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MONA T. SLACK v. BRENDA B. GREENE (SC 18038)
Norcott, Palmer, Zarella, Schaller and Sferrazza, Js.* Argued April 21, 2008--officially released December 29, 2009

Aaron S. Bayer, with whom was Aaron D. Singer,

for the appellant (defendant). Peter M. Ryan, for the appellee (plaintiff).

Opinion

PALMER, J. The defendant, Brenda B. Greene, appeals from the judgment of the trial court rendered in favor of the plaintiff, Mona T. Slack, declaring that the plaintiff had acquired a prescriptive easement over a paved, sixteen foot right-of-way located on the defendant's property for purposes of ingress to and egress from her home. The defendant claims that the evidence was insufficient to support the trial court's finding that the plaintiff had established all of the elements of a prescriptive easement. We reject the defendant's claim and, accordingly, affirm the judgment of the trial court. The trial court's memorandum of decision sets forth the following relevant facts. ``The disputed area . . . is a paved right-of-way that intersects with Runkenhage Road in the town of Darien. It is sixteen feet wide and passes through the defendant's property at [10] Runkenhage Road in a southwesterly direction for 182.34 feet. It then makes a sharp turn to the southeast for another 106.57 feet, where it ends at the entrance to 12 Runkenhage Road. . . . The plaintiff, [who owns the] property at 6 Runkenhage Road, and the defendant share a property line [along] the first 160 feet [of the right-of-way] from Runkenhage Road. Between the right-of-way and the shared property line is approximately five feet of property owned by the defendant. The shared property line runs fairly parallel to the rightof-way. At the end of the plaintiff's property line is a driveway [that] extends from the right-of-way, over five feet of the defendant's property and into the plaintiff's property. Abutting the driveway to the southeast is property at 10 Runkenhage Road. . . . The [plaintiff's] driveway is clearly delineated. . . . It can reasonably be deduced from measurements . . . that the driveway is approximately eleven to twelve feet wide as it passes over the defendant's property. ``The plaintiff1 and her then husband purchased underdeveloped property at 6 Runkenhage Road in 1958 from Marguerite Tjader Harris, [the plaintiff's] aunt by marriage. The plaintiff constructed a home with a driveway accessible from Runkenhage Road on the northwest side of the property and from the defendant's rightof-way abutting the southwest side of the property. The certificate of occupancy for 6 Runkenhage [Road] was issued on July 2, 1959. A proposed access to the rightof-way . . . was moved farther to the southwest during construction so as to be opposite the plaintiff's garage. The plaintiff held title jointly with her husband until their divorce. Since then, she has held title alone. ``For its entire length, from Runkenhage Road to the right-of-way, the plaintiff's driveway appears to be uniformly covered in crushed stone. The point where the driveway crosses the defendant's property and intersects with the right-of-way is clearly visible from the

defendant's property. ``The defendant purchased her property including the [sixteen foot] right-of-way at 10 Runkenhage Road from Brian [Murphy] and Veronica Murphy on July 13, 2000. The Murphys purchased title from Lucy Herberick on April 1, 1980. The predecessors in title to the Herbericks2 were David [Moore] and Marion Moore, who purchased the property from Olive Nicholls Ward on June 1, 1953. . . . Ward was the plaintiff's stepgrandmother. ``Adjoining the plaintiff's property to the southwest is 8 Runkenhage Road, presently owned by David [Wilson] and Sandra Wilson. Further to the southwest and adjoining the [Wilsons'] property is 12 Runkenhage Road, [which is] presently [owned] by Kevin [Keating] and Nancy Keating. The only access to properties at [8, 10 and 12 Runkenhage Road] is via the right-of-way owned by the defendant. The Wilsons and Keatings have deeded access over the right-of-way and contribute toward its upkeep . . . . The plaintiff does not have deeded access over the right-of-way and does not contribute to its upkeep. ``The plaintiff grew up in the general area of Runkenhage Road, visiting family at each of the three homes extant [on the road] at that time or actually residing there for periods of time. She used the right-of-way to gain access to the residences. The plaintiff has used the right-of-way since 1959 to gain easier access to the garage on her property. Guests and invitees have also used the right-of-way to enter and exit her property. ``The plaintiff's nephew, Michael Tjader, resided with his family and the plaintiff at 6 Runkenhage Road for several years in his youth. Tjader, his father, the plaintiff and her [former] husband, and their guests and invitees used the right-of-way as a means of egress [from] and ingress to the plaintiff's property. Tjader rode his bicycle on the right-of-way, and when he received his [driver's] license, he drove over the right-of-way as a means of egress [from] and ingress to the plaintiff's property. In Tjader's lifetime, the driveway from the right-of-way was always located where it is at [the] present [time]. ``Malcom Hall, who resided at 8 Runkenhage Road from 1985 to 1987, observed the plaintiff's use of her driveway and the right-of-way for both ingress [to] and egress [from] her driveway and garage on many occasions. ``Kevin Keating, who currently resides at 12 Runkenhage Road, has observed the plaintiff use the right-ofway in connection with her driveway. ``David Wilson, who has resided at the adjoining property at 8 Runkenhage Road, has observed the plaintiff, her guests, invitees and trades people using the right-ofway for both ingress [to] and egress [from] the plaintiff's property. In addition, [Wilson] has, on occasion, been

