Brander v. Stoddard

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APPENDIX
BERT BRANDER v. TRISHA STODDARD,
TEMPORARY ADMINISTRATOR
(ESTATE OF LILY B. FREY),
ET AL.*
Superior Court, Judicial District of Litchfield
File No. CV-13-6008351-S
Memorandum filed August 6, 2015
Proceedings
Memorandum of decision in action to quiet title.
Judgment for the defendants.
Patrick E. Power, for the plaintiff.
John L. Laudati, for the defendants.
Casey Walker, pro hac vice, for the named defendant
et al.
Opinion
MARANO, J. The plaintiff, Bert Brander, brings this
cause of action against the defendants, Trisha Stoddard,
in her capacities as Connecticut temporary administra-
tor of the estate of Lily Frey and Florida personal repre-
sentative of the estate of Lily Frey, and the Farmington
River Watershed Association, Inc. In his two count com-
plaint, filed with the court on March 25, 2013, the plain-
tiff seeks to quiet title to property located at 65
Farmington River Turnpike, New Hartford, Connecticut
(disputed property), based on claims of adverse posses-
sion and prescriptive easement. The defendants filed
an answer on June 21, 2013, and an amended answer
and special defenses on February 13, 2015, alleging
that the plaintiff’s use of the property was with the
permission of the owners. The matter was tried to the
court on February 10 and 11, 2015. The parties filed
posttrial briefs on May 4, 2015.
PARTIES’ POSITIONS
Plaintiff’s Position
The plaintiff argues that he acquired the entire dis-
puted property through adverse possession pursuant
to General Statutes § 52-575. In support of this argu-
ment, the plaintiff alleges that from 1984 to the present
he has used the disputed property to graze his sheep
and to grow hay. While conceding that the titleholders
to the property erected a fence between the plaintiff’s
property and the disputed property in 1993, he alleges
that within a year he removed the fence and resumed
use of the property for grazing sheep and growing hay.
He further argues that any other use of the land by the
titleholders was insufficient to overcome his possession
of the property. He also argues that any initial permis-
sion that was granted by the titleholders to the plaintiff
to use the disputed property for grazing and haying was
revoked in 1993 when they erected a fence and he
continued to use the property for grazing and haying
from 1993 to the present, a period in excess of the
fifteen years mandated by § 52-575.
In the alternative, the plaintiff argues that he has
acquired a prescriptive easement over the disputed
property to graze sheep and grow hay. He argues that
the only difference in proof between a claim of adverse
possession and a claim of prescriptive easement is that
with a prescriptive easement possession need not be
exclusive. Therefore, he argues that, for the same rea-
sons that he has satisfied the elements of adverse pos-
session, if the court were to find that his use of the
property was not exclusive, he would still satisfy the
elements of a prescriptive easement. He further argues
that such a prescriptive easement would be an easement
appurtenant because use of the disputed property for
grazing and haying benefits the dominant estate, the
adjacent Brander property, and not the plaintiff person-
ally. Specifically, he argues that he would derive no
personal benefit from an easement over the disputed
property to graze sheep and grow hay if he were not
raising sheep on his adjacent property.
Defendants’ Position
The defendants argue that the plaintiff has failed to
make out a prima facie case of adverse possession.
Specifically, they argue that the plaintiff has failed to
satisfy the fifteen year time period or proven that he
acted under a claim of right because as late as 1998 he
represented to the town of New Hartford that Henry and
Lily Frey (Freys) were the titleholders to the disputed
property. They further argue that he has not proven that
he acted under a claim of right and absent permission
because from 1984 to 1993 he used the disputed prop-
erty with the belief that the Freys would leave the dis-
puted property to him in their will and a belief in a
future claim to the property is not a present claim of
right. They further argue that the plaintiff has not
proven that he had exclusive possession of the property
because the Freys took steps to build a single-family
residence on the property, the plaintiff knew of the
Freys’ actions, and the plaintiff never objected on the
ground that he had exclusive possession of the prop-
erty. They also argue that on several occasions the
plaintiff delivered lamb meat to Lily Frey as ‘‘rent’’ for
the disputed property, which is inconsistent with a
claim of right to the property. They argue that the Freys
gave the plaintiff permission to graze his sheep and
grow hay on the disputed property.
In regard to the plaintiff’s claim of a prescriptive
easement, the defendants first argue that any claim for
such a prescriptive easement should be considered an
easement in gross because the benefit runs to the plain-
tiff personally and not the Brander property. The defen-
dants also argue that the plaintiff has failed to make a
prima facie case of prescriptive easement because the
plaintiff acknowledged that the Freys were the owners
of the property in 1998 to the town of New Hartford and
such acknowledgment contradicts any alleged claim of
right on the part of the plaintiff. They further argue that
any use of the disputed property by the plaintiff was
with the permission of the Freys. Therefore, they argue
that the plaintiff cannot succeed in his claim of prescrip-
tive easement.
