Blow v. Konetchy

946 A.2d 943

107 Conn.App. 777

Russell P. BLOW v. Donald A. KONETCHY.

No. 28512.

Appellate Court of Connecticut.

Argued February 20, 2008.

Decided May 20, 2008.

Scott W. Jezek, Moodus, for the appellant (plaintiff).

Joseph E. Milardo, Jr., Middletown, with whom, on the brief, was Linda J. Latimer, for the appellee (defendant).

DiPENTIMA, McLACHLAN and GRUENDEL, Js.

McLACHLAN, J.

The present appeal arises out of a quiet title action involving a driveway area between adjoining landowners. The plaintiff, Russell P. Blow, appeals from the judgment rendered by the trial court in favor of the defendant, Donald A. Konetchy. On appeal, the plaintiff claims that the court improperly (1) treated his claim as one of adverse possession and, as a result, applied a higher standard of proof, (2) found consent and used that as a basis for denying his prescriptive easement claim, (3) found that he had built his porch on the south side of his property line, (4) found that the original grant of easement was located three feet north of the defendant's residence, (5) found in favor of the defendant on his counterclaim of entry and detainer, and (6) reformed the original grant of easement to exclude parking and storage. We affirm the judgment of the trial court.

The following facts, as found by the court in its memorandum of decision, are relevant to the resolution of the plaintiff's appeal. The plaintiff and the defendant are neighboring property owners in the Lake Pocotopaug Terrace subdivision in the town of East Hampton. The plaintiff owns lot 46, which he acquired by warranty deed in 1978. The defendant owns lots 44 and 45 located to the south of the plaintiff's lot, which he acquired by warranty deed in 2004. The common boundary line runs generally to the east and west.

In 1983, the plaintiff constructed an addition to his home and added a garage. This construction narrowed the space between the buildings of the plaintiff and the defendant. As a result, the plaintiff sought an easement for the use of his neighbors' driveway from the defendant's predecessors in title. According to the court: "The defendant's predecessors in title, Bernard Wilson, Jr., and June F. Wilson, granted the plaintiff use of a portion of their property as part of his driveway. This agreement was subsequently formalized in a `grant of easement' ... dated April 17, 1989."¹ (Citation omitted.) The grant of easement lies wholly on the defendant's land.²

In 2004, after the defendant purchased his property, he discovered "encroachments by the plaintiff on the rear yard of his property." Subsequently, he filed a notice affecting title to the land under General Statutes § 47-38.³ Although the plaintiff had an easement, which granted him the use of the driveway as a right-of-way, the plaintiff had parked his vehicles on the driveway and left them there when he traveled during the winter months. The defendant objected to the use of the entire driveway for parking and storage, especially a three foot wide area wholly within the defendant's land, which he claimed was not contemplated or referenced in the original grant of easement.

On October 3, 2005, the plaintiff initiated this action. The plaintiff's amended complaint claims, inter alia that he acquired a legal right to the use of the three foot area of the defendant's driveway because he "used and enjoyed [this portion of the defendant's property] for more than fifteen years prior to the commencement of [his] action, and such use and enjoyment ha[d] been at all times open, visible, continuous, uninterrupted, and under a claim of right...."⁴ The plaintiff requested that the court determine the rights of the parties, release the notice affecting the land and grant further relief that the court deemed proper both at law and in equity. On January 30, 2006, the defendant filed his answer to the plaintiff's amended complaint and his counterclaim.⁵

On January 19, 2007, the court rendered judgment in favor of the defendant on both the plaintiff's claim and the defendant's counterclaim. As the court explained: "The disputed area is the area within three feet of the defendant's [residence], which is not encompassed within the area delineated in the grant of easement. In this area, the plaintiff parked motor vehicles, trailers, boats and other material immediately adjacent to the defendant's residence within the three foot zone at issue." The court also stated: "Further, these vehicles were left in the area for extended periods, denying the defendant access to the exterior of his residence."

