BARBARA O. MURPHY et al. v. EAPWJP, LLC, et al., SC 18696

Judicial District of New London

 Property; Easements; Whether the Unauthorized Construction and Use of a Boardwalk can Establish a Prescriptive Easement Over Underlying Tidal Wetlands.  The parties own property in the White Beach section of Lord's Point in Stonington.  The plaintiffs' properties, however, do not include frontage on White Beach.  For many years, there existed a wooden boardwalk over a portion of the property belonging to the defendant, EAPWJP, LLC (EAP), that the plaintiffs and defendants Steven and Marion Dodd maintained to access White Beach.  No one had obtained the statutorily required permits to maintain the boardwalk, which EAP claimed was adversely impacting tidal wetlands.  After EAP took the boardwalk down and informed the plaintiffs and the Dodds that they could no longer use its property to access the beach, the plaintiffs brought this action against EAP and the Dodds.  They alleged that they had a prescriptive easement over a portion of the defendants' properties known as the triangle and over the separate portion of EAP's property where the wooden boardwalk was located (the beach pathway), which they used to access the beach for recreational purposes.  The Dodds filed a cross claim against EAP, also alleging that they had a prescriptive easement over the beach pathway.  The trial court held that the plaintiffs and the Dodds had acquired an easement over the beach pathway portion of EAP's land.  Although it agreed that no one had obtained the statutorily required permits to maintain the boardwalk on the beach pathway, it noted that the plaintiffs and the Dodds did not claim that they had a right to reconstruct or maintain the boardwalk but, instead, claimed to have a prescriptive easement over the pathway.  It thus found that the plaintiffs and the Dodds had the right to continue to use the beach pathway.  On appeal to the Appellate Court, EAP argued that because the boardwalk had been constructed and maintained without the necessary permits, it could not have formed the basis for the acquisition of a prescriptive easement over the pathway.  It asserted that the use of the boardwalk created a public nuisance and that one cannot acquire a prescriptive right to maintain a nuisance.  The Appellate Court (123 Conn. App. 316) disagreed and affirmed the trial court's ruling.  It held that although it appeared that the boardwalk had not been approved by the department of environmental protection, this fact did not negate the rights of the plaintiffs and the Dodds to cross the land owned by EAP.  It stated that the prescriptive easement is over a specific portion of EAP's land and is not limited by, or dependent on, the boardwalk that was built on the land.  Moreover, it stated that EAP made no claim that the use of the pathway amounted to a nuisance.  In this appeal, the Supreme Court will determine whether the Appellate Court properly affirmed the trial court's ruling that the plaintiffs and the Dodds had established a prescriptive easement over EAP's land.