Davis v. Property Owners Assn. at Moodus Lake Shores, Inc.

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APPENDIX
KIRK DAVIS ET AL. v. PROPERTY OWNERS
ASSOCIATION AT MOODUS LAKE
SHORES, INC., ET AL.*
Superior Court, Judicial District of Middlesex
File No. CV-XX-XXXXXXX-S
Memorandum filed February 24, 2016
Proceedings
Memorandum of decision after completed trial to
court. Judgment for defendants.
Jeffrey M. Sachs, for the plaintiffs.
Elizabeth M. Cristofaro, for the defendants.
Opinion
DOMNARSKI, J. The plaintiffs, Kirk B. Davis and
Elyssa J. Davis (Davis), own a parcel of land known as
38 Hilltop Road, in Moodus, Connecticut, which abuts
land owned by the defendant, Property Owners Associa-
tion at Moodus Lake Shores, Inc. (Association). Unless
otherwise noted, the Association will be referred to as
the defendant in this memorandum. The defendants
Alan B. Collette, Donald Sama and Gail Sama are offi-
cers in the Association (individual defendants). The
plaintiffs’ property contains a house and driveway, and
the defendant’s property is comprised of a parking lot
and beach area. Both properties have frontage on Hill-
top Road. Before the court are the plaintiffs’ claims for
(1) a declaratory judgment seeking an easement, (2)
judgment to quiet title pursuant to General Statutes
§ 47-33, (3) an easement by implication, (4) an easement
by prescription and (5) malicious erection of a fence
pursuant to General Statutes §§ 52-520 and 52-480. In
their original complaint, the plaintiffs also sought dam-
ages for intentional infliction of emotional distress, neg-
ligent infliction of emotional distress, private nuisance,
civil conspiracy and breach of fiduciary duty; those
claims are not before the court. The trial began on
November 12, 2014, and continued on November 13, 18
and 19, 2014. By agreement of the parties, the trial was
continued to September 15, 2015; thereafter, evidence
was presented on September 16 and 17, 2015. The par-
ties submitted posttrial briefs on October 19, 2015; the
court heard argument on the briefs on November 19,
2015. The court has conducted two ‘‘silent views’’ of
the premises, with the consent of the parties and their
counsel, outside of their presence.
The determinative issue in this case is the historical
location of the plaintiffs’ driveway, (historical drive-
way) as it relates to the defendant’s property. The plain-
tiffs maintain that the driveway, in order to reach Hilltop
Road, has always crossed over the parking area located
on the defendant’s property. For this reason, they claim
they are entitled to the relief they seek. The defendant
maintains that the subject driveway was originally adja-
cent to its property and located entirely on the Davis
property. It is the defendant’s position that the plaintiffs,
in order to provide wider and easier access to their
property, unilaterally, and without legal authority, relo-
cated and widened their driveway to travel over the
defendant’s property.
When the plaintiffs purchased their property in 1998,
a small house on the property was used on a seasonal
basis. It is undisputed that the plaintiffs made alter-
ations to the driveway in late 2002 or early 2003. These
alterations were part of expansion renovations made
to the house in order to convert it from a seasonal
dwelling to a much larger, year-round house.
An important exhibit in this case is an aerial photo-
graph, commissioned by Golden Aerial Surveys, Inc.,
which was taken on April 29, 2001. (Exhibit 15.)1 The
parties agree that this photograph shows the plaintiffs’
property and driveway, and the defendant’s property.
The parties do not agree as to where the driveway
depicted in the photograph is located in relation to the
defendant’s property. The date of the photograph is
important to the plaintiffs since the evidence estab-
lished that the location of the driveway had not changed
from 1966, the year it was created, to when the photo-
graph was taken in 2001, a period of more than fifteen
years. Use of the driveway over the defendant’s land,
for at least fifteen years, is an essential element of the
plaintiffs’ easement by prescription claim. The date of
the photograph is also significant to the defendant. The
aerial photograph was taken less than fifteen years from
January 19, 2012, the date the plaintiffs brought this
action.
At the trial, the parties called many witnesses and
submitted numerous exhibits, including a substantial
number of photographs, in their efforts to persuade the
court as to the location of the driveway in April, 2001.
