• Connecticut Supreme Court
  • Connecticut Supreme Court
  • SC 18696
  • Sep 18 2012 (Date Decided)
  • Per Curiam

It is well established that a claim must be distinctly raised at trial to be preserved for appeal. The trial court granted the plaintiffs including Barbara Murphy and the defendants-cross claimants, Steven and Marion Dodd, a prescriptive easement over a pathway crossing neighboring property owned by the defendant, EAPWJP, LLC, used for many years to access a beach. The pathway traversed protected tidal wetlands and was covered in part by a wooden walkway installed without appropriate permits. The Appellate Court affirmed the judgment concluding that the trial court properly determined that the plaintiffs and Dodds had established an easement over the defendant's property. The defendant appealed asking the Supreme Court to address whether the Appellate Court improperly concluded that the plaintiffs and the Dodds "had acquired a prescriptive easement on a pathway over tidal wetlands even though the wooden walkway over which they traversed was in violation of [C.G.S. §§] 22a-32 and 22a-361during the prescriptive period" and was "deemed a public nuisance under [C.G.S.] §22a-362…"  The Supreme Court reframed the certified question to "[w]hether the Appellate Court properly concluded that construction and use of a walkway deemed to be a per se public nuisance can establish a prescriptive easement over the underlying tidal wetlands…" After considering the briefs and oral arguments of the parties, the Supreme Court dismissed the appeal concluding that certification was improvidently granted. The issue raised by both the original and revised certified question, went beyond the scope of the record below and was not properly preserved. The trial court took pains to separate withdrawn claims of a property right in the walkway from the claims of a prescriptive easement over the defendant's land, an approach that the Appellate Court respected and followed.  The trial court denied the defendant's attempt to amend its counterclaim and cross counterclaim to add public nuisance claims after the trial had concluded but before the court rendered judgment.  The defendant never challenged that denial on appeal. The issue was not preserved and was not appropriately before the Supreme Court.