FINDINGS OF FACT
As the trier of fact, the court must resolve issues of
credibility. See State v. Nowell, 262 Conn. 686, 695, 817
A.2d 76 (2003); Lacic v. Tomas, 78 Conn. App. 406,
409–10, 829 A.2d 1, cert. denied, 266 Conn. 922, 835
A.2d 472 (2003). ‘‘The determination of a witness’ credi-
bility is the special function of the trial court.’’ (Internal
quotation marks omitted.) State v. Knight, 266 Conn.
658, 674, 835 A.2d 47 (2003). ‘‘[I]t is the trier’s exclusive
province to weigh the conflicting evidence, determine
the credibility of witnesses and determine whether to
accept some, all or none of a witness’ testimony.’’ (Inter-
nal quotation marks omitted.) Hoffer v. Swan Lake
Assn., Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001).
The court finds the following facts and credits the fol-
lowing evidence.
In 1967, Henry Frey purchased property in New Hart-
ford, Connecticut, commonly known as the Ryan Farm.
Plaintiff’s exhibit 12. In 1981, Henry Frey transferred
the property to himself and to Lily Frey1 as joint tenants
with right of survivorship. Plaintiff’s exhibit 2. In 1984,
the Freys sold a portion of the property, located at 24
Farmington River Turnpike, New Hartford, Connecticut
(Brander property), to the plaintiff. Plaintiff’s exhibit
4. The plaintiff subsequently transferred the Brander
property to Branderville Ltd., a Connecticut company
of which the plaintiff owns a majority interest. Plaintiff’s
exhibit 25. The Freys retained the disputed property,
which is adjacent to the Brander property, as well as
adjacent property located across the Farmington River
Turnpike from the Brander and disputed properties on
which the Freys resided and conducted farming activi-
ties. At the time of the sale of the Brander property to
the plaintiff, the defendants represented to the plaintiff
that if he purchased the Brander property at that time,
then they would leave the disputed property to him in
their wills.
In 1984, the plaintiff purchased some sheep and began
raising them on the Brander property. At the same time,
he utilized the disputed property to grow hay to feed
the sheep. He used both properties to graze the sheep,
making use of portable, plastic fencing to corral the
sheep within certain areas. Within a year of purchasing
the Brander property, he constructed a fence along the
boundary of both properties with the Farmington River
Turnpike. Henry Frey offered guidance and advice to
the plaintiff, based on his farming experience, regarding
raising sheep and the proper construction of a fence.
The Freys moved to Virginia in 1986 and ceased to
reside at the property across the Farmington River
Turnpike from the disputed property.
In or about 1993, the plaintiff and the Freys experi-
enced a falling out. In August, 1993, the Freys listed
the disputed property for sale. Plaintiff’s exhibit 5. A
for sale sign was placed on the disputed property. In
response, the plaintiff filed a lawsuit against the Freys.
The plaintiff testified that he does not remember what
claims or remedies he pursued in the lawsuit. Henry
Frey, Jr. (Hank Frey), Henry Frey’s son and Lily Frey’s
stepson, testified that the plaintiff was seeking to
recover from the Freys the value of the improvements
and maintenance he had previously performed on the
disputed property. The court finds Hank Frey’s testi-
mony concerning the lawsuit credible. The Freys coun-
terclaimed. In 1994, the Freys, through their counsel,
sent a cease and desist letter to the plaintiff, demanding
that he stop using the disputed property, remove all of
his personal property from the disputed property, and
notifying him that they intended to remove the fence
that he had erected on the disputed property along
the Farmington River Turnpike. Plaintiff’s exhibit 6. In
addition, they instructed Hank Frey to erect a fence
between the Brander and disputed properties. Hank
Frey hired contractors who constructed the boundary
fence. In 1995, the parties settled their claims against
each other. As part of the settlement, on March 23,
1995, the Freys signed a release of all counterclaims
they had against the plaintiff and paid a sum of money
to the plaintiff for the value of the improvements he
made to the disputed property. Plaintiff’s exhibit 8.
In 1994 or 1995, the plaintiff removed the fence that
the Freys had erected between the properties. After
removing the dividing fence, the plaintiff continued to
use the disputed property to grow hay and to graze his
sheep. Such conduct continued through the commence-
ment of the present cause of action.
In 1994, while litigation between the parties was still
pending, the Freys executed new wills, removing the
provision whereby the plaintiff would inherit the dis-
puted property upon their deaths. On January 24, 1995,
the Freys’ counsel sent a letter to the plaintiff’s counsel
notifying him that the Freys had revised their wills.
Plaintiff’s exhibit 7.
