58 Conn. App. 262 | Conn. App. Ct. | 2000
Opinion
This is an appeal from the judgment of the trial court rendered following the granting of the defendants’
The following facts and procedural history are pertinent to our resolution of this appeal. The plaintiff, Donna L. Kroll, brought the present action against the defendants alleging, in an amended complaint, that the defendants Jack Sebastian and Shirley Sebastian, with
The defendants moved for summary judgment on the single ground that, as a matter of law, the plaintiff could not obtain a prescriptive easement over land held by municipalities for public use.
“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that
“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).
In its memorandum of decision, the court found that “the plaintiffs affidavit and the affidavit of the president of the [association] create a genuine issue of material fact as to whether the subject strip of land was, and presently is, held open for public use.” Immediately following this statement, the court continues, “[h]ow-ever, the plaintiff does not proffer evidence to rebut the assertion by the president of the [association] that the [association] has [recently] considered constructing a sidewalk along a portion of East Shore Avenue, as part of its long-term Local Capital Improvement Plan filed with the [Connecticut office of policy and management] approximately seven years ago. At all times, [the association’s] intention has been to utilize the land adjoining East Shore Avenue for public use.” (Internal quotation marks omitted.)
In support of its ruling, the court cited Kistler v. Gnazzo, 33 Conn. App. 943, 638 A.2d 1101, cert. denied, 229 Conn. 915, 642 A.2d 1209 (1994), a summary affirmance involving an action to enjoin the defendants in that case from interfering with the plaintiffs’ use of certain real property. Kistler cites American Trading Real Estate Properties, Inc., which, indeed, supports the foundation sought to be laid by the trial court. The flaw in the infrastructure sought to be constructed by the court is that these cases are distinguishable. American Trading Real Estate Properties, Inc., and Kistler involve appeals from judgments rendered after trial while the present case involves an appeal from the judgment rendered following the granting of a motion for summary judgment. The court, quite appropriately, found that a genuine issue of material fact was created by the parties as to whether the strip of land was, and is, held for public use, but then decided that question of fact by holding that the plaintiff failed to rebut the presumption that the association holds the land for public use. The plaintiff could proceed no further with specific evidence.
The judgment is reversed and the case is remanded for further proceedings.
In this opinion the other judges concurred.
The defendants are Jack Sebastian, Shirley Sebastian, Groton Long Point Association, Inc., and Geneva DeLabry, secretary of the association.
The plaintiff presented three claims in her brief; however, because this issue is dispositive, we do not address the remaining claims.
General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or eqjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”
The association is a municipal corporation pursuant to an act of the General Assembly dated May 19, 1921.