Finkelstein v. 45 Lake Drive, LLC

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Finkelstein v. 45 Lake Drive, LLC

RICHARD FINKELSTEIN v. 45 LAKE
DRIVE, LLC
(AC 47992)
Elgo, Moll and DiPentima, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment for the defendant on his
complaint alleging, inter alia, a prescriptive easement over the defendant’s
property pursuant to statute (§ 47-37). The plaintiff claimed, inter alia, that
the court improperly determined that his use of the defendant’s property
was not open and visible and continuous and uninterrupted for fifteen
years. Held:

The trial court’s finding that the plaintiff’s use of the defendant’s property
was not open and visible was not clearly erroneous, as the plaintiff presented
no evidence that he maintained the area where he crossed the defendant’s
property and he left no physical conditions to put the prior owner or the
defendant on notice of his use, and the prior owner of the defendant’s
property had no knowledge of the plaintiff’s use of the alleged easement
until the plaintiff informed him of the use upon the sale of the property to
the defendant.

The trial court’s finding that the plaintiff’s use of the defendant’s property
was not continuous and uninterrupted for fifteen years was not clearly
erroneous, as the court discredited the plaintiff’s testimony that he biannu-
ally crossed the defendant’s property to reach the rear of his property for
yardwork, and there was ample support in the record for the court’s finding
that the plaintiff used the defendant’s property only sporadically and inter-
mittently.

The trial court properly determined that the plaintiff failed to establish the
boundaries of the alleged prescriptive easement with reasonable certainty,
as the plaintiff presented only his own testimony and several exhibits, which
the court found to be inadequate.

Argued September 4—officially released October 14, 2025

Procedural History

Action for, inter alia, a prescriptive easement, and
for other relief, brought to the Superior Court in the
judicial district of Middlesex, where the court, Hon.
Edward S. Domnarski, judge trial referee, granted the
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Finkelstein v. 45 Lake Drive, LLC

plaintiff’s motion to file an amended substitute com-
plaint; thereafter, the case was tried to the court, Swien-
ton, J.; judgment for the defendant, from which the
plaintiff appealed to this court. Affirmed.
James Colin Mulholland, for the appellant (plaintiff).
Craig C. Fishbein, for the appellee (defendant).
Opinion

MOLL, J. The plaintiff, Richard Finkelstein, appeals
from the judgment of the trial court, rendered following
a bench trial, in favor of the defendant, 45 Lake Drive,
LLC, on count one of the plaintiff’s amended substitute
complaint alleging a prescriptive easement over the
defendant’s property. On appeal, the plaintiff claims
that the court improperly determined that (1) his use
of the defendant’s property was not (a) open and visible
and (b) continuous and uninterrupted for fifteen years,
and (2) he failed to establish the bounds of the alleged
prescriptive easement with reasonable certainty.1 We
disagree and, accordingly, affirm the judgment of the
trial court.
The following undisputed facts, as found by the trial
court, and procedural history are relevant to our resolu-
tion of this appeal. Since November, 1998, the plaintiff
has owned the property located at 43 Lake Drive in
East Hampton. The plaintiff’s property contains a small
cottage. The cottage was occupied by a tenant when the
1
The plaintiff further claims that the court improperly determined that
his use of the defendant’s property was not done under a claim of right.
Because we conclude that the court properly determined that the plaintiff
failed to establish that the other statutory elements of a prescriptive ease-
ment claim were satisfied, we need not address the claim of right issue.
See Atlantic St. Heritage Associates, LLC v. Atlantic Realty Co., 216 Conn.
App. 530, 540, 285 A.3d 1128 (2022) (‘‘[t]he well established statutory ele-
ments necessary to establish an easement by prescription [pursuant to
General Statutes § 47-37] are that the use is (1) open and visible, (2) continu-
ous and uninterrupted for fifteen years, and (3) engaged in under a claim
of right’’ (internal quotation marks omitted)).
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Finkelstein v. 45 Lake Drive, LLC

