Murphy v. Eapwjp Llc., No. 31257.

123 Conn.App. 316

1 A.3d 1171

Barbara O. MURPHY et al.

v.EAPWJP, LLC, et al.

No. 31257.

Appellate Court of Connecticut.

Argued May 17, 2010.

Decided Aug. 17, 2010.

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Thomas P. Moriarity, for the appellant (named defendant).

John R. FitzGerald, Hartford, for the appellees (plaintiffs).

Edward B. O'Connell, New London, for the appellees (defendant Steven Dodd et al.).

DiPENTIMA, C.J., and BEAR and PELLEGRINO, Js.

BEAR, J.

The defendant EAPWJP, LLC (EAP), appeals from the judgment of the trial court recognizing the acquisition of a prescriptive easement over a portion of its property for beach access by the plaintiffs ¹ and finding that EAP had failed to prove that the placement and maintenance of mooring poles in the water below the mean high tide line of White Beach in Stonington by several of the plaintiffs was a public nuisance. ² EAP also appeals from the judgment, which recognized the acquisition of a prescriptive easement over a portion of its property for beach access and an implied easement over an undeveloped street known as Midway, in favor of the defendants Steven Dodd and Marion Dodd. On appeal, EAP claims that the court improperly (1) recognized the acquisition of the prescriptive easement in favor of the plaintiffs and the Dodds, (2) concluded that the plaintiffs' placement and maintenance of mooring poles did not constitute a public nuisance, (3) concluded that the plaintiffs' placement and maintenance of the mooring poles was not a trespass, and (4) recognized an implied easement over Midway in favor of the Dodds. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of EAP's claims on appeal. The parties reside in the White Beach section of Lord's Point in Stonington. EAP's property includes a portion of White Beach. The properties belonging to the plaintiffs and the Dodds do not include frontage on White Beach. For many years, there existed a wooden boardwalk or walkway (wooden walkway) over a portion of EAP's property that the plaintiffs and the Dodds maintained and used to access White Beach. No one had obtained permits from the department of environmental protection (department) to maintain this wooden walkway that, allegedly, was in violation of General Statutes §§ 22a-32 and 22a-361 and adversely impacted tidal wetlands vegetation. The principal of EAP, William Pasqualini, Sr., or his designees removed the wooden walkway and told the plaintiffs and the Dodds that they could no longer access White Beach by means of EAP's property. Additionally, the plaintiffs Barbara O. Murphy, Bruce Jablonski, Geoffrey B. Corkhill and Aline T. Pollard, as well as others who were not parties to this case, had kept and maintained mooring poles on EAP's beachfront above the mean high tide line prior to April, 2007. In April, 2007, however, these poles were moved to a location below the mean high tide line at White Beach, and the harbormaster issued permits for them.

On or about May 8, 2007, the plaintiffs brought this action against EAP and the Dodds, ³ seeking, inter alia, a prescriptive easement over a portion of EAP's property to access White Beach for recreational activities including swimming, boating, bathing and for the maintenance of mooring poles for boats. EAP filed special defenses to the plaintiffs' claim, which included a claim that the plaintiffs' use of its property was permissive, that the plaintiffs could not have acquired an easement over the wooden walkway because the walkway was in violation of §§ 22a-32 and 22a-361 and was destroying tidal wetlands vegetation, and that the mooring poles were a public nuisance.

The Dodds filed a cross claim against EAP seeking, in relevant part, a prescriptive easement over a portion of EAP's property for access to White Beach and seeking an implied easement over Midway. They claimed that the implied easement was by virtue of the 1927 Perry Plan. ⁴ EAP pleaded two special defenses to the Dodds' cross claim. The first special defense alleged that the Dodds' use of the property to access White Beach was permissive, and the second special defense alleged that the Dodds could not acquire an easement over the area of the wooden walkway because that walkway was in violation of §§ 22a-32 and 22a-361.

