140 MAIN STREET-DERBY, LLC v. CLARK DEVELOPMENT, LLC.

2008 Ct. Sup. 6908
No. CV05-4003433SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
April 29, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GEORGE W. RIPLEY, JUDGE TRIAL REFEREE.

The plaintiff and the defendant are abutting property owners located on the youth side of Main Street in Derby, Connecticut. The plaintiff is the owner of 140 Main Street while the defendant is the owner of property immediately to the west and south of the plaintiff. Plaintiff’s Exhibit 13 shows the plaintiff’s property as “Schedule A” with the defendant’s property noted as Schedule D, Parcel 1, Schedule B, Schedule D, Parcel 2 and Schedule E. No claim is made to the parcel noted on Exhibit 13 by the plaintiff nor does the defendant dispute the plaintiff’s right to use the area noted as Schedule E, an easement previously created by deed.

In August 2004 the plaintiff purchased 140 Main Street from one Frank Cirino. Plaintiff’s Exhibit 12. Cirino had been the owner of 140 Main Street from 1975 to the time the plaintiff purchased it on April 2, 2005. At a meeting between Samuel Rizzitelli, the principal of the plaintiff corporation, Carl Yacobacci and Phillip Clark, owners of the defendant corporation, Rizzitelli claimed a right to parcels D1 and D2 as shown on Plaintiff’s Exhibit 13 by adverse possession. This assertion by Rizzitelli resulted in letters being sent to Rizzitelli and tenants of Rizzitelli’s building to cease any use of property located at 148-156 Main Street. Plaintiff’s Exhibits 18 and 19.

The defendant also erected a fence and placed “no parking” signs on the property. This resulted in this present action by the plaintiff requesting a temporary and permanent injunction together with claims of ownership or a right to occupy premises shown in red on Plaintiff’s Exhibit 13.

The complaint filed by the plaintiff under date of November 21, 2007 is in seven counts; (1) alleges that the plaintiff owns the red parcels, Schedule D1 and D2 and the blue area, Schedule E, as shown on Plaintiff’s Exhibit 13 by adverse possession. There is no dispute that the plaintiff by deed has an easement on this portion of the premises CT Page 6909 shown as “Schedule B” although there is dispute as to the exact location; (2) the second count alleges that the plaintiff acquired a prescriptive easement over the defendant’s property in dispute; (3) alleges that the plaintiff has an express easement on the Schedule B area (4) alleges that the plaintiff has an easement of necessity over the disputed property (5) alleges that the defendant trespassed upon the property in dispute (6) alleges that the defendant obstructed the plaintiff’s use of the property in dispute over which the plaintiff claims an easement. The seventh count claims an easement by prescription over the express easement. At trial the plaintiff abandoned its claim for money damages and accordingly the issues remaining for the court’s determination are the claims of (1) adverse possession (2) the existence of a prescriptive easement and (3) whether a right of an easement by necessity is owned by the plaintiff. Counts 5 and 6 also claim injunctive relief in the event the plaintiff prevails in its claims that it has a right to use the defendant’s property as alleged in the complaint.

The defendant’s answer generally denies the plaintiff’s claims of a possessory interest in the defendant’s premises as depicted on Plaintiff’s Exhibit 13.

As to the claim of adverse possession, the evidence offered though various witnesses indicates that for many years the rear of 140 Main Street was used as a parking area for tenants and business patrons of 140 Main Street utilizing parcels shown on Exhibit 13 as Schedule D, Parcel 1E and D, Parcel 2. In order to establish adverse possession the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by an open, visible and exclusive possession under a claim of right with intent to use the property as his own and without consent of the owner. Roche v. Fairchild, 186 Conn. 490, 498. The use is not exclusive if the adverse user merely shares dominion over the property with others. Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 199. Such a possession is not to be made out by inference but by clear and positive proof. Robinson v. Myers, 156 Conn. 510, 517. The plaintiff’s predecessor in title who acquired 140 Main Street in 1975 and occupied it until the purchase by the plaintiff in August 2004 testified that he and his tenants parked in noted areas from the beginning of his ownership of 140 Main Street. Clearly his use of the premises in question was not exclusive nor is the present use of the plaintiff exclusive.

