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PETER B. VIERING ET AL. v. THE GROTON
LONG POINT ASSOCIATION, INC.
(AC 45974)
Elgo, Clark and Sheldon, Js.
Syllabus
The plaintiffs, each an owner of real property in the Groton Long Point
section of Groton and, as such, a member of the defendant association,
sought, inter alia, a declaratory judgment that they had the right to
use certain rights-of-way owned by the defendant that abutted their
respective properties to the exclusion of all other members of the defen-
dant and the general public. The two rights-of-way at issue were five
foot wide strips of land running through a tract of land that was bounded
by a road in the northeast and by a beach along Long Island Sound in
the southwest. The entire tract was originally owned by G Co., which
subdivided the land, separately deeded the plaintiffs’ properties to their
predecessors in title and deeded to the defendant certain common area
tracts and all of its rights, title, and interest to the shore, roads, and
rights-of-way in Groton Long Point. The plaintiffs each owned one or
more road front or beachfront properties in the tract, the deeds to which
indicated that each such property was bounded by the right-of-way it
abutted. In 1999 and 2000, one of the plaintiffs sent letters to the defen-
dant’s board of directors, urging them to recognize that the rights-of-
way were not to be used by the public or residents of Groton Long
Point at large but, instead, were intended only to provide limited rights-
of-way dedicated to the lots they abutted. A few years later, the defendant
sent letters to the residents of Groton Long Point, asserting ownership
of the rights-of-way and instructing adjacent property owners who had
encroached on the rights-of-way to remove any impediments that were
obstructing access. For many years, both before and after these letters
were sent, the rights-of-way were covered with vegetation. In May, 2019,
the defendant sent letters to the plaintiffs informing them that they were
going to remove bushes and other impediments from the rights-of-way.
Shortly thereafter, unnamed individuals began to clear the vegetation.
In June, 2019, the plaintiffs commenced the present action, claiming
that they had acquired title to the rights-of-way through either adverse
possession or abandonment or, alternatively, that they possessed exclu-
sive access easements over the rights-of-way or had acquired prescrip-
tive easements over them. They sought a declaratory judgment that
they had the right to use the right-of-way that abutted their respective
properties to the exclusion of all others and a temporary and permanent
injunction prohibiting the defendant from clearing the rights-of-way of
any vegetation or taking any other action that would open access to
the rights-of-way. The parties filed motions for summary judgment. The
trial court granted the defendant’s motion and denied the plaintiffs’
motion. On the plaintiffs’ appeal to this court, held:
1. The trial court did not err in granting summary judgment for the defendant
on the plaintiffs’ claim that they possessed exclusive abutters’ access
easements over the rights-of-way: contrary to the plaintiffs’ assertions,
the trial court could not be faulted for considering their claims for
abutters’ access easements over the rights-of-way under principles of
law applicable to claims of easements by necessity rather than claims
of easements by implication because the plaintiffs expressly relied on
principles of law applicable to easements by necessity when making
their arguments; moreover, the plaintiffs acknowledged that the deeds
to their properties did not expressly grant them an exclusive access
easement over the rights-of-way, and, at most, the language in the deeds
indicating that the properties were bounded by the rights-of-way and
the maps cited in those deeds depicting the rights-of-way demonstrated
that G Co. had intended to grant access easements over the rights-of-
way to the abutting property owners; furthermore, the evidence did not
establish that, by creating a limited number of access easements over
the rights-of-way, G Co. was surrendering its rights, or the rights of the
defendant as its successor in title, to make other further uses of that
property, including the granting of easements over the rights-of-way to
others, as long as those uses did not unreasonably interfere with the
plaintiffs’ established rights to use the property, and the plaintiffs did
not submit any evidence demonstrating that the defendant’s use of the
rights-of-way would unreasonably interfere with the plaintiffs’ enjoy-
ment of them as a means of ingress and egress to and from their own
properties; additionally, contrary to the plaintiffs’ claims, it would have
been improper for the trial court to consider extrinsic evidence that
allegedly made clear G Co.’s intent that the rights-of-way were to be
used exclusively by the abutting property owners because the language
of the deeds was not ambiguous with respect to whether the access
easements were intended to confer an exclusive right to use the rights-
of-way, as they contained no language expressly creating any easement
or suggesting or implying that the access easements were granted with
such an intent.
2. The trial court correctly determined that the defendant was entitled to
summary judgment on the plaintiffs’ claims of adverse possession and
prescriptive easement due to the lack of sufficient evidence to raise a
genuine issue of material fact that the plaintiffs had made open, visible,
and hostile use of the rights-of-way for a continuous period of fifteen
years: although a party’s maintenance of a disputed area, including
planting and maintaining vegetation, could demonstrate an open and
visible use of that area, the plaintiffs did not plant any of the vegetation
on the rights-of-way, which they characterized as ‘‘wild growth,’’ and
they did not submit any evidence that they maintained the vegetation
in a visible and apparent manner; moreover, given that the plaintiffs
were permitted to use the rights-of-way as a means of access, their
alleged maintenance could have been viewed as consistent with their
permitted use and was not sufficiently hostile to meet the law’s require-
ments; furthermore, although the plaintiffs submitted some evidence
as to other uses of certain portions of the rights-of-way, including to
congregate occasionally, to park a boat trailer, to house a grill, and to
extend their decking, they did not rely on such evidence in support of
their argument that they had made open, visible, and hostile use of the
rights-of-way, and such evidence did not raise a genuine issue of material
fact as to whether the plaintiffs had openly and visibly used the rights-
of-way for a continuous period of fifteen years.
3. The trial court did not improperly fail to address the plaintiffs’ claim that
the defendant had abandoned the rights-of-way: although the trial court
did not address the plaintiffs’ claim of abandonment as a separate cause
of action, it recognized that the plaintiffs had raised the claim and
addressed the issue in the context of the defendant’s municipal immunity
defense to the plaintiffs’ claims of adverse possession; moreover, the
plaintiffs did not provide any support for the proposition that they
could have obtained ownership of the rights-of-way on the basis of the
defendant’s alleged abandonment of that property without also proving
the elements of adverse possession; accordingly, there was no need for
the trial court to address the issue of abandonment as a separate cause
of action because it was inextricably intertwined with the plaintiffs’
adverse possession claim.
Argued September 20, 2023—officially released February 27, 2024
Procedural History
Action seeking, inter alia, a declaratory judgment of
adverse possession over certain of the defendant’s real
property, and for other relief, brought to the Superior
Court in the judicial district of New London, where
the defendant filed counterclaims; thereafter, the court,
Jacobs, J., granted the defendant’s motion for summary
judgment, denied the plaintiffs’ motion for summary
judgment, and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Gerald T. Giaimo, with whom were Hugh I. Manke
and, on the brief, Adam B. Marks, for the appellants
(plaintiffs).
Joseph P. Williams, with whom were Chelsea McCal-
lum and, on the brief, Sarah E. Dlugoszewski, for the
appellee (defendant).
Opinion
SHELDON, J. The present case arises from a dispute
between the plaintiffs, Peter B. Viering, Russell W. Vier-
ing, Jr., Christine Carr, Jane M. Battles, Thomas E.
