520 SUCCESS, INC. v. SUCCESS VILLAGE APARTMENTS, INC.

2004 Ct. Sup. 11322
No. CV02 039 19 30 SConnecticut Superior Court, Judicial District of Fairfield at Bridgeport
July 22, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
THIM, JUDGE.

This case was tried to the court. The plaintiff, 520 Success Inc., Inc. seeks a judgment declaring that it has acquired title to a strip of land by adverse possession, or, in the alternative, that it has acquired a prescriptive easement in the property, which serves as a parking area and a means of ingress and egress to the plaintiff’s adjoining property. The defendant, Success Village Apartments, Inc., is the owner of record of the disputed strip. It contends the plaintiff has failed to establish a valid interest in the property. For the reasons stated below, this court finds that the plaintiff, 520 Success Inc., has not proven title by adverse possession but has proven its use of the area developed into a prescriptive easement in its favor.

The plaintiff’s property, known as 520 Success Avenue, is located partially in Bridgeport and partially in Stratford and is bounded on the west side by Success Avenue. A one-story brick building, used for commercial purposes, is on the property. The exterior dimensions of the building on the western and southern sides have remained the same for thirty to forty years. See Exhibits 5, 10, and D. A paved parking area is adjacent to the southern side of the building. Ingress and egress to this parking area and a storage area behind the building is from Success Avenue onto and through the parking lot. The southern property line, as described in various deeds and depicted on various maps, runs from a point that is approximately eight to eleven feet from the southwesterly corner of the building along a line that gradually moves further away from the building in a southeasterly direction. This property line has been consistently described in various deeds in the plaintiff’s chain of title and is shown on a map marked as Defendant’s Exhibit D. The paved parking area extends over the southern boundary onto the adjoining property.

The property that is the subject of this dispute consists of that portion of the paved parking area that is on the adjoining property. The entire paved area, including the disputed strip, has been used since 1972 CT Page 11323 by employees, customers, and tenants of businesses located at 520 Success Avenue. Large delivery trucks, i.e. “box trucks,” and other vehicles enter and park in the lot. One tenant of 520 Success Avenue drives construction equipment over the area to the rear of the building, where the equipment is stored. Throughout the years, the plaintiff has removed snow from the entire paved area and has fixed pot holes in the entire paved area lot.

The plaintiff traces its ownership of 520 Success Avenue back to 1980 when Gus Curcio purchased B.C.O. Vending Corporation, which had purchased the property in 1974 from Edna Fitzpatrick and Edna Meyers. After 1980, Gus Curcio caused transfers of the property to be made back and forth among entities or individuals acting on his behalf until title to 520 Success Avenue vested in the plaintiff, 520 Success Inc.

Photographs that both parties have introduced as evidence show that the asphalt lot is old. The logical and reasonable inference is that the lot has existed more or less in the present condition for a long time. In 1960, a registered surveyor prepared a map of the area and depicted thereon “asphalt curbing” in a location that is on the defendant’s side of the boundary. This map and various photographs indicate that the encroachment has existed for thirty to forty years.

The defendant, Success Village Apartments, Inc., is a housing cooperative. It owns the property that runs along the southerly border of the plaintiff’s property line, having acquired ownership of the housing complex by quitclaim deed from the United States of America in 1955. The part of the defendant’s property that is immediately to the south of the parking lot contains a grass lawn on which is located a garbage recycling container that serves residents of nearby cooperative buildings.

The defendant has continuously used the disputed strip over the years. In order to access a dumpster that is located on defendant’s property near the disputed strip, the defendant’s employees drive trucks from Success Avenue into the parking area. This use, like the plaintiff’s use of the area, extends back for a long period of time, as explained by defendant’s property manager, previous attorney, a resident, and a former employee of the defendant who drove a service and maintenance truck. The defendant did not pave the disputed. It has not maintained the strip.

In the past few years, the southerly border of the disputed area has been extended slightly by the placement of gravel and a loose asphalt material. The parties dispute whether this was done purposely or inadvertently by the plaintiff. The resolution of this minor part of the dispute is not necessary since the southerly boundary of the area that CT Page 11324 has been used continuously over the years by the plaintiff is fairly depicted on Defendant’s Exhibit D and is shown in the photographs that have been marked as Exhibits B-1, B-3, B-4, B-5, 7-B, 7-M, 7-N, 7-O, 7-P, and 7-Q. The plaintiff does not claim a right to use that portion of the area that is only covered with gravel.

In the 1990s, persons or entities affiliated with the plaintiff attempted to obtain zoning approval for a low income housing development on the plaintiff’s property and two contiguous lots in back of the property. Additional land was needed for this project, which the defendant opposed. In an endeavor to further this development, a person affiliated with the plaintiff offered, in November of 1995, to purchase from the defendant land along the mutual border and, in December of 1995, offered to purchase an easement over land along the border. A document that was prepared by the defendant’s attorney for internal use indicates the area that was the subject of these discussions was “next to the driveway at 520 Success Avenue.” See Exhibits E and F. The document also indicates that the plaintiff believed that it had a right to a prescriptive easement over part of the area then under discussion.

The plaintiff’s first claim is that it has obtained title to the disputed area by adverse possession. What must be proven to establish this type of claim has often been stated by the Connecticut Supreme Court. See, e.g., Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911
(1982). The plaintiff has failed to prove by “clear and positive proof” that its use of the disputed area was exclusive. It and the defendant have shared dominion over the disputed strip. Since plaintiff’s use has not been exclusive, this claim fails.

The plaintiff’s second claim is that it has obtained a prescriptive easement. The elements of this claim have also been frequently set forth by our Appellate Courts. See, e.g., Waterbury v. Washington, 260 Conn. 506, 576, 800 A.2d 1102 (2002). The court finds that the plaintiff’s use of the disputed area for ingress, egress, and parking has been open, visible, continuous and uninterrupted for over fifteen years and made under a claim of right. The court concludes that the plaintiff has established this claim.

The court further finds that the southern boundary of the easement area is depicted in Defendant’s Exhibit D as a dotted line that is designated “edge of asphalt.” This slightly jagged line is also depicted in the photographs that have been marked as Exhibits B-1, B-3, B-4, B-5, 7-B, 7-M, 7-N, 7-O, 7-P, and 7-Q. The easement that has been acquired by prescription is for vehicular parking by employees and business visitors of both defendant and defendant’s tenants and for vehicular passage by CT Page 11325 those same persons from Success Avenue to the back of defendant’s property. This use is not to interfere with defendant’s using the area as a means of ingress and egress in connection with the maintenance and service of cooperative property.

For the foregoing reasons, the court finds the issues against the plaintiff on the first count of the complaint and in favor of the plaintiff on the second count. Accordingly, the court decrees that the plaintiff has an easement by prescription in the disputed area. The use and area involved is as described above.

THIM, J. CT Page 11326