The task of demonstrating the location and boundary
of the driveway was difficult because the topography
of the plaintiffs’ property has been dramatically altered,
and many historical landmarks such as trees and ledge
outcroppings have been removed.
There is one important feature of the subject proper-
ties which has not changed and is not contested—the
boundary line in the area of this dispute. This boundary,
between an easterly line of the plaintiffs’ property and
a westerly line of the defendant’s property, is shown
and depicted on a map entitled ‘‘Property Survey for The
Property Owners Association of Moodus Lake Shores,
East Haddam, Connecticut, Scale 1 ‘‘=20,’ Oct. 2, 1990,
Richard J. Ziobron, Surveyor’’ (Ziobron map) (exhibit
14). This boundary line begins at an iron pin or pipe
(northern pin) located in the southerly line of Hilltop
Road and travels in a generally southerly direction,
thirty-five feet, to an iron pin or pipe (southern pin)
shown on said map. This southern pin is located in the
vicinity of steps on the defendant’s property that are
situated between the parking lot and the beach area.
The original steps are shown on the subject map and
replacement steps are located in the same general loca-
tion. There is no dispute as to the location of this bound-
ary line, and there is also no dispute that the northern
pin or pipe, in the southerly line of Hilltop Road, has
been in place since the survey was made in 1990.
As stated earlier, the plaintiffs’ claim that the drive-
way for their property has always crossed over the
defendant’s parking lot in order to reach Hilltop Road.
They further maintain that the entrance portion of the
driveway has always been located to the east of the
northern pin, upon the defendant’s land. This claim is
disputed by the defendant; it claims the entrance por-
tion of the driveway has historically been located to
the west of the northern pin, solely upon the plaintiffs’
land. The first task for the court is to make a factual
determination as to the location of the entrance of the
historical driveway in the vicinity of Hilltop Road.
STANDARD OF REVIEW
‘‘It is an abiding principle of our jurisprudence that
[t]he sifting and weighing of evidence is peculiarly the
function of the trier [of fact]. [N]othing in our law is
more elementary than that the trier [of fact] is the final
judge of the credibility of witnesses and of the weight
to be accorded to their testimony. . . . The trier has
the witnesses before it and is in the position to analyze
all the evidence. The trier is free to accept or reject, in
whole or in part, the testimony offered by either party.’’
(Internal quotation marks omitted.) Welsch v. Groat, 95
Conn. App. 658, 664, 897 A.2d 710 (2006).
‘‘It is well established that [in] a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony. . . . The credibility and the weight of
expert testimony is judged by the same standard, and
the trial court is privileged to adopt whatever testimony
he reasonably believes to be credible. . . . It is the
quintessential function of the fact finder to reject or
accept certain evidence, and to believe or disbelieve
any expert testimony. . . . The trier may accept or
reject, in whole or in part, the testimony of an expert
offered by one party or the other.’’ (Citations omitted;
internal quotation marks omitted.) In re Carissa K., 55
Conn. App. 768, 781–82, 740 A.2d 896 (1999); see also
In re Jason R., 129 Conn. App. 746, 772–73, 23 A.3d 18(2011), aff’d, 306 Conn. 438, 51 A.3d 334 (2012).
DISCUSSION
In fulfilling its responsibility as the finder of fact, this
court is reminded of a jury instruction it has given on
many occasions to jurors, who are also finders of fact.
‘‘The party who asserts a claim has the burden of
proving it by a fair preponderance of the evidence, that
is, the better or weightier evidence must establish that,
more probably than not, the assertion is true. In
weighing the evidence, keep in mind that it is the quality
and not the quantity of evidence that is important; one
piece of believable evidence may weigh so heavily in
your mind as to overcome a multitude of less credible
evidence. The weight to be accorded each piece of
evidence is for you to decide.’’ Connecticut Judicial
Branch Civil Jury Instructions 3.2-1 (revised January 1,
2008), available at https://www.jud.ct.gov/JI/Civil/
Civil.pdf.
In this case, the evidence that has weighed heavily on
the mind of the court is the photogrammetry2 analysis
of the Golden Aerial photograph, Exhibit 15. Before
discussing this evidence, it is necessary to set forth facts
related to physical features of the historical driveway.