Kingston, Jr., and Bobbye Lou Sims, and the defendant,
The Groton Long Point Association, Inc., concerning
the plaintiffs’ claimed right to make exclusive use of
two strips of land denominated as rights-of-way on land
owned by the defendant that abuts the plaintiffs’ resi-
dential properties in the Groton Long Point section of
Groton. The plaintiffs appeal from the judgment ren-
dered against them by the trial court on the granting
of a motion for summary judgment filed by the defen-
dant and the denial of the plaintiffs’ own motion for
summary judgment.1 On appeal, the plaintiffs claim that
the court erred in its summary judgment rulings by (1)
failing to consider whether access easements over the
two rights-of-way had been granted to them by deed,
and thereby conferred on them the right to use such
rights-of-way to the exclusion of all others, and failing
in so ruling to consider certain extrinsic evidence alleg-
edly relevant to that claim; (2) concluding that the
defendant was entitled to judgment as a matter of law
on the plaintiffs’ claim that they had acquired the rights-
of-way by adverse possession or, alternatively, that they
had acquired prescriptive easements over the rights-
of-way; and (3) failing to address their claim that the
defendant had abandoned the rights-of-way. We affirm
the judgment of the court.
The record reveals the following undisputed facts
and procedural history. The rights-of-way at issue are
two five foot wide strips of land that run north to south
through a tract of land in Groton Long Point, lying
between West Shore Avenue on the north and a beach
along Long Island Sound on the south. In this tract,
each of the plaintiffs owns one or more road front or
beachfront properties, each of which abuts one of the
rights-of-way, which the parties and the court refer to
by their relative locations in the tract as the west right-
of-way and the east right-of-way. Specifically, Peter
Viering and Russell Viering, Jr. (collectively, Vierings),
own four contiguous lots—shorefront lots 327 and 328
and road front lots 343 and 344 to their immediate
north—which together abut the west right-of-way on
the east and the east right-of-way on the west; Carr
owns shorefront lot 329 and road front lot 342 to its
immediate north, which together abut the west right-
of-way on the west; Battles owns shorefront lot 326,
which abuts the east right-of-way on the east; and Kings-
ton and Sims own roadfront lot 345, which abuts the
Battles’ property on the north and the east right-of-way
on the east.
The plaintiffs’ properties were separately deeded to
their predecessors in title on divers dates in the 1920s by
the Groton Long Point Land Company, Inc. (company),
which had owned and developed them as parts of the
second of five subdivisions of the land now known as
Groton Long Point. The deed to each such property
indicates that it is ‘‘bounded’’ by the particular right-
of-way it abuts.2
In 1931, the company, as ‘‘releasor,’’ transferred to
the defendant, a homeowners association to which the
plaintiffs and all other owners of residential property
in Groton Long Point belong, as ‘‘releasee,’’ five specific
common area tracts3 within Groton Long Point and ‘‘all
the right, title, interest, claim and demand whatsoever
as it, the said releasor, has or ought to have in or to
all of the shore, roads and rights of way located at
Groton Long Point . . . as have not heretofore already
been conveyed to this releasee by this [r]eleasor . . . .’’
The plaintiffs obtained title to their respective proper-
ties on divers dates in the 1990s and 2000s.4
Between November, 1999, and March, 2000, Peter
Viering sent a series of letters to the board of directors
of the defendant, urging it to recognize that the rights-
of-way abutting the plaintiffs’ properties were not to
be used by the public or residents of Groton Long Point
at large, but instead were intended ‘‘only to provide
limited rights of way dedicated to and reserved for the
lots they abutted.’’ In October, 2003, and January, 2004,
the defendant sent letters to the residents of Groton
Long Point, asserting ownership of the rights-of-way
and instructing ‘‘adjacent property owners who have
encroached upon the [rights-of-way] to please remove
all hazardous impediments . . . that obstruct access’’
to them.
For many decades prior to the sending of those let-
ters, and continuing through the present time, the rights-
of-way have been covered with vegetation such as
beach rose and bittersweet. At the end of May, 2019,
the defendant sent letters to the plaintiffs informing
them that it intended to ‘‘commence cleanup’’ on the
rights-of-way by removing ‘‘bushes and other impedi-
ments’’ from them. Shortly thereafter, unnamed individ-
uals began to clear vegetation from the west right-of-
way.
In June, 2019, the plaintiffs commenced the present
action against the defendant. In their first amended
complaint, the plaintiffs alleged that they had acquired
title to the rights-of-way through either adverse posses-
sion or abandonment, or, alternatively, that they pos-
sessed access easements over the rights-of-way for their
exclusive use as abutting property owners or had
acquired prescriptive easements over them. The plain-
tiffs sought the following relief: (1) a declaratory judg-
ment that (a) the Vierings and Carr own the west right-
of-way or have the right to use it to the exclusion of
all other association members and the general public,
and (b) the Vierings, Battles, Kingston, and Sims own
or have the right to use the east right-of-way to the
exclusion of all other association members and the
general public; and (2) a temporary and permanent
injunction prohibiting the defendant ‘‘from commenc-
ing any activity to clear the west [right-of-way] and east
[right-of-way] of their vegetation’’ or take ‘‘any other
action that opens access to the west [right-of-way] and
the east [right-of-way].’’
The defendant thereafter filed an answer and special
defenses,5 alleging, inter alia, that it was a municipality
that held the rights-of-way for public use and, therefore,
that the rights-of-way were immune from claims of
adverse possession and prescriptive easement.6
The parties subsequently filed motions for summary
judgment as to each count of the plaintiffs’ first
amended complaint. The plaintiffs and the defendant
submitted numerous affidavits, deeds, subdivision
maps, photographs, and other exhibits in support of
their respective positions on the motions for summary
judgment.
On October 18, 2022, the court, Jacobs, J., issued
a memorandum of decision granting the defendant’s
motion for summary judgment and denying the plain-
tiffs’ motion for summary judgment. Addressing the
plaintiffs’ claim of adverse possession, the court first
concluded that the defendant was not entitled to sum-
mary judgment on the ground of municipal immunity
because, although the defendant was a quasi-municipal-
ity,7 there was a genuine issue of material fact as to
whether it intended to abandon the rights-of-way.8 Not-
withstanding this ruling, the court went on to conclude
that the adverse possession claim failed as a matter of
law for two other reasons: first, there was no genuine
issue of material fact that the plaintiffs’ use of the dis-
puted areas had not been open, visible, and hostile to the
defendant, as required to establish adverse possession;
and second, the plaintiffs’ shared dominion over and use
of the rights-of-way defeated the exclusivity element of
that claim. Next, the court concluded that the plaintiffs’
claim for access easements over the rights-of-way failed
as a matter of law because the plaintiffs already had
access to the rights-of-way as members of the defen-
dant, and, therefore, they did not need easements by
necessity to gain such access. Finally, as to the plain-
tiffs’ claim for prescriptive easements over the rights-
of-way, the court concluded that there was no genuine
issue of material fact that the plaintiffs had not, for a
continuous period of fifteen years, made open, visible,
and hostile use of the rights-of-way under a claim of
right. This appeal followed. Additional facts and proce-
dural history will be provided as necessary.
