Bennett v. Bowditch

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
THOMAS E. BENNETT v. PETER W.
BOWDITCH ET AL.
(AC 37243)
Beach, Alvord and Mullins, Js.
Submitted on briefs October 9, 2015—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee.)
Thomas L. Kanasky, Jr., filed a brief for the appel-
lants (defendants).
Ann Marie Willinger and James A. Lenes filed a brief
for the appellee (plaintiff).
Opinion
BEACH, J. The defendants, Peter W. Bowditch and
Wendy A. Bowditch, appeal from the judgment of the
trial court rendered in favor of the plaintiff, Thomas
Bennett. On appeal, the defendants claim that the court
erred in finding that the plaintiff met his burden of
proof as to (1) the elements of adverse possession of
property, and (2) the extinguishment of their easement
rights. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts as found by the trial court are
relevant to this appeal. The plaintiff’s father, Patrick
Bennett, purchased property located at 112–114 Ben-
nett Street in Bridgeport in 1963. He transferred title
to the property to the plaintiff in 2006. Since 1995, the
defendants have owned commercial property located
at 2926–2930 Fairfield Avenue in Bridgeport, which is
adjacent to the plaintiff’s property.1
There are three areas of land at issue in this appeal,
two distinct parcels of property and an easement over
a different parcel of property. The defendants held title
in fee to parcels one and two and also owned an ease-
ment in the form of a passway extending over the plain-
tiff’s property. Parcel one was a rectangular area
approximately ten feet wide and thirty feet long that
was located in the rear of the plaintiff’s property,
between the plaintiff’s property and the defendants’
property. A chain-link and razor wire fence, which had
been in place for decades, separated parcel one from
the defendants’ Fairfield Avenue property.2 Parcel two
was a triangular area running from the front of the
plaintiff’s house on Bennett Street at its apex to the
rear of parcel one. The easement was an eight foot
passway that extended across the plaintiff’s property
from Bennett Street to the rear of the property and was
adjacent to parcels one and two. The passway rights
benefited the defendants’ property and initially were
established in a 1916 deed. The plaintiff used parcel
one as part of his driveway and as a parking area. He
used parcel two as part of his driveway for access to
the rear of his property. The defendants’ passway rights
extended over the remainder of the plaintiff’s driveway
and provided access from Bennett Street to parcels one
and two.
For the entire period since purchasing the Bennett
Street property in 1963, Patrick Bennett either had
resided in the home or had rented it to relatives. He or
the plaintiff had continuously maintained the property,
as well as the three areas of land at issue. Patrick Ben-
nett had paved parcels one and two with asphalt, along
with the portion of the driveway that he owned in fee.
The plaintiff later covered the asphalt with crushed
stones to fill in holes. Either Patrick Bennett or the
plaintiff had removed snow from the driveway and the
two parcels since 1963, and, at least since that time,
the parcels had been used as part of the driveway for
the plaintiff’s property. The plaintiff installed a privacy
fence along the chain-link fence separating parcel one
from the rest of the defendants’ Fairfield Avenue prop-
erty. According to a longtime neighbor of the plaintiff,
the chain-link fence had separated the defendants’ Fair-
field Avenue property from parcel one since at least
the 1950s. Since Patrick Bennett purchased the Bennett
Street property in 1963, the three areas in contention
never had been used by anyone other than the plaintiff
and members of his family.3 There was no evidence that
the defendants or their predecessors in title ever had
used parcels one or two or the passway that was over
the remainder of the plaintiff’s driveway.
The plaintiff commenced this action against the
defendants on August 23, 2011, to quiet title pursuant
to General Statutes § 47-314 and to acquire the three
areas by adverse possession pursuant to General Stat-
utes § 52-575.5 Following a trial to the court on June
19, 2014, the court rendered judgment in favor of the
plaintiff as to all three areas of land. The court found
that the plaintiff had proven by clear and convincing
evidence that he had acquired title to parcels one and
two by adverse possession and that the plaintiff’s title
to his land had thus become unencumbered by the
defendant’s easement. The court further found that title
had vested in Patrick Bennett in 1978 because he had
maintained actual, open, notorious, hostile, continuous,
and exclusive possession of the property for the fifteen
year statutory period, which began in 1963. This
appeal followed.
We set forth the standard of review necessary for
our resolution of this appeal. ‘‘[T]o establish title by
adverse possession, the claimant must oust an owner
of possession and keep such owner out without inter-
ruption for fifteen years by an open, visible and exclu-
sive 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. . . . It is sufficient if there is
an adverse possession continued uninterruptedly for
fifteen years whether by one or more persons. . . .
