1 Conn. App. 693 | Conn. App. Ct. | 1984
The plaintiffs and the defendants in this case are adjoining neighbors in Wallingford. The plaintiffs purchased their property in 1979 relying upon a survey which the parties now agree was incorrect in its representation of the plaintiffs' western boundary, the property line they share with the defendants. Between the two properties is a common driveway. The incorrect survey indicated that the driveway was owned by the plaintiffs. Relying on that survey, the plaintiffs made use of the driveway in such a way as to destroy hedges and stone decorations on the defendants' land. In response to the plaintiffs' behavior, the defendants *694 engaged a licensed surveyor who confirmed that the defendants' property extended onto a triangular portion of the driveway, widest on the street side. The defendants then constructed a five-foot high chain link fence on the boundary line. The chain link fence interfered with the plaintiffs' use of the driveway.
The plaintiffs in an amended complaint brought suit in two counts. In count one they sought to enjoin the defendants from maintaining a fence in the middle of the jointly used driveway, and in count two they sought to quiet title to the triangular portion of the driveway alleging "actual, visible, exclusive, open and notorious adverse possession of the property for more than fifteen (15) years." The trial court rendered judgment for the plaintiffs on both counts. The court found that the plaintiffs had, by clear and convincing evidence, proved an uninterrupted use by open, visible and exclusive possession without license or consent and under a claim of right to a prescriptive easement over the fenced off portion of the driveway. From that judgment, the defendants have appealed.1
The defendants briefed as error that (1) there was a material variance between the facts alleged in the complaint (adverse possession) and the facts proved (prescriptive easement), and that (2) the use of the property by the plaintiffs was with express or implied permission and not continuous for a period of fifteen years, thereby defeating a claim of adverse possession and prescriptive easement.
The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. Board of Education v. Commission on Human Rights Opportunities,
To set aside a judgment on the basis of a variance between the pleadings and the proof, the variance must be material in a way which is essential to the cause of action claimed. Schaller v. Roadside Inn, Inc., supra; S.H.V.C., Inc. v. Roy,
In the present case the judgment was based on an entirely different cause of action from any alleged in the complaint.2 Any claim of prescriptive easement was not within the issue presented by the pleadings and could not properly be adjudicated in this action. A claim of prescriptive easement requires proof that the claimant's use of the property has been Open, visible, continuous and uninterrupted for fifteen years under a claim of right. Reynolds v. Soffer,
Our courts have followed a liberal policy in passing upon claims of variance between pleadings and proof. Antonofsky v. Goldberg,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.