Before turning to the plaintiffs’ claims on appeal,
we set forth the applicable standard of review. ‘‘The
standards governing our review of a trial court’s deci-
sion to grant a motion for summary judgment are well
established. Practice Book [§ 17-49] provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The party
seeking summary judgment has the burden of showing
the absence of any genuine issue [of] material facts
[that], under applicable principles of substantive law,
entitle him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . A material fact
. . . [is] a fact [that] will make a difference in the result
of the case. . . . Finally, the scope of our review of
the trial court’s decision to grant the [defendant’s]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Day v. Seblatnigg, 341 Conn.
815, 825, 268 A.3d 595 (2022).
I
The plaintiffs initially raise two issues related to their
claim that they possessed abutters’ access easements
over the rights-of-way. First, they claim that the court
improperly failed to consider whether such access ease-
ments were created by deed rather than by common-
law necessity. Second, they claim that the court erred
in failing to consider extrinsic evidence tending to show
that the company’s intent in creating the rights-of-way
was to provide them for the exclusive use of abutting
property owners. We disagree.
In the third count of the first amended complaint,
the plaintiffs raised claims for ‘‘abutters’ access ease-
ment[s].’’ The plaintiffs alleged that they ‘‘possess an
access easement to the [rights-of-way]. . . . The com-
pany created the west [right-of-way] and the east [right-
of-way] to solve the access problem for lots 329, 328,
327, and 326 rather than leave those lots to common-
law claims of easements by necessity over the roadside
lots long before the association was created. . . . It
was the narrow intent of the company for the west
[right-of-way] and the east [right-of-way] to provide
access to West Shore Road for lots 329, 328, 327, and
326, not to provide access from West Shore Road to
the beach. . . . The company intended for the west
[right-of-way] and the east [right-of-way] to be used
exclusively by the abutting plaintiffs, not by the associ-
ation as a whole. . . . The west [right-of-way] and the
east [right-of-way] were created by the company for
the benefit of the plaintiff abutting owners only.’’
(Emphasis added.) The plaintiffs submitted evidence
to the court related to that claim, including copies of
the deeds to their properties, the defendant’s deed to
the rights-of-way, certain other property owners’ deeds,
and various maps of Groton Long Point, including the
1924 map depicting the ‘‘compiled plan showing all sub-
divisions made by the [company]’’ and the map
depicting the second subdivision of the land.
In their memorandum of law in opposition to the
defendant’s motion for summary judgment, and in their
memorandum of law in support of their own motion
for summary judgment, the plaintiffs elaborated on their
claim that ‘‘[t]he [rights-of-way] are access easements
derived from the plaintiffs’ deeds.’’ Specifically, they
argued that easements may be implied from deed
descriptions and that ‘‘[e]ach plaintiff’s deed specifi-
cally references a [right-of-way] as a boundary which
gives rise to an access easement over the [right-of-way]
for the benefit of their lot.’’ In addition, they argued
that the language in the deed to the defendant conveying
the rights-of-way ‘‘as have not heretofore already been
conveyed’’ demonstrated that the company had trans-
ferred title to the rights-of-way subject to the easement
rights of the plaintiffs.
The plaintiffs further contended that ‘‘[t]he [rights-
of-way] are not only beneficial, but are necessary, to
the plaintiffs’ use of their properties,’’ as certain lots
are landlocked and the rights-of-way ‘‘were created to
solve these access problems’’ by providing access to
West Shore Avenue. Thereafter they claimed, without
recitation of supporting authority: ‘‘It so follows that
the principles of an easement by necessity apply to
the [rights-of-way], namely the exclusive rights of the
abutters, as sole beneficiaries, to use them.’’ (Emphasis
added.) On that conclusory basis, the plaintiffs argued
that, ‘‘[e]ven though the exclusive nature of the [rights-
of-way] was not articulated in the deed[s], their purpose
of solving the access problem for lots 326, 327, 328,
and 329 makes them easements by implication with
characteristics of easements by necessity.’’ (Emphasis
added.) At the hearing on the parties’ motions, the plain-
tiffs continued to rely on evidence of the language in
the deeds and the subdivision maps to argue that they
had been conveyed ‘‘implied easement[s]’’ over the
rights-of-way and that there was ‘‘simply no evidence
in the actual deeds and maps of any intent for these
rights-of-way to be used by anyone except for the plain-
tiff abutters.’’
In its memorandum of decision, the court agreed with
the plaintiffs that the rights-of-way ‘‘were established
and referenced in the deeds to the lots abutting them,
affording the owners of the shorefront lots access to
[West] Shore Avenue.’’ On that basis, it accepted as
‘‘undisputed’’ the fact that when the defendant acquired
title in fee simple to the rights-of-way in 1931, it did so
‘‘subject to the rights of the abutting property owners.’’
Thereafter, however, instead of inquiring as to what
implied rights the plaintiffs were entitled to exercise
with respect to the rights-of-way under the provisions
of their deeds, the court refocused its attention on the
plaintiffs’ supporting argument that the abutters’ access
easements they sought to enforce were akin to ease-
ments by necessity, which a claimant must show to be
reasonably necessary to the enjoyment of his or her
property. See Francini v. Goodspeed Airport, LLC, 327
Conn. 431, 438–39, 174 A.3d 779 (2018). In the end, the
court rejected the plaintiffs’ abutters’ access easement
claims on the ground that, in the plaintiffs’ circum-
stances, abutters’ access easements were not reason-
ably necessary to the enjoyment of their properties
because such properties were bounded by the rights-
of-way and they had the right to use such rights-of-way
to access their properties as members of the defendant
association. The plaintiffs did not file a motion for rear-
gument or reconsideration on this issue, nor did they
seek an articulation of the relevant portion of the court’s
decision.9
On appeal, the plaintiffs claim that the court improp-
erly failed to consider whether access easements over
the rights-of-way were created by their individual deeds,
arguing that ‘‘the memorandum of decision character-
izes the claim as simply one for easement by necessity
and applies the very common law that the plaintiffs
allege the company designed the [rights-of-way] to
avoid.’’ The plaintiffs also argue that the court failed
to consider evidence of the company’s intent with
respect to the use of the rights-of-way. Specifically, they
contend that the court ‘‘did not undertake a meaningful
analysis of the deeds to the abutting properties and the
deed to the defendant,’’ ‘‘appears in its decision not to
have analyzed or considered [the] map [of the 1924
Groton Long Point Compiled Plan showing all subdivi-
sions made by the company] or other maps intended
to aid in the construction of the deeds, particularly
Subdivision Plan 2, which is the map depicting the
[rights-of-way] referenced in the plaintiffs’ deeds,’’ and
‘‘ignored’’ certain other ‘‘deeds that reference the other
rights-of-way within Groton Long Point that are not at
issue but inform the intent of the [company].’’
We observe at the outset that, although the plaintiffs
criticize the court’s consideration of their claims for
abutters’ access easements over the rights-of-way under
principles of law applicable to claims of easement by
necessity rather than claims of easements by implica-
tion, the plaintiffs themselves are largely responsible for
the focus of the court’s analysis because they expressly
relied on principles of law applicable to easements by
necessity when making their arguments for abutters’
access easements. The plaintiffs’ later failure to request
reargument on those claims after the court issued its
memorandum of decision denying them, moreover, nat-
urally confirmed for the court that its characterization
of those claims and resulting analytical approach to
deciding them were responsive to the plaintiffs’ claims.