plaintiff purchased the property; however, the tenant
subsequently moved out in December, 1998, and the
plaintiff took control of the house and started renova-
tions in January, 1999. In September, 2021, the defen-
dant limited liability company purchased, and is the
record owner of, the property located at 45 Lake Drive
in East Hampton, which borders the plaintiff’s property.
There is a separation of approximately five feet
between the southerly line of the defendant’s property
and the northern corner of the plaintiff’s home. As there
is limited space on the sides of the plaintiff’s cottage,
the plaintiff cannot access the rear of his property using
a vehicle over his property only. There formerly was a
split rail fence separating the parties’ properties, but it
was destroyed in some sections, which left enough
room for the plaintiff to cross the defendant’s property
and thereby enter the rear of his own property. The
plaintiff built a stockade fence in 2016, which ran along
the common border of 43 and 45 Lake Drive, but there
remained an open area for the plaintiff to cross the
defendant’s property and access the rear of his prop-
erty. Blocking the open area was a net fence that the
plaintiff removed at his convenience to cross the defen-
dant’s property and enter into the back of his own
property.
The plaintiff claimed that, from 1999 until 2022, he
crossed the defendant’s property over the common bor-
der of the parties’ properties various times whenever
he wished to drive his truck into his backyard or to
facilitate access to the back of his property to contrac-
tors who used equipment or vehicles. James St. John,
who owned 45 Lake Drive from July, 2012, until the
defendant’s purchase in September, 2021, had not been
made aware of the plaintiff’s use of the common border
until August, 2021, during the final walkthrough for the
sale to the defendant. Before the closing, on August
19, 2021, the plaintiff informed the defendant that he
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possessed a prescriptive easement that enabled him to
pass through 45 Lake Drive and into the back of his
property. Despite negotiations between the defendant’s
attorney and St. John’s attorney, the warranty deed to
45 Lake Drive did not contain any language granting or
referring to an easement related to the plaintiff’s use
of such property.
After purchasing 45 Lake Drive, the defendant per-
formed extensive renovations to the dwelling located
on the property, as well as to the property itself. In
2022, the defendant erected a fence that made it impos-
sible for the plaintiff to continue crossing its property
to access the rear of his property.
On January 31, 2022, the plaintiff commenced this
action. The plaintiff’s three count amended substitute
complaint, which the trial court, Hon. Edward S. Domn-
arski, judge trial referee, granted the plaintiff permis-
sion to file on September 6, 2022, alleged the following
claims against the defendant: (1) a prescriptive or
adverse easement (count one);2 (2) an implied easement
(count two);3 and (3) malicious erection of structures
(count three).4 In support of his prescriptive easement
claim, which is the subject of this appeal, the plaintiff
alleged that his use of the defendant’s property was
open, visible, continuous, uninterrupted for the fifteen
year statutory period, and made under a claim of right.
On October 20, 2022, the defendant filed an answer
leaving the plaintiff to his proof as to his material allega-
tions.5
2
The plaintiff cited the quiet title statute, General Statutes § 47-31, in
asserting his easement claims.
3
Prior to trial, the plaintiff withdrew his implied easement claim.
4
The court, Swienton, J., rendered judgment in the defendant’s favor on
the plaintiff’s malicious erection of structures claim. The plaintiff does not
challenge on appeal that portion of the court’s judgment.
5
The defendant also asserted several special defenses. On March 2, 2023,
the plaintiff filed a motion to strike all of the defendant’s special defenses,
which the court granted on May 16, 2023.
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The case was tried to the court, Swienton, J., on
March 5, 2024. The court heard testimony from the
plaintiff, among other witnesses, and admitted several
exhibits in full into the record. On July 31, 2024, the
court issued its memorandum of decision rendering
judgment in favor of the defendant on the plaintiff’s
prescriptive easement claim. The court determined in
relevant part that the plaintiff failed to establish, by a
preponderance of the evidence, (1) that his use of the
defendant’s property was open and visible, (2) that his
use of the defendant’s property was continuous and
uninterrupted for fifteen years, and (3) the bounds of
the alleged prescriptive easement with reasonable cer-
tainty. This appeal followed. Additional facts will be
set forth as necessary.