In March, 1998, the plaintiff appealed to the Superior
Court, judicial district of Litchfield, the New Hartford
Inland Wetlands Commission’s approval of a permit
granted to Henry Frey for filling wetlands and excava-
tion and expansion of a pond ‘‘on his property located
on Farmington River Turnpike in the Town of New
Hartford.’’ Defendants’ exhibits J and K. The plaintiff
alleged aggrievement as an abutting property owner.
Defendants’ exhibit K. Specifically, he alleged that the
Inland Wetlands Commission acted illegally, arbitrarily,
and in abuse of its discretion by: accepting an applica-
tion that was incomplete under the applicable regula-
tions, failing to provide proper notice to abutting
property owners, failing to make a finding that a feasible
and prudent alternative did not exist, and failing to
state on the record the reasons for its findings. Id. On
September 11, 1998, the court, Pickett, J., dismissed
the plaintiff’s appeal. Id.
In 1999, the Freys took steps to construct a single-
family home on the disputed property, including seek-
ing permit approvals for such construction. On Novem-
ber 23, 1999, the plaintiff sent a letter to the Inland
Wetlands Commission raising concerns with the pro-
posed construction. Defendants’ Exhibit CC. Specifi-
cally, he raised the possibility, due to the location of
the property in a flood plain and the presence of wet-
lands on the property, that additional approvals would
be required from the U.S. Army Corps of Engineers,
the state of Connecticut, and the Metropolitan District
Commission. Id. On December 10, 1999, the plaintiff
submitted an additional letter raising concerns with
the proposed construction, including the failure of the
Freys to adequately maintain the pond on the property,
the lack of expert testimony concerning possible wet-
lands on the property, and previous issues with the
engineer working on the project. Id.
In 2001 or 2002, in furtherance of the plan to build
a single-family residence, Henry Frey went with Hank
Frey to the disputed property. While on the property
Henry Frey indicated where on the property he wished
to place the home. They then placed four stakes into
the ground where the corners of the residence would
be located. On a later date, Hank Frey returned to the
property with the Freys’ architect to show him where
on the property Henry Frey wished the residence to be
located. While Hank Frey does not specifically recall
seeing the stakes on the subsequent visit, the court
credits his testimony that he would not have been able
to indicate to the architect where the residence was
intended to be located if the stakes were not still in
place.
In 2002, Henry Frey passed away. Upon Henry Frey’s
death, the disputed property passed to Lily Frey as a
result of the joint tenancy with right of survivorship
established by the 1981 deed. Plaintiff’s exhibit 3. No
evidence was presented to the court that the plaintiff
challenged the transfer of the 100 percent undivided
interest in the property to Lily Frey. Between 1993,
when the plaintiff commenced his cause of action
against the Freys, and Henry Frey’s death in 2002, the
plaintiff and Henry Frey did not speak with each other.
In 2004, the plaintiff and Lily Frey began communicat-
ing again.
After Henry Frey’s death, Lily Frey continued to take
steps to carry out their plan of building a single-family
residence on the disputed property. In 2004, the plaintiff
was present in Lily Frey’s home in Avon, Connecticut,
when she met with her attorney, Roman Garbacik, and
her architect to discuss the construction plans. Lily Frey
asked the plaintiff if he wished to be the construction
manager for the project, but he declined on the ground
that he was too busy with his business. The plaintiff
told Lily Frey that he objected to the plans because he
felt Lily Frey was, at ninety-two years of age, a ‘‘little
old to decide to build a house.’’ Transcript, February
10, 2015, a.m. session, p. 85, ll. 10–11. The plaintiff also
testified that he objected to the plans because he ‘‘didn’t
want anyone building on the property [he] was using.’’
Id., ll. 2–3. He did not, however, raise this concern with
Lily Frey, her attorney, or any other party involved in
planning the residence, because he ‘‘didn’t want to start
any more problems.’’ Id., l. 14.
Between 2003 and 2004, Garbacik visited the disputed
property on at least three occasions to carry out tasks
related to the planning of the single-family residence.
On those occasions he was accompanied by other indi-
viduals including the architect, a surveyor, and the
building inspector.
At some point between 2004 and 2005, Garbacik testi-
fied that he was present in Lily Frey’s Avon, Connecti-
cut, home when he observed the plaintiff deliver a
package of lamb meat to Lily Frey and say, ‘‘This is the
rent.’’ Transcript, February 10, 2015, p.m. session, p.
55, ll. 21–27. Garbacik testified that he interpreted the
plaintiff’s statement to mean that it was rent for use of
the disputed property. While the court credits Garbac-
ik’s testimony that he observed the plaintiff deliver lamb
meat to Lily Frey at her Avon, Connecticut, home, the
court disagrees with Garbacik’s interpretation of the
purpose of such delivery. The court interprets the plain-
tiff’s conduct to be a gift of appreciation to his aunt,
Lily Frey, for the continued use of the property to graze
his sheep and grow hay rather than a rent payment.