To the extent that the plaintiffs are responsible for
recharacterizing their abutters’ access easement claims
as claims for easements by necessity, the court cannot
be faulted for deciding them on that basis.
If, however, and to the extent that the plaintiffs’ invo-
cation of necessity principles in arguing their abutters’
access easement claims cannot reasonably be under-
stood to have transmuted those claims from claims
of easement by implication to claims of easement by
necessity, the record before us makes it clear that the
court did not decide those claims as the plaintiffs
pleaded them.10 Even so, it must be acknowledged that,
although the court expressly found that the plaintiffs
had impliedly acquired easement rights with respect to
the rights-of-way under the provisions of their deeds,
the court never decided whether such rights included
the right to use the rights-of-way to the exclusion of
all other members of the defendant association and the
general public. The question presented by this omission
from the court’s decision is whether its failure to ana-
lyze the claims in that manner, if erroneous, had a
material impact on the court’s granting of summary
judgment for the defendant on those claims. The issue
presented, more particularly, is whether the evidence
presented in the defendant’s summary judgment motion
raised a genuine issue of material fact not only as to
whether the plaintiffs’ deeds created easements by
implication over the rights-of-way, but whether such
easements gave the plaintiffs the right to use the rights-
of-way to the exclusion of all others, including other
members of the defendant association and the general
public. Although the court, as the plaintiffs have argued,
did not decide this claim explicitly, we can decide the
merits of the claim in this context because it presents
a question of law based on undisputed facts of record
that is subject to our plenary review.11 See Stone-Krete
Construction, Inc. v. Eder, 280 Conn. 672, 684, 911 A.2d
300 (2006) (‘‘[w]hen an issue is raised in the trial court
but the court declines to address it, an appellate court
may consider it if the facts are undisputed and the issue
is purely a question of law’’).
At the outset, we set forth the following legal princi-
ples governing easements. ‘‘[T]he benefit of an ease-
ment . . . is considered a nonpossessory interest in
land because it generally authorizes limited uses of the
burdened property for a particular purpose. . . .
[E]asements are not ownership interests but rather priv-
ileges to use [the] land of another in [a] certain manner
for [a] certain purpose . . . . Except as limited by the
terms of the servitude . . . the holder of an easement
. . . is entitled to use the servient estate in a manner
that is reasonably necessary for the convenient enjoy-
ment of the servitude. . . . Likewise, [e]xcept as lim-
ited by the terms of the servitude . . . the holder of
the servient estate is entitled to make any use of the
servient estate that does not unreasonably interfere
with enjoyment of the servitude. . . . [T]he owner of
an easement has all rights incident or necessary to its
proper enjoyment, [although] nothing more.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Williams v. Green Power Ventures, LLC, 221
Conn. App. 657, 669–70, 303 A.3d 13 (2023), cert. denied,
348 Conn. 938, 307 A.3d 273 (2024).
It is undisputed that the defendant acquired from the
company fee simple title to the rights-of-way, albeit
subject to the rights that the company previously had
conveyed by deed to the plaintiffs’ predecessors in title.
Generally speaking, the defendant thereby became enti-
tled, as the new owner by deed of the servient estate,
to make any use of the servient estate, including the
two rights-of-way, that did not unreasonably interfere
with the plaintiffs’ use and enjoyment of their ease-
ments. See id., 670.
The question on this aspect of the plaintiffs’ motion
thus becomes whether the easements by implication
previously conveyed by the company to the plaintiffs’
predecessors in title over the defendant’s property in
their deeds granted them such exclusive access to and
rights to use the rights-of-way as to disallow the defen-
dant, as their fee simple owner, from making or author-
izing others to make any other use of the rights-of-way.
‘‘In the construction of a deed or grant, the language
is to be construed in connection with, and in reference
to, the nature and condition of the subject matter of
the grant at the time the instrument is executed, and
the obvious purpose the parties had in view. . . . Fur-
thermore, [a] reference to [a] map in [a] deed, [f]or a
more particular description, incorporates [the map] into
the deed as fully and effectually as if copied therein.
. . . [T]he identifying or explanatory features con-
tained in maps referred to in a deed become part of
the deed, and so are entitled to consideration in inter-
preting the deed as though they were expressly recited
therein.’’ (Internal quotation marks omitted.) Rocamora
v. Heaney, 144 Conn. App. 658, 665–66, 74 A.3d 457
(2013).
The plaintiffs acknowledge that the deeds to their
properties do not expressly grant them an exclusive
access easement over the rights-of-way. Nevertheless,
they contend that an access easement may be implied
by virtue of the language in the deeds to their properties
indicating that the properties are bounded by the partic-
ular rights-of-way they abut. They argue that the rights-
of-way were created ‘‘solely for the benefit of abutting
properties’’ and, thus, for their exclusive use, as evi-
denced by the map of the second subdivision plan refer-
enced in their deeds, which depicts rights-of-way only
in the area of their properties where there are shore-
front lots without frontage on any road. They further
argue that the 1924 map depicting the compiled plan
showing all subdivisions made by the company, as refer-
enced in the deed to the defendant, demonstrates that
members of the defendant have access to the beach by
way of other entrances, separate from the rights-of-way.
Even viewing this evidence in the light most favorable
to the plaintiffs, however, the language in the deeds to
the plaintiffs’ properties indicating that they are
‘‘bounded’’ by the rights-of-way and the cited maps
depicting those rights-of-way demonstrate, at most, that
the company did indeed intend to grant access ease-
ments over the rights-of-way to and for the benefit of
the abutting property owners. See Buckley v. Maxson,
120 Conn. 511, 518, 181 A. 922 (1935); see also J. Bruce &
J. Ely, Law of Easements and Licenses in Land (2023)
§ 4.30. Such easements would provide the plaintiffs, as
the abutting property owners, a ‘‘right of ingress, egress,
and regress . . . .’’ (Internal quotation marks omitted.)
Bolan v. Avalon Farms Property Owners Assn., Inc.,
250 Conn. 135, 142, 735 A.2d 798 (1999).
The evidence does not tend to establish, however,
and it does not legally follow, that by creating a limited
number of access easements over the rights-of-way for
use by the owners of abutting properties under their
deeds, the owner of the rights-of-way was surrendering
its rights, or the rights of its successors-in-title, to make
any other or further uses of the rights-of-way, including
the granting of easement rights over them to others,
except to the limited extent that such further uses might
unreasonably interfere with other easement holders’
established rights to use the property. See Williams v.
Green Power Ventures, LLC, supra, 221 Conn. App. 670
(‘‘[t]he owner of an easement has all rights incident or
necessary to its proper enjoyment, [although] nothing
more’’ (emphasis added; internal quotation marks omit-
ted)). As previously noted, the defendant, as the fee
simple owner of the land subject to an easement, is
entitled to make any use of its servient estate that does
not unreasonably interfere with the plaintiffs’ enjoy-
ment of their rights to use the estate under their ease-
ments. See id. The plaintiffs do not explain how exclu-
sive use of the rights-of-way would be ‘‘ ‘incident or
necessary to [their] proper enjoyment’ ’’ of their land, as
facilitated under their deeds by their access easements
over the rights-of-way across the defendant’s adjacent
land, nor have they claimed or submitted any evidence
to demonstrate that the defendant’s use of the rights-
of-way by clearing vegetation from them—or ultimately
by permitting other members of the defendant associa-
tion to use them as a means of access between the
beach and West Shore Avenue—would ‘‘ ‘unreasonably
interfere’ ’’ with their own enjoyment of the rights-of-
way as a means of ingress and egress to and from their
own properties. Id. In short, the record before us lends
no support at all to the plaintiffs’ claim that their ease-
ments by implication over the two rights-of-way granted
them exclusive access to the rights-of-way as they have
claimed.
