Michael Marotta v. Antonio Chiulli (2013)

MEMORANDUM OF DECISION

This case arises out of a dispute between two adjoining property owners regarding a driveway that is located on both properties.   The plaintiff, Michael Marotta, is the owner of property known as 4 McDonald Avenue, Cromwell, Connecticut.   The defendant, Antonio Chiulli, is the owner of property known as 2 McDonald Avenue, Cromwell, Connecticut, which abuts 4 McDonald on 4 McDonald's southern boundary.   Four McDonald Avenue is a two (2) unit house.   It has a driveway on the north side of house for use by one unit, and another driveway on the south side of the house for use by the other unit.   The subject of this dispute is the driveway on the south side of 4 McDonald Avenue.   The driveway is approximately twelve (12) feet wide and twenty-five (25) feet long.   The driveway is composed of asphalt pavement, however, the pavement is in poor condition.   The disputed area is a strip on the southerly side of the driveway which is approximately 3.3 feet in width.   The disputed area is depicted on a survey entitled “Property/Boundary Survey prepared for Michael Marotta 4 McDonald Avenue Cromwell Connecticut June 12, 2006, Scale 1” = 10,' Revised 11/07/09 Driveway encroachment notes.”   Plaintiff's Exhibit 1. The disputed area is identified on the map as “Crosshatched area represents driveway encroachment.   Area = 76.7 S.F.”

In count one of his complaint, the plaintiff alleges he has acquired the disputed area by adverse possession.   In count two, the plaintiff alleges he has acquired a prescriptive easement as to the disputed area.   The third count of the complaint alleges trespass by the defendant upon the disputed area claimed by the plaintiff.   The defendant has filed a counterclaim against the defendant alleging trespass in count one, and a request to quiet title to the disputed area in favor of the defendant.

Quiet title actions are authorized by General Statutes § 47–31.   The statute provides that:  “The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”  General Statutes § 47–31(f).  “[T]he relief afforded by the action to quiet title is a full determination of the rights of the parties in the land.  Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).”  DeVita v. Esposito, 13 Conn.App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).

In Clark v. Drska, 1 Conn.App. 481, 488–89, 473 A.2d 325 (1984), our Appellate Court stated:  “Where a party pursuant to General Statutes § 47–31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title ․ The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of the adverse possession of the other.”  (Citations omitted.)   As initially required by Clark v. Drska, the court here determines that the defendant is the record title of land which comprises the disputed area.   This conclusion is based upon the survey of the plaintiff's land, Plaintiff's Exhibit 1.

Adverse Possession

The court must next determine if the plaintiff has established adverse possession of the disputed driveway area.   In order “to establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner ․

“Furthermore, [a] finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof ․ [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ․ [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ․ The burden of proof is on the party claiming adverse possession.”  (Citation omitted;  internal quotation marks omitted.)  Schlichting v. Cotter, 109 Conn.App. 361, 364–65, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008).

In the present case, the plaintiff has only owned 4 McDonald Avenue since April 2006.   Because this does not amount to the fifteen years required for a claimant to establish title by adverse possession, the claimant must rely on the possession of prior owners using by way of “tacking.”  “The tacking doctrine permits those who have owned property for less than fifteen years to tack on the time the property was held in adverse possession by their predecessors in title.   See Marquis v. Drost, 155 Conn. 327, 331–32, 231 A.2d 527 (1967).”  Skelly v. Brucher, 134 Conn.App. 337, 343–44 n.2, 38 A.3d 261 (2012).

The plaintiff's claims rely upon the use of the disputed area by tenants of prior owners of 4 McDonald Avenue.   In the case of Boccanfuso v. Conner, 89 Conn.App. 260, 873 A.2d 208 (2005), the court reviewed the law regarding tenants and adverse use and stated:  “[T]he tenant's possession may be the possession of the landlord although the lease did not expressly include the land in question, where the landlord has represented to the tenant that such land was in the lease, or the landlord knew the tenant was occupying it and assented thereto, or there were other circumstances justifying the implication that it was occupied under and by virtue of the lease ․ Stated simply, the land in question [may be] within either the express or implied terms of the lease ․” (Citations omitted;  internal quotation marks omitted.)  Id., 270.  “Limitations arising from the physical characteristics or location of leased property are circumstantial evidence that the tenant's use of adjacent property was implied in the lease.”  Id., 276.

