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THOMAS E. BENNETT v. PETER W.

BOWDITCH ET AL.

(AC 37243)

Beach, Alvord and Mullins, Js.

Submitted on briefs October 9, 2015—officially released March 15, 2016

(Appeal from Superior Court, judicial district of

Fairfield, Hon. Richard P. Gilardi, judge trial referee.)

Thomas L. Kanasky, Jr., filed a brief for the appellants (defendants).

Ann Marie Willinger and James A. Lenes filed a brief

for the appellee (plaintiff).
Opinion

BEACH, J. The defendants, Peter W. Bowditch and

Wendy A. Bowditch, appeal from the judgment of the

trial court rendered in favor of the plaintiff, Thomas

Bennett. On appeal, the defendants claim that the court

erred in finding that the plaintiff met his burden of

proof as to (1) the elements of adverse possession of

property, and (2) the extinguishment of their easement

rights. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts as found by the trial court are

relevant to this appeal. The plaintiff’s father, Patrick

Bennett, purchased property located at 112–114 Bennett Street in Bridgeport in 1963. He transferred title

to the property to the plaintiff in 2006. Since 1995, the

defendants have owned commercial property located

at 2926–2930 Fairfield Avenue in Bridgeport, which is

adjacent to the plaintiff’s property.1

There are three areas of land at issue in this appeal,

two distinct parcels of property and an easement over

a different parcel of property. The defendants held title

in fee to parcels one and two and also owned an easement in the form of a passway extending over the plaintiff’s property. Parcel one was a rectangular area

approximately ten feet wide and thirty feet long that

was located in the rear of the plaintiff’s property,

between the plaintiff’s property and the defendants’

property. A chain-link and razor wire fence, which had

been in place for decades, separated parcel one from

the defendants’ Fairfield Avenue property.2 Parcel two

was a triangular area running from the front of the

plaintiff’s house on Bennett Street at its apex to the

rear of parcel one. The easement was an eight foot

passway that extended across the plaintiff’s property

from Bennett Street to the rear of the property and was

adjacent to parcels one and two. The passway rights

benefited the defendants’ property and initially were

established in a 1916 deed. The plaintiff used parcel

one as part of his driveway and as a parking area. He

used parcel two as part of his driveway for access to

the rear of his property. The defendants’ passway rights

extended over the remainder of the plaintiff’s driveway

and provided access from Bennett Street to parcels one

and two.

For the entire period since purchasing the Bennett

Street property in 1963, Patrick Bennett either had

resided in the home or had rented it to relatives. He or

the plaintiff had continuously maintained the property,

as well as the three areas of land at issue. Patrick Bennett had paved parcels one and two with asphalt, along

with the portion of the driveway that he owned in fee.

The plaintiff later covered the asphalt with crushed

stones to fill in holes. Either Patrick Bennett or the

plaintiff had removed snow from the driveway and the
two parcels since 1963, and, at least since that time,

the parcels had been used as part of the driveway for

the plaintiff’s property. The plaintiff installed a privacy

fence along the chain-link fence separating parcel one

from the rest of the defendants’ Fairfield Avenue property. According to a longtime neighbor of the plaintiff,

the chain-link fence had separated the defendants’ Fairfield Avenue property from parcel one since at least

the 1950s. Since Patrick Bennett purchased the Bennett

Street property in 1963, the three areas in contention

never had been used by anyone other than the plaintiff

and members of his family.3 There was no evidence that

the defendants or their predecessors in title ever had

used parcels one or two or the passway that was over

the remainder of the plaintiff’s driveway.

The plaintiff commenced this action against the

defendants on August 23, 2011, to quiet title pursuant

to General Statutes § 47-314 and to acquire the three

areas by adverse possession pursuant to General Statutes § 52-575.5 Following a trial to the court on June

19, 2014, the court rendered judgment in favor of the

plaintiff as to all three areas of land. The court found

that the plaintiff had proven by clear and convincing

evidence that he had acquired title to parcels one and

two by adverse possession and that the plaintiff’s title

to his land had thus become unencumbered by the

defendant’s easement. The court further found that title

had vested in Patrick Bennett in 1978 because he had

maintained actual, open, notorious, hostile, continuous,

and exclusive possession of the property for the fifteen

year statutory period, which began in 1963. This

appeal followed.

We set forth the standard of review necessary for

our resolution of this appeal. ‘‘[T]o establish title by

adverse possession, the claimant must oust an owner

of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent

to use the property as his [or her] own and without the

consent of the owner. . . . It is sufficient if there is

an adverse possession continued uninterruptedly for

fifteen years whether by one or more persons. . . .

[T]he possession [however] must be connected and continuous. . . . The use is not exclusive if the adverse

user merely shares dominion over the property with

other users. . . .

‘‘A finding of [a]dverse possession is not to be made

out by inference, but by clear and positive proof. . . .