The plaintiffs also argue that they submitted to the
court certain extrinsic evidence that ‘‘makes clear’’ that
the company intended the rights-of-way to be used
exclusively by abutting property owners. That evidence
includes deeds to other properties in Groton Long Point
that abut rights-of-way not at issue in this case, deeds
to other properties in Groton Long Point that do not
abut any rights-of-way at all, and certain maps of Groton
Long Point that are referenced in such deeds. ‘‘[I]f the
meaning of the language contained in a deed or convey-
ance is not clear, the trial court is bound to consider
any relevant extrinsic evidence presented by the parties
for the purpose of clarifying the ambiguity.’’ (Internal
quotation marks omitted.) NPC Offices, LLC v.
Kowaleski, 320 Conn. 519, 526, 131 A.3d 1144 (2016).
If, by contrast, the language contained in a deed or
conveyance is clear, the court is bound by such lan-
guage and, thus, cannot properly consider extrinsic evi-
dence to contradict it or alter its meaning. The deeds
at issue in the present case are not ambiguous with
respect to whether the access easements granted there-
under to the plaintiffs, as the owners of properties abut-
ting rights-of-way across the defendant’s property, were
intended to confer on them the right to use such rights-
of-way to the exclusion of all others, including other
members of the defendant association or the general
public. The plaintiffs themselves, who have conceded
that the deeds contain no language expressly creating
any easement, have pointed to no language in any of
their deeds that suggests or implies that the access
easements arising under them were granted with such
an intent, and we have found none. See Freidheim v.
McLaughlin, 217 Conn. App. 767, 788, 290 A.3d 801
(2023) (deed considered ambiguous where language
was ‘‘susceptible to more than one reasonable interpre-
tation’’). In those circumstances, any consideration of
the plaintiffs’ extrinsic evidence as a possible basis for
raising a genuine issue of material fact in support of
their claimed right to make exclusive use of the rights-
of-way over which they have been granted abutters’
access easements under their deeds, and on that basis
for denying the relevant portion of the defendant’s
motion for summary judgment, would be improper.12
Because the clear language of the plaintiffs’ deeds is
not susceptible to a reasonable interpretation that their
implied abutters’ access easements over the defendant’s
rights-of-way give them any right to use such rights-of-
way to the exclusion of all others, we affirm the court’s
granting of summary judgment in favor of the defendant
on this issue.
II
The plaintiffs next claim that the court improperly
rendered summary judgment in favor of the defendant
on their claims of adverse possession and prescriptive
easement. We disagree.
‘‘The general legal principles governing adverse pos-
session are well settled. When title is claimed by adverse
possession, the burden of proof is on the claimant. . . .
The essential elements of adverse possession are that
the owner shall be ousted from possession and kept
out uninterruptedly for fifteen years under a claim of
right by an open, visible and exclusive possession of
the claimant without license or consent of the owner.’’
(Footnote omitted; internal quotation marks omitted.)
Dowling v. Heirs of Bond, 345 Conn. 119, 143, 282 A.3d
1201 (2022).
The legal principles governing a claim for a prescrip-
tive easement are similar, though not identical, to those
governing claims of adverse possession. See Smith v.
Muellner, 283 Conn. 510, 536–37, 932 A.2d 382 (2007).
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.’’ ‘‘In applying that sec-
tion, [our Supreme Court] repeatedly has explained that
[a] party claiming to have acquired an easement by
prescription must demonstrate that the use [of the prop-
erty] has been open, visible, continuous and uninter-
rupted for fifteen years and made under a claim of
right.’’ (Internal quotation marks omitted.) Slack v.
Greene, 294 Conn. 418, 427, 984 A.2d 734 (2009).
In support of their motion for summary judgment, and
in opposition to the defendant’s motion for summary
judgment, the plaintiffs submitted, among other things,
an affidavit from Peter Viering, in which he attested
that ‘‘[t]he [w]est [right-of-way] and [the] [e]ast [right-
of-way] have been covered with wild growth including
beach rose and bittersweet at all times for at least the
past 60 years. . . . The [w]est [right-of-way] also
houses two utility poles that provide utilities to the
Viering Lots, which poles were erected more than fifty
years ago. The [e]ast [right-of-way] houses a utility pole
that provides utilities to Lot 345, owned by plaintiffs
Kingston and Sims. . . . Because of the plant growth
and utility poles, the [w]est [right-of-way] and [the]
[e]ast [right-of-way] have never been used by anyone
for foot passage from West Shore Avenue to [the] Board-
walk or from [the] Boardwalk to West Shore Avenue.
Rather, the [rights-of-way] have been exclusively used
for other purposes by the plaintiffs, their family and
guests. . . . Rather, there is a lawn on the Viering Lots
to the east of the [w]est [right-of-way] and the west
of the [e]ast [right-of-way] on which we have granted
permission to certain [members of the defendant] to
cross. . . . We have observed such [members of the
defendant] crossing on the lawn of the Viering Lots,
but we have never observed any non-abutter using the
[rights-of-way] as the [rights-of-way] are in large part
obstructed. . . . The obstructions of the beach rose
and bittersweet and utility poles are clearly visible both
from West Shore Avenue as well as the Boardwalk.
. . . The abutters of the [rights-of-way] have at all times
maintained the [rights-of-way], and at no time has the
[defendant] done anything to maintain the [rights-of-
way].’’ Peter Viering’s interrogatory responses reflected
that, as far as maintaining the rights-of-way, the plain-
tiffs ‘‘collectively prune, trim and/or otherwise maintain
the vegetation on the west [right-of-way] and the east
[right-of-way] that is adjacent to their property and/or
also remove poison ivy,’’ and that he personally mowed
or arranged for the mowing of portions of the west
right-of-way and east right-of-way approximately
weekly from May to October each year.
In addition, the plaintiffs submitted affidavits from
Kingston and Sims, who attested that ‘‘[t]he majority
of the [e]ast [right-of-way] adjacent to our property is
covered in vegetation, making it impassable. . . . We
now weed the [e]ast [right-of-way] to maintain the vege-
tation growing thereon. . . . Additionally, the [e]ast
[right-of-way] houses a telephone pole, which further
makes use of [it] for purposes of passage impossible.’’
(Citations omitted.) The plaintiffs also submitted photo-
graphs depicting the appearance of the vegetation on
the rights-of-way.