The survey shows that 4 McDonald Avenue has an area of 4,300 square feet, and only fifty (50) feet of frontage on McDonald Avenue.   From the survey and a photograph;  Plaintiff's Exhibit 5–1;  the court finds that any lease of the south unit would necessarily imply the use of the driveway adjacent thereto, otherwise there would be no other way to access the property and park vehicles.

The court now turns to the use of this area by prior owners of 4 McDonald Avenue.   Shane Duffy owned 4 McDonald Avenue from 1983 thru 1989.   He lived in the unit on the north side of the house and rented out the unit on the south side.   He testified that the subject driveway was in existence when he purchased the property.   Duffy also testified that his tenants in the unit on south side of the house used the southerly driveway to access their unit, and to park their cars.   None of Duffy's tenants testified at the trial.   Duffy testified that he never placed any fence or other structure between the edge of the disputed area of the driveway and Chiulli's remaining land.   Of significance, Duffy testified he never treated the disputed land as his own.

Next, Michael Bartolotta owned 4 McDonald Avenue from 1989 until 2006, when he sold the property to the plaintiff.   He never lived at the property.   Bartolotta rented both units to various tenants during the period of his ownership.   He would visit the property on a monthly basis.   He testified that the tenants in the south unit plowed the driveway and utilized the whole driveway, including the disputed portion, for access and parking of vehicles.   None of Bartolotta's tenants testified at the trial.   Bartolotta testified that he never constructed a fence along the edge of the driveway and never took any steps to keep Chiulli off the disputed area of the driveway.   Although there was no testimony on the issue, it is reasonable to infer from the condition of the driveway that Bartolotta did not repave the driveway while he owned the property.

Lastly, Chiulli has owned 2 McDonald Avenue since 1967.   He lived at the property until March 2013, when he moved to New Jersey.   He testified that he always believed that he owned the disputed portion of the driveway.   He was familiar with the property line along his northern boundary, because a portion of it was marked with fence posts.   Although he never used the disputed area as a driveway to access his property, he would regularly enter upon the disputed area to cut the grass on his adjacent property.   He also used the disputed area to perform maintenance on his house.   He was aware that occupants of the south unit of 4 McDonald Avenue used the driveway and parked cars on it, however, he testified that the cars were always parked on the portion of the driveway that was not in dispute.

After careful consideration of the evidence, the court concludes that the plaintiff has not satisfied his burden of establishing adverse possession by clear and convincing proof.   The court finds that during Duffy's six (6) year period of ownership of 4 McDonald Avenue he did not maintain open, visible, and exclusive possession of the disputed area.   Although his tenants used the disputed area, he never took any steps to convey the fact that he claimed the area as his own.   See, e.g., Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 769–70, 923 A.2d 785 (2007) (homeowner manifested her unequivocal intent to use abutting parcel as her own and without consent of owner, by erecting a fence that restricted access except through gate near homeowner's garage, and by making visible improvements on the parcel).   In fact, Duffy testified he never intended to make any claim to the disputed area.

The court also finds that Bartolotta did not maintain open, visible, and exclusive possession of the disputed area.   The plaintiff only established that Bartolotta's tenants used the driveway.   Again, Bartolotta did not take any steps, such as erecting a fence, which would convey the fact he claimed the disputed area as his own.   Bartolotta did not know Chiulli, and never made any statements to him about his use of, or claim to, the disputed area.   Bartolotta did not take affirmative action, such as repaving the disputed area of the driveway, which would put Chiulli on notice of a claim.   It should be noted that this dispute arose in 2009, after the plaintiff took affirmative action regarding the disputed area of the driveway.   Specifically, he had a contractor dump stones in or on the disputed area, to which Chiulli objected.

The evidence established that the driveway, which was mostly situated on 4 MacDonald Avenue, was used by tenants for access and for parking.   This fact alone, does not establish by clear and convincing evidence that Bartolotta was claiming the disputed strip on 2 McDonald Avenue as his own property.   Accordingly, the plaintiff has not satisfied his burden of establishing adverse possession by clear and convincing proof.

