Hum v. Silvester

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CHI HUM ET AL. v. MARK S. SILVESTER ET AL.
(AC 39977)
Lavine, Alvord and Beach, Js.
Syllabus
The plaintiffs sought to enjoin the defendants, owners of real property
abutting the plaintiffs’ real property, from using a driveway that is located
on the plaintiffs’ property and that is the only means of access to both
properties from a nearby road. The plaintiffs purchased their property
in 2004. The defendants purchased their property in 2013 from the
previous owner, D, who had built a house on that property in 1986 and
acquired a certificated of occupancy in 1987. Shortly after the defendants
acquired their property from D, the plaintiff asked them to stop using
the driveway and subsequently commenced this action. The trial court
rendered judgment for the defendants, concluding that they established
that they had acquired both a prescriptive easement and an implied
easement over the driveway. Thereafter, the plaintiffs appealed to this
court, claiming, inter alia, that the trial court incorrectly determined
that the defendants were entitled to a prescriptive easement. Held that
the trial court correctly determined on the basis of the evidence that
the defendants had a prescriptive easement over the driveway, as there
was ample evidence to support the court’s finding that the defendants’
and D’s use of the driveway was open, visible, and continuous for more
than fifteen years under a claim of right; the documentary and testimonial
evidence established that D built a house on what is now the defendants’
property in 1986 and owned the property until it was conveyed to the
defendants in 2013, that the plaintiffs were aware in 2004 that D resided
there, that the driveway was the only means of egress and ingress to
the property, and that D used that driveway to access the property, and,
because D was the defendants’ predecessor in title, the defendants could
utilize the doctrine of tacking to supplement their use of the driveway
with that of D’s use in order to satisfy the statutory period required for
a prescriptive easement.
Argued April 19—officially released July 17, 2018
Procedural History
Action for a judgment determining the rights of the
parties as to a claimed right-of-way on certain of the
plaintiffs’ real property, and for other relief, brought to
the Superior Court in the judicial district of New London
and tried to the court, Hon. Robert C. Leuba, judge trial
referee; judgment for the defendants, from which the
plaintiffs appealed to this court. Affirmed.
Lloyd L. Langhammer, with whom, on the brief, was
Shruthi Reddy, for the appellants (plaintiffs).
F. Jerome O’Malley, for the appellees (defendants).
Opinion
LAVINE, J. This appeal centers on an easement for
shared use of a driveway over a lot of land in Stonington
providing access to an adjacent lot. The plaintiffs, Chi
Hum and Mai Lee Yue Hum, owners of the burdened
lot, appeal from the judgment of the trial court, rendered
after a trial to the court, in favor of the defendants,
Mark S. Silvester and Nancy J. Hoerrner. On appeal,
the plaintiffs claim that the trial court improperly found
on the basis of the evidence that (1) the defendants
were entitled to a prescriptive easement over the drive-
way, (2) the defendants were entitled to an implied
easement over the driveway, and (3) granting an implied
easement was legally consistent with the grant of a
prescriptive easement. We affirm the judgment of the
trial court.1
The court found the following uncontested facts. The
plaintiffs acquired their lot, 62 Wilbur Road, in 2004.
The defendants purchased the adjacent lot, 60 Wilbur
Road, in 2013. The defendants’ lot contains a house that
was constructed in approximately 1986 by the previous
owner. Both the plaintiffs’ lot and the defendants’ lot
were once part of a larger parcel of land that was subdi-
vided. Each lot is shaped like a ‘‘flag lot,’’ which means
that it is connected to Wilbur Road through contiguous
strips of land. The sole means of accessing the parties’
lots is the driveway located on the plaintiffs’ strip of
land, which both parties used. Although the defendants
have a strip of land connecting their lot to Wilbur Road,
it is inclined, laden with trees and boulders, and never
was developed or cleared for use.
Not long after the defendants acquired their property,
the plaintiffs asked them to stop using the driveway.
The plaintiffs commenced the present action on August
19, 2015, seeking an injunction prohibiting the defen-
dants from using the driveway and seeking damages
for claimed harm to vegetation on their property. The
court found that the defendants established that they
had acquired both a prescriptive easement and an
implied easement over the driveway.
Regarding the prescriptive easement, the court found
that ‘‘the defendants and their predecessors in title have
used the gravel driveway to access their lot since the
property was developed in 1986. It is reasonable and
logical to infer that since there has been no other usable
access to the defendants’ lot, the owner of that lot
used the gravel driveway in a manner which was open,
visible, continuous and uninterrupted for more than
[fifteen] years and made under a claim of right.’’
The plaintiffs claim that the court improperly found
that the defendants were entitled to a prescriptive ease-
ment. Specifically, the plaintiffs argue that there was
insufficient evidence of prior use of the driveway by
the defendants’ predecessor in title to establish open,
visible, continuous and uninterrupted use for the court
to utilize the doctrine of tacking.2 According to the
plaintiffs, it was not proven that the defendants’ prede-
cessor in title resided on the property, how the prede-
cessor used the driveway, and how the predecessor
accessed the property during the construction. We
are unpersuaded.