In 2005, Lily Frey, through Garbacik, applied with
the New Hartford Planning and Zoning Commission for
approval of a special permit to construct a smaller,
single-family residence on the disputed property. A pub-
lic hearing was held on February 9, 2005, at which time
the application was approved. Defendants’ exhibit DD.
The plaintiff did not challenge the application on the
ground that he was the owner of the property in ques-
tion. The plaintiff testified, however, that he did not
raise ownership as a ground for challenging the applica-
tion because that was not a valid reason for the Planning
and Zoning Commission to deny a permit application,
which he knew because he had served on numerous
land use boards in New Hartford, including the Planning
and Zoning Commission. Transcript, February 11, 2015,
p. 36, ll. 1–8 and 15.
Also after Henry Frey’s death, Lily Frey took steps
to donate the disputed property to the Farmington River
Watershed Association (association). In 2003, the asso-
ciation became aware of Lily’s Frey’s desire to leave
the disputed property to the association upon her death.
At Lily Frey’s request, Hank Frey met with the associa-
tion’s director and others at the disputed property to
show them the site. Lily Frey also executed a new will
leaving the disputed property to the association. The
terms of the bequest stated that the land would remain
undeveloped, the association would host an annual fish-
ing derby for underprivileged children on the land, and
the association would erect a structure with a sign
memorializing Henry and Lily Frey.
In February, 2005, Lily Frey moved to Vero Beach,
Florida, into a home located next door to Stoddard.
Stoddard and Lily Frey met in May, 2005, and developed
a friendship. On multiple occasions the plaintiff visited
Lily Frey at her home in Florida. Stoddard testified that
on one such occasion she was present in Lily Frey’s
home and observed the plaintiff placing packages of
lamb meat in Lily Frey’s freezer. She testified that the
plaintiff stated that bringing the meat was ‘‘the least I
could do; I graze my sheep on her land.’’ Transcript,
February 10, 2015, p.m. session, p. 65, l. 18. The plaintiff
testified that he never delivered lamb meat to Lily Frey
in Florida. The court does not credit Stoddard’s testi-
mony that she witnessed a delivery of lamb meat to
Lily Frey at her Florida residence. The court finds it
more likely that Stoddard, in hindsight, interpreted a
different interaction between the plaintiff and Lily Frey
as a delivery of lamb’s meat.
Stoddard further testified that in 2006 she overheard
an argument between Lily Frey and the plaintiff con-
cerning Lily Frey’s will. She testified that after learning
that Lily Frey intended to leave the disputed property
to the association, the plaintiff became angry and told
her, ‘‘I’m not going to do anything else for you. You
make the repairs. You fix everything. You mow it. You
take care of everything. If you want to give it to them,
give it. I’m not doing anything else for you.’’ Id., p. 69,
ll. 4–8. The court credits Stoddard’s testimony.
Lily Frey passed away in June, 2006. Stoddard was
appointed personal representative of Lily Frey’s estate
in Florida and temporary administrator of her estate in
Connecticut. Stoddard submitted Lily Frey’s will, leav-
ing the disputed property to the association, to probate.
In 2006, the plaintiff commenced an action in Florida
contesting Lily Frey’s will on the grounds of undue
influence and lack of testamentary capacity.
In 2009, the plaintiff applied to the New Hartford
Inland Wetlands Commission for a declaratory ruling
allowing him to clean out a brook on the disputed prop-
erty. Plaintiff’s exhibit 9. In his application, the plaintiff
listed the location of the proposed activity as ‘‘24 Farm-
ington [River] Road,’’ the address of the Brander prop-
erty. Id. The application does not list the address of
the disputed property. Id. On June 22, 2009, the Inland
Wetlands Commission approved the declaratory ruling
for ‘‘Bert Brander, 24 Farmington River Road, Clean
out Brook.’’ Plaintiff’s exhibit 10. It published notice of
the approval with the same language in the Hartford
Courant in the June 30, 2009 issue. Plaintiff’s exhibit
11. Within ninety days of the declaratory ruling, the
plaintiff entered the disputed property with a mini exca-
vator and broke up beaver dams that were blocking the
brook and cleared out debris so that the brook would
flow freely.
DISCUSSION
Adverse Possession
‘‘It has long been the law in Connecticut that [t]he
doctrine of adverse possession is to be taken strictly.’’
(Internal quotation marks omitted.) Lisiewski v. Seidel,
95 Conn. App. 696, 711, 899 A.2d 59 (2006). ‘‘A finding
of adverse possession is to be made out 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 [of fact] 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.’’ (Internal quotation
marks omitted.) Id., 701.
