Date: 10-09-2001

Case Style: Joseph Kelley v. Joseph Tomas

Case Number: 19934

Judge: pOTI

Court: Appellate Court of Connecticut

Plaintiff's Attorney: Anthony M. Modugno, with whom was Frank Modugno, for the appellant (plaintiff).

Defendant's Attorney: Jeffrey A. Blueweiss, with whom, on the brief, was David J. Robertson, for the appellees (defendants).

Description: The present appeal involves a boundary dispute between two adjacent landowners. The plaintiff, Joseph Kelley, appeals from the judgment, rendered after a trial to the court, in this action to quiet title to certain real property at 230-232 Main Street, Norwalk. The court found that the defendants, Joseph Tomas and Mary J. Tomas, have an easement over that property.

On appeal, the plaintiff claims that the court improperly (1) failed to find that he is the fee simple owner of the subject property, (2) allowed certain stairs to continue to encroach on his property, (3) granted an injunction against him, (4) found that the defendants had acquired an easement by necessity and by prescription, (5) failed to provide subordinate facts pursuant to General Statutes § 47-31 (f) in support of the judgment and in response to his motions for articulation, (6) conducted an improper ex parte investigation of facts that were disputed at trial, (7) determined that the defendants had acquired a prescriptive easement when the court could not determine the metes and bounds of the easement with reasonable certainty, (8) found that the defendants had acquired an easement by prescription, (9) found that the defendants had acquired an easement by necessity, (10) allowed the defendants to introduce evidence that contradicted their answer to the complaint and their answers to the plaintiff’s requests for admissions, and to introduce evidence that the defendants had failed to provide in response to his interrogatories, (11) denied his motion for default for the defendants’ alleged failure to comply with his discovery requests, (12) granted the defendants’ motion to amend their answer, (13) failed to grant him a permanent, mandatory injunction that would have forced the defendants to remove the encroachment on his property and restore it to its original condition, and (14) allowed the defendants to amend their response to his requests for admissions. We affirm the judgment of the trial court. The court reasonably could have found the following facts that are relevant to our resolution of the plaintiff’s appeal. The plaintiff owns certain real property on which a building is located at 230-232 Main Street. The defendants own the adjacent premises at 244 Main Street to the north on which a building is located. The owners of the respective properties rent the apartments in the buildings to individuals. The plaintiff’s building has six apartments, and the defendants’ building has four apartments.

The defendants’ property is landlocked, and parking is not permitted on Main Street in front of the premises. In 1973, the defendants took title to 244 Main Street and, ever since, they and their tenants have always and without interruption parked their vehicles behind the building. To park their cars, however, the defendants and their tenants have had to cross over the rear of the plaintiff’s property at 230-232 Main Street. The defendants never asked for or received permission to do so. The defendants believed that they had the right to use the plaintiff’s property for that purpose. The plaintiff was fully aware that the defendants and their tenants crossed over his property on a regular basis to park their cars and observed them doing so. The plaintiff never told the defendants to stop crossing over his property for ingress and egress. Without the right to cross the plaintiff’s property, there would be no place for the defendants, their tenants or others to access the defendants’ property by car.

After parking their cars, the defendants and their tenants, as well as the plaintiff’s tenants, would climb a set of stairs that were between 230-232 Main Street and 240 Main Street. Originally, there were two sets of stairs between the two buildings, one used by the plaintiff and his tenants, the other used by the defendants and their tenants. The stairs were used for people to walk between Main Street and the parking lots in the rear of each of the respective properties.

The stairs had been in existence for many years, and the steps were cracked and uneven. In 1990, as part of a renovation of their apartment building, the defendants tore down and removed both sets of stairs. The defendants did not request permission from the plaintiff prior to removing the stairs. The defendants replaced the old stairs with one new set by replacing the steps, landings and railing. The new stairs encroach onto the plaintiff’s property; however, the stairs are used by both the plaintiff and the defendants as well as each parties’ tenants.

Approximately five years after the stairs were constructed, the plaintiff filed a five count verified complaint against the defendants. The first count sought to quiet title to the property at 230-232 Main Street. The second count alleged trespass against the defendants for unlawfully entering the plaintiff’s land without permission, and removing the stairs and railings that were attached to the plaintiff’s building. The complaint further alleged that the defendants had constructed the stairs on the adjoining boundary line, thereby impermissibly encroaching on the plaintiff’s property. The third count sought an injunction requiring the defendants to restore the plaintiff’s property to its original condition. The fourth count alleged continuous trespass on the part of the defendants, their tenants or both. Finally, the fifth count requested an injunction preventing the defendants and others from entering the plaintiff’s property without permission.

The defendants filed an answer and special defenses to the plaintiff’s complaint. The defendants’ first special defense asserted laches on the part of the plaintiff. The defendants’ second special defense asserted that they had a prescriptive easement over the plaintiff’s land. The defendants’ third special defense alleged equitable estoppel against the plaintiff, and the fourth special defense alleged that the defendants had acquired an easement by implication over the plaintiff’s land.

After trial, the court found that the plaintiff is the owner in fee simple of a parcel at 230-232 Main Street. The court found that the defendants had an easement by prescription over the property. On the basis of the evidence presented at trial, the court could not specify the exact metes and bounds of the easement. The court also found that the defendants had acquired an easement by necessity over the plaintiff’s property.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None