In 1965, the Association conveyed a portion of land that
it owned to Joseph A. Querion and Frances M. Querion
(Querions), the plaintiffs’ predecessor in title, in order
to facilitate access to what is now the plaintiffs’ prop-
erty. A driveway was constructed in 1966 which
involved the removal of ledge in the vicinity of Hilltop
Road. To prevent erosion of the driveway, an erosion
wall built of rocks was constructed in the vicinity of
the thirty-five foot long common boundary shown on
the Ziobron map. See, in general, affidavit of Rita LaR-
ose, exhibit 9. Prior to when the aerial photograph was
taken in April, 2001, Kirk Davis, a plaintiff, placed large
timbers on the top of the erosion wall to prevent vehi-
cles from traveling over it. These timbers were in a line,
approximately eighteen feet in length.
The defendant presented expert testimony from
Edward A. Dilport, an experienced photogrammetrist,
and John L. Heagle, a licensed surveyor. Dilport exam-
ined the 2001 aerial photograph (exhibit 14) using a
stereo image viewer, and other technology, in order to
observe the features shown in the photograph and plot
elevations of the land. The erosion wall, and the timbers
on top of it, were visible in the photograph. Surveyor
Heagle obtained information about certain control
points in the vicinity of the driveway by taking physical
measurements of landmarks shown in the photograph.
Utilizing information provided by Heagle, Dilport was
able to prepare a map, known as a planimetric map,
showing a combination of physical features and eleva-
tions. (Dilport map.) (Exhibit 101.) On this map, the
vertical elevations are accurate to plus or minus 0.5
feet, and the horizontal locations are accurate to plus
or minus one foot.
Surveyor Heagle verified the accuracy of the Ziobron
map and the location of the northern pin. Using the
same scale, Heagle interposed the courses and dis-
tances of the Ziobron map onto the Dilport map to
create a composite map. (Exhibit 104.) (Composite
map.) This composite map shows the physical features
shown on the aerial photograph, as depicted on the
Dilport map, in relation to the boundaries of the defen-
dant’s property, as shown on the Ziobron map. This
composite map shows that plaintiffs’ driveway, in 2001,
was located to the west of the timbers placed on top of
the erosion wall, and entirely on the plaintiffs’ property.
The map shows that in the vicinity of Hilltop Road, the
driveway entrance is located to the west of the northern
pin. Furthermore, the elevations on the composite map
show that there was an approximate two foot drop in
elevation from the plaintiffs’ eastern boundary down
to the defendant’s property. This elevation change cor-
responds to the location of the erosion wall and timbers
located on the eastern edge of the plaintiffs’ driveway.
Because of this historical elevation drop, it would be
very difficult, if not impossible, for the plaintiffs and
their predecessors, to use their driveway to drive onto
the defendant’s property. Heagle testified, based upon
measurements from the map, that the northern pipe
was located 2.5 feet from the northern edge of the
timbers shown on the planimetric map. The court is
persuaded by the analysis and research performed by
Dilport and Heagle, and finds their testimony to be
credible; the court accepts their opinions and conclu-
sions as evinced by the maps they prepared.
The court finds by a preponderance of the evidence
that the historical location of the subject driveway was
entirely on the plaintiffs’ property, and no portion was
located on the defendant’s property. Furthermore, the
court finds the entrance of the subject driveway was
located west of the northern pin. In addition to the
evidence from Dilport and Heagle, this finding is sup-
ported by other direct evidence. The Ziobron map
shows a stone wall running along the entire length of
plaintiffs’ eastern boundary. This map depiction sub-
stantially corresponds to the location of the timbers
and elevations shown on the composite map. The Zio-
bron map does not show any driveway, or portion of
one, that traverses the depicted stone wall to reach the
defendant’s property.
Several photographs depict the historical driveway
viewed from its northern end, looking south. It is appar-
ent from these photographs that the driveway was
located to the right, or to the west of, the erosion wall
and/or large timbers shown in the photographs. See
exhibits 51 and 93.
