139 Conn. App. 813
Conn. App. Ct.2012Background
- The plaintiff Laura Cirinna owns 75 Winthrop Street; the defendant Rafal Kosciuszkiewicz owns 77-79 Winthrop Street.
- A shared driveway runs along the eastern border of the defendant’s property and provides access to the rear areas of both properties.
- The plaintiff and her predecessors used the driveway openly and continuously since 1974 without complaint.
- In 2009-2010 the defendant blocked access by erecting a fence across the back of the driveway after discovering the defendant owned the land on which the driveway sits.
- The plaintiff sought a prescriptive easement and quiet title; the trial court found a prescriptive easement under § 47-37 and denied the quiet-title claim to the extent it overlapped.
- The defendant appeals contending lack of adverse use and seeking reversal on the prescriptive finding and related denial of sequestration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff established a prescriptive easement under § 47-37. | Cirinna and predecessors used openly, continuously for 15+ years under a claim of right. | Use was permissive or not under a claim of right. | Yes; prescriptive easement established under § 47-37. |
| Whether the trial court properly denied sequestration of witnesses. | No issue with false corroboration; cross-examination adequate. | Sequestration needed to prevent false corroboration. | Yes; no abuse of discretion in denying sequestration. |
Key Cases Cited
- Slack v. Greene, 294 Conn. 418 (Conn. 2009) (criteria for prescriptive easement; open, visible, continuous use under claim of right)
- Reynolds v. Soffer, 190 Conn. 184 (Conn. 1983) (adverse use without permission; burden on defense when asserting permission)
- Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163 (Conn. 1983) (language about adverse use implied by claim of right)
- Andrzejczyk v. Advo System, Inc., 146 Conn. 428 (Conn. 1959) (recognition that adverse use may be inferred from circumstances)
- St. Germain v. Hurd, 128 Conn. App. 497 (Conn. App. 2011) (discussion of prescriptive use and claim of right)
- Wadsworth v. Zahariades, 1 Conn. App. 373 (Conn. App. 1984) (evidence and credibility in prescriptive use cases)
- Gallo-Mure v. Tomchik, 78 Conn. App. 699 (Conn. App. 2003) (adverse use can be inferred where no permission sought or given)
- McManus v. Roggi, 78 Conn. App. 288 (Conn. App. 2003) (informal testimony supporting prescriptive use adverse to owner)