[T]he possession [however] must be connected and con-
tinuous. . . . The use is not exclusive if the adverse
user merely shares dominion over the property with
other users. . . .
‘‘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 sus-
tained if evidence induces in the mind of the trier a
reasonable belief that the facts asserted are highly prob-
ably 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. . . .
‘‘Despite [this] exacting standard, our scope of review
is limited. . . . Because adverse possession is a ques-
tion of fact for the trier . . . the court’s findings as to
this claim are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . We cannot retry the
facts or pass on the credibility of the witnesses. . . .
A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . A trial court’s findings in an adverse possession
case, if supported by sufficient evidence, are binding
on a reviewing court.’’ (Citations omitted; internal quo-
tation marks omitted.) Skelly v. Brucher, 134 Conn.
App. 337, 340–41, 38 A.3d 261 (2012). With this standard
in mind, we address each of the defendants’ claims.
I
We first discuss parcels one and two. The defendants
argue that the plaintiff failed to prove all of the elements
of adverse possession by clear and convincing evidence.
Specifically, they argue that the plaintiff did not plead6
that possession by the plaintiff and Patrick Bennett
was without the consent, permission, or license of the
owners of the property and that the plaintiff did not
offer any proof as to that element. We are not persuaded
that the court’s finding of lack of consent was clearly
erroneous. Rather, we conclude that there was suffi-
cient evidence to support this finding.
In its memorandum of decision, the court found that
‘‘[t]he evidence clearly and convincingly established
[that] since 1963, Patrick Bennett, predecessor in own-
ership, made improvements upon the three parcels
without the consent of the defendants. He also used and
occupied those three parcels without the permission or
consent of the defendants.’’ The court further found
that ‘‘the evidence clearly and convincingly establishes
[that the plaintiff has] established hostile occupancy of
the parcels.’’ Hostile occupancy implies lack of consent.
See Woodhouse v. McKee, 90 Conn. App. 662, 672, 879
A.2d 486 (2005) (‘‘[o]ur resolution of this appeal directs
us to the element of hostility, that is the absence of
consent’’). ‘‘As a general proposition, to satisfy the hos-
tility requirement of adverse possession, a claimant’s
possession of the disputed land, from its inception, must
be without permission, license or consent of the owner
and must continue to be so throughout the required
fifteen year period.’’ (Footnotes omitted.) Mulle v.
McCauley, 102 Conn. App. 803, 813–14, 927 A.2d 921,
cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
Our review of the record shows that there was evi-
dence adduced at trial to support the court’s finding
that the plaintiff’s use of parcels one and two was with-
out the consent of the defendants or their predecessors
in title. The plaintiff and his family repaired the drive-
way, removed snow, and landscaped the area continu-
ally since 1963. The evidence presented clearly showed
that neither the defendants nor their predecessors in
title had ever used or maintained either parcel one or
parcel two since at least 1963. At all relevant times,
access to the parcels from the defendants’ property was
blocked by a chain-link and/or wood fence. The plaintiff
and his predecessor in title exercised dominion and
control over parcels one and two in a manner consistent
with ownership since Patrick Bennett bought the prop-
erty in 1963.
We conclude that the plaintiff presented sufficient
evidence at trial to allow the trial court to find by clear
and convincing evidence that the plaintiff’s use of par-
cels one and two was without the consent of the defen-
dants. We will not disturb that finding on appeal.
II
We next turn to the trial court’s conclusion that the
easement was extinguished. The defendants claim that
the trial court improperly found that the plaintiff had
presented sufficient evidence to prove that their ease-
ment rights had been extinguished. We disagree. The
easement in question was the eight foot passway over
the plaintiff’s property that runs adjacent to parcels one
and two.
‘‘[O]ur case law makes clear that a claim of extin-
guishment of a right-of-way properly is established
through prescriptive use.’’ Mierzejewski v. Brownell,
102 Conn. App. 413, 419, 925 A.2d 1126, cert. denied,
284 Conn. 917, 931 A.2d 936 (2007). ‘‘[I]f the servient
owner . . . should by adverse acts lasting through the
prescriptive period obstruct the dominant owner’s . . .
enjoyment, intending to deprive him of the easement,
he may by prescription acquire the right to use his own
land free from the easement.’’ (Internal quotation marks
omitted.) Russo v. Terek, 7 Conn. App. 252, 255, 508
A.2d 788 (1986). ‘‘A servient owner can extinguish an
easement by prescription by demonstrating that the
use of the property has been open, visible, continuous,
uninterrupted and under a claim of right for a period
exceeding fifteen years. . . . The standard of proof
required for the extinguishment of an easement by
adverse use is that of a fair preponderance of the evi-
dence. . . . Whether an easement has been extin-
guished by the adverse acts of a servient owner
primarily presents a question of fact for the trier. . . .
