Viering v. Groton Long Point Ass'n, Inc.

311 A.3d 215

223 Conn.App. 849

Peter B. VIERING et al.

v.The GROTON LONG POINT ASSOCIATION, INC.

(AC 45974)

Appellate Court of Connecticut.

Argued September 20, 2023

Officially Released February 27, 2024

Gerald T. Giaimo, with whom were Hugh I. Manke, New Haven, and, on the brief, Adam B. Marks, Hartford, for the appellants (plaintiffs).

Joseph P. Williams, New Haven, with whom were Chelsea McCallum and, on the brief, Sarah E. Dlugoszewski, Hartford, for the appellee (defendant).

Elgo, Clark and Sheldon, Js.

SHELDON, J.

₈₅₂The present case arises from a dispute between the plaintiffs, Peter B. Viering, Russell W. Viering, Jr., Christine Carr, Jane M. Battles, Thomas E. Kingston, Jr., and Bobbye Lou Sims, and the defendant, The Groton Long. Point Association, Inc., concerning the plaintiffs’ claimed right to make exclusive use of two strips of land denominated as rights-of-way on land owned by the defendant that abuts the plaintiffs’ residential properties in the Groton Long Point section of Groton. The plaintiffs appeal from the judgment rendered against, them by the trial court on the granting of a motion for summary judgment filed by the defendant and the denial of the plaintiffs’ own motion for summary judgment.¹ On appeal, the plaintiffs claim that the court erred in its summary judgment rulings by (1) failing to consider whether access easements over the two rights-of-way had been granted to them by deed, and thereby conferred on them the right to use such rights-of-way to the exclusion of all others, and failing ₈₅₃in so ruling to consider certain extrinsic evidence allegedly relevant to that claim; (2) concluding that the defendant was entitled to judgment as a matter of law on the plaintiffs’ claim that they had acquired the rights-of-way by adverse possession or, alternatively, that they had acquired prescriptive easements over the rights-of-way; and (3) failing to address their claim that the defendant had abandoned the rights-of-way. We affirm the judgment of the court.

The record reveals the following undisputed facts and procedural history. The rights-of-way at issue are two five foot wide strips of land that run north to south through a tract of land in Groton Long Point, lying between West Shore Avenue on the north and a beach along Long Island Sound on the south. In this tract, each of the plaintiffs owns one or more road front or beachfront properties, each of which abuts one of the rights-of-way, which the parties and the court refer to by their relative locations in the tract as the west right-of-way and the east right-of-way. Specifically, Peter Viering and Russell Viering, Jr. (collectively, Vierings), own four contiguous lots—shorefront lots 827 and 828 and road front lots 343 and 344 to their immediate north—which together abut the west right-of-way on the east and the east right-of-way on the west; Carr owns shorefront lot 329 and road front lot 342 to its immediate north, which together abut the west right-of-way on the west; Battles owns shorefront lot 326, which abuts the east right-of-way on the east; and Kingston and Sims own road-front lot 345, which abuts the Battles’ property on the north and the east right-of-way on the east.

The plaintiffs’ properties were separately deeded to their predecessors in title on divers dates in the 1920s by the Groton Long Point Land Company, Inc. (company), which had owned and developed them as parts of the second of five subdivisions of the land now known as ₈₅₄Groton Long, Point. The deed to each such property indicates that it is "bounded" by the particular right-of-way it abuts.²

In 1931, the company, as "releasor," transferred to the defendant, a homeowners association to which the plaintiffs and all other owners of residential property in Groton Long Point belong, as "releasee," five specific common area tracts³ within Groton Long Point and "all the right, title, interest, claim and demand whatsoever as it, the said releasor, has or ought to have in or to all of the shore, roads and rights of way located at Groton Long Point … as have not heretofore already been conveyed to this releasee by this [r]eleasor …. "

The plaintiffs obtained title to their respective properties on divers dates in the 1990s and 2000s.⁴

Between November, 1999, and March, 2000, Peter Viering sent a series of letters to the board of directors of the defendant, urging it to recognize that the rights-of-way abutting the plaintiffs’ properties were not to be used by the public or residents of Groton Long Point at large, but instead were intended "only to provide limited rights of way dedicated to and reserved for the lots they abutted." In October, 2003, and January, 2004, the defendant sent letters to the residents of Groton Long Point, asserting ownership of the rights-of-way and instructing "adjacent property owners who have encroached upon the [rights-of-way] to please remove all hazardous impediments … that obstruct access" to them.