A large tree was located in the vicinity of the western
side of the driveway entrance. This tree was removed
by Mr. Davis when he regraded the land during the
course of alterations to his property. The tree is shown
on the aerial photograph, exhibit 15. On the composite
map, exhibit 104, the large tree is located south of the
paved line of Hilltop Road and is marked by elevation
‘‘81.9.’’ Based upon scaled measurements testified to
by Dilbert, the tree is approximately six feet west of
the western edge of the historical driveway and approxi-
mately seventeen feet west of the iron pin. It is undis-
puted that historically, this tree had a ‘‘one way’’ sign
in front of it. This tree, and the one way sign, are
depicted in exhibits 93, 46 and 47, and the uphill or
western edge of the driveway is shown near the large
tree. Considering the width of the driveway, approxi-
mately ten feet, and the driveway’s proximity to the
large tree, as shown in the photographs, it is reasonable
to conclude that the driveway is located to the west of
the northern pin, in the space between the northern
pin and the large tree.
There are ‘‘before’’ and ‘‘after’’ photographs which
support the court’s finding as to the location of the
driveway. The ‘‘before’’ photograph is exhibit 51, which
shows pavement in the foreground, the historical drive-
way with its timbers, and a green, bushy tree or large
shrub on the left side of the photograph. The beach
steps shown on the Ziobron map are located to the
right of the tree or shrub. The ‘‘after’’ picture is exhibit
68, which also shows pavement in the foreground, and
the tree or shrub, which is next to the rebuilt steps.
Comparing the photographs and the aforementioned
physical features shows that the historical driveway
was located in an area shown on the right half of exhibit
68. The northern pin is not shown in exhibit 68, but it
is shown in a similarly oriented photograph, exhibit 128.
Two pieces of circumstantial evidence also support
the finding that the subject driveway was not located
on the defendant’s property. First, the deed for the land
acquired by the Querions, to be used to access their
property, did not contain any grant of easement to use
the adjoining land of the Association for purposes of
ingress and egress. It is reasonable to infer that such
an easement would have been included if it were neces-
sary or desired. Furthermore, there are no later deeds
or grants in the chains of title for the plaintiffs’ or the
defendant’s property that establish a right-of-way or
easement over the defendant’s property in favor of the
plaintiffs. Second, if the plaintiffs’ predecessors had in
fact established a driveway across the common bound-
ary line onto the defendant’s property at any time after
1966, it is reasonable to expect that such an encroach-
ment would have been noted on the Ziobron map, which
was prepared in 1990. No such driveway is shown on
the Ziobron map. The Ziobron map is an ‘‘A’’ class sur-
vey, and the standards for such surveys are contained
in the ‘‘Recommended Standards for Surveys and Maps
in the State of Connecticut, Prepared and Adopted by
the Connecticut Association of Land Surveyors, Inc.,
September 13, 1984, Effective January 1, 1987’’ (exhibit
105). Those standards require that ‘‘encroachments
apparent from an inspection of the . . . subject prem-
ises shall be shown.’’ Exhibit 105, p. 4.
The plaintiffs and their counsel diligently and zeal-
ously presented their case; they are commended for
their efforts. Although it is not necessary to do so, the
court believes it is appropriate to comment on portions
of the evidence relied on by the plaintiffs. In light of
the evidence pertaining to the physical features of the
historical driveway discussed above, the court does not
find the affidavit of Surveyor Ziobron (exhibit 10) to
be credible. For the same reason, the court does not
accept the opinions and testimony of the plaintiffs’ sur-
veyor, Ronald C. Hurlburt. The court finds that the
testimony of plaintiffs’ photogrammetrist, Terry LeR-
oux, generally agreed with Dilport’s testimony and opin-
ions. LeRoux did not have the benefit of any control
point data in forming his opinions. The lack of this data
diminished the weight of his testimony. The evidence
which supported the defendant’s position as to the loca-
tion of the historical driveway outweighed the claims
made by Mr. Davis in his testimony.
The court finds the portions of the LaRose affidavit
(exhibit 9) describing the need for the driveway, the
date of its construction, and the erosion wall, to be
credible. Again, in view of the accepted evidence regard-
ing the driveway, the court does not find the portions
of the affidavit related to the location of the driveway
to be persuasive.