‘‘The essential elements of adverse possession are
that the owner shall be ousted from possession and
kept out uninterruptedly for fifteen years under a claim
of right by an open, visible and exclusive possession of
the claimant without license or consent of the owner.’’
(Internal quotation marks omitted.) Anderson v. Poir-
ier, 121 Conn. App. 748, 752, 997 A.2d 604, cert. denied,
298 Conn. 904, 3 A.3d 68 (2010); see also General Stat-
utes § 52-575.2
‘‘[A] claim of right does not necessarily mean that
the adverse possessor claims that it is the proper title-
holder, but that it has the intent to disregard the true
owner’s right to possession. Horowitz v. F. E. Spencer
Co., 132 Conn. 373, 378, 44 A.2d 702 (1945); Mentz v.
Greenwich, 118 Conn. 137, 146, 171 A. 10 (1934).’’ (Inter-
nal quotation marks omitted.) Eberhardt v. Imperial
Construction Services, LLC, 101 Conn. App. 762, 768,
923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263
(2007). In other words, a claim of right requires that
the party seeking title through adverse possession must
‘‘[manifest] her unequivocal intent ‘to use the property
as her own and without the consent of the owner.’ 1525
Highland Associates, LLC v. Fohl, 62 Conn. App. 612,
622, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774
A.2d 137 (2001).’’ Eberhardt v. Imperial Construction
Services, LLC, supra, 769.
‘‘An adverse possessor may interrupt his or her con-
tinuous possession by acting in a way that acknowl-
edges the superiority of the real owner’s title. See Lazoff
v. Padgett, 2 Conn. App. 246, 250, 477 A.2d 155, cert.
denied, 194 Conn. 806, 482 A.2d 711 (1984). ‘[T]he pos-
session of one who recognizes or admits title in another,
either by declaration or conduct, is not adverse to the
title of such other. . . . Occupation must not only be
hostile in its inception, but it must continue hostile,
and at all times during the required period of fifteen
years challenge the right of the true owner, in order
to found title by adverse use upon it. . . . Such an
acknowledgment of the owner’s title terminates the
running of the statutory period, and any subsequent
adverse use starts the clock anew.’ . . . Kramer v. Pet-
isi, 53 Conn. App. 62, 71, 728 A.2d 1097, cert. denied,
249 Conn. 919, 733 A.2d 229 (1999); see also Top of
the Town, LLC v. Somers Sportsmen’s Assn., Inc., [69
Conn. App. 839, 843–44, 797 A.2d 18, cert. denied, 261
Conn. 916, 806 A.2d 1058 (2002)].’’ Allen v. Johnson, 79
Conn. App. 740, 746, 831 A.2d 282, cert. denied, 266
Conn. 929, 837 A.2d 802 (2003).
Further, ‘‘[a]lthough possession that is originally per-
missive may become hostile, it does so only if [the
permission] is ‘clearly repudiated by the occupant.’ 3
Am. Jur. 2d 149, Adverse Possession § 53 (1986); see
also A. Sedgwick & F. Wait, Trial of Title to Land (1882)
§ 730, p. 508; R. Tyler, Law of Adverse Enjoyment (1876)
p. 85. Such repudiation must be shown by ‘some clear,
positive, and unequivocal act brought home to the
owner’ or the use will be presumed to be permissive.
3 Am. Jur. 2d, 149, supra; A. Sedgwick & F. Wait, supra,
§ 749, at p. 539; R. Tyler, supra, at p. 877.’’ Top of the
Town, LLC v. Somers Sportsmen’s Assn., Inc., supra,
69 Conn. App. 845–46.
‘‘ ‘In determining what amounts to hostility, the rela-
tion that the adverse possessor occupies with reference
to the owner is important. If the parties are strangers
and the possession is open and notorious, it may be
deemed to be hostile. However if the parties are related,
there may be a presumption that the use is permissive.’
. . . [Woodhouse v. McKee, 90 Conn. App. 662, 673,
879 A.2d 486 (2005)].’’ (Emphasis in original.) Mulle v.
McCauley, 102 Conn. App. 803, 812, 927 A.2d 921, cert.
denied, 284 Conn. 907, 931 A.2d 265 (2007). ‘‘Histori-
cally, the existence of a familial relationship between
claimants has been [only] a factor in determining
whether possession of land is adverse . . . . A family
relationship between parties is only one of the facts to
be considered [with other facts]. . . . [A] family rela-
tionship without more is insufficient to support a find-
ing that the use at the time was with permission. . . .
[S]tanding alone a familial relationship neither puts an
end to the inquiry regarding permissive use nor shifts
the burden of proof. . . . Nevertheless, the familial
relationship may be an important factor when evaluated
in the context of all the other relevant factors guiding
the Court in its resolution of the . . . claim.’’ (Citations
omitted; internal quotation marks omitted.) Id., 814–15.
