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TERESA A. FRECH ET AL. v. CARL F. PIONTKOWSKI ET AL. (SC 18400)
Norcott, Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js. Argued December 4, 2009--officially released May 4, 2010

Brian R. Smith, with whom was Maria T. Ackley and, on the brief, Richard D. Carella, for the appellants (defendants). John S. Bennet, for the appellees (plaintiffs).

Opinion

McLACHLAN J. This appeal concerns whether an abutting landowner may acquire a prescriptive easement for recreational use over a nonnavigable, artificial body of water. The defendants, Carl F. Piontkowski, Florence Baron and the estate of Constance Murray, appeal1 from the judgment of the trial court, rendered following a trial to the court, finding that the plaintiffs, Teresa A. Frech, Kenneth Andersen and Amy Andersen, had acquired a prescriptive easement for noncommercial recreational purposes, including boating, swimming, fishing and skating over the Obed Heights Reservoir (reservoir), which is owned by the defendants, and that the plaintiffs held record title to disputed land abutting the edge of the reservoir, or, in the alternative, that the plaintiffs had acquired title to the disputed land by adverse possession. The defendants claim that the trial court improperly: (1) concluded that as a matter of law an abutting landowner may acquire a prescriptive easement over a nonnavigable, artificial body of water for recreational purposes; (2) concluded that the plaintiffs had established all of the requisite elements to acquire such prescriptive easement; (3) excluded the defendants' expert testimony regarding the extent of the burden imposed on the servient estate by the easement, specifically, the cost of maintaining the reservoir dam;2 (4) rejected the conclusion of the defendants' expert regarding the boundaries of the plaintiffs' properties; and (5) concluded that the defendants could not prevail on their trespass claim in light of the court's conclusions that the plaintiffs had acquired a prescriptive easement over the reservoir and that the boundaries of the plaintiffs' respective properties extended to the edge of the water.3 We affirm the judgment of the trial court. The trial court found the following facts. The dispute centers around the reservoir and portions of the land surrounding it, which are located in the town of Old Saybrook. The reservoir was created in 1890 by the erection of a dam on the property currently owned by the defendants, twenty-five feet in height from the bottom of a brook situated on the property. The original purpose of the dam was to provide water to the water towers serving the steam locomotives at the Old Saybrook Railroad Junction. The defendants own the reservoir and the land under it, and the plaintiffs each own land abutting the reservoir in a subdivision that was approved in 1974, but the exact boundary between the reservoir and the abutting properties and the ownership of that land was the subject of dispute at trial. Frech has owned lot 10 of the subdivision since 1977,4 and the Andersens have owned lot 11 since they acquired the property from their predecessor in title, John Marzano, in 1997. Marzano had acquired lot 11 in 1979.

Over the course of more than twenty-five years, the Frech family, the Andersen family and the Marzano family had used the whole of the reservoir for recreational purposes, including boating, swimming, fishing, ice-skating and ice fishing. The Frech family had placed wooden pallets on lot 10 at the water's edge to facilitate access to their boat from the land. The Marzano family had built a sandy beach on the edge of lot 11 leading into the reservoir, with sand that had been delivered to the property by truck. Like the Frech family, the Andersen family kept a boat and they and their guests used it over the entire reservoir. The defendants had not given them permission to use the reservoir for these purposes, and neither the plaintiffs nor the Marzano family had asked for permission. When the defendants placed ``No Trespassing'' signs in the water near lots 10 and 11, the plaintiffs removed the signs. The plaintiffs brought this action pursuant to General Statutes

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Connecticut Law