The plaintiffs called several witnesses, Rochelle
Buchanon, Keith Knowles and Ralph Parady, who had
entered and driven over the driveway in the years prior
to the plaintiffs’ purchase of the subject property (drive-
way witnesses). The testimony of these witnesses was
not sufficient to persuade the court that the location of
the historical driveway was where the plaintiffs claim.
These witnesses testified that it was not possible to
make a right turn into the driveway when traveling in
an easterly direction down Hilltop Road. This fact is not
determinative, since it is undisputed that the driveway
could be entered when traveling in a generally southerly
direction from Beach Road.
The driveway witnesses also testified that in order
to enter the driveway, a driver would have to bear to
the right, after traversing down Beach Road. This would
be a necessary maneuver when the driveway is located
to the west of the northern pin. In general, these wit-
nesses testified that the entrance to the historical drive-
way was not a good one. The driveway entrance was
tilted, awkward, and had a dip, all due to the grade of
Hilltop Road. The driveway was narrow, and had ledge
on the right side and a stone wall on the left side.
From its entrance, the driveway curved to the right and
traveled along the plaintiffs’ southern boundary.
The historical entrance to the driveway, at its inter-
section with Hilltop Road, looking south, is depicted
in a photograph, plaintiffs’ exhibit 93, page 2. The curve
of the driveway, the ledge on the right side, and a portion
of the stone wall on the left side, are all clearly shown
in the photograph. Because of its narrow width, the
driveway witnesses testified, a vehicle entering the
driveway front-first would have to exit the driveway by
backing out. Although a vehicle could be backed out
entirely onto Hilltop Road or Beach Road, the witnesses
testified that they would often exit the driveway onto
Hilltop Road and then perform a ‘‘jackknife’’ turn into
the defendant’s parking lot when leaving the area.
To the extent some of the witnesses stated that they
crossed over the defendant’s property, south of the
northern pin, in order to enter or exit the driveway, the
court does not find these statements to be determina-
tive. The witnesses testified that they were not aware
of the northern pin or its location. The Ziobron map
shows that the southern boundary of Hilltop Road is
not a straight line, as it passes along the northern bound-
aries of the plaintiffs’ and the defendant’s properties,
it jogs twenty feet to the north along the defendant’s
boundary. Similarly, the map shows the southern paved
portion of Hilltop Road jogs to the south, from Beach
Road, to meet the defendant’s paved parking area. For
this reason, it is possible the driveway witnesses may
have believed they were traveling on the defendant’s
property, when in fact they were on Hilltop Road.
Because of the narrow width of the driveway, its awk-
ward alignment with Hilltop Road, and the drop-off in
elevation between the two properties, which came very
close to the northern pin, it is not likely that a vehicle
entering or exiting the driveway would ordinarily cross
onto the defendant’s property before driving onto Hill-
top Road. This issue is addressed further below.
The plaintiffs submitted numerous photographs,
many of them taken at the time they performed the
renovations on their property. A number of the photo-
graphs depict the ledge removal operations. The court
has spent many hours reviewing all of the photographs
submitted, as well as the other exhibits in this case.
When it visited the site, the court tried, as best it could,
to find the place from where the photographs were
taken. Many of the photographs were taken from the
interior of the lot, looking out to the perimeter. Because
of the curvature of the original driveway, the perspec-
tive of the photographs, the presence of ledge and con-
struction equipment, it is difficult to discern the features
of the historical driveway at its intersection with Hilltop
Road. The plaintiffs have not submitted a preconstruc-
tion photograph that adequately shows the historical
driveway in the location that they claim. The most dis-
cernable preconstruction photographs are exhibits 51
and 52. These exhibits show the erosion wall, the line
of timbers and, in exhibit 51, pavement, presumably
part of Hilltop Road, in the foreground. The exhibits do
not show evidence of a driveway over the defendant’s
property. The photographs relied on by the plaintiffs
are not persuasive.