On the basis of the evidence submitted at trial, the court concluded, in relevant part, that the Dodds and the plaintiffs had acquired a prescriptive easement over a portion of EAP's land that gave them access to White Beach (pathway) and that the Dodds had acquired an implied easement over Midway by virtue of the 1927 Perry Plan. The court also concluded that Murphy, Jablonski, Corkhill and Pollard had a right to keep and to maintain the mooring poles for which permits had been issued by the harbormaster. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, EAP first claims that the court improperly concluded that the plaintiffs and the Dodds “had established a prescriptive easement over a pathway to White Beach.” EAP does not challenge the factual findings of the court that the use was open, notorious and under a claim of right for more than a fifteen year period. Rather, EAP argues that the plaintiffs and the Dodds always had traveled the pathway to the beach by means of the wooden walkway that crossed over and negatively impacted tidal wetlands and, because the wooden walkway had been constructed and maintained without obtaining the necessary permits in violation of §§ 22a-32 and 22a-361, it could not have formed the basis for the acquisition of a prescriptive easement over the pathway, a property right. We conclude that the court properly held that the plaintiffs and the Dodds had acquired a prescriptive easement over the pathway for access to White Beach.

The plaintiffs assert that our review of EAP's claim is pursuant to the abuse of discretion standard, EAP asserts that our review is plenary, and the Dodds assert that our standard of review is the clearly erroneous standard. Because of the nature of EAP's claim, we conclude that this issue presents a question of law, over which our review is plenary. See Frech v. Piontkowski, 296 Conn. 43, 49, 994 A.2d 84 (2010) (applying plenary review to claim that abutting landowner, as matter of law, could not acquire prescriptive easement for recreational purposes with respect to non-navigable body of water).

“[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 claiming 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.” (Internal quotation marks omitted.) Id.

In this case, EAP repeatedly argues that the plaintiffs and the Dodds could not acquire a property right by means of the wooden walkway over the pathway that they or their predecessors constructed and maintained without department approval in violation of §§ 22a-32 and 22a-361 and that the court improperly held that they could acquire such rights. It also argues that the use of the unapproved wooden walkway over the pathway created a public nuisance and that “one cannot acquire a prescriptive right to maintain a nuisance.” (Internal quotation marks omitted.) We are not persuaded.

The court agreed with EAP that the wooden walkway violated §§ 22a-32 and 22a-361 and that it was the plaintiffs and the Dodds who had maintained, modified and replaced the wooden walkway over the years without the necessary permits. The court recognized, however, that the plaintiffs and the Dodds made no claim in the litigation that they had a right to reconstruct or to maintain the wooden walkway over the pathway. Rather, they claimed a prescriptive easement over a portion of EAP's land, consisting of the pathway that gave them access to White Beach. Although the court concluded that the plaintiffs and the Dodds had no right to maintain the wooden walkway over the pathway, it further concluded that they did have a right to continue to use the pathway: “The plaintiffs shall have the rights to maintain and improve the [pathway] as reasonably necessary for the enjoyment of its intended purpose, subject to whatever regulation, if any, may be imposed by a governmental authority hav[ing] jurisdiction over such activity. No rights are established in favor of the plaintiffs as to the unauthorized wooden walkway, which has since been removed.”

We agree with the court. Although it appears that the wooden walkway had not been authorized by the department, that does not negate the rights of the plaintiffs and the Dodds to cross the land owned by EAP; their prescriptive easement is over a specific portion of EAP's land-it is not limited by, or dependent on, the wooden walkway that was built on the land. EAP makes no claim that the plaintiffs' and the Dodds' use of the pathway amounts to a nuisance; therefore, we need not address the issue further.

II

EAP next claims that the court improperly concluded that the plaintiffs' use and maintenance of mooring poles in the water below the mean high tide line of EAP's beach did not constitute a public nuisance. It argues that there was evidence that some of the mooring poles were rusting and that they could break, leaving jagged and dangerous edges in the water, which could endanger members of the public who might be swimming in the area. ⁵ The plaintiffs argue that these poles are below the mean high tide line, on property owned by the state, and that they have been issued permits from the harbormaster. Accordin...