Before addressing the plaintiff’s claims, we set forth
the applicable standard of review. ‘‘Whether a right of
way by prescription has been acquired presents primar-
ily a question of fact for the trier after the nature and
character of the use and the surrounding circumstances
have been considered. . . . When the factual basis of
a trial court’s decision [regarding the existence of a
prescriptive easement] is challenged, our function is to
determine whether, in light of the pleadings and evi-
dence in the whole record, these findings of fact are
clearly erroneous. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed. . . . In making this determina-
tion, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Citation omitted; inter-
nal quotation marks omitted.) Slack v. Greene, 294
Conn. 418, 426–27, 984 A.2d 734 (2009). ‘‘The burden is
on the party claiming a prescriptive easement to prove
all of the elements by a preponderance of the evidence.
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. . . Whether the requirements for such a right have
been met in a particular case presents a question of
fact for the trier of facts. . . . In such cases, the trier’s
determination of fact will be disturbed only in the clear-
est of circumstances, where its conclusion could not
reasonably be reached.’’ (Citation omitted; internal quo-
tation marks omitted.) Ventres v. Goodspeed Airport,
LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005), cert.
denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d
664 (2006).
I
The plaintiff first claims that the trial court erred in
concluding that he did not establish that his use of the
defendant’s property was (1) open and visible and (2)
continuous and uninterrupted for fifteen years. We dis-
agree.
General Statutes § 47-37 provides: ‘‘No person may
acquire a right-of-way or any other easement from, in,
upon or over the land of another, by the adverse use
or enjoyment thereof, unless the use has been continued
uninterrupted for fifteen years.’’ ‘‘The well established
statutory elements necessary to establish an easement
by prescription are that the use is (1) open and visible,
(2) continuous and uninterrupted for fifteen years, and
(3) engaged in under a claim of right.’’ (Internal quota-
tion marks omitted.) Atlantic St. Heritage Associates,
LLC v. Atlantic Realty Co., 216 Conn. App. 530, 540, 285
A.3d 1128 (2022). ‘‘It is axiomatic that, in determining
whether a prescriptive easement has vested, the nature
of the easement will dictate the type of evidence that
is required to prove it. Cf. Missionary Society of the
Diocese of Connecticut v. Coutu, 134 Conn. 576, 584,
59 A.2d 732 (1948) (‘[t]he circumstances of this class
of cases are so varied, and it is so important that every
circumstance should be taken into consideration, that
we doubt the propriety of laying down universal and
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absolute rules of law as to the effect in evidence of
particular facts’ . . . ).’’ Slack v. Greene, supra, 294
Conn. 429. Therefore, whether a plaintiff has satisfied
the elements of § 47-37 is a case-by-case, fact-based
inquiry.
In addressing the plaintiff’s contentions that his use
of the defendant’s property was open and visible, and
continuous and uninterrupted for fifteen years, the
court found that the defendant’s property was used to
access the rear of the plaintiff’s property when the
plaintiff had (1) a shed delivered in 1999, (2) tree work
done in 2008 and 2018, (3) a soil delivery in an unspeci-
fied year, (4) a propane tank delivery in an unspecified
year, and (5) a wooden stockade fence installed in 2016.
Additionally, the court stated that ‘‘[t]he plaintiff sub-
mitted several photographs into evidence. One photo[-
graph] showed his truck parked in the rear of his lot
. . . . Another showed a bucket truck for tree work in
the rear of his lot. . . . Both would have required cross-
ing 45 Lake Drive to access the rear of his lot. Other
photographs showed a mound of soil in the backyard,
a new propane tank, and flats of stones in the rear of
the lot which the plaintiff testified necessitated trucks
crossing 45 Lake Drive. However, other than his testi-
mony, no further evidence was submitted to substanti-
ate his claims.’’
The court further stated that the plaintiff ‘‘[testified]
that he cleared the rear of his property twice a year,
spring and fall. The court does not find this credible.
There was no evidence to corroborate this claim other
than one photo[graph] of his truck in the rear of his
property. . . . [P]hotographs of the rear of his property
[admitted into evidence] indicate little to no upkeep,
weeds, and overgrowth. These are seasonal properties,
and there is no evidence to support or suggest that
the plaintiff was open and visible in his usage of the
defendant’s property.’’ (Citation omitted.)