[C]lear and convincing proof denotes a degree of belief

that lies between the belief that is required to find the

truth or existence of the [fact in issue] in an ordinary

civil action and the belief that is required to find guilt

in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a

reasonable belief that the facts asserted are highly prob-
ably true, that the probability that they are true or exist

is substantially greater than the probability that they

are false or do not exist. . . . The burden of proof is

on the party claiming adverse possession. . . .

‘‘Despite [this] exacting standard, our scope ofreview

is limited. . . . Because adverse possession is a question of fact for the trier . . . the court’s findings as to

this claim are binding upon this court unless they are

clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the

facts or pass on the credibility of the witnesses. . . .

A finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.

. . . A trial court’s findings in an adverse possession

case, if supported by sufficient evidence, are binding

on a reviewing court.’’ (Citations omitted; internal quotation marks omitted.) Skelly v. Brucher, 134 Conn.

App. 337, 340–41, 38 A.3d 261 (2012). With this standard

in mind, we address each of the defendants’ claims.

I

We first discuss parcels one and two. The defendants

argue that the plaintiff failed to prove all of the elements

of adverse possession by clear and convincing evidence.

Specifically, they argue that the plaintiff did not plead6

that possession by the plaintiff and Patrick Bennett

was without the consent, permission, or license of the

owners of the property and that the plaintiff did not

offer any proof as to that element. We are not persuaded

that the court’s finding of lack of consent was clearly

erroneous. Rather, we conclude that there was sufficient evidence to support this finding.

In its memorandum of decision, the court found that

‘‘[t]he evidence clearly and convincingly established

[that] since 1963, Patrick Bennett, predecessor in ownership, made improvements upon the three parcels

without the consent of the defendants. He also used and

occupied those three parcels without the permission or

consent of the defendants.’’ The court further found

that ‘‘the evidence clearly and convincingly establishes

[that the plaintiff has] established hostile occupancy of

the parcels.’’ Hostile occupancy implies lack of consent.

See Woodhouse v. McKee, 90 Conn. App. 662, 672, 879

A.2d 486 (2005) (‘‘[o]ur resolution of this appeal directs

us to the element of hostility, that is the absence of

consent’’). ‘‘As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant’s

possession ofthe disputed land,from its inception, must

be without permission, license or consent of the owner

and must continue to be so throughout the required

fifteen year period.’’ (Footnotes omitted.) Mulle v.

McCauley, 102 Conn. App. 803, 813–14, 927 A.2d 921,

cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
Our review of the record shows that there was evidence adduced at trial to support the court’s finding

that the plaintiff’s use of parcels one and two was without the consent of the defendants or their predecessors

in title. The plaintiff and his family repaired the driveway, removed snow, and landscaped the area continually since 1963. The evidence presented clearly showed

that neither the defendants nor their predecessors in

title had ever used or maintained either parcel one or

parcel two since at least 1963. At all relevant times,

access to the parcels from the defendants’ property was

blocked by a chain-link and/or wood fence. The plaintiff

and his predecessor in title exercised dominion and

control over parcels one and two in a manner consistent

with ownership since Patrick Bennett bought the property in 1963.

We conclude that the plaintiff presented sufficient

evidence at trial to allow the trial court to find by clear

and convincing evidence that the plaintiff’s use of parcels one and two was without the consent of the defendants. We will not disturb that finding on appeal.

II

We next turn to the trial court’s conclusion that the

easement was extinguished. The defendants claim that

the trial court improperly found that the plaintiff had

presented sufficient evidence to prove that their easement rights had been extinguished. We disagree. The

easement in question was the eight foot passway over

the plaintiff’s property that runs adjacent to parcels one

and two.

‘‘[O]ur case law makes clear that a claim of extinguishment of a right-of-way properly is established

through prescriptive use.’’ Mierzejewski v. Brownell,

102 Conn. App. 413, 419, 925 A.2d 1126, cert. denied,

284 Conn. 917, 931 A.2d 936 (2007). ‘‘[I]f the servient

owner . . . should by adverse acts lasting through the

prescriptive period obstruct the dominant owner’s . . .

enjoyment, intending to deprive him of the easement,

he may by prescription acquire the right to use his own

land free from the easement.’’(Internal quotation marks

omitted.) Russo v. Terek, 7 Conn. App. 252, 255, 508

A.2d 788 (1986). ‘‘A servient owner can extinguish an

easement by prescription by demonstrating that the

use of the property has been open, visible, continuous,

uninterrupted and under a claim of right for a period

exceeding fifteen years. . . . The standard of proof

required for the extinguishment of an easement by

adverse use is that of a fair preponderance of the evidence. . . . Whether an easement has been extinguished by the adverse acts of a servient owner

primarily presents a question of fact for the trier. . . .

When the factual basis of the court’s decision is challenged, the reviewing court must determine whether

the facts are supported by the evidence or whether they
are clearly erroneous. . . . In such cases, the trier’s

determination of fact will be disturbed only in the clearest of circumstances, where its conclusions could not

reasonably be reached.’’ (Citations omitted; internal

quotation marks omitted.) Mierzejewski v. Brownell,

supra, 421.

