173 Conn. App. 730
Conn. App. Ct.2017Background
- Bert Brander bought adjacent property in 1984 and for decades grazed sheep and grew hay on an adjoining parcel (the disputed property) that had been owned by Henry and Lily Frey.
- At the time of sale the Freys told Brander they would leave the disputed property to him in their wills; Brander used the land with their apparent permission and guidance from Henry Frey.
- Relations soured in 1993–95: the Freys listed the land for sale, sent a 1994 cease-and-desist demanding Brander stop using the land, erected a dividing fence, and settled litigation with Brander in 1995; Brander then removed the fence and resumed use.
- The Freys later revoked the will bequest; Henry died in 2002, Lily planned and pursued building a house and to donate the land to the Farmington River Watershed Association, and Brander reconciled with Lily in 2004.
- Between 2004 and Lily’s death in 2006 Brander acted deferentially, delivered lamb meat (interpreted as a gift of appreciation), did not assert ownership when Lily sought permits or when planning for a house, and the court found his use was permissive or not hostile in that period.
- Brander sued to quiet title claiming adverse possession (§52-575) and, alternatively, a prescriptive easement (§47-37); the trial court rejected both claims and entered judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse possession (15-year statutory period) | Brander: used the land openly for grazing/haying continuously since 1984, removal of fence in 1995 repudiated prior permission and started adverse period | Defs: early use was permissive; Brander acknowledged Freys’ ownership (including filings) and acted in ways showing deference; do not meet 15 uninterrupted years or claim-of-right | Court: Use was permissive 1984–1995; adverse period ran 1995–2004 only (9 yrs); reconciliation 2004–2006 interrupted hostility; adverse possession fails |
| Prescriptive easement (15-year statutory period) | Brander: alternatively, nonexclusive prescriptive easement for grazing/haying — lower proof burden and exclusivity not required | Defs: use was permissive; Brander acknowledged ownership (e.g., filings, conduct); defendants bear burden to prove permission as affirmative defense | Court: Pre-2004 use permissive; 2004–2006 use likely permissive; statutory 15 years not met; prescriptive easement fails |
Key Cases Cited
- Lisiewski v. Seidel, 95 A.3d 899 (Conn. App. 2006) (adverse possession requires clear and convincing proof and strict application)
- Anderson v. Poirier, 997 A.2d 604 (Conn. App. 2010) (elements of adverse possession include 15 years open, visible, exclusive possession without owner’s consent)
- Eberhardt v. Imperial Constr. Servs., LLC, 923 A.2d 785 (Conn. App. 2007) (claim of right requires intent to possess without owner’s consent)
- Slack v. Greene, 984 A.2d 734 (Conn. 2009) (prescriptive easement requires 15 years open, visible, continuous use under claim of right; burden shifts on permission defense)
- Roche v. Fairfield, 442 A.2d 911 (Conn. 1982) (exclusive possession for adverse purposes assessed by acts consistent with ownership)