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On the basis of the evidence before it, the court deter-
mined that the plaintiff failed to demonstrate that his
use of the defendant’s property ‘‘was open and visible,
and continuous and uninterrupted for fifteen years. No
evidence was presented that the plaintiff ever main-
tained the area he claims to have the right to use. There
were no physical conditions sufficiently open and visi-
ble to put the owners of 45 Lake Drive on notice that
there was a use that may be adverse to their rights.
. . . Due to the seasonal nature of the properties, as
well as the sporadic and intermittent use of the defen-
dant’s property, the court cannot find that the plaintiff’s
use of the defendant’s property was open, visible, con-
tinuous and [un]interrupted. The plaintiff—when it
suited him—on no regular schedule drove his truck to
the back of his property across the defendant’s prop-
erty.’’ (Citation omitted.) The court further stated: ‘‘It
simply cannot be the case that an owner of a property
can cross the property of another for no other reason
than his own convenience, and then claim a prescriptive
easement. True, it is far easier [for the plaintiff] to drive
his truck into [his] backyard to remove debris, or to
install a propane tank, or to erect a fence. However,
he still can walk into [his] backyard to perform these
tasks.’’6
A
The plaintiff asserts that the court improperly con-
cluded that he failed to demonstrate that his use of the
defendant’s property was open and visible. The plaintiff
principally argues that he used the defendant’s property
during the daytime, often during the week, and not in
6
The plaintiff argues that whether his use of the defendant’s property
was convenient or that he could access the back of his property on foot is
not relevant to a prescriptive easement analysis. We conclude that these
observations by the court are, at most, dicta and are not determinative
regarding whether the plaintiff is entitled to the grant of a prescriptive ease-
ment.
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secret. He further asserts that the court erred in its
reasoning that his use was not open and visible, as he
claims that no case law requires physical manifestations
of such use on the easement area for this element to
be satisfied. The defendant responds that the court’s
finding that the plaintiff’s use was not open and visible
was not clearly erroneous. We agree with the defendant.
‘‘The purpose of the open and visible use requirement
is to give the owner of the servient land, in a claim for
a prescriptive easement, knowledge and full opportu-
nity to assert his own rights. . . . To satisfy this
requirement, the adverse use must be made in such a
way that a reasonably diligent owner would learn of its
existence, nature, and extent. Open generally means
that the use is not made in secret or stealthily. It may
also mean that it is visible or apparent. . . . An openly
visible and apparent use satisfies the requirement even
if the neighbors have no actual knowledge of it. A use
that is not open but is so widely known in the commu-
nity that the owner should be aware of it also satisfies
the requirement. . . . Concealed . . . usage cannot
serve as the basis [for] a prescriptive claim because it
does not put the landowner on notice.’’ (Internal quota-
tion marks omitted.) Viering v. Groton Long Point
Assn., Inc., 223 Conn. App. 849, 874, 311 A.3d 215, cert.
denied, 349 Conn. 901, 312 A.3d 586 (2024).
‘‘This court previously has held . . . that a party’s
maintenance of a disputed area, including planting and
maintaining vegetation, may demonstrate an open and
visible use of that area. See, e.g., Padula v. Arborio,
[219 Conn. App. 432, 460, 296 A.3d 276] (plaintiffs
removed soil and grass, installed sprinkler system, laid
down new sod, dug out old tree and planted new trees,
and replaced fence, among other things, in disputed
area) [cert. denied, 348 Conn. 903, 301 A.3d 528 (2023)];
98 Lords Highway, LLC v. One Hundred Lords High-
way, LLC, 138 Conn. App. 776, 811, 54 A.3d 232 (2012)
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(party made permanent improvements on land, includ-
ing cleaning area of underbrush, cutting some trees
down, planting lawn, trees, and garden, and installing
fence in disputed area); Eberhart v. Meadow Haven,
Inc., 111 Conn. App. 636, 642, 960 A.2d 1083 (2008)
(plaintiffs planted and maintained hedges and trees and
maintained lawn, among other things, in disputed area);
Schlichting v. Cotter, 109 Conn. App. 361, 367–69, 952
A.2d 73 (plaintiff pruned and removed trees, planted
and maintained plants, removed poison ivy from trees
and removed sumac from foliage, raked leaves, mowed,
fertilized and maintained lawn, and planted, cultivated
and maintained garden, among other things, in disputed
area), cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008).’’
Id., 875–76.