‘‘ ‘The legal significance of the open and visible ele-
ment [of adverse possession] is not . . . an inquiry as
to whether a record owner subjectively possessed an
understanding that a claimant was attempting to claim
the owner’s property as his own. Rather, the open and
visible element requires a fact finder to examine the
extent and visibility of the claimant’s use of the record
owner’s property so as to determine whether a reason-
able owner would believe that the claimant was using
that property as his or her own.’ Schlichting v. Cotter,
109 Conn. App. 361, 368, 952 A.2d 73, cert. denied, 289
Conn. 944, 959 A.2d 1009 (2008).’’ Anderson v. Poirier,
supra, 121 Conn. App. 753–54.
‘‘ ‘In general, exclusive possession can be established
by acts, which at the time, considering the state of the
land, comport with ownership; viz., such acts as would
ordinarily be exercised by an owner in appropriating
land to his own use and the exclusion of others. . . .
Thus, the claimant’s possession need not be absolutely
exclusive; it need only be a type of possession which
would characterize an owner’s use. . . . It is sufficient
if the acts of ownership are of such a character as to
openly and publicly indicate an assumed control or use
such as is consistent with the character of the premises
in question.’ . . . Roche v. Fairfield, 186 Conn. 490,
502–503, 442 A.2d 911 (1982).’’ Mulle v. McCauley,
supra, 102 Conn. App. 817.
In the present case, the plaintiff has used the disputed
property from 1984 until the present for grazing sheep
and growing hay. The court finds, however, that from
1984 until 1995, when the plaintiff, through counsel,
received a letter demanding he cease and desist using
the disputed property, the plaintiff’s use of the property
was not under a claim of right and was with the permis-
sion of the owners, Henry and Lily Frey. This conclusion
is supported by the fact that the plaintiff testified that
when he purchased the Brander property in 1983, he
believed that the Freys would leave him the disputed
property in their wills. The plaintiff’s own description
of the status of the property evidences that his under-
standing at the time he began using the disputed prop-
erty was that he had an interest that would only vest
upon the deaths of Henry and Lily Frey. The plaintiff’s
belief that he would inherit the land in the future does
not support a belief that he presently possessed the
land to the exclusion of the true owners, the Freys.
The court also notes that Hank Frey testified, and the
plaintiff did not dispute, that prior to moving to Virginia,
Henry Frey provided guidance to the plaintiff on the
raising of sheep and construction of fencing on the
Brander and disputed properties. Such guidance is indi-
rect evidence that the plaintiff’s use of the disputed
property to graze sheep and grow hay was with the
knowledge and permission of the Freys. Therefore, the
court finds that the plaintiff’s use of the property from
1983 through 1995 does not satisfy the claim of right
element of adverse possession. Thus, any claim of
adverse possession by the plaintiff must be based on
his use of the property from 1995 forward and must
constitute an uninterrupted fifteen year period. At the
earliest, the plaintiff could satisfy the statutory period
in 2010.
The 1995 demand letter is evidence that, at that time,
the Freys revoked their previous grant of permission
for the plaintiff to use the disputed property. When
the plaintiff promptly reentered the disputed property,
removed the boundary fence, and resumed use of the
property for grazing and haying, he manifested an intent
to possess the property in a manner at odds with the
titleholders, the Freys. From 1995 until 2004, the plain-
tiff had no direct contact with Henry or Lily Frey.
The court finds, however, that in 2004 the plaintiff
reconciled with Lily Frey. By his own testimony, the
plaintiff did not want to create any more conflict with
his aunt after their reconciliation. The plaintiff’s behav-
ior toward Lily Frey from their reconciliation to her
death in June, 2006, supports a conclusion that he used
the disputed property during that time either with her
permission or, at the very least, with an understanding
that his use was secondary to any use Lily Frey made
of the property. Specifically, on at least one occasion
the plaintiff brought Lily Frey a gift of lamb meat in
appreciation for being able to use the disputed property.
Further, the plaintiff was aware of Lily Frey’s plan to
build a residence on the disputed property and did not
challenge her because he did not want to reignite their
conflict, despite the fact that the placement of a resi-
dence on the disputed property would limit his ability
to use the property for grazing sheep and growing hay.
