CHAPTER 822*
EASEMENTS AND RESTRICTIONS

      *Cited. 136 C. 284.

      Cited. 8 CA 203. Sec. 47-38 et seq. cited. Id.


Table of Contents

Sec. 47-37. When acquired by adverse use.
Sec. 47-38. Mode of preventing acquisition.
Sec. 47-39. Service of notice upon the party claiming the easement.
Sec. 47-40. Giving of notice when party unknown.
Sec. 47-41. Notice considered a disturbance of the right.
Sec. 47-42. Easements for public utility or railway purposes.
Sec. 47-42a. Definitions.
Sec. 47-42b. Enforcement of conservation and preservation restrictions held by governmental body or charitable corporation.
Sec. 47-42c. Acquisition of restrictions. Enforcement by Attorney General.
Sec. 47-42d. Permit applications filed with state or local land use agency, local building official or director of health. Appeals by party or state agency holding restriction. Civil penalty.
Sec. 47-42e. Municipal property acquired with intent to place restriction or dedicated as park or open space land. Recording in land records. Enforcement.

      Sec. 47-37. When acquired by adverse use. 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.

      (1949 Rev., S. 7130; P.A. 79-602, S. 56.)

      History: P.A. 79-602 substituted "may" for "shall" and "the" for "such" where appearing.

      No user less than fifteen years can avail. 69 C. 263. Personal rights-of-way in this state may not be established by local custom. 78 C. 133. Whether user is under license or under claim of right is a question of fact. Id., 156. City may acquire right to maintain sewer; imputing knowledge of it to landowner. 81 C. 137. Use may originate in oral agreement or void deed; effect of claimant becoming executor of owner of fee. 90 C. 241. See note to Sec. 52-575. Where an individual use is in common with a public use, there must have been a use of the way by the individual distinctive from that of the general public. 134 C. 576. Trial court erred in denying plaintiff injunctive relief. 136 C. 277. No right can be acquired unless use defines its bounds with reasonable certainty. Id., 398. User by plaintiff's tenants inures to benefit of lessor. User by defendants not inconsistent with plaintiff's right. 137 C. 586. Where use is permissive it cannot be under a claim of right. 139 C. 352. To acquire a right-of-way by prescription, there must be a user which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. 142 C. 296. Cited. Id., 708. Essential elements of a right-of-way by prescription are a use which is (1) open and visible, (2) continuous and uninterrupted for fifteen years, (3) engaged in under a claim of right. 143 C. 40. Where defendant had maintained mooring stakes for over thirty years along river frontage of plaintiff's property and thereafter erected floating docks also along plaintiff's property, held defendant had not sustained burden of proving continuity of user to acquire by prescription enough of plaintiff's littoral rights to justify interference created by docks. 149 C. 560. Plaintiff acquired no prescriptive right where owner gave him permission of use. 151 C. 458. In absence of finding when use began, no prescriptive rights can be acquired. Id. Riparian owner's rights to natural flow of water of stream through his land infringed by New London's expansion of its water reservoir in a drought held to entitle plaintiff to nominal damages and, unless city acquired water rights by eminent domain in a reasonable time, to an injunction of further diversion by the city. 157 C. 9. Cited. 165 C. 457. Cited. 175 C. 535. Cited. 183 C. 289. Cited. 186 C. 229. Cited. 190 C. 163; Id., 184. Cited. 196 C. 614. Cited. 227 C. 495. Permanent injunction precluded plaintiff's asserting valid claim of right to use private way over defendant's property. 244 C. 583. In order to acquire a prescriptive easement, party may "tack on" the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights. 276 C. 782. Evidence was sufficient to establish that plaintiff's use of right-of-way was adverse, notorious and continuous and sufficient to gain legal right and title. 294 C. 418. Plaintiffs acquired prescriptive easement for recreational use of nonnavigable, artificial body of water through uninterrupted and continuous use for at least fifteen years, and proof of daily or constant use was not necessary to acquire this type of easement. 296 C. 43.