As to the evidence of other ways in which the plain-
tiffs used the rights-of-way, Peter Viering’s interroga-
tory responses indicated that he has ‘‘occasionally used
a portion of the west [right-of-way] to congregate with
friends and family. The west [right-of-way] is also used
as a staging area for contractors performing home
improvement projects on [his] behalf . . . . The west
[right-of-way] also provides utility service to [his] prop-
erty.’’ In Kingston’s and Sims’ affidavits, they attested
that ‘‘the portion [of the east right-of-way] closest to
the road . . . is used as our side yard. Over the years,
we have parked our boat trailer there, used it to house
our grill, and, for a period of multiple years, we had
decking extending from our currently existing deck
onto the [e]ast [right-of-way]. More recently, we hired
a landscaping company to place some large walkstones
in the [e]ast [right-of-way] to allow for beach access
from our property.’’ The plaintiffs submitted photo-
graphs of the grill and the recently laid stepping stones.
In its memorandum of decision, the court first
addressed the plaintiffs’ claim for adverse possession.
The court concluded that ‘‘there are genuine issues of
material fact as to whether the defendant is immune
to the claim for adverse possession,’’13 as a result of
the conflicting evidence regarding whether the defen-
dant had intended to abandon the rights-of-way,14 but
that ‘‘[t]he same cannot be said for the claim for adverse
possession itself.’’
The court explained this conclusion as follows: ‘‘The
very nature of the rights-of-way defeats the claim for
adverse possession. They are strips of land owned in
fee by the defendant, which the plaintiffs have at all
relevant times had the right to use. As the plaintiffs’
use of the rights-of-way has at all relevant times been
permitted, there is no genuine issue of fact as to whether
that use has been hostile to the ownership right of the
defendant. By the same token, the mere fact that the
rights-of-way had over the course of decades become
overgrown, while reflective of the [defendant’s] use—
or disuse, as it were—of the rights-of-way during that
time is in no way reflective of the plaintiffs’ use of the
rights-of-way during that time, let alone probative of
their ouster of the defendant from those strips of land.
Furthermore, even assuming, arguendo, that there is a
genuine issue of material fact as to the plaintiffs’ open,
visible, and hostile possession of the rights-of-way, the
element of exclusive use fails as a matter of law where
each of the plaintiffs claim to have used the rights-of-
way as their own. As the court in Roberson v. Aubin,
[120 Conn. App. 72, 76, 990 A.2d 1239 (2010)] wrote:
‘[S]hared dominion [over property] defeats a claim of
adverse possession . . . .’ ’’
As to the plaintiffs’ claim for a prescriptive easement,
the court concluded: ‘‘Here, there is no dispute about
the use or disuse, as it were, of the rights-of-way over
the course of many decades. Significantly, the plaintiffs
have failed to submit proof of any kind as would demon-
strate that they had for a continuous period of fifteen
years openly and visibly used the rights-of-way under
a claim of right. To the contrary, the undisputed fact
is that over time the rights-of-way became impassible
by reason of the overgrowth. Ironically, it was the threat
to remove the overgrowth and make the rights-of-way
again passable—and usable by the greater populace of
Groton Long Point and their guests—which prompted
the filing of this lawsuit.’’
On appeal, the plaintiffs claim that the court improp-
erly concluded that there was no genuine issue of mate-
rial fact that the plaintiffs had not openly and visibly
used the rights-of-way in a hostile manner for a continu-
ous period of fifteen years. Specifically, they argue that
they presented evidence regarding their maintenance
of the vegetation, the Vierings’ use of the west right-
of-way to congregate with friends and family, and Sims’
and Kingston’s use of the east right-of-way to park their
boat trailer and house their grill, and, for multiple sum-
mers, to have a deck extending into the east right-of-
way.15 They contend that such evidence is ‘‘more than
sufficient for the court to determine that the plaintiffs
openly and visibly used the [rights-of-way] for a continu-
ous period of fifteen years, and the [court] erred in its
conclusion to the contrary.’’16 In addition, they argue
that the court erred in its analysis of hostility because
‘‘[t]here was never a consensual relationship between
the defendant and the plaintiffs,’’ as ‘‘[t]he rights of the
plaintiffs derived by deed from the company, not the
defendant,’’ and the court failed to analyze whether
the allegedly permitted use had become hostile. We
disagree.
As previously indicated, both adverse possession and
prescriptive easement require open and visible use for
a continuous period of fifteen years. See Dowling v.
Heirs of Bond, supra, 345 Conn. 143; Slack v. Greene,
supra, 294 Conn. 427. 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 opportunity 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 appar-
ent. . . . 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 community that the owner should be
aware of it also satisfies the requirement. . . . Con-
cealed . . . usage cannot serve as the basis [for] a pre-
scriptive claim because it does not put the landowner
on notice.’’ (Internal quotation marks omitted.) Slack
v. Greene, supra, 427–28. Similarly, with respect to a
claim of adverse possession, ‘‘[t]he open and visible
element requires a fact finder to examine the extent
and visibility of the claimant’s use of the record owner’s
property so as to determine whether a reasonable
owner would believe that the claimant was using that
property as his or her own.’’ (Internal quotation marks
omitted.) Padula v. Arborio, 219 Conn. App. 432, 447,
296 A.3d 276, cert. denied, 348 Conn. 903, 301 A.3d
528 (2023).
In addition, a party asserting a claim of adverse pos-
session of land, or a claim for a prescriptive easement
over such land, must establish that his use of the land
is hostile or adverse to the title of the record owner.
See id., 446–48; see also Blow v. Konetchy, 107 Conn.
App. 777, 783 n.7, 946 A.2d 943 (2008) (‘‘[t]o establish
an easement by prescription it is absolutely essential
that the use be adverse’’ (internal quotation marks omit-
ted)). ‘‘Hostile possession can be understood as posses-
sion that is opposed and antagonistic to all other claims,
and that conveys the clear message that the possessor
intends to possess the land as his or her own.’’ (Internal
quotation marks omitted.) Mulle v. McCauley, 102 Conn.
App. 803, 814, 927 A.2d 921, cert. denied, 284 Conn. 907,
931 A.2d 265 (2007). Permission to use the disputed
area defeats the element of hostility. See Dowling v.
Heirs of Bond, supra, 345 Conn. 146 (‘‘use of the land
by the express or implied permission by the true owner
is not adverse and, therefore, cannot ripen into adverse
possession’’ (internal quotation marks omitted)); Wood-
house v. McKee, 90 Conn. App. 662, 672, 879 A.2d 486
(2005) (hostility ‘‘is the absence of consent, license or
permission to use the disputed area’’). Nevertheless,
‘‘[p]ossession that is permissive in its inception may
become hostile’’; (internal quotation marks omitted)
Woodhouse v. McKee, supra, 675; if the claimants use
the disputed area for purposes for which they do not
have permission. Dowling v. Heirs of Bond, supra, 147–
51.
This court previously has held, as the plaintiffs argue,
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, supra, 219 Conn. App. 460 (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); 98 Lords Highway, LLC v. One Hundred Lords
Highway, LLC, 138 Conn. App. 776, 811, 54 A.3d 232
(2012) (party made permanent improvements on land,
including cleaning area of underbrush, cutting some
trees down, planting lawn, trees, and garden, and install-
ing 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).
Unlike in those cases, however, the plaintiffs in the
present case did not themselves plant any of the vegeta-
tion, which they characterized as ‘‘wild growth,’’ and
they did not submit any evidence to demonstrate that
they maintained the vegetation in a visible and apparent
manner. Instead, the plaintiffs’ own evidence tended to
establish that the natural vegetation growth rendered
the rights-of-way ‘‘in large part obstructed’’ and
‘‘impassable.’’17
Moreover, as the court determined, given that the
plaintiffs were permitted to use the rights-of-way as a
means of access—whether by deed or by virtue of being
members of the defendant—their alleged maintenance
of the rights-of-way could be viewed as consistent with
their permitted use and, therefore, was not sufficiently
hostile to meet the law’s requirements. See Smith v.