While the plaintiff correctly notes in his posttrial brief
that no evidence was presented of a specific conversa-
tion between Lily Frey and the plaintiff where he asked
and she granted him permission to use the disputed
property, lack of such evidence does not determine the
outcome of this claim because the plaintiff has the
burden to show by clear and convincing evidence that
he used the disputed property under a claim of right. See
Lisiewski v. Seidel, supra, 95 Conn. App. 701. Looking at
all of the evidence, particularly the plaintiff’s deferential
conduct toward Lily Frey even when confronted with
her plan to use the property in a way that would limit
his current use of the property,3 the plaintiff has not
met this heightened burden. Therefore, the court finds
that from 2004 until 2006, the plaintiff did not occupy
the disputed property under a claim of right. Because
the period of adverse use was interrupted in 2004, the
plaintiff only continually adversely occupied the dis-
puted property from 1995 to 2004, a period of nine
years. A nine year period of possession does not satisfy
the statutory period of fifteen years required by § 52-
575 (a). Further, any period of possession commencing
at the time of Lily Frey’s death in June, 2004, could not
satisfy the fifteen year period because only eleven years
have passed since her death to today.
It is unnecessary to determine whether the plaintiff
satisfied all of the other elements of adverse possession
because he did not continually occupy the disputed
property under a claim of right without permission for
the statutory period of fifteen years. The court con-
cludes that the plaintiff has failed to meet his burden
of proving, by clear and convincing evidence, that he
has acquired title to the disputed property by way of
adverse possession. Therefore, the court finds for the
defendants on the claim of adverse possession.
Prescriptive Easement
General Statutes § 47-37 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 sec-
tion, [our Supreme Court] repeatedly has explained that
[a] party claiming to have acquired an easement by
prescription must demonstrate that the use [of the prop-
erty] has been open, visible, continuous and uninter-
rupted 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 commu-
nity 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.’ . . . Waterbury
v. Washington, 260 Conn. 506, 576–77, 800 A.2d 1102
(2002).’’ Slack v. Greene, 294 Conn. 418, 427–28, 984
A.2d 734 (2009).
‘‘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 circum-
stances of the parties and the nature of the [use]. . . .
Gregory’s, Inc. v. Baltim, 142 Conn. 296, 299–300, 113
A.2d 588 (1955). A trier has a wide latitude in drawing
an inference that a[use] was under a claim of right.
Id., 300.’’ (Internal quotation marks omitted.) Slack v.
Greene, supra, 294 Conn. 428.
‘‘It is well established that evidence that the party
claiming a prescriptive use never asked for or was given
permission to use the property will support a finding
that the use was adverse. See, e.g., [Gallo]-Mure v. Tom-
chik, 78 Conn. App. 699, 708, 829 A.2d 8 (2003) ([t]he
essence of the determination of whether the claim to
the property was made as of right is . . . whether the
individual claiming the prescriptive easement acknowl-
edged the ownership rights of the landowner in any
way); id., 709 (plaintiff’s testimony that she did not need
permission to use right-of-way supported trial court’s
determination that she used [it] as if it was her own
property, which is the primary indication that the use
was not permissive); see also McManus v. Roggi, 78
Conn. App. 288, 296, 826 A.2d 1275 (2003) (plaintiff’s
testimony that she never asked for permission to use
property at issue supported trial court’s determination
that use was adverse); Lisiewski v. Seidel, [72 Conn.
App. 861, 874, 806 A.2d 1121] (testimony that permission
[to use driveway] was never granted supported determi-
nation that use was adverse) [cert. denied, 262 Conn.
921, 922, 812 A.2d 865 (2002)]; DiSorbo v. Grand Associ-
ates One Ltd. Partnership, 8 Conn. App. 203, 206, 512
A.2d 940 (1986) (testimony by plaintiff’s husband that
he used defendant’s driveway whenever he wanted to
and that he never sought permission to use [it] sup-
ported determination of adverse possession).’’ (Internal
quotation marks omitted.) Slack v. Greene, supra, 294
Conn. 435–36.
‘‘Moreover, ‘[i]t is not the plaintiff’s burden to estab-
lish that an otherwise apparently adverse use of the
defendant’s property was conducted without the defen-
dant’s permission or license. . . . When the defendant
raises permission by way of a special or affirmative
defense, the burden of proof rests on the defendant
. . . who must prove the special defense by a fair pre-
ponderance of the evidence.’ . . . Zabaneh v. Dan
Beard Associates, LLC, 105 Conn. App. 134, 139–40,
937 A.2d 706, cert. denied, 286 Conn. 916, 945 A.2d 979
(2008). Indeed, a contrary rule would unfairly ‘charge
a party with proving a negative.’ Lisiewski v. Seidel,
[supra, 72 Conn. App. 873].’’ Slack v. Greene, supra, 294
Conn. 435.
In the present case, just as with the plaintiff’s claim
of adverse possession, the plaintiff’s claim of a prescrip-
tive easement is dependent upon whether the plaintiff’s
use was under a claim of right or whether it was with
the permission of the Freys. The difference between
the two claims, however, is the burden of proof. While
the plaintiff had the burden to prove adverse possession
by clear and convincing evidence, he must only prove
by a preponderance of the evidence the elements of
prescriptive easement. Further, for his claim of a pre-
scriptive easement the burden is on the defendants to
prove that the plaintiff had permission to use the dis-
puted property for grazing sheep and growing hay.
