Kevin Lazzerin v. Sandra A. Haiko (2013)

MEMORANDUM OF DECISION

The plaintiff, Kevin Lazzerin, alleges that the defendant, Sandra Haiko, has wrongfully obstructed an easement which provides access from his property, across the defendant's land, to Old Monson Road in Stafford, Connecticut, and that she has trespassed on his land.   He seeks injunctive and declaratory relief and monetary damages.   The defendant denies the existence of such an easement and denies trespassing on the plaintiff's property.

Specifically, in counts one through three, the plaintiff claims that the putative easement arose prescriptively, by implication, or by necessity, respectively.   He further asserts that the defendant or her agents have placed a lock on a gate located at the juncture of the claimed right-of-way and Old Monson Road. The locked gate prevents use of the alleged right-of-way by the plaintiff and, thereby, denies him access to his landlocked parcel from any public highway.   In the fourth count, he avers that the defendant has entered onto his land without permission, cut trees, and left logs lying on his property.

Trespass Claim

As to the fourth count, no credible witness testified to having witnessed the defendant or her agent enter the plaintiff's parcel and do anything.   In the absence of any evidence supporting the plaintiff's allegations in this regard, the court rules in favor of the defendant as to the fourth count.

Right–of–Way Claims

The court finds the following facts regarding the alleged easement.   Through purchase, gift, and/or devise, the plaintiff eventually acquired 100% of the ownership interest in a woodlot comprising a little over twelve and one-quarter acres.   This parcel was once owned by the plaintiff's grandparents, Paul and Elsie Hockla, who themselves obtained the land in 1959 from the plaintiff's great grandmother.   This piece of land has been in the plaintiff's family since the 1920s or 1930s.

At one time, a town road ran along the southerly boundary of the plaintiff's property.   That old town highway connected the plaintiff's land to Old Monson Road, another public highway.   That old town highway was abandoned some years before 1959, and that abandonment was the event which landlocked the plaintiff's property.   That former town road also traversed a portion of what is now land owned by the defendant.   Her property lies generally to the east of the plaintiff's woodlot.

Shortly after the plaintiff's grandfather acquired the land in question, he wished to excavate a pond and constructed a dam to accomplish that goal.   Later, he placed a trailer home on the property.

Around this same time, the defendant's father wanted to construct a private road which would connect more directly, conveniently, and safely from the abandoned highway to Old Monson Road. The defendant's father and the plaintiff's grandfather cooperated in the construction of this new access way across what is now the defendant's property.

Both the plaintiff's and the defendant's predecessors in title utilized this new, private roadway, almost exclusively, when travelling from their properties to connect to Old Monson Road. Both of these families shared use of this short-cut by mutual understanding.   The plaintiff's grandfather and the defendant's father erected or replaced various gates at the beginning of the access way at Old Monson Road. Members of both families, including the plaintiff's grandfather and uncle, had keys to the lock on the gate.   Whatever arrangement was reached by the neighboring property owners concerning use of this access road was an informal one;  never memorialized in writing;  and never referenced in any land record.

Easement by Necessity

An easement by necessity “will be imposed when a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee,” Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 27 (2012), (emphases added).   In the present case, there was no conveyance or partition which rendered the plaintiff's parcel landlocked.   Instead, his property suffered that fate by the disuse of the old town road.   In the circumstance where no action by a grantor in the plaintiff's chain of title created the lack of access, no easement by necessity results.  Id. Consequently, the court rules in favor of the defendant as to the third count.

Implied Easement

“[A]n implied easement arises when it is intended by the parties, ‘as shown by the instrument and the situation with reference to the instrument ’ and when ‘the easement is reasonably necessary for the use and normal enjoyment of the dominant estate,” McBurney v. Paquin, 302 Conn. 359, 366–67 (2011) (emphasis added).   Thus, an implied easement can be deduced, but only through inference after examination of the written documents on the land records, such as deeds and maps, and the circumstances surrounding the creation of those recorded documents, Id., 367.

No such instruments exist in the present case.   It appears that the plaintiff requests the court to infer an easement simply based on need and nonverbal conduct in the past by former neighbors.   Friendly cooperation is insufficient to give rise to an implied easement.   The court rules in favor of the defendant on the second count.

Prescriptive Easement

A.