The trial court found that the plaintiff’s property and

parcels one and two had been completely surrounded

by a chain-link and razor wire fence blocking access

to the defendants’ Fairfield Avenue property since at

least the 1950s. This fence completely cut off access to

the easement from the defendants’ Fairfield Avenue

property. Under certain circumstances, a chain-link

fence across an easement is sufficient to commence

the running of the period of prescriptive use. See Public

Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn.

App 380, 381–82, 567 A.2d 389 (1989). The court found

that the plaintiff had maintained actual, open, notorious, hostile, continuous, and exclusive possession of

the property, including the easement,forthe fifteen year

statutory period, and we will not disturb that finding on

appeal.

Furthermore, the trial court found that title to parcels

one and two vested in Patrick Bennett in 1978 because

he maintained actual, open, notorious, hostile, continuous, and exclusive possession of the property for the

fifteen year statutory period beginning in 1963. By

acquiring parcels one and two by adverse possession,

the plaintiff’s predecessor in title deprived the defendants’ predecessor in title of the easement because it

no longer provided access to the defendants’ property.

Instead, the passway ran from Bennett Street across

the plaintiff’s property to the rear of his property, adjacent to parcel one, without access to the defendants’

property. Because the defendants were ousted from

parcels one and two, there was no longer any use at

all for the easement. Thus, when title to parcels one

and two vested in Patrick Bennett, the easement was

extinguished.7 We conclude that the findings are sufficiently supported by the evidence and that the court’s

conclusions were lawfully drawn.

The judgment is affirmed.

In this opinion the other judges concurred.

APPENDIX
1 See appendix. A sketch of the area in question was derived from plaintiff’s

exhibit 1. We have redacted extraneous information and have labeled the

areas so that the wording is consistent with this opinion.

2

In 2011 or 2012, both the chain-link and razor wire fence and the wood

privacy fence that separated parcel one from the defendants’ Fairfield Avenue property were removed in order for the defendants to add a new parking

lot on the Fairfield Avenue property. The plaintiff subsequently reinstalled

the wood privacy fence.

3 Andrew F. Mizak III, a neighbor who lived adjacent to the plaintiff’s

property, installed a shed in approximately 2009 and occasionally used the

plaintiff’s driveway to access the shed when loading and unloading materials

into the shed. Mizak never went as far as parcel one when using the driveway,

and he never parked on the plaintiff’s property or on the parcels. Mizak

presented the only evidence of anyone, other than the plaintiff and members

of his family, using the plaintiff’s driveway. This sporadic use of the driveway

did not defeat the ‘‘exclusive’’ requirement of adverse possession. See Roche

v. Fairfield, 186 Conn. 490, 502, 442 A.2d 911 (1982). Further, these acts

happened after the statutory time period for adverse possession had expired

and the plaintiff had become the owner of the entire driveway by

adverse possession.

4 General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may

be brought by any person claiming title to, or any interest in, real or personal

property, or both, against any person who may claim to own the property,

or any part of it, or to have any estate in it, either in fee, for years, for life

or in reversion or remainder, or to have any interest in the property, or any

lien or encumbrance on it, adverse to the plaintiff, or against any person

in whom the land records disclose any interest, lien, claim or title conflicting

with the plaintiff’s claim, title or interest, for the purpose of determining

such adverse estate, interest or claim, and to clear up all doubts and disputes

and to quiet and settle the title to the property. . . .’’

5 General Statutes § 52-575 (a) provides in relevant part: ‘‘No person shall

make entry into any lands or tenements but within fifteen years next after

his right or title to the same first descends or accrues or within fifteen years

next after such person or persons have been ousted from possession of

such land or tenements; and every person, not entering as aforesaid, and

his heirs, shall be utterly disabled to make such entry afterwards; and no

such entry shall be sufficient, unless within such fifteen-year period, any

person or persons claiming ownership of such lands and tenements and the
right of entry and possession thereof against any person or persons who

are in actual possession of such lands or tenements, gives notice in writing

to the person or persons in possession of the land or tenements of the

intention of the person giving the notice to dispute the right of possession

of the person or persons to whom such notice is given and to prevent the

other party or parties from acquiring such right, and the notice being served

and recorded as provided in sections 47-39 and 47-40 shall be deemed an

interruption of the use and possession and shall prevent the acquiring of a

right thereto by the continuance of the use and possession for any length

of time thereafter, provided an action is commenced thereupon within one

year next after the recording of such notice. . . .’’

6 The defendants did not brief the claim concerning pleading; thus, we

will not consider it. ‘‘It is well settled that [w]e are not required to review

claims that are inadequately briefed.’’ (Internal quotations marks omitted.)

Nowacki v. Nowacki, 129 Conn. App. 157, 163, 20 A.3d 702 (2011).

7

‘‘While an express easement generally does not terminate even when

the necessity or purpose of the easement ceases, an easement granted for

a particular purpose may terminate as soon as such purpose ceases to exist,

is abandoned, or is rendered impossible of accomplishment.’’ (Footnotes

omitted.) 28A C.J.S. 367–68, Easements § 160 (2008).