While the plaintiff has a lesser burden to prove his
claim of a prescriptive easement, he has still failed to
prevail on his claim. As discussed above, the plaintiff’s
own testimony evidences that he used the disputed
property from 1983 until 1995 with the permission of
the Freys. His relationship with the Freys during that
time was friendly, with Henry Frey providing guidance
to the plaintiff on farming and maintenance of the
property.
In 1995, the plaintiff initiated a period of adverse
use when he removed the dividing fence between the
Brander and disputed properties and resumed grazing
sheep and growing hay on the disputed property. The
Freys also used the disputed property during this time,
performing maintenance to the pond and taking steps
to build a residence. Such use does not change the fact
that the plaintiff’s use was adverse because a claim of
prescriptive easement does not require a plaintiff’s use
of a property to be exclusive.
The period of adverse use ended, however, when the
plaintiff reconciled with Lily Frey in 2004. By his own
testimony, he did not want to do anything that would
jeopardize his relationship with Lily Frey and did not
assert any claim to the property with her. In addition,
the plaintiff’s argument with Lily Frey at her Vero
Beach, Florida, home evidences an understanding
between the plaintiff and Lily Frey that he was conduct-
ing some activities on the disputed property, including
mowing the hay, for the benefit of Lily Frey. In light of
this evidence, the court finds that the plaintiff has not
proven by a preponderance of the evidence that he used
the disputed property under a claim of right from 2004
to 2006.
Further, even if the defendant had met his burden of
proof that from 2004 to 2006 he used the property under
a claim of right, the defendants have met their burden
to prove by a preponderance of the evidence that the
plaintiff had permission to use the property from 2004
to 2006. Specifically, Garbacik testified that the plaintiff
brought a gift of lamb meat to Lily Frey for his use of
the disputed property. The court credited his testimony
and interprets the gift as an act of appreciation for the
use of the property. If the plaintiff was using the prop-
erty without permission, he would not have a reason
to express gratitude to Lily Frey. Further, Stoddard
testified that she heard the plaintiff arguing with Lily
Frey and, during the argument, the plaintiff stated he
would no longer mow or maintain the property. The
plaintiff’s statement during the argument supports a
conclusion that his use of the disputed property, at least
insofar as his mowing hay, was for both his own benefit
and the benefit of Lily Frey. The court concludes that
from 2004 to 2006 it is more likely than not that the
plaintiff used the disputed property with Lily Frey’s per-
mission.
As with his claim of adverse possession, any adverse
use by the plaintiff from 2006 to the present cannot
satisfy a claim of prescriptive easement because it will
not meet the fifteen year statutory period pursuant to
§ 47-37. Therefore, the plaintiff has failed to prove a
claim of prescriptive easement, and the court finds for
the defendants on the plaintiff’s claim of a prescrip-
tive easement.
CONCLUSION
For the foregoing reasons, the court finds for the
defendants and against the plaintiff on both counts of
the complaint, alleging adverse possession and pre-
scriptive easement.
So ordered.
* Affirmed. Brander v. Stoddard, 173 Conn. App. , A.3d (2017).
1
Frey was the plaintiff’s aunt. Henry Frey was her husband, making him
the plaintiff’s uncle by marriage.
2
General Statutes § 52-575 (a) provides: ‘‘No person shall make entry into
any lands or tenements but within fifteen years next after his right or title
to the same first descends or accrues or within fifteen years next after
such person or persons have been ousted from possession of such land or
tenements; and every person, not entering as aforesaid, and his heirs, shall
be utterly disabled to make such entry afterwards; and no such entry shall
be sufficient, unless within such fifteen-year period, any person or persons
claiming ownership of such lands and tenements and the right of entry
and possession thereof against any person or persons who are in actual
possession of such lands or tenements, gives notice in writing to the person
or persons in possession of the land or tenements of the intention of the
person giving the notice to dispute the right of possession of the person or
persons to whom such notice is given and to prevent the other party or
parties from acquiring such right, and the notice being served and recorded
as provided in sections 47-39 and 47-40 shall be deemed an interruption of
the use and possession and shall prevent the acquiring of a right thereto by
the continuance of the use and possession for any length of time thereafter,
provided an action is commenced thereupon within one year next after the
recording of such notice. The limitation herein prescribed shall not begin
to run against the right of entry of any owner of a remainder or reversionary
interest in real estate, which is in the adverse possession of another, until
the expiration of the particular estate preceding such remainder or reversion-
ary estate.’’
3
The plaintiff’s failure to assert his claim to anyone during the period
that the Freys were taking steps to build a residence on the disputed property
is also evidence that the plaintiff’s use of the property was not exclusive.