An instructive example of the type of potentially
adverse use that is not open and visible can be found
in Mierzejewski v. Brownell, 102 Conn. App. 413, 423–
24, 925 A.2d 1126, cert. denied, 284 Conn. 917, 931 A.2d
936 (2007). In that case, the plaintiff argued that he had
acquired disputed land by way of prescriptive easement
due to the installation of a septic system underneath
part of the defendant’s land. Id., 416–17. The trial court
found that there were no physical conditions present
to show that the septic tank was underground in the
disputed territory. Id., 423–24. Further, because the land
around the septic tank ‘‘was sloping and uneven, the
[trial] court found that the mound created by the septic
tank appeared to be an unimproved portion of the par-
cel. Additionally, the [trial] court found that trees and
other vegetation had grown on the septic mound, adding
to its unimproved nature. The [trial] court further found
that the elevated area lacked any pump, manhole cover,
standpipe or other evidence that would indicate the
presence of a septic tank beneath it.’’ Id., 424. This court
therefore held that these physical indicia demonstrated
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Finkelstein v. 45 Lake Drive, LLC

that the trial court’s finding that the septic tank was not
open and visible was not clearly erroneous. Id., 424–25.
On the basis of the foregoing, we leave undisturbed
the court’s finding that the plaintiff’s use of the defen-
dant’s property was not open and visible. The court
found that (1) the plaintiff presented no evidence that he
maintained the area where he crossed the defendant’s
property to reach the rear of his property and (2) the
plaintiff left no physical conditions to put St. John or
the defendant on notice of his use.7 Although our case
law does not explicitly require these specific findings
for the open and visible element to be met, these find-
ings made together support the court’s determination
that the plaintiff’s use was not open and visible. See
Viering v. Groton Long Point Assn., Inc., supra, 223
Conn. App. 875–76; Mierzejewski v. Brownell, supra,
102 Conn. App. 424–25.
Additionally, the fact that St. John, the prior owner
of 45 Lake Drive, had no knowledge of the plaintiff’s
use of the alleged easement for nine years until the
plaintiff informed him of such use upon the sale to the
defendant also supports the court’s determination that
it was not open and visible. Although actual knowledge
of possibly adverse use is not a requirement to satisfy
this element; see Slack v. Greene, supra, 294 Conn. 427;
the lack thereof in the present case supports the finding
7
The court also appears to suggest that the seasonal nature of a property
may factor into an open and visible determination, stating that ‘‘[t]hese are
seasonal properties, and there is no evidence to support or suggest that the
plaintiff was open and visible in his usage of the defendant’s property.’’ Our
Supreme Court has opined, however, that seasonal use is relevant to whether
the use of an alleged prescriptive easement was continuous and uninter-
rupted. See Roche v. Fairfield, 186 Conn. 490, 501 n.11, 442 A.2d 911 (1982)
(holding that continuous and uninterrupted element was met where adverse
use was merely seasonal). Insofar as the court imported the seasonal nature
of the properties in examining the open and visible element, we do not
deem that reliance to undermine its determination that the plaintiff failed
to satisfy this element.
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that the plaintiff put neither St. John nor the defendant
on notice.
In sum, we conclude that the court’s finding that the
plaintiff’s use of the defendant’s property was not open
and visible, such that it would put a reasonably diligent
owner on notice of such use, was not clearly erroneous.
B
The plaintiff also claims that the court erred in con-
cluding that he did not establish that his use of the
defendant’s property was continuous and uninterrupted
for fifteen years. The plaintiff principally argues that
the court incorrectly discredited his testimony that,
from 1999 to 2020, he drove through the common border
of the parties’ properties twice per year in the spring
and fall to clean up his backyard. Further, the plaintiff
argues that the evidence submitted demonstrates that
his use of the defendant’s property was continuous and
uninterrupted.8 The defendant responds that the court’s
finding that the plaintiff’s use was not continuous and
uninterrupted because he only used the defendant’s
property sporadically is not clearly erroneous. We agree
with the defendant.
First, with respect to the plaintiff’s assertion that the
court improperly discredited his testimony concerning
his alleged annual spring and fall cleanups of his back-
yard, we note that ‘‘[i]t is the exclusive province of the
trier of fact to weigh the conflicting evidence, determine
8
The plaintiff contends that such evidence includes ‘‘testimony and other
evidence demonstrating that the usual purposes underlying the plaintiff’s
use of [45 Lake Drive] for ingress and egress to the rear of his lot was for
maintenance, storage (e.g., a rolling dock that was moved back and forth
from the backyard to the lake) and upkeep, involving either general landscap-
ing work (tree removal, yard clearing, the delivery of various materials,
and the like), or needed or desired work on his cottage (roofing repair/
replacement, furnace replacement, propane tanks deliveries and replace-
ment, and the like), all such uses were maintained continuously from 1999
to when the defendant blocked the way in 2022 as noted.’’
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Finkelstein v. 45 Lake Drive, LLC