Before addressing the issue of whether a prescriptive easement has been obtained, the court must ascertain the status of that portion of the alleged right-of-way across the defendant's land which used to be part of the abandoned town highway.   Under General Statutes § 13a–55, owners of property bounding an abandoned public highway retain the right to use that erstwhile road as a right-of-way to connect to the public highway system.   However, that statute was enacted in 1959 and has only prospective application, Rudewicz v. Gagne, 22 Conn.App. 285, 287 (1990).   Under the common law, abandonment of a public street extinguished both public and private rights to travel upon the former roadbed.  Id., 288.

The credible evidence adduced in this case demonstrates that the old town highway under scrutiny was abandoned before the enactment of § 13a–55 in 1959.   The old road had fallen into disuse well before the plaintiff's grandparents acquired his parcel in that year.   Therefore, no right-of-way presently survives by virtue of § 13a–55.   As a result, any legitimate right to use the entire alleged right-of-way access to the defendant's land will rise or fall according to whether an easement was obtained prescriptively.

B.

General Statutes § 47–37 confers easement rights through adverse use, Slack v. Greene, 294 Conn. 418, 427 (2009).   Such adverse use must be continuous for fifteen years, openly exercised, and made under a claim of right.  Id. “Open” does not demand that the owner of the servient estate have actual knowledge of the hostile use.  Id. The reasonable opportunity to gain such knowledge and “learn of its existence, nature, and extent,” is sufficient.  Id. Also, the fifteen-year requisite time period may be satisfied by “tacking,” that is summing the continuous conduct of previous owners in the claimant's chain of title.  McBurney v. Cirilla, 276 Conn. 782, 813 (2006).

Evidence, primarily in the form of testimony from Frederick Hockla, the plaintiff's uncle, proves, by a preponderance of the evidence, that throughout the time that the plaintiff's grandfather owned the property, he regarded and used the right-of-way as his sole means to access the parcel.   He and other family members possessed keys to the locks used to secure the various gates which inhibited trespassers from venturing into the defendant's property from Old Monson Road. The grandfather, named Paul Hockla, Sr., had assisted the defendant's father, Peter Ronczyk, in clearing the new access way and acted as if the shortcut would benefit both parcels.   Paul Hockla's use of the disputed roadway lasted at least until 1977, which exceeds the fifteen-year threshhold.

His use of the disputed easement included transporting timber taken from his land.   After he built the dam and pond on his parcel, he also brought a mobile home to the site.   He and his family always drove to that trailer home using the right-of-way in question.

Continuous use of an easement does not require daily travel across the roadway or any other similar minimum frequency.   Instead, continuity is gauged by the usual purpose for which such travel is needed.   Where land is essentially a forest, physical presence on the property will be irregular or have long cycles of absence.   Therefore, expected usage of the right-of-way will be sporadic or episodic.   The mere passage of time between visits will not constitute interruption so as to defeat prescriptive acquisition of the easement.

The court determines that the plaintiff has proven, by a preponderance of the evidence, all the elements of the existence of a prescriptive easement allowing him to access his land using the private road as it is presently situated, from Old Monson Road across the defendant's property to his own.   The court, therefore, enjoins the defendant from obstructing or causing others to obstruct that usage.   To implement this injunction, the court also orders the defendant to provide a key, at the plaintiff's expense, to any lock she maintains on the gate as depicted in the photograph designated as Exhibit 3.

Unfortunately, the plaintiff has failed to submit any survey, map, or other detailed description of the right-of-way except for the photograph of the gate area.   In order to settle this dispute completely, to render a definitive ruling, to facilitate enforcement of the decision, and to provide the land records with adequate documentation of the court's ruling, it is necessary that the court issue the following additional orders.   It is expected that such orders will be completed within ninety days of the date of this decision.

The court orders the plaintiff to have prepared a professional survey of the easement at his expense.   The defendant is ordered to cooperate in the making of that survey by allowing the surveyor's team to enter and remain on her property for the time reasonably necessary to accomplish that end.   The defendant may, if she wishes, have her own survey conducted.   Should a dispute exist concerning the accuracy of the survey or surveys, an appropriate motion may be filed for the court to resolve the dispute.   The plaintiff's survey must be filed with the court by November 15, 2013.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.