      Cited. 1 CA 341; Id., 373. Cited. 3 CA 639. Cited. 7 CA 252. Cited. 8 CA 203. Cited. 20 CA 298; Id., 380. Cited. 32 CA 746. Cited. 33 CA 799. Cited. 37 CA 822. Cited. 39 CA 143. Cited. 44 CA 683. Cited. 46 CA 164. Although plaintiff did not have burden of proving absence of permission, plaintiff did have burden of proving that she and her predecessors adversely used the driveway under a claim or right. 83 CA 826. Trial court finding that underground utility lines placed outside the deeded utility easement were open and visible where plaintiffs had knowledge of parameters of easement and sewer cleanouts were visible outside those parameters was not clearly erroneous. 92 CA 172.

      Cited. 15 CS 467. Use for twenty-eight years in disregard of a no trespassing sign established a right-of-way. 19 CS 220. Requirements for prescriptive easement discussed. 45 CS 515.


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      Sec. 47-38. Mode of preventing acquisition. The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter.

      (1949 Rev., S. 7131; P.A. 79-602, S. 57.)

      History: P.A. 79-602 made minor changes in wording but made no substantive changes.

      Cited. 140 C. 370. Cited. 142 C. 296. Cited. 143 C. 40. Trial court properly determined that boundary line agreement did not constitute notice of intent to prevent airport defendant from acquiring an easement and, therefore, did not prevent airport defendants from acquiring a prescriptive easement in the land trust properties. 275 C. 105. None of defendant's actions, including the posting of "no trespassing" signs, was sufficient to interrupt plaintiff's continuous use of property. 296 C. 43.

      Cited. 40 CS 272.


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      Sec. 47-39. Service of notice upon the party claiming the easement. The notice referred to in section 47-38 shall be served like an original summons in civil actions on the person claiming or using the way or easement, his agent or guardian, if within the state, otherwise on the tenant or occupant of the estate to which the way or easement is claimed to be appurtenant, if there is any such tenant or occupant, and, if not, a copy of the notice shall be affixed to the house upon such estate or to some other conspicuous part of the premises. The service shall be endorsed and returned on the original paper, and the notice with the return shall be recorded in the land records of the town in which the land lies, within three months after the service.

      (1949 Rev., S. 7132; P.A. 79-602, S. 58.)

      History: P.A. 79-602 specified notice as that "referred to in section 47-38" and substituted "the" for "such" where appearing.

      Cited. 140 C. 370. Cited. 142 C. 296.

      Cited. 40 CS 272.


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      Sec. 47-40. Giving of notice when party unknown. When the owner of the estate to which such way or easement is claimed to be appurtenant is unknown, the notice under sections 47-38 and 47-39 may be given by conspicuously posting on the estate a copy of the notice and serving it on the person to whom the premises were last assessed for taxes in the place where they lie, and recording it as required in said sections.

      (1949 Rev., S. 7133; P.A. 79-602, S. 59.)

      History: P.A. 79-602 made minor changes in wording but made no substantive changes.

      Cited. 140 C. 370. Cited. 142 C. 296.

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      Sec. 47-41. Notice considered a disturbance of the right. The notice under sections 47-38 and 47-39 shall be considered a disturbance of the right in question which enables the party claiming the right to bring an action as for a nuisance or disturbance for the purpose of trying the right. If the plaintiff in that action prevails, he shall be entitled to full costs, although he recovers only nominal damages.

      (1949 Rev., S. 7134; P.A. 79-602, S. 60.)

      History: P.A. 79-602 rephrased provisions and specified notice as that under Secs. 47-38 and 47-39.

      Cited. 140 C. 370. Cited. 142 C. 296.