₈₅₅For many decades prior to the sending of those letters, and continuing through the present time, the rights-of-way have been covered with vegetation such as beach rose and bittersweet. At the end of May, 2019, the defendant sent letters to the plaintiffs informing them that it intended to "commence cleanup" on the rights-of-way by removing "bushes and other impediments" from them. Shortly thereafter, unnamed individuals began to clear vegetation from the west right-of-way.

In June, 2019, the plaintiffs commenced the present action against the defendant. In their first amended complaint, the plaintiffs alleged that they had acquired title to the rights-of-way through either adverse possession or abandonment, or, alternatively, that they possessed access easements over the rights-of-way for their exclusive use as abutting property owners or had acquired prescriptive easements over them. The plaintiffs sought the following relief: (1) a declaratory judgment that (a) the Vierings and Carr own the west right-of-way or have the right to use it to the exclusion of all other association members and the general public, and (b) the Vierings, Battles, Kingston, and Sims own or have the right to use the east right-of-way to the exclusion of all other association members and the general public; and (2) a temporary and permanent injunction prohibiting the defendant "from commencing any activity to clear the west [right-of-way] and east [right-of-way] of their vegetation" or take "any other action that opens access to the west [right-of-way] and the east [right-of-way]."

[1–3] The defendant thereafter filed an answer and special defenses,⁵ alleging, inter alia, that it was a municipality ₈₅₆that held the rights-of-way for public use and, therefore, that the rights-of-way were immune from claims of adverse possession and prescriptive easement.⁶

The parties subsequently filed motions for summary judgment as to each count of the plaintiffs’ first amended complaint. The plaintiffs and the defendant submitted numerous affidavits, deeds, subdivision maps, photographs, and other exhibits in support of their respective positions on the motions for summary judgment.

[4, 5] On October 18, 2022, the court, Jacobs, J., issued a memorandum of decision granting the defendant’s motion for summary judgment and denying the plaintiffs’ motion for summary judgment. Addressing the plaintiffs’ claim of adverse possession, the court first concluded that the defendant was not entitled to summary judgment on the ground of municipal immunity because, although the defendant was a quasi-municipality,⁷ there was a genuine issue of material fact as to whether it intended to abandon the rights-of-way.⁸ Notwithstanding ₈₅₇this ruling, the court went on to conclude that the adverse possession claim failed as a matter of law for two other reasons: first, there was no genuine issue of material fact that the plaintiffs’ use of the disputed areas had not been open, visible, and hostile to the defendant, as required to establish adverse possession; and second, the plaintiffs’ shared dominion over and use of the rights-of-way defeated the exclusivity element of that claim. Next, the court concluded that the plaintiffs’ claim for access easements over the rights-of-way failed as a matter of law because the plaintiffs already had access to the rights-of-way as members of the defendant, and, therefore, they did not need easements by necessity to gain such access. Finally, as to the plaintiffs’ claim for prescriptive easements over the rights-of-way, the court concluded that there was no genuine issue of material fact that the plaintiffs had not, for a continuous period of fifteen years, made open, visible, and hostile use of the rights-of-way under a claim of right. This appeal followed. Additional facts and procedural history will be provided as necessary.

Before turning to the plaintiffs’ claims on appeal, we set forth the applicable standard of review. "The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. … In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the. nonmoving party. … The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] ₈₅₈material facts [that], under applicable principles of substantive law, entitle him to a judgment as a matter of law … and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. … A material fact … [is] a fact [that] will make a difference in the result of the case. … Finally, the scope of our review of the trial court’s decision to...