The court acknowledged that the plaintiff had asserted a prescriptive easement claim; however, it found that the plaintiff never enjoyed exclusive use of the disputed property. It also found that the plaintiff had used the three foot wide disputed area of the drive-way with the consent of the defendant's predecessor in title and the defendant. The court enjoined the plaintiff from "parking vehicles, storing materials or storing any other of his property on or in the right-of-way area at any time that he is not physically present at his residence" and that the "right-of-way is to be used as a driveway, not a parking lot or storage area."⁶

Subsequently, the plaintiff moved for an articulation of the court's decision. In its articulation, the court addressed the plaintiff's request for the court to explain where in the record the plaintiff had made a claim of adverse possession and whether a claim for a prescriptive easement had been made. The court construed the plaintiff's claims as an adverse possession claim in addition to a prescriptive easement claim, finding that the prescriptive easement claim failed because the use had not been continuous and uninterrupted. This appeal followed.

I

The plaintiff first claims that the court improperly applied the wrong burden of proof because it determined his case on the basis of a theory of adverse possession rather than as a prescriptive easement claim. The plaintiff contends that this was improper because an adverse possession claim requires a higher burden of proof, the clear and convincing standard, as opposed to the burden of proof for an easement by prescription, which is the preponderance of the evidence standard. "When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law." Cadle Co. v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004).

The plaintiff's argument is predicated on the court's language in its memorandum of decision. Specifically, the court stated that the plaintiff's claim "is based on a theory of adverse possession." As the plaintiff points out, "claims of adverse possession and prescriptive easements, though requiring proof of similar elements, are nevertheless distinct causes of action."⁷ Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007), citing Schulz v. Syvertsen, 219 Conn. 81, 92 n. 8, 591 A.2d 804 (1991).

"The proper inquiry in evaluating a claim that easement rights have been acquired by prescription is whether the claimant adversely used the property at issue and not whether he adversely possessed that property.... In addition, the two types of claims differ as to the burden of proof to be applied. Claims of adverse possession are evaluated under the heightened standard of clear and positive proof, whereas claims of prescriptive easements are assessed under the preponderance of the evidence standard." (Citation omitted; emphasis in original.) Smith v. Muellner, supra, 283 Conn. at 536, 932 A.2d 382. The plaintiff asserts that because the court used the term "adverse possession" in describing his prescriptive easement claim, it necessarily held him to the higher burden of proof associated with adverse possession claims. We do not agree.

The court addressed its use of the term "adverse possession" and the burden of proof it applied in its articulation filed May 18, 2007. It stated: "The plaintiff requests the court to articulate where on the record a claim for adverse possession was made and whether a claim for prescriptive easement was made. The plaintiff in his posttrial brief, page three, states the following: `Further, the plaintiff claims that regardless of the proper measurement, he is entitled to an easement over the entire paved area either by deed or prescription....' The court construed this as an adverse possession claim in addition to the prescriptive easement claim." (Emphasis added.) Additionally, the court wrote: "The court [was] asked to articulate the elements of proof it applied to the plaintiff's claims. The court indicates at page two that it is evaluating the plaintiff's claim of prescriptive easement. In proving its burden of establishing a prescriptive easement, the plaintiff was obligated to prove by a preponderance of the evidence that his use of the area claimed was `(1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim or right.' ... The exclusive possession reference was to the necessary element of the adverse possession claim. The prescriptive easement claim failed, as the use was not continuous and uninterrupted with respect to the three foot area adjacent to the defendant's residence." (Emphasis added.). Therefore the plaintiff's first claim fails because the court addressed both theories and applied the appropriate standard of proof for each.⁸

II

The plaintiff next claims that the court improperly used consent as a basis for denying his prescriptive easement claim. The plaintiff claims that there was no consent and that even if there were consent, consent is not synonymous with permission and, therefore, is not a basis for defeating his prescriptive easement claim. The plaintiff relies on Gallo-Mure v. Tomchik, 78 Conn.App. 699, 829 A.2d 8 (2003), to support this argument. Gallo-Mure, however, is inapplicable. Here, as the court stated in its articulation, the...