the credibility of witnesses and determine whether to
accept some, all or none of a witness’ testimony.’’ (Inter-
nal quotation marks omitted.) Delena v. Grachitorena,
216 Conn. App. 225, 231, 283 A.3d 1090 (2022). Thus,
‘‘[w]e will not disturb the court’s credibility determina-
tions on appeal.’’9 M. C. v. A. W., 226 Conn. App. 444,
452, 319 A.3d 183 (2024).
Turning next to the plaintiff’s contention that the
record supported a finding that his use of the defen-
dant’s property was continuous and uninterrupted for
fifteen years, we begin by recognizing that the use of
a servient estate need not be constant in order to satisfy
the ‘‘continuous and uninterrupted’’ element for a pre-
scriptive easement claim. In Frech v. Piontkowski, 296
Conn. 43, 57, 994 A.2d 84 (2010), the servient estate
owner defendants argued ‘‘that because the use of the
reservoir was not constant, it was not continuous. The
defendants point to testimony that the [plaintiffs] did
not use their boat every year, and, in years that the
boat was used, took the boat out about two or three
times per month. Boating, however, was only one of
several recreational uses that the plaintiffs made of the
9
The plaintiff maintains that, in discrediting his testimony regarding the
annual spring and fall cleanups, the court determined that there was a dearth
of evidence corroborating his testimony when, according to the plaintiff,
there was ample corroborating evidence. In its decision, however, the court
expressly recognized that, other than in rare circumstances, witness testi-
mony does not require corroboration, but that ‘‘[t]he absence of corrobora-
tion, of course, may affect the trier’s decision as to the sufficiency of the
evidence and the burden of proof . . . .’’ Slack v. Greene, supra, 294 Conn.
430. Thus, we do not construe the court’s credibility determination to have
depended on the lack of evidence corroborating the plaintiff’s testimony.
The plaintiff also contends that, in discrediting his testimony as to the
annual spring and fall cleanups, the court relied on the photographs in
evidence that, as the court found, ‘‘indicate[d] little to no upkeep, weeds, and
overgrowth’’ in the rear of the plaintiff’s property. The plaintiff challenges
the court’s purported reliance on these photographs on several bases. In
short, we disagree with the plaintiff’s interpretation of the court’s decision
as having hinged its credibility determination on the photographs in question,
and, therefore, we need not address the plaintiff’s arguments in this regard.
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Finkelstein v. 45 Lake Drive, LLC