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      Sec. 47-42. Easements for public utility or railway purposes. Any right-of-way over or easement in or to any land or water or any interest therein granted by any person or corporation by means of any instrument executed in the manner provided by law for the conveyance of any interest in real estate, which instrument purports to convey to any individual and to his heirs and assigns or to any corporation and to its successors and assigns, a right-of-way over or easement in or to such land or water for any purpose connected with (1) the generation, transmission or distribution of electric energy, (2) the provision of services or operations of a public service company, as defined in section 16-1, or (3) the operation of a railroad or street railway company, shall create a transmissible and assignable interest in land in the grantee therein described. All or any part of any rights therein granted may be granted and conveyed by the grantee therein described, or by any successive grantee, in the manner provided by law for the conveyance of any interest in real estate, to any person or corporation and to his or its respective heirs, successors or assigns. Such grant shall vest in the person or corporation to which such grant is given all the right, interest and title of the grantor to such right-of-way or easement or portion thereof as may be described in such grant.

      (1949 Rev., S. 7135; P.A. 95-217, S. 5.)

      History: P.A. 95-217 added Subdiv. indicators, and Subdiv. (2) re public service companies.

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      Sec. 47-42a. Definitions. For the purposes of sections 47-42b, 47-42c and 47-42d, the following definitions shall apply:

      (a) "Conservation restriction" means a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land described therein, including, but not limited to, the state or any political subdivision of the state, or in any order of taking such land whose purpose is to retain land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming, forest or open space use.

      (b) "Preservation restriction" means a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of land, including, but not limited to, the state or any political subdivision of the state, or in any order of taking of such land whose purpose is to preserve historically significant structures or sites.

      (1971, P.A. 173, S. 1; P.A. 04-96, S. 1; P.A. 05-124, S. 1.)

      History: P.A. 04-96 added the state or any political subdivision of the state to conservation restriction and preservation restriction definitions, effective May 10, 2004; P.A. 05-124 made definitions applicable to Sec. 47-42d.

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      Sec. 47-42b. Enforcement of conservation and preservation restrictions held by governmental body or charitable corporation. No conservation restriction held by any governmental body or by a charitable corporation or trust whose purposes include conservation of land or water areas and no preservation restriction held by any governmental body or by a charitable corporation or trust whose purposes include preservation of buildings or sites of historical significance shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of the benefit being assignable or being assigned to any other governmental body or to any charitable corporation or trust with like purposes.

      (1971, P.A. 173, S. 2.)

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      Sec. 47-42c. Acquisition of restrictions. Enforcement by Attorney General. Such conservation and preservation restrictions are interests in land and may be acquired by any governmental body or any charitable corporation or trust which has the power to acquire interests in land in the same manner as it may acquire other interests in land. Such restrictions may be enforced by injunction or proceedings in equity. The Attorney General may bring an action in the Superior Court to enforce the public interest in such restrictions.

      (1971, P.A. 173, S. 3; P.A. 05-124, S. 5.)

      History: P.A. 05-124 permitted Attorney General to bring enforcement action in Superior Court to enforce public interest in restrictions, effective July 1, 2005.

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      Sec. 47-42d. Permit applications filed with state or local land use agency, local building official or director of health. Appeals by party or state agency holding restriction. Civil penalty. (a) For purposes of this section, "state or local land use agency" includes, but is not limited to, a municipal planning commission, municipal zoning commission, combined municipal planning and zoning commission, a municipal zoning board of appeals, municipal inland wetlands and watercourses agency, a municipal historic district commission and any state agency that issues permits for the construction or improvement of real property.

      (b) No person shall file a permit application with a state or local land use agency or a local building official or director of health, other than for interior work in an existing building or for exterior work on an existing building that does not expand or alter the footprint of such existing building, relating to property that is subject to a conservation restriction or a preservation restriction unless the applicant provides proof that the applicant has provided written notice of such application, by certified mail, return receipt requested, to the party holding such restriction, including, but not limited to, any state agency that holds such restriction, not later than sixty days prior to the filing of the permit application. In lieu of such notice, the applicant may submit a letter from the holder of such restriction or from the holder's authorized agent, verifying that the application is in compliance with the terms of the restriction. If the applicant has provided written notice pursuant to this subsection, the holder of the restriction may provide proof to the state or local land use agency or local building official or director of health that granting of the permit application will violate the terms of the restriction and such agency, official or director shall not grant the permit. Nothing in this section shall be construed to prohibit the filing of a permit application or to require such written notice when the activity that is the subject of such permit application will occur on a portion of property that is not restricted under the terms of such conservation or preservation restriction.