Prescriptive Easement

In the second count of his complaint the plaintiff alleges that he has acquired a prescriptive easement over the disputed area.  “[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.   In applying that section, this court repeatedly has explained that [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.   Open generally means that the use is not made in secret or stealthily.   It may also mean that it is visible or apparent ․ 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 ․ Concealed ․ usage cannot serve as the basis [for] a prescriptive claim because it does not put the landowner on notice ․

“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] ․ A trier has a wide latitude in drawing an inference that a[use] was under a claim of right.”  (Citations omitted;  internal quotation marks omitted.)  Slack v. Greene, 294 Conn. 418, 427–28, 984 A.2d 734 (2009).

“Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.”  (Internal quotation mark omitted.)  Slack v. Greene, supra, 294 Conn. 426.  “The burden is on the party claiming a prescriptive easement to prove all of the elements by a preponderance of the evidence.”  Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005).

After applying the foregoing standard to the evidence presented, the court concludes that the plaintiff has established a prescriptive easement to use the disputed area as a driveway, including the right to park vehicles utilizing the disputed area.   The use of the disputed area by Bartolotta's tenants during the sixteen (16) year period that he owned the property allowed Bartolotta to acquire this easement.   Bartolotta's tenants' use of the driveway constituted open and visible use of the driveway, which included the disputed area.   See, e.g., Sciortino v. Kruk, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–07–5004110–S (January 20, 2009, Radcliffe, J.) (dominant tenement owner acquired a prescriptive easement to a crosshatch area on the servient tenement owner's property by using the crosshatch area for parking and as a turnaround for vehicles on a daily basis, by leaving cars parked in the area, and by clearing and maintaining area).   The plaintiff's exhibit 5–1 and the defendant's exhibit C–3 are photographs that show the subject driveway, including the disputed area, and its intersection with McDonald Avenue.   The court finds that it necessary to travel over the disputed area to enter the driveway.   The court also finds that it is reasonably necessary to utilize the disputed area in order to enter and exit vehicles parked on the drive way.   See Kuras v. Kope, 205 Conn. 332, 341–42, 533 A.2d 1202 (1987) (use of easement must be reasonable and as little burdensome to servient estate as nature of easement and purpose will permit;  rights of easement holder and rights of landowner on which easement is located are not absolute, but are so limited, each by other, that there may be reasonable enjoyment of both);  Beneduci v. Valadares, 73 Conn.App. 795, 803, 812 A.2d 41 (2002) (when easement not specifically defined, rule is that easement be only such as reasonably necessary and convenient for purpose for which it was created).

Furthermore, there was credible testimony presented that two vehicles could be parked on the driveway.   Bartolotta testified credibly that his tenants used the driveway during the sixteen (16) years he owned the property.   This satisfies the requirement of uninterrupted use for a fifteen (15) year period.   There was no evidence presented to show that Chiulli gave Bartolotta or his tenants permission to use the disputed area and there was no evidence presented to show that Bartolotta made an express claim of right to use the disputed area to Chiulli.   Therefore, under the circumstances of this case is reasonable to infer that Bartolotta's use, by way of his tenants' use, was made under a claim of right.   Accordingly, since Bartolotta acquired the described prescriptive easement, the plaintiff is a successor to it.  Boccanfuso v. Conner, supra, 89 Conn.App. 268 (“Once established a prescriptive easement appurtenant to the benefitted property generally runs to all subsequent owners thereof”).

Trespass

The plaintiff did not present evidence on this count.   As noted earlier, in his counterclaim, the defendant alleged trespass by the plaintiff.   In view of the conclusions reached by the court regarding a prescriptive easement, the court finds that the defendant has not sustained his burden of proof regarding the trespass count.

Conclusion

The court enters judgment quieting and settling title to the land described as “Crosshatched area represents driveway encroachment.   Area = 76.7 S.F.” on a map entitled “Property/Boundary Survey prepared for Michael Marotta 4 McDonald Avenue Cromwell, Connecticut June 12, 2006 Scale 1” = 10, Revised 11/07/09” in the defendant Antonio Chiulli.   The court also enters judgment that the plaintiff, Michael Marotta, has acquired an easement by prescription to use said crosshatched area as a driveway to enter 4 McDonald Avenue and for the parking of vehicles.   The parties are directed to confer and prepare a judgment file for court approval and signature.   Neither party is awarded costs.

Domnarski, J.

Domnarski, Edward S., J.