reservoir. They also swam, fished, skated and went ice
fishing. The frequency of the boat use, therefore, is
only one measure of the frequency of the use that the
plaintiffs made of the reservoir. Moreover, we never
have imposed a requirement that use must be constant
in order to satisfy the requirement that use be continu-
ous. See Roche v. Fairfield, 186 Conn. 490, 501 n.11,
442 A.2d 911 (1982) (recognizing that seasonal use is
sufficient to satisfy continuity requirement).’’ Our
Supreme Court further reasoned ‘‘that [i]t is axiomatic
that, in determining whether a prescriptive easement
has vested, the nature of the easement will dictate the
type of evidence that is required to prove it. Slack v.
Greene, supra, 294 Conn. 429. The plaintiffs claimed,
and the trial court found that they had proven, that they
had acquired a prescriptive easement for recreational
purposes. To require proof of daily or constant use for
a recreational easement ignores the type of easement
at issue. The evidence was sufficient to support the trial
court’s determination that the use was continuous.’’
(Internal quotation marks omitted.) Frech v. Piontkow-
ski, supra, 57. Therefore, constant use of an alleged
prescriptive easement is not required to meet the ‘‘con-
tinuous and uninterrupted’’ element; like the ‘‘open and
visible’’ element, this determination depends on the
nature of the use of the servient estate.
In Slack v. Greene, supra, 294 Conn. 418, our Supreme
Court analyzed whether the plaintiff’s use of the alleged
prescriptive easement was continuous with respect to
the nature and frequency of such use. As the court
explained: ‘‘[W]e disagree that the plaintiff’s testimony
was inadequate to support the trial court’s finding that
her use of the right-of-way was open and continuous
during the prescriptive period because that testimony
was not sufficiently specific with respect to [the] nature
and frequency of her use. . . . [T]he plaintiff claimed
a right to travel over a paved right-of-way located at
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the end of her driveway that leads to the nearest public
road. In light of the nature of the right-of-way and its
location in relation to the plaintiff’s home, her testimony
concerning the regular and uninterrupted nature of her
use of the right-of-way from the time that she moved
into her home until shortly before the commencement
of this action—testimony that the trial court found to
be highly credible—was sufficient to satisfy her burden
of demonstrating that she used the right-of-way in an
open and continuous manner during the prescriptive
period.’’ (Citation omitted; internal quotation marks
omitted.) Id., 429–30.
In the present case, the court found that ‘‘the facts
in this case do not support a finding that the [plaintiff’s]
usage was . . . continuous and uninterrupted,’’ as the
plaintiff’s use of the defendant’s property was ‘‘sporadic
and intermittent . . . .’’ In Slack, the trial court cred-
ited the plaintiff’s testimony regarding her regular, unin-
terrupted use of the servient estate, which thereby satis-
fied her burden of proof with respect to the ‘‘continuous’’
element. Slack v. Greene, supra, 294 Conn. 429–30. Con-
versely, the court in the present case discredited the
plaintiff’s testimony that he biannually crossed the
defendant’s property to reach the rear of his property
for yardwork, which, in this case, was vital testimony in
order for the plaintiff to prove this element. Moreover,
although constant use of a servient estate is not required
for the ‘‘continuous and uninterrupted’’ element to be
met, such use must be more than sporadic for the plain-
tiff to satisfy his burden in this regard. Here, there is
ample support in the record for the court’s finding that
the plaintiff’s used the defendant’s property only spo-
radically and intermittently.
In sum, because the plaintiff failed to present suffi-
cient evidence to meet his burden of proving that his
use of the defendant’s property was continuous and
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uninterrupted for fifteen years, we conclude that the
court’s finding in this regard was not clearly erroneous.
II
Finally, the plaintiff contends that the trial court erred
in concluding that he did not establish the bounds of
the alleged prescriptive easement with reasonable cer-
tainty. He argues that he submitted a plethora of credi-
ble evidence proving the ‘‘actual route’’ taken by him
through the defendant’s property.10 We reject this claim.
‘‘The prescriptive right extends only to the portion
of the servient estate actually used . . . and is circum-
scribed by the manner of its use. . . . A prescriptive
right cannot be acquired unless the use defines its
bounds with reasonable certainty.’’ (Citations omitted.)
Kaiko v. Dolinger, 184 Conn. 509, 510–11, 440 A.2d 198
(1981). ‘‘This requirement is not satisfied when the use
is ‘indiscriminate over [an] entire area.’ ’’ St. Germain
v. Hurd, 128 Conn. App. 497, 502, 17 A.3d 516 (2011).
‘‘There have been cases in which this court has affirmed
the grant of a prescriptive easement that did not contain
the specific terms of the easement, but in those cases,
the scope of the easement was nonetheless defined by