When the factual basis of the court’s decision is chal-
lenged, the reviewing court must determine whether
the facts are supported by the evidence or whether they
are clearly erroneous. . . . In such cases, the trier’s
determination of fact will be disturbed only in the clear-
est of circumstances, where its conclusions could not
reasonably be reached.’’ (Citations omitted; internal
quotation marks omitted.) Mierzejewski v. Brownell,
supra, 421.
The trial court found that the plaintiff’s property and
parcels one and two had been completely surrounded
by a chain-link and razor wire fence blocking access
to the defendants’ Fairfield Avenue property since at
least the 1950s. This fence completely cut off access to
the easement from the defendants’ Fairfield Avenue
property. Under certain circumstances, a chain-link
fence across an easement is sufficient to commence
the running of the period of prescriptive use. See Public
Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn.
App 380, 381–82, 567 A.2d 389 (1989). The court found
that the plaintiff had maintained actual, open, notori-
ous, hostile, continuous, and exclusive possession of
the property, including the easement, for the fifteen year
statutory period, and we will not disturb that finding on
appeal.
Furthermore, the trial court found that title to parcels
one and two vested in Patrick Bennett in 1978 because
he maintained actual, open, notorious, hostile, continu-
ous, and exclusive possession of the property for the
fifteen year statutory period beginning in 1963. By
acquiring parcels one and two by adverse possession,
the plaintiff’s predecessor in title deprived the defen-
dants’ predecessor in title of the easement because it
no longer provided access to the defendants’ property.
Instead, the passway ran from Bennett Street across
the plaintiff’s property to the rear of his property, adja-
cent to parcel one, without access to the defendants’
property. Because the defendants were ousted from
parcels one and two, there was no longer any use at
all for the easement. Thus, when title to parcels one
and two vested in Patrick Bennett, the easement was
extinguished.7 We conclude that the findings are suffi-
ciently supported by the evidence and that the court’s
conclusions were lawfully drawn.
The judgment is affirmed.
In this opinion the other judges concurred.
APPENDIX
1
See appendix. A sketch of the area in question was derived from plaintiff’s
exhibit 1. We have redacted extraneous information and have labeled the
areas so that the wording is consistent with this opinion.
2
In 2011 or 2012, both the chain-link and razor wire fence and the wood
privacy fence that separated parcel one from the defendants’ Fairfield Ave-
nue property were removed in order for the defendants to add a new parking
lot on the Fairfield Avenue property. The plaintiff subsequently reinstalled
the wood privacy fence.
3
Andrew F. Mizak III, a neighbor who lived adjacent to the plaintiff’s
property, installed a shed in approximately 2009 and occasionally used the
plaintiff’s driveway to access the shed when loading and unloading materials
into the shed. Mizak never went as far as parcel one when using the driveway,
and he never parked on the plaintiff’s property or on the parcels. Mizak
presented the only evidence of anyone, other than the plaintiff and members
of his family, using the plaintiff’s driveway. This sporadic use of the driveway
did not defeat the ‘‘exclusive’’ requirement of adverse possession. See Roche
v. Fairfield, 186 Conn. 490, 502, 442 A.2d 911 (1982). Further, these acts
happened after the statutory time period for adverse possession had expired
and the plaintiff had become the owner of the entire driveway by
adverse possession.
4
General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may
be brought by any person claiming title to, or any interest in, real or personal
property, or both, against any person who may claim to own the property,
or any part of it, or to have any estate in it, either in fee, for years, for life
or in reversion or remainder, or to have any interest in the property, or any
lien or encumbrance on it, adverse to the plaintiff, or against any person
in whom the land records disclose any interest, lien, claim or title conflicting
with the plaintiff’s claim, title or interest, for the purpose of determining
such adverse estate, interest or claim, and to clear up all doubts and disputes
and to quiet and settle the title to the property. . . .’’
5
General Statutes § 52-575 (a) provides in relevant part: ‘‘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. . . .’’
6
The defendants did not brief the claim concerning pleading; thus, we
will not consider it. ‘‘It is well settled that [w]e are not required to review
claims that are inadequately briefed.’’ (Internal quotations marks omitted.)
Nowacki v. Nowacki, 129 Conn. App. 157, 163, 20 A.3d 702 (2011).
7
‘‘While an express easement generally does not terminate even when
the necessity or purpose of the easement ceases, an easement granted for
a particular purpose may terminate as soon as such purpose ceases to exist,
is abandoned, or is rendered impossible of accomplishment.’’ (Footnotes
omitted.) 28A C.J.S. 367–68, Easements § 160 (2008).