Finally, the plaintiffs argue that the uphill angle of
Hilltop Road dictates that the entrance of the historical
driveway must have been to the east of the northern
pin, since it is not physically possible to enter their
property from a location that is west of the northern
pin. This argument does not persuade the court. The
testimony from the witnesses who used the historical
driveway demonstrates that this was not a typical drive-
way entrance. Because of the upward angle of Hilltop
Road, and the downward change in grade from Hilltop
Road onto the driveway, the entrance was unusual,
and less than ideal. Although challenging, the entrance
provided adequate access to the plaintiffs’ property.
The driveway was used in its historical location for over
thirty years before the plaintiffs’ alterations in 2003.
The plaintiffs have substantially changed the features
of their land in the vicinity of Hilltop Road and the
defendant’s property. Most significantly, they regraded
the area to remove the two foot drop in elevation which
formerly existed along the common boundary. As noted
earlier, the drop in elevation is shown on the composite
map, exhibit 104. The change in elevation is also shown
in a preconstruction photograph of the driveway,
exhibit 52. The same general area shown in exhibit 52
is shown in exhibit 55, after the plaintiffs regraded the
driveway area to remove the drop in elevation. Again,
the same area is shown in exhibit 64, after the plaintiffs
completed the house expansion and renovations.
Exhibit 64 also shows the location of the northern pin,
stake in foreground, as well as approximate location
of the western edge of the historical driveway, distant
stake. Kirk Davis admitted that he placed approximately
fourteen cubic yards of fill in the area between the
two stakes in order to make a garden. Surveyor Heagle
probed in the area between the two stakes and did not
find any ledge.
Using common knowledge, it is apparent to the court
that if the plaintiffs restored the grade of their own
property to the original elevations shown on the com-
posite map, and removed the fill they placed in the
vicinity of Hilltop Road, they would have a usable drive-
way entrance. They could enter their property to the
west of the northern pin without crossing the defen-
dant’s property. Unless the plaintiffs created a turn-
around area on their property, the court acknowledges
that the plaintiffs will have to back out their vehicles
onto Hilltop Road. The testimony from the driveway
witnesses establishes that after driving into the histori-
cal driveway front first, it was always necessary to
back out; this was the way the historical driveway was
utilized. The court will now review the counts of the
plaintiffs’ complaint in the light of the foregoing fac-
tual findings.
DECLARATORY JUDGMENT
In the first count the plaintiffs seek a declaratory
judgment establishing a right-of-way and/or easement
over the northwesterly portion of the defendant’s prop-
erty. As discussed below, the plaintiffs have not estab-
lished the existence of an easement or right-of-way over
the defendant’s property. See Practice Book § 17-54.
QUIET TITLE
In the second count, the plaintiffs claim an interest
by way of a right-of-way or easement over the north-
westerly portion of the defendant’s property. They seek
a judgment quieting title to the northwesterly portion
of the defendant’s property. The parties have stipulated
that the defendant Property Owners Association is the
owner of the property which abuts the plaintiffs’ east-
erly line. As discussed below, the plaintiffs have not
sustained their burden of proof with regard to their
claim. Judgment may enter for the defendants on
count two.
EASEMENT BY IMPLICATION
‘‘[A]n implied easement is typically found when land
in one ownership is divided into separately owned parts
by a conveyance, and at the time of the conveyance a
permanent servitude exists as to one part of the prop-
erty in favor of another which servitude is reasonably
necessary for the fair enjoyment of the latter property.
. . . In the absence of common ownership . . . an
easement by implication may arise based on the actions
of adjoining property owners. . . . There are two prin-
cipal factors to be examined in determining whether
an easement by implication has arisen: (1) the intention
of the parties; and (2) whether the easement is reason-
ably necessary for the use and normal enjoyment of the
dominant estate.’’ (Internal quotation marks omitted.)
Sanders v. Dias, 108 Conn. App. 283, 288, 947 A.2d
1026 (2008).
In this case there was no servitude in existence when
the defendant’s predecessor conveyed the subject par-
cel of land to the Querions, the plaintiffs’ predecessor.
There was already a house on the adjoining property
that the Querions owned, which was accessed, on foot,
from Hilltop Road. The parcel conveyed by the defen-
dant’s predecessor was to provide vehicle access over
a driveway to be constructed on the conveyed parcel.