and their guests to park on her driveway and access way leading to the right-of-way when his own adjoining driveway was filled with cars. ``In 2005, the defendant constructed a number of concrete pillars abutting the right-of-way and in between the right-of-way and the plaintiff's property line. One pillar is constructed immediately abutting the plaintiff's access way to her driveway on the southeasterly side. . . . The pillar's location makes it difficult if not near impossible for the plaintiff to make a right turn with her automobile. As a result, the plaintiff asked Kevin Keating for his permission to use his driveway as a turnaround so she could approach the access way from the opposite direction.'' (Citations omitted.) The plaintiff commenced the present action, alleging that she had used and enjoyed the right-of-way for ``all purposes of passage of persons and vehicles for more than fifteen years before the commencement of this action, and [that] the use and enjoyment had been open, visible, continuous, uninterrupted and under a claim of right . . . .'' The plaintiff sought a judgment declaring that she had acquired an easement by prescription over the right-of-way for purposes of ingress to and egress from her driveway, as well as temporary and permanent injunctions prohibiting the defendant from building, constructing or maintaining any improvement of any kind in or around the area of the right-of-way that would interfere with her use and enjoyment thereof.3 The case was tried to the court. At trial, the plaintiff testified that she, the members of her family and their invitees had used the right-of-way as a means of ingress to and egress from her home since 1959, the year that she and her former husband built their residence on Runkenhage Road. The plaintiff further testified that it is her practice, when she leaves her home, to exit her driveway onto Runkenhage Road and to return using the right-of-way because it permits her to drive straight into her garage, without having to execute a turn. The plaintiff also introduced into evidence several photographs depicting the intersection of her driveway and the right-of-way. These photographs depicted that intersection from several vantage points, including its proximity to the garage. In addition, the plaintiff introduced a copy of the certificate of occupancy that had been issued for her residence in 1959. Attached to that document was a 1958 survey and site plan of the property depicting a driveway accessible from both Runkenhage Road and from what is now the defendant's right-ofway. Both the certificate of occupancy and the site plan had been filed with the building department of the town of Darien in 1959. The defendant sought to demonstrate that the plaintiff's use of the right-of-way always had been permissive rather than adverse and under a claim of right. The defendant relied primarily on evidence establishing that

members of the plaintiff's family previously had owned the defendant's property and that the plaintiff had grown up near that property and, for a time when she was a child, actually had resided on it. The defendant maintained that this evidence indicated that the plaintiff had used the right-of-way with the permission of her family members and not under a claim of right.4 In a memorandum of decision filed by the trial court following the conclusion of the trial, the court found that the plaintiff ``established by a fair preponderance of the evidence that, between 1959 and 1974, she and her guests and invitees [had] used the disputed area as a right-of-way to gain entry [to] and to exit her property, and that [their] use was `open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.' '' After evaluating the plaintiff's demeanor and that of the witnesses who testified on her behalf, as well as the ``quality of their testimony,'' the court found them ``to be highly . . . credible . . . .'' The court further stated that their testimony was entitled to ``great weight . . . .'' In contrast, the court was ``unable to give much if any weight'' to the testimony of the defendant's primary witness, Veronica Murphy, one of the previous owners of the defendant's property, who had ``testified to conversations with the plaintiff between 1980 and 2000 regarding permission to use the right-of-way.'' As a result, the trial court expressly found that the defendant had failed to establish that those conversations had, in fact, occurred. With respect to the defendant's claim that the plaintiff's use of the right-of-way was permissive rather than adverse because the plaintiff had used the right-of-way when it was owned by members of her family, the trial court found that the plaintiff's ``prior use of the disputed area as a guest and as a tenant does not alter the fact that, in the years 1958 and 1959, when the plaintiff purchased her property and constructed a driveway over the defendant's property, nonrelatives held title to property at [10] Runkenhage [Road], including the rightof-way, and had done so since 1953.'' The court further found that ``no evidence was presented at trial [demonstrating] that an objection, written or otherwise, was made to the plaintiff's use [of the right-of-way] during the [prescriptive] period.'' Instead, the court credited the plaintiff's testimony that ``no one questioned her use of the right-of-way from 1959 until the defendant began construction of the pillars in 2005.'' The court also found, in rejecting the defendant's laches claim; see footnote 4 of this opinion; that, if the defendant had engaged in even the most ``cursory examination of the property line of [10] Runkenhage Road prior to her purchase'' of the property, she would have observed that the plaintiff's driveway ``spills out onto the rightof-way,'' a fact that would have afforded the defendant ``fair and patently obvious notice [that] there was use of the right-of-way [by the plaintiff in a manner] other

than that expressly provided [in the] deed.'' In light of these findings, the trial court rendered judgment declaring that the plaintiff has a legal right and title to the use and enjoyment of the right-of-way. The court also granted a permanent injunction barring the defendant from constructing any obstacle that would interfere with the plaintiff's use and enjoyment of her easement. Finally, the court ordered the defendant to remove the particular concrete pillar that was obstructing the plaintiff's use of the easement. This appeal followed.5 We begin our analysis with the standard of review. ``Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.'' Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). ``When the factual basis of a trial court's decision [regarding the existence of a prescriptive easement] is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling.'' (Citation omitted; internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 533, 932 A.2d 382 (2007). ``[General Statutes

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