‘‘[General Statutes §] 47-37 provides for the acquisi-
tion 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 uninter-
rupted for fifteen years. . . . [A] party claiming to have
acquired an easement by prescription must demon-
strate 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. . . . 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.’’
(Citations omitted; internal quotation marks omitted.)
Slack v. Greene, 294 Conn. 418, 427, 984 A.2d 734 (2009).
It is well established that ‘‘[u]nder Connecticut law,
a party claiming a prescriptive easement may tack on
the statutory period of predecessors in interest when
there is privity of estate.’’ Murphy v. EAPWJP, LLC,
306 Conn. 391, 393 n.4, 50 A.3d 316 (2012). Parties can
therefore support their claim of a prescriptive ease-
ment, and meet the fifteen year requirement, through
use of the driveway by their predecessor in title that
was open, visible, and continuous under a claim of
right.3 See id.; see also Caminis v. Troy, 300 Conn. 297,
310 n.14, 12 A.3d 984 (2011).
‘‘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. . . .
When the factual basis of a trial court’s decision [regard-
ing the existence of a prescriptive easement] is chal-
lenged, our function is to determine whether, in light
of the pleadings and evidence in the whole record, these
findings of fact are clearly erroneous. . . . 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 convic-
tion that a mistake has been committed. . . . In making
this determination, every reasonable presumption must
be given in favor of the trial court’s ruling.’’ (Citation
omitted; internal quotation marks omitted.) Slack v.
Greene, supra, 294 Conn. 426–27.
‘‘[A] finding is not clearly erroneous merely because
it relies on circumstantial evidence. . . . [T]riers of
fact must often rely on circumstantial evidence and
draw inferences from it. . . . Proof of a material fact
by inference need not be so conclusive as to exclude
every other hypothesis. It is sufficient if the evidence
produces in the mind of the trier a reasonable belief in
the probability of the existence of the material fact. . . .
In short, the court, as fact finder, may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Citation omitted; internal quotation marks omitted.)
Lyme Land Conservation Trust, Inc. v. Platner, 325
Conn. 737, 755–56, 159 A.3d 666 (2017).
On the basis of our review of the record, we conclude
that there is ample evidence to support the court’s find-
ing that the defendants and their predecessor used the
driveway in a manner that was open, visible, and contin-
uous for more than fifteen years under a claim of right.
Documentary and testimonial evidence shows that the
defendants’ predecessor in title acquired the lot in 1985,
obtained a building permit in 1986, built a house on the
lot, and acquired a certificate of occupancy in 1987. It
is undisputed that the predecessor in title owned the lot
until 2013, when the defendants purchased the property.
Chi Hum testified that the plaintiffs were aware, in 2004,
that the defendants’ predecessor in title resided in the
house on the adjacent lot, that the driveway was the
only means of egress and ingress to the lot, and that the
driveway was being used to access it.4 It was, therefore,
reasonable for the court, in its fact finding role, to draw
the inference that the defendants’ predecessor in title
made open, visible, and continuous use of the drive-
way—the only means of ingress and egress to the lot
during the construction and subsequent use of the
house—up until the defendants purchased the lot, a
time period exceeding fifteen years. We conclude, there-
fore, that the court’s finding that the use of the driveway
by the defendants’ predecessor in title was open, visible,
and continuous for more than fifteen years under a
claim of right was not clearly erroneous. Thus, the court
properly found on the basis of the evidence that the
defendants had a prescriptive easement.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Because we conclude that the court properly found that the defendants
were entitled to a prescriptive easement over the driveway, we need not
address the plaintiffs’ remaining claims.
2
The doctrine of tacking allows a party to supplement its use of land
with the use of a predecessor in interest in order to meet a statutory period,
as long as there is privity of estate. See, e.g., Murphy v. EAPWJP, LLC, 306
Conn. 391, 393 n.4, 50 A.3d 316 (2012). As the defendants acquired the
property in 2013, the establishment of a prescriptive easement relied on the
tacking of the use by the defendants’ immediate predecessor in title.
3
On appeal, the plaintiffs do not challenge the trial court’s finding regard-
ing the defendants’ and their predecessor’s use ‘‘under a claim of right.’’
4
The defendants’ attorney cross-examined Chi Hum as follows:
‘‘Q. Were you aware that Mr. Dokladal [the defendants’ predecessor in
title] was your neighbor residing at 60 Wilbur Road when you moved in
in 2004?
‘‘A. Yes.
‘‘Q. Okay. Now you never objected to Mr. Dokladal’s use of the gravel
driveway, correct?
‘‘A. Correct.
‘‘Q. And you never claimed that he was trespassing on your property by
using the driveway.
‘‘A. Correct.
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‘‘Q. Mr. Hum, was the only way Mr. Dokladal could drive to and from his
house at 60 Wilbur Road via the gravel driveway that’s in dispute here today?
‘‘A. As far as I know, yes.’’