Muellner, supra, 283 Conn. 525 n.14 (dominant estate
holder, as party benefitted by access easement, is
responsible for maintaining easement and doing what-
ever is reasonably necessary to make it suitable and
convenient for his use); see also Dowling v. Heirs of
Bond, supra, 345 Conn. 148–51 (acts that are consistent
with permission are not enough to prove notice of hos-
tile claim).
Furthermore, although the plaintiffs submitted some
evidence as to other uses of certain portions of the
rights-of-way, such as the Vierings’ use of the west right-
of-way to congregate ‘‘occasionally’’ with family and
friends, and Kingston’s and Sims’ use of the east right-
of-way to extend their decking ‘‘for a period of multiple
years’’ and to park their boat trailer and house their
grill over the years, the plaintiffs did not rely on this
evidence in support of their argument that they had
made ‘‘open and visible’’ and hostile use of the rights-
of-way.18 Such evidence did not raise a genuine issue
of material fact as to whether the plaintiffs had openly
and visibly used the rights-of-way for a continuous
period of fifteen years.
Accordingly, we conclude that the court correctly
determined that the defendant was entitled to summary
judgment on the plaintiffs’ claims of adverse possession
and prescriptive easement due to the lack of sufficient
evidence to raise a genuine issue of material fact that
the plaintiffs had made open, visible, and hostile use
of the rights-of-way for a continuous period of fifteen
years, as needed to overcome the defendant’s motion
for summary judgment.
III
The plaintiffs’ final claim is that the court improperly
failed to address their claim that the defendant aban-
doned the rights-of-way. We disagree.
The second count of the plaintiffs’ first amended com-
plaint set forth a claim of abandonment. The plaintiffs
alleged that, ‘‘[s]ince 1931, the [defendant] has never
asserted any rights, or taken any action to control or
maintain the west [right-of-way] and the east [right-of-
way]. . . . Since at least 1931, the west [right-of-way]
and the east [right-of-way] have been controlled by the
abutting plaintiffs without interference of the [defen-
dant]. . . . The [defendant] intentionally abandoned
the west [right-of-way] and the east [right-of-way]. . . .
Because the west [right-of-way] and the east [right-of-
way] were created for the exclusive purpose of provid-
ing access to the road from lots 329, 328, 327, and 326,
the rights in the west [right-of-way] and the east [right-
of-way] revert to the abutting plaintiffs. . . . The plain-
tiffs are entitled to a declaratory judgment concerning
their legal right to the west [right-of-way] and the east
[right-of-way].’’
In its memorandum of decision, the court recognized
that the plaintiffs had raised a claim of abandonment,
but it did not address that claim as a separate cause
of action. Instead, the court addressed the issue of
abandonment in the context of the defendant’s munici-
pal immunity defense. Specifically, as previously
explained, the court determined that a genuine issue
of material fact existed as to whether the rights-of-
way were immune from claims of adverse possession
because there was conflicting evidence regarding
whether the defendant intended to abandon that prop-
erty.
After the present appeal was filed, the plaintiffs filed
a motion for articulation, asking the court to articulate
the factual and legal bases for its decision on their claim
that the defendant had abandoned the rights-of-way.
In the motion, the plaintiffs argued that the court’s
memorandum of decision ‘‘references the plaintiffs’
claim for abandonment in its recitation of the underly-
ing facts and procedural history,’’ but the court ‘‘did
not address the legal arguments advanced by the parties
either in support of or in opposition to the abandonment
claim.’’ The court denied the plaintiffs’ motion for artic-
ulation. The plaintiffs did not file a motion for review
of that ruling with this court pursuant to Practice Book
§ 66-7.
We conclude, consistent with the court’s analysis,
that the issue of whether the defendant abandoned the
rights-of-way was relevant to the defendant’s claim of
municipal immunity from adverse possession. ‘‘Munici-
pal immunity from adverse possession is the rule and
not the exception, and we have consistently held that
the party seeking to acquire title by adverse possession
bears the burden of proving all the elements of adverse
possession. . . . Public rights to municipal property
will not be forfeited by lack of use absent some addi-
tional evidence indicating that the municipality
intended to abandon the property.’’ (Citation omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) Campanelli v. Candlewood Hills Tax
District, 126 Conn. App. 135, 140, 10 A.3d 1073 (2011);
see also, e.g., American Trading Real Estate Proper-
ties, Inc. v. Trumbull, 215 Conn. 68, 78–80, 574 A.2d
796 (1990) (addressing issue of abandonment in context
of claim of municipal immunity from adverse posses-
sion); Benjamin v. Norwalk, 170 Conn. App. 1, 22, 153
A.3d 669 (2016) (same).
The plaintiffs cite no case law, and we have found
none, to support the proposition that they could obtain
ownership of the rights-of-way on the basis of the defen-
dant’s alleged abandonment of that property, without
also proving the elements of adverse possession.19
Because, in the context of the present case, the issue
of abandonment was inextricably intertwined with the
plaintiffs’ adverse possession claim, there was no need
for the court to address that issue as an independent
cause of action. Accordingly, we conclude that the court
did not improperly fail to address the issue of abandon-
ment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the appeal form filed by the plaintiffs indicates that they are
appealing from the court’s denial of their motion for summary judgment in
addition to the court’s granting of the defendant’s motion for summary
judgment, and they mention their motion in their briefing to this court,
they also acknowledge that ‘‘the issues in the cross motions for summary
judgment were identical,’’ and they do not separately brief any issue related
to their motion. Accordingly, we do not independently address the court’s
denial of the plaintiffs’ motion for summary judgment.
2
Carr’s deed does not specifically describe the property as being
‘‘bounded’’ by a right-of-way but does state that ‘‘a five (5) foot wide strip
. . . [is] set forth in a survey map . . . .’’
3
These five specific common area tracts are separate parcels of land that
are not at issue in the present case.
4
The Vierings have owned their property since 2003, and it has been in
their family since the 1920s; Carr has owned her property since 1996; Battles
has owned her property since 2006; and Kingston and Sims have owned
their property since 2002.
5
The defendant also filed a counterclaim seeking to quiet title with respect
to the rights-of-way and alleging trespass as to all of the plaintiffs. This
counterclaim is not at issue in the present appeal.
6
‘‘Title to realty held in fee by a state or any of its subdivisions for a
public use cannot be acquired by adverse possession.’’ (Internal quotation
marks omitted.) Campanelli v. Candlewood Hills Tax District, 126 Conn.
App. 135, 140, 10 A.3d 1073 (2011). ‘‘[P]roperty that is held in fee simple
ownership by municipalities must be presumed to be held for public use.
It follows that the party seeking title by adverse possession must bear the
burden of rebutting that presumption. Municipal immunity from adverse
possession is the rule and not the exception, and we have consistently held
that the party seeking to acquire title by adverse possession bears the burden
of proving all the elements of adverse possession.’’ (Internal quotation marks
omitted.) Benjamin v. Norwalk, 170 Conn. App. 1, 18, 153 A.3d 669 (2016).
