Prescriptive Easement for Recreational Use Over a Body of Water

June 2010Newsletters In the Zone

The Connecticut Supreme Court issued its opinion in the case captioned Frech v. Piontkowski (No. SC 18400) on May 4, 2010, addressing the question of whether, among other things, a prescriptive easement for recreational use over a body of water was available as a matter of law.

This case arose in the context of a nonnavigable, artificial body of water (a reservoir) that "was created in 1890 by the erection of a dam on the property currently owned by the defendants, twenty-five feet in height from the bottom of a brook situated on the property. The original purpose of the dam was to provide water to the water towers serving the steam locomotives at the Old Saybrook Railroad Junction."

The plaintiffs own lots created by a subdivision in 1974 that abut the reservoir. The defendants own the reservoir and the land under it. The exact boundary between the reservoir and the abutting properties and the ownership of that land was disputed at trial.

The plaintiffs (and their predecessors in interest) have enjoyed boating, swimming, fishing, ice fishing and ice skating on the reservoir for more than 25 years. One of the plaintiffs installed wooden pallets at the water's edge to gain easier access to their boat. The other plaintiff trucked in sand to create a beach area along the water's edge.

While prescriptive easement claims are fact intensive, this case addressed a number of prescriptive easement requirements and procedural steps that are instructive.

The defendant claims that the court erred in concluding as a matter of law that an abutting landowner may acquire a prescriptive easement over a nonnavigable, artificial body of water for recreational purposes. The court distinguished two decisions from other jurisdictions (Pennsylvania and Ohio) that were offered to support the defendant's claim that a prescriptive easement over a body of water was not available as a matter of law. In the Pennsylvania case, the Pennsylvania court rejected a claim that an easement in gross could arise from the casual, recreational use of a lake for a few months each year by prescription.The Ohio Supreme Court rejected a claim for an easement by prescription for use by the public of a privately owned lake. This case was distinguished by the "public use" component and the lack of sufficient factual basis for the plaintiff 's claim in that case. The Connecticut Supreme Court found in the instant case that an easement for recreational use over a nonnavigable, artificial body of water was available as a matter of law.

The court did not find persuasive the defendant's further claim that by granting the prescriptive easement to plaintiffs, a "unique burden" is imposed on the servient estate of maintaining the dam in perpetuity. The court viewed this concern as addressing the "scope" of the easement that may arise by prescription rather than the ability of the court to find such an easement as a matter of law.

The defendant claims, among other things, that the trial court improperly concluded that the plaintiffs had established all of the requisite elements to acquire such prescriptive easement. The elements of a prescriptive easement for recreational use of a body of water are outlined in Connecticut General Statutes Section 47- 37, which 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 section, this court repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." [citation omitted]

The defendant contends that recreational use of a body of water is too intermittent and does not leave adequate traces to offer sufficient notice. The court responds that meeting the elements of a prescriptive easement is a question of fact.

The defendant contends that because the use of the reservoir was not constant, it was not continuous. The requirement that the use be continuous does not mean the use must be constant. The court stated that the nature of the easement will dictate the type of evidence that is required to prove it. There is precedent that seasonal use is sufficient to satisfy the continuity requirement. The court has stated the requirement that the use be continuous is satisfied if it is proven that the use was uninterrupted for a period of at least 15 years pursuant to Connecticut General Statutes Section 47-37.

The court did not find the defendant's actions they claimed "interrupted" the continuous use to be sufficient. The defendant's actions included posting "No Trespassing" signs by the reservoir on more than one occasion (since the plaintiffs removed such signs); ejecting the son of one of the plaintiffs from the property on two occasions; asking people using the water in front of the plaintiffs' property to leave; and sending a letter to the one of the plaintiffs objecting to a satellite dish placed on the plaintiff's property. Connecticut General Statutes Section 47-38 provides for notice to interrupt continuous use in an adverse use and/or possession situation. The defendant failed to comply with this statute.

Finally, after review of the facts found by the trial court and the law of this case, the court found that the "use of the reservoir by the plaintiffs and the Marzano family was such that a reasonably diligent owner would have learned of its existence, nature and extent. The trial court's findings are sufficient to support its determination that the plaintiffs' use was open and notorious."

One interesting development was that at the trial court, the defendant retained an expert who was a surveyor to speak to the issue of whether the lot owners' property actually abutted the body of water (and to determine where the boundaries of the defendants' and plaintiffs' properties were located). The trial court discounted the evidence presented by the expert by its review of subdivision maps and other documentary evidence presented at trial without the benefit of contradicting expert testimony.

Following are some of the lessons for, and reminders to, landowners in protecting their property from adverse use and possession claims:

  • Landowners must be diligent in monitoring the use of their properties (and bodies of water located thereon). The court found somewhat intermittent recreational use of a body of water over a period exceeding 15 years could give abutting owners a prescriptive easement by meeting the requirements of open, notorious and continuous use.
  • If a landowner detects adverse use of their property, follow the statutory guidance of notice to "interrupt" the adverse use rather than the occasional erection of "No Trespassing" signs and verbal sparring with recreational users of the property.
  • You don't always need an "expert" when the opposing party has an "expert" since the court may discount expert testimony by facts gleaned from documentary evidence.