• Connecticut Appellate Court
  • Connecticut Appellate Court
  • AC 33733
  • Dec 25 2012 (Date Decided)
  • DuPont, J.

It is well established that evidence that the party claiming a prescriptive use never asked for nor was given permission to use the property will support a finding that the use was made under claim of right. The defendant, Rafal Kosciuszkiewicz, appealed from trial court's judgment for the plaintiff, Laura Cirinna, claiming, first, that the court improperly concluded that the plaintiff had an easement by prescription over a driveway located on the defendant's property. The Appellate Court affirmed the judgment. The panel disagreed with the defendant's claim that the plaintiff did not establish that her predecessors in title had used the driveway under a claim of right for the required period in C.G.S. §47-37, but rather did so permissively. Given the record as a whole, the trial court reasonably could have concluded that the defendant failed to prove permissive use by a preponderance of the evidence. Evidence of cooperation between owners for the payment of asphalt did not negate the plaintiff's claim of right as it did not amount to permission by the prior owners of the defendant's property to use the driveway. The trial court specifically found that "there was no credible evidence of any express or implied permission or license given….during the time of ownership by the plaintiff or her parents, dating back to 1974." The fact finder's determination that the servient estate was used under a claim of right will be sustained unless that determination is manifestly unsupportable. Testimony of the plaintiff's mother and sister established that the plaintiff and her predecessors did not ask for, nor were ever given permission to use the driveway, but rather had used it under the belief that it was their right to do so. Sufficient evidence in the record supported the conclusion that the plaintiff's use of the defendant's driveway was open, visible and under a claim of right for the prescribed statutory period. No fact on which the finding of a prescriptive easement was based was shown to have been clearly erroneous. Additionally, the trial court did not abuse its discretion in denying the defendant's motion to sequester the plaintiff's witnesses after finding that the defendant failed to demonstrate a "good faith reason" that false testimony was likely.