      (c) If the applicant fails to comply with the provisions of subsection (b) of this section, (1) the party holding the conservation or preservation restriction, other than a state agency that holds such restriction, may, not later than fifteen days after receipt of actual notice of permit approval, file an appeal with the state or local land use agency or local building official or director of health, subject to any rules of such agency, official or director relating to appeals. The agency, official or director shall reverse the permit approval upon a finding that the requested land use violates the terms of such restriction; or (2) the state agency that holds such restriction may, not later than thirty days after receipt of actual notice of permit approval, file an appeal with the state or local land use agency or local building official or director of health, subject to any rules of such state or local land use agency, official or director relating to appeals. Such state or local land use agency, official or director shall immediately reverse such permit approval if the commissioner of the state agency that holds such restriction certifies that the land use authorized in such permit violates the terms of such conservation or preservation restriction. The commissioner of the state agency that holds such restriction may impose a civil penalty of not more than: (A) Five thousand dollars for a violation of subsection (b) of this section; and (B) one thousand dollars for each day that such violation continues after the applicant receives an order from such commissioner assessing a civil penalty pursuant to subparagraph (A) of this subsection.

      (P.A. 05-124, S. 2; P.A. 10-85, S. 1.)

      History: P.A. 10-85 amended Subsec. (b) by limiting exemption for exterior work to existing building, including reference to any state agency that holds restriction and adding provision re filing of application or requiring notice when activity will occur on portion of property that is not restricted under terms of conservation or preservation restriction and amended Subsec. (c) by designating existing provisions re appeal by party holding restriction as Subdiv. (1), amending same to add exception re state agency that holds restriction, adding Subdiv. (2) re appeal by state agency that holds restriction and adding provision re civil penalty.

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      Sec. 47-42e. Municipal property acquired with intent to place restriction or dedicated as park or open space land. Recording in land records. Enforcement. (a) For purposes of this section:

      (1) "Conservation restriction" has the same meaning as provided in section 47-42a;

      (2) "Preservation restriction" has the same meaning as provided in section 47-42a; and

      (3) "Open space land" has the same meaning as provided in section 12-107b.

      (b) Whenever a municipality acquires any real property with the intent to place a conservation restriction, preservation restriction or other restriction on the use of such property, including acquiring property with funds specifically allocated for a conservation or preservation purpose, such municipality shall record in the land records a description of any such restriction and any applicable source of such restriction, including, but not limited to, the date of the referendum or local legislative body action that authorized such acquisition contingent upon certain use restrictions and the source of the funding for the acquisition of such property if such funding restricted the use of such property.

      (c) Whenever a municipality intends to permanently protect any municipal property by dedicating such property as a park or open space land, such municipality shall record in the land records a description of such property, the date of such dedication and the local legislative body action that authorized such dedication.

      (d) The failure of a municipality to comply with the provisions of subsection (b) or (c) of this section shall not be evidence of the lack of any such conservation restriction, preservation restriction or open space land dedication.

      (e) Nothing in this section shall be construed to amend or alter any other legal right or obligation of a municipality concerning open space land or park land.

      (f) If a municipality fails to comply with a dedication of land as open space land or park land or the terms of a conservation or preservation restriction, the Attorney General may bring an action in the superior court to enforce the public interest in such dedication or conservation or preservation restriction.

      (P.A. 10-85, S. 2.)

      History: P.A. 10-85 effective May 26, 2010.

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