1 Conn. App. 373 | Conn. App. Ct. | 1983
The plaintiffs and the defendant own adjoining land. The defendant appeals from a judgment granting the plaintiffs an easement by prescription over a portion of the defendant's land and permanently enjoining the defendant and subsequent holders of title from erecting a fence on that portion of the defendant's land consisting of a strip of land five feet wide and seventy-five feet in length.1
The defendant claims error (1) in permitting the plaintiffs to amend their complaint2 and their prayer for relief;3 (2) in granting the prescriptive easement in the manner and form found by the court when it was not established in the evidence; (3) in granting a prescriptive *375 easement which was not definitely established; (4) in finding some subordinate facts which were inconsistent with the judgment and (5) in defining the prescriptive easement contrary to the facts and the law.4
A trial court has discretion to allow an amendment to the pleadings before or during the trial or after the close of evidence, and such a ruling will only be reversed upon a clear showing of abuse of discretion. Practice Book 176; Saphir v. Neustadt,
The amendment to the prayer for relief sought a decrease in the dimensions of the easement. That amendment did not change the nature of the plaintiffs' cause of action, and there was no error in granting the amendment. See Fisher v. Board of Zoning Appeals, *376
A right of way or an easement is acquired by prescription when the claimant's use has been Open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. Reynolds v. Soffer,
The trial court found that the plaintiffs and their predecessors in title had, for an uninterrupted period of fifteen years, continuously used the center portion of the driveway located between the two houses of the parties; that such use occurred in the presence of the defendant and her predecessors in title; that the plaintiff improved the area of the disputed land by filling in worn areas with gravel and sand; and that such use was without the permission of the defendant or her predecessors in title and without recognition of the rights of the defendant. The court found all the facts necessary to comprise an easement by prescription. See Lucas v. Crofoot,
A right of way must be defined in terms of its boundaries with reasonable certainty. Reynolds v. Soffer, supra; Kaiko v. Dolinger,
In the present case, the court found that the easement was seventy-five feet long. If that dimension were to stand, the plaintiffs would acquire an easement extending into the defendant's garage and the easement would encompass an area never used by the plaintiffs or their predecessors in title.6 Since the transcript and exhibits reveal that the bounds of the right of way can be established with reasonable certainty, the plaintiffs should be given the opportunity to establish those boundaries. Haiko v. Dolinger, supra.
The case should be remanded for further proceedings limited to a determination of the dimension of the easement. Reynolds v. Soffer, supra.
There is error in part; that portion of the judgment relating to the metes and bounds description of the easement is set aside and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.