It would appear that an essential element to assert a claim of adverse possession to Schedule D, Parcel 1, D Parcel 2 and E has not been established and a judgment for the defendant may enter on the First CT Page 6910 Count.

Turning to the claim of a prescriptive easement over the three parcels at issue such an easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. Andzejczvk v. Advo System, Inc., 146 Conn. 428, 431. Through the testimony of Frank Cirino the plaintiff demonstrated that Cirino clearly asserted a claim of right in his confrontation with the prior owner of the parcels at issue. Some time in 1977 according to Cirino he had a discussion or argument with Alphonse Ippolito the then owner of the property and in no uncertain terms advised Ippolito that “never ever come here. I’m parking the cars there and that’s the way it is. You can complain all you want and that’s the way it is.” The testimony does not suggest that Ippolito subsequently did anything to prevent Cirino or his tenants from using the property in the manner in which they had become accustomed until the present defendant erected fences and put up signs in May 2005.

Clearly the plaintiff’s claim of a prescriptive easement cannot stem from its length of ownership since it took title to 140 Main Street in 2004 and consequently it claims that the predecessor in title, Cirino was using the property for a significant period of time to comprise the fifteen years of continuous use to allow vesting of a prescriptive right. From the testimony and exhibits, Cirino’s use predated the plaintiff’s use by some 29 years and thus fulfilled the 15-year requirement to provide Cirino with a prescriptive easement over the property at issue. In order for the plaintiff to benefit from his predecessor in title it must establish that there was a transfer of Cirino’s entitlement to an easement by prescription to the plaintiff. With a claim for a prescriptive easement, exclusive use is not required Missionary Society v. Coutu, 134 Conn. 576, 582. Here, the plaintiff has offered credible evidence that Cirino had acquired a prescriptive easement over parcels D1 and D2 when he conveyed his property to the plaintiff herein. As counsel for the plaintiff has noted “once established, a prescriptive easement appurtenant to the benefitted property generally runs to all subsequent owners thereof.”Boccanfuso v. Conner, 89 Conn.App. 260, 268. Accordingly, a party may establish a prescriptive right by proving the adverse use by a predecessor in title for the requisite amount of time.

Plaintiff’s Exhibit 12, the deed from Cirino to the plaintiff, conveyed by warranty deed the premises known as 140 Main Street “to have and to hold the above granted and bargained premises with the appurtenances thereof” (underlining mine) unto it, the grantee . . . According to Blanchard v. Maxson, 84 Conn. 429, 434, once a prescriptive CT Page 6911 easement is established the use of the words, “with their appurtenances” in a deed of transfer is “apt and sufficient for the passage of an easement appurtenant, although it may not be otherwise described.”

The court concludes that as to Parcels D1 and D2 the plaintiff has established though the deed in evidence as Plaintiff’s Exhibit 12 and the testimony of a number of witnesses that a prescription easement exists appurtenant to the plaintiff’s premises known as 140 Main Street and as shown on Plaintiff’s Exhibit 13 as Schedule A.

The Third Count alleges that the plaintiff has an express easement over the Schedule E area. The defendant does not contest the plaintiff’s ownership of the blue Schedule E easement area as shown on Plaintiff’s Exhibit 13. The precise location of the easement area is somewhat in doubt as depicted on the several surveys offered in evidence. The court adopts the survey as set out in Plaintiff’s Exhibit 29 to locate the easement in question. The present easement runs from the rear of 140 Main Street to Hallock Court and is 10 feet in width and was defined as a right of way for all purposes. However, the plaintiff and his predecessor in title have allowed vehicles to park on all of the property shown as D1 and D2 including the easement. Parking vehicles or using the easement for storage of vehicles is not consistent with a right of way which implies free passage.

As to Count Four which claims an easement by necessity inasmuch as the court has determined that the plaintiff has a prescriptive right to the Parcels D1 and D2 and E there is no need for the court to consider Count Four.

As to Count Five concerning a claim for trespass the plaintiff has withdrawn its claim for damage thus essentially abandoning this count of the complaint.

Count Six claiming an obstruction of rights to use land and requesting the court for injunctive relief the court having granted the plaintiff prescriptive rights to these parcels above-noted concludes that issuing an injunction at this point is anticipatory and declines to act on the plaintiff’s petition for injunctive relief.

CT Page 6912

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