the common and ordinary use proven at trial. See, e.g.,
Kelley v. Tomas, [66 Conn. App. 146, 160, 167 n.4, 783
A.2d 1226 (2001)] (court’s description of easement by
10
The plaintiff points to the following evidence to support his contention
that the court incorrectly found that he failed to establish an ‘‘actual route’’
through the defendant’s property: (1) the plaintiff’s testimony regarding
where he would use the alleged easement; (2) a satellite photograph of the
parties’ properties; (3) a photograph depicting the area where the plaintiff
allegedly crossed over into his property; (4) a sketch made by the plaintiff
of the route that he would take to enter the alleged easement; (5) testimony
that ‘‘his route was consistently in the same location’’ even though his access
would vary depending on the direction from which he was entering; (6) a
photograph of the plaintiff’s truck in his backyard; (7) a photograph of the
fence blocking the route taken by the plaintiff to reach the rear of his
property; and (8) a video of the plaintiff driving his vehicle through the
defendant’s property to reach his backyard.
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prescription as general route across property used by
defendants for more than twenty years without incident
upheld although parties did not introduce evidence such
as its metes and bounds); Simonds v. Shaw, [44 Conn.
App. 683, 691, 691 A.2d 1102 (1997)] (court need not
define scope of easement because it was already defined
by boundaries of roadway).’’ St. Germain v. Hurd,
supra, 502–503.
In addressing the issue of whether the plaintiff had
established the bounds of the alleged prescriptive ease-
ment with reasonable certainty, the court found that
‘‘[t]here was no specifically designated area of where
the trucks or machinery crossed over from 45 Lake
Drive to the rear of the plaintiff’s property. No evidence
was submitted showing evidence of the route or of the
ground where the trucks may have driven over, such
as ruts or trampled grass, [other] than a drawing by the
plaintiff.’’ See footnote 10 of this opinion. The court
proceeded to determine that ‘‘[t]he evidence presented
was insufficient for the court to determine, with reason-
able certainty, what area is being claimed as a prescrip-
tive easement. Would the width of the trucks, vehicles
or machinery dictate the width of the easement? Did a
vehicle come closer to the plaintiff’s property so as to
use the bare minimum of the defendant’s property? If
it was a large machine of some kind, would it have to
make a wider swing into the property necessitating a
wider easement? Even the video the plaintiff submitted
[see footnote 10 of this opinion] shows him driving up
the driveway of the defendant’s property before turning
into the rear of the plaintiff’s lot—unlike the drawing
[that] he submitted. The court has no evidence as to
the actual route.’’
In Chase & Chase, LLC v. Waterbury Realty, LLC,
138 Conn. App. 289, 300–301, 50 A.3d 968 (2012), this
court affirmed the trial court’s finding that the plaintiff
in that case met its burden of proof that it established
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the bounds of the prescriptive easement over the defen-
dant’s property with reasonable certainty. The plaintiff
had presented an abundance of testimony regarding
the boundaries of the easement. Id., 301. This court
concluded that, because the plaintiff sufficiently pre-
sented evidence that supported an inference that tractor
trailer trucks used the prescriptive easement continu-
ously, the plaintiff successfully met its burden of prov-
ing the boundaries of the easement with reasonable
certainty. Id.
In the present case, the court determined that the
plaintiff failed to meet his burden of proving the bounds
of the alleged easement to a degree of reasonable cer-
tainty. Unlike in Chase & Chase, LLC v. Waterbury
Realty, LLC, supra, 138 Conn. App. 300–301, where the
plaintiff had multiple witnesses corroborate the pro-
posed prescriptive easement route, the plaintiff in this
case presented only his own testimony on the matter
and several exhibits, which the court, as the trier of
fact, found to be inadequate. See Delena v. Grachitor-
ena, supra, 216 Conn. App. 231 (‘‘[i]t is the exclusive
province of the trier of fact to weigh the conflicting
evidence, determine the credibility of witnesses and
determine whether to accept some, all or none of a
witness’ testimony’’ (internal quotation marks omit-
ted)). Nothing in the record suggests that the court’s
finding in this regard is clearly erroneous. At most, the
plaintiff proved that his use was nothing more than
‘‘ ‘indiscriminate over [an] entire area’ ’’ of the defen-
dant’s property. St. Germain v. Hurd, supra, 128 Conn.
App. 502. We therefore conclude that the court did not
err in determining that the plaintiff failed to establish
the boundaries of the alleged prescriptive easement
with reasonable certainty.
In sum, we conclude that the court properly deter-
mined that the plaintiff was not entitled to the grant of
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a prescriptive easement over the defendant’s property
pursuant to § 47-37.
The judgment is affirmed.
In this opinion the other judges concurred.