7
The court explained that the defendant ‘‘is an entity, created in May,
1921, by special act of the General Assembly, and endowed, generally, with
‘all the powers granted to boroughs under the general statutes,’ ’’ and ‘‘[t]he
legislative charter declared that the [defendant] property owners ‘are hereby
constituted a body politic.’ ’’ Thus, the court concluded that ‘‘[t]he [defen-
dant] is not just another property owner. If not a municipality per se, it has,
by virtue of its legislative charter, all of the attributes of a municipality,’’
and ‘‘[t]hat it does not serve the general welfare of the public at large does
not defeat its quasi-municipal status (hence, the ‘quasi’).’’
8
A municipality’s property may be considered abandoned when there is
‘‘(1) nonuse by the public (2) for a long period of time (3) with the intent
to abandon,’’ and ‘‘it has long been the rule that abandonment may be
inferred from circumstances or may be presumed from long continued
neglect.’’ (Internal quotation marks omitted.) Nichols v. Oxford, 182 Conn.
App. 674, 681, 191 A.3d 219, cert. denied, 330 Conn. 912, 193 A.3d 560 (2018).
9
As we subsequently explain in part III of this opinion, the plaintiffs
sought an articulation of the court’s decision only as to their claim that the
defendant had abandoned the rights-of-way.
10
Our Supreme Court has explained that ‘‘the test for easements by impli-
cation and easements by necessity have been confused by both trial and
appellate courts through the years. Although we agree that the line between
the two kinds of implied easements has been blurred, the intent of the
parties and the beneficial use of property are still key components of both
types of easements. The distinction between the two arises from the way
the intent is determined: by examination of the express terms of the deed
in cases of easements by implication, and by examination of the presumed
intent of the parties by the circumstances of the conveyance in cases of
easements by necessity.’’ Francini v. Goodspeed Airport, LLC, supra, 327
Conn. 445 n.8.
11
Both parties fully briefed their respective positions on this issue.
12
We also note that, to the extent the plaintiffs’ claim relies on the examina-
tion of the presumed intent of the parties by the circumstances of the
conveyance, rather than the examination of the express terms of the deeds
at issue, such an analysis would support a claim for an easement by necessity,
not a claim for an easement by implication. See Francini v. Goodspeed
Airport, LLC, supra, 327 Conn. 445 n.8.
13
On appeal, the plaintiffs claim that the court improperly determined
that there was a genuine issue of material fact that existed with respect to
the defendant’s municipal immunity defense to adverse possession. Specifi-
cally, the plaintiffs claim that the defendant did not satisfy the ‘‘public use
requirement,’’ and, because the defendant does not hold the rights-of-way
for public use, it is not entitled to the protection of municipal immunity as
a matter of law. The defendant responds that its defense of municipal
immunity presents an alternative ground for affirming the judgment of the
trial court on the adverse possession claim because the court found that it
is a ‘‘quasi-municipal’’ entity, which results in a presumption that the rights-
of-way are held for public use, and, in its view, the plaintiffs failed to rebut
that presumption.
Although the parties have not raised the issue in their briefs to this court,
there is some question as to whether the plaintiffs were aggrieved by this
aspect of the trial court’s decision, insofar as the court was declining to
grant the defendant’s motion for summary judgment on the basis of its
municipal immunity defense, which was favorable to the plaintiffs; see C.
M. v. R. M., 219 Conn. App. 57, 66, 293 A.3d 968 (2023) (‘‘the party claiming
aggrievement must establish that [a] specific personal and legal interest has
been specially and injuriously affected by the decision’’ (emphasis added;
internal quotation marks omitted)); and the defendant did not file notice in
this court that it intended to raise an alternative ground for affirmance
pursuant to Practice Book § 84-11. Ultimately, however, we do not need to
address this issue because, regardless of whether the rights-of-way were
immune from a claim of adverse possession, the court properly determined
that the plaintiffs’ adverse possession claim failed as a matter of law, as we
explain in part II of this opinion.
14
Specifically, the court pointed to the evidence that the rights-of-way
had become overgrown with vegetation and the defendant’s October, 2003
and January, 2004 letters to the residents of Groton Long Point, reasserting
their ownership of the rights-of-way and instructing abutting property own-
ers to ‘‘remove all hazardous impediments . . . that obstruct access.’’
15
The plaintiffs also suggest that the presence of utility poles in the dis-
puted area, which provide electricity to the plaintiffs’ homes, demonstrates
their open and visible use of that area. At oral argument before this court,
however, the plaintiffs’ counsel acknowledged that any utility easement
would belong to the utility company and that there was no evidence in the
record as to who permitted the utility company to install the utility poles.
Accordingly, the presence of utility poles does not demonstrate the plaintiffs’
open and visible use of that area.
16
The plaintiffs also claim that the court improperly determined that their
shared dominion of the rights-of-way defeated the exclusivity element of
adverse possession as a matter of law. Specifically, the plaintiffs argue that
Roberson v. Aubin, supra, 120 Conn. App. 72, which the court relied on in
reaching its conclusion, is inapposite because, in that case, the shared use
was between the plaintiffs and the defendant, and, in the present case, ‘‘[t]he
shared dominion argued by the defendant is among the plaintiffs themselves,
not as among the plaintiffs and the defendant,’’ which presents an issue of
first impression.
Because we conclude that the court properly determined that the plaintiffs’
adverse possession claim failed as a matter of law on the basis that there
was no genuine issue of material fact as to whether the plaintiffs had used
the rights-of-way in an open, visible and hostile manner for a continuous
period of fifteen years, we do not reach this claim. See Alvarez v. Middle-
town, 192 Conn. App. 606, 611 n.2, 218 A.3d 124 (‘‘[s]ummary judgment is
appropriate where no genuine issue of material fact exists, and the defendant
is entitled to judgment as a matter of law, with respect to any one element
that the plaintiff is required to prove in order to prevail at trial’’ (emphasis
added; internal quotation marks omitted)), cert. denied, 333 Conn. 936, 218
A.3d 594 (2019).
17
On the basis of this evidence, we disagree with the plaintiffs’ contention
that the trial court’s description of the vegetation as ‘‘overgrown’’ was a
mischaracterization of the evidence.
18
The plaintiffs relied only on the evidence of their maintenance of the
vegetation and the presence of the utility poles to demonstrate their use of
the rights-of-way.
In addition, although these other uses may be viewed as sufficiently
hostile, because they exceed the permitted use of the rights-of-way as a
means to access the road; see Dowling v. Heirs of Bond, supra, 345 Conn.
150–51; the plaintiffs have acknowledged in their reply brief to this court
that they did not argue to the trial court that their use of the rights-of-way
had become hostile.
19
There are some circumstances in which an easement may be extin-
guished by the abandonment of the owner of the dominant estate, wherein
the easement would cease to exist, and the property would belong, unencum-
bered, to the record title owner. See Smith v. Muellner, supra, 283 Conn.
527. In the present case, however, the plaintiffs are not the record title owners
of the land encumbered by the rights-of-way. In addition, the defendant is
not the owner of a dominant estate and, instead, undisputedly owns the
rights-of-way in fee simple.