it.   A permissive user therefore as a distinguished from one exercised under a claim of right is not to be inferred from mere passive acquiescence.   The facts and circumstances must be such as to warrant the inference of a license exercised in subordination to the rights of the owner of the soil and which he may revoke at any time.’  (Emphasis added.)   As the Phillips court admonished, permissive use should not be confused with ‘passive acquiescence.’   The two terms have vastly different impacts.   If there is permission granted to use the contested property, then the user of the land is acting in subordination to the ownership rights of the servient landowner, and the claim of prescriptive easement arising out of his use is negated.   In contrast, passive acquiescence does not indicate such subordination and permits the finding of a prescriptive easement.  Id. For this reason, Phillips emphasized the importance of an indication of subordinate conduct in determining whether there was permissive or acquiescent conduct.”  Gallo-Mure v. Tomchik, 78 Conn.App. 699, 706-07 (2003).

The defendant's attempt to bring the facts of this case within Sachs v. Toquet, 121 Conn. 60 (1936), is unavailing.   In that case the court found that permissive use as a matter of “neighborly accommodation” negated acquisition of prescriptive rights to park.   The history of the parties' relationship in the present case can hardly be characterized as “neighborly accommodation.”   The record is replete with instances of conflict between the parties over parking and access as evidenced by Hall v. Altomari, supra.   And finally, even if a legally recognized permission was given, that permission occurred in 2002, well after the 15-year period had matured into a prescriptive easement.

In a concluding argument, the defendant asserts that the installation of a four-foot picket-style fence with a gate which would afford access to plaintiffs' sidewalk would have “no negative impact on the lawn area,” allowing the plaintiffs to mow the grass on either side of the fence.   The defendant also asserts that a wide enough gate would permit access over the lawn by vehicles and that such a gate would be consistent with a reasonable and less burdensome prescriptive easement.

“[W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it ․ The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.”  (Citations omitted;  internal quotation marks omitted.)  Kuras v. Kope, 205 Conn. 332, 341 (1987).  (Alternate citation omitted.)

There are two infirmities in this argument.   First, the mere placement of the fence will deprive the plaintiffs of their right to maintain the lawn at that precise location.   Second, as stated earlier, this dispute is not only about the lawn;  it is also about unrestricted access over and across the very boundary on which the fence will be located.   The court concludes that the placement of a fence as proposed would interfere with and limit the totally free and unlimited right of access which the plaintiffs have enjoyed for 34 years and gates of any sort would infringe on their right to pass and repass onto the private road at any point along the boundary that they desire.

In conclusion, the court finds that the plaintiffs have sustained their burden of proving that they have acquired a prescriptive easement to maintain the lawn area between their northerly property line and the southerly line of the private road and to continue to enjoy free and unrestricted access over and across that line at all points.   Accordingly, the defendant is permanently enjoined from erecting a fence of any kind on that common boundary line.

BY THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

1.  FN1. His wife, Phyllis Altomari acquired a one-half undivided interest in 1998.

2.  FN2. The plaintiffs and defendant had other conversations covering parking which are not material to this controversy.

Mottolese, A. William, J.T.R.

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