A driveway, the historical driveway, was constructed
entirely upon the parcel conveyed. If such a driveway
could not have been constructed only upon the Queri-
ons’ land, it is reasonable to assume a right-of-way over
the defendant’s adjoining land would have been
granted. The plaintiffs have failed to establish an inten-
tion to convey an easement over the defendants’ prop-
erty. The historical driveway provided access to the
plaintiffs’ property from 1966 to 2003. If the plaintiffs
reestablish the historical driveway, west of the northern
pin, it can once again provide access to the plaintiffs’
property. The court cannot find that it is reasonably
necessary to provide other access. Judgment may enter
for the defendants on count three.
EASEMENT BY PRESCRIPTION
In the fourth count, the plaintiffs allege that they
have acquired an easement by prescription over the
defendant’s land. ‘‘[General Statutes §] 47-37 provides
for the acquisition 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
uninterrupted for fifteen years. In applying that section,
this court repeatedly has explained that [a] party claim-
ing to have acquired an easement by prescription must
demonstrate that the use [of the property] has been
open, visible, continuous and uninterrupted for fifteen
years and made under a claim of right. . . . The pur-
pose of the open and visible requirement is to give the
owner of the servient land knowledge and full opportu-
nity 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.’’ (Internal quotation
marks omitted.) Slack v. Greene, 294 Conn. 418, 427,
984 A.2d 734 (2009).
As mentioned at the beginning of this decision, loca-
tion of the historical driveway on April 29, 2001, was
a pivotal element of the plaintiffs’ case. If the historical
driveway was in fact located upon the defendant’s land
on that date, the plaintiff would satisfy the fifteen year
use requirement for a prescriptive easement. Since the
court has found that on April 29, 2001, the historical
driveway was located entirely on the plaintiffs’ land,
the plaintiffs cannot meet this requirement.
There is an issue pertaining to the use of the historical
driveway that should be addressed. The northern pin
was located approximately two and one-half feet from
the end of the erosion wall and timbers. The area to
the north and east of the northern pin was, and is, in
the vicinity of the paved portion of Hilltop Road. There
was insufficient evidence to establish how much of the
pin, if any, protruded above the level of the ground.
The pin is not visible in exhibit 51, which depicts the
area at the end of the erosion wall. In light of these
facts, although it is not likely, the court acknowledges
that it is possible that a vehicle entering and exiting
the historical driveway may have crossed over a portion
of the defendant’s property, in the area that is adjacent
to the two and one-half foot portion of the plaintiffs’
property that lay between the end of the timbers and
the northern pin. However, the court expressly finds
that it was not necessary to travel over the defendant’s
property to enter the historical driveway from Hilltop
Road. Both the Ziobron map, exhibit 14, and the com-
posite map, exhibit 104, show sufficient area on Hilltop
Road to allow alignment of a vehicle to enter the histori-
cal driveway west of the northern pin. Mr. Knowles,
who owned the plaintiffs’ property from 1993 to 1998,
credibly testified that he never crossed over the defen-
dant’s property when using the driveway.
Although the court acknowledges the possibility of
occasional travel over a portion of the defendant’s prop-
erty, there was not sufficient evidence presented for
the court to find continuous use. Furthermore, there
was insufficient evidence for the court to determine
the boundaries of the use with reasonable certainty. ‘‘A
prescriptive right cannot be acquired unless the use
defines its bounds with reasonable certainty.’’ Kaiko
v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981).
Judgment may enter for the defendants on count four.
MALICIOUS ERECTION OF FENCE
On November 20, 2011, members of the defendant
association attempted to install a fence along the com-
mon boundary between the plaintiffs’ and the defen-
dant’s land. The state police intervened, and the fence
was not installed. Thereafter, on November 27, 2011, a
low, barricade style, fence was installed along the entire
length of the common boundary. This fence was
removed by the plaintiffs shortly after its installation;
it has not been reinstalled.
‘‘[T]he ingredients necessary to state a cause of action
under [General Statutes § 52-570 and § 52-480 are] as
follows: (1) A structure erected on the owner’s (defen-
dant’s) land; (2) a malicious erection of the structure;
(3) the intention to injure the enjoyment of the adjacent
landowner’s land by the erection of the structure; (4)
an impairment of the value of adjacent land because
of the structure; (5) the structure useless to the defen-
dant; (6) the enjoyment of the adjacent landowner’s
land in fact impaired.’’ Rapuano v. Ames, 21 Conn.
Supp. 110, 111, 145 A.2d 384 (1958).
The following facts are relevant to the determination
of this count. As stated previously, the plaintiffs made
substantial alterations to their driveway in 2003 by
removing an erosion wall and lowering the elevation
of their property to meet the elevation of the defendant’s
property. This change in grade allowed vehicles to
travel over the common boundary and permitted vehi-
cles to travel in the vicinity of stairs on the defendant’s
property, which provided access to the beach. Between
2006 and 2011 the parties discussed the issue of the
plaintiffs’ new driveway and the stairs. Several arrange-
ments for protecting the safety of people using the stairs
were tried, including a curb stop, a large planter, and a
short barricade style fence. None of these arrangements
produced long-lasting results that were acceptable to
both parties. In September, 2011, Collette, president of
the defendant Association, consulted an attorney about
the rights and obligations of the Association regarding
the safety of members using the beach area, and the
Davis driveway. In a letter to Collette dated September
20, 2011, the attorney stated: ‘‘[T]he Association is
within its legal rights and authority to act in connection
with the use of its property by any party. . . . [T]he
Association is required to act in connection with the
safety and protection of its members. . . . [F]ailure
is (sic) act may result in a liability claim against the
Association. . . . Further, failure of the Association to
assert its rights may result in a future claim of easement
by extended use.’’ Exhibit 38. After receipt of this letter
the Association took the steps, described above, to
install a fence along the common boundary.
The court finds that the plaintiffs have failed to prove
the elements of malicious erection of a fence by a pre-
ponderance of the evidence. It is apparent that at the
time the fence was installed the relationship between
the parties was strained, if not adversarial. However,
considering all the circumstances, the court cannot find
that the actions of the defendant Association were mali-
cious. The Association had been advised by counsel
that failure to take action regarding the issues related
to the plaintiffs’ driveway could have negative conse-
quences to the Association. The fence fulfilled a useful
purpose to the defendant, protecting people using its
stairs from being struck by vehicles entering or exiting
the plaintiffs’ property. Although a fence would impair
the plaintiffs’ use of their property at the time, the
plaintiffs presented insufficient evidence to establish
that the fence was installed by the Association with the
intention to injure the plaintiffs’ enjoyment of their land.
In view of the very short time that a fence was in place,
the court cannot find that the value of the plaintiffs’
property was impaired. Judgment may enter for the
defendants on count five.
In their brief, the plaintiffs requested an order prohib-
iting any vertical obstruction above the northern pin
which would obstruct the opening to both the beach
parking lot and the plaintiffs’ driveway. The court has
found that the plaintiffs have not established legal rights
over the defendant’s property which would allow the
court to enter such an order. However, the court does
find that prior to the driveway alterations, the area
between the northern end of the timbers/erosion wall
and the northern pin, a distance of two and one-half
feet, was unobstructed. See exhibit 51. This unob-
structed area was in the vicinity of the intersection of
the paved portion of Hilltop Road, the defendant’s
paved parking lot, and the entrance of the historical
driveway. The court observes that the lack of an
obstruction in this area during the thirty plus years the
historical driveway existed probably benefitted every-
one operating a motor vehicle in the vicinity of this area.
CONCLUSION
The court declines to enter the declaratory judgment
requested by the plaintiffs in count one. As to count
two, there is no need to enter a judgment quieting title,
the plaintiffs have failed to establish an interest in the
defendant’s property. Judgment may enter for the
defendants in counts three, four and five.
* Affirmed. Davis v. Property Owners Assn. at Moodus Lake Shores, Inc.,
183 Conn. App. 690, A.3d (2018).
1
To facilitate record-keeping, counsel for the plaintiffs and the defendants
agreed that their respective exhibits would all be marked with a ‘‘plaintiff’s
exhibit’’ sticker.
2
Photogrammetry is the science of making reliable measurements using
photographs, especially aerial photographs. See Webster’s Third New Inter-
national Dictionary (1993).