author: Arthur H. Healey, J.

text:
    Chester A. Kuras et al. v. Walter R. Kope et al. Walter R. Kope et al. v. Chester A. Kuras et al.
    (13107) (13108)
    Healey, Shea, Glass, Covello and Hull, Js.

      Argued October 2
    decision released November 24, 1987

      Thomas P. Arvantely, for the appellants (defendants in the first case, plaintiffs in the second case).

      Richard P. Weinstein, for the appellees (plaintiffs in the first case, defendants in the second case).
   Arthur H. Healey, J.

These appeals involve the disputes concerning an easement by prescription in favor of Walter and Helen Kope over a right-of-way, approximately 1900 feet long, on real property in Suffield owned by Chester and Sarah Kuras. A Superior Court judgment in 1982 decreed that the Kopes’ predecessors' in title, Ara and Martha Dildilian, had established an easement by prescription over a dirt road on the Kurases’ property and in doing so, it enjoined the Kurases from interfering with the Kopes’ right to use the right-of-way. In 1984, the Kurases brought an action against the Kopes in which they sought a declaratory judgment defining the width, scope and nature of the improvements to the easement that the Kopes could make, injunctive relief restraining the Kopes from expanding, improving or broadening the scope of the easement, monetary damages and other relief. Shortly thereafter the Kopes instituted an action against the Kurases seeking injunctive relief, monetary relief and other equitable relief for their alleged interference with the Kopes’ use of the right-of-way. Both cases were tried together in the trial court, O’Neill, J., and argued together in this court.

The Kuras parcel is farm property located on the southerly side of Mountain Road, a town highway, in Suffield. The Kope parcel, which is 30.53 acres, abuts the southerly side of the Kuras parcel. The Kope parcel has no frontage on any highway but it does have access to Mountain Road by virtue of the right-of-way in dispute. The Kopes purchased this property in 1983 after the 1982 Superior Court judgment had established the right-of-way in the Dildilians and “their heirs and assigns.” The court’s, Bernstein, J., memorandum of decision in 1982 discloses, inter alia, that the Whipples purchased the dominant property (now owned by the Kopes) in 1925, that the WTiipples constructed a “dwelling” on it shortly thereafter, that the Wkipples sold to the Dildilians in 1946 and that “[i]n all the years that the Whipples and Dildilians owned it, no one, including the neighbors and defendants [the Kurases], questioned their right to use the road.” That memorandum also noted that when the bridge over the stream that crossed the right-of-way as it entered the Kope parcel “washed out the [Dildilians] re-planked it.” When the Kurases fenced off the right-of-way with a gate “occasionally to fence in his cattle he [Chester Kuras] notified [the Dildilians] so that they would in no way be inconvenienced. ’ ’

The trial court, O’Neill, J., opined that the 1982 judgment found that the right-of-way was a “dirt road” and that it was subject to “flood.” It also noted that the 1982 court “specifically found that the road 'was never much wider than a common wagon backroad subsequently made accessible by auto; and it was always subject to climatic conditions.’ ” The trial court, O’Neill, J., pointed out that the 1982 court’s “ultimate finding was that Kopes’ predecessors in title 'their heirs, and assigns have a right of way over the land of . . . [Kuras] along the path indicated in . . . [a] survey done by W. E. Savage, Jr., Land Surveyor . . . [which was in evidence in the present trial].’ ” The “path” in the Savage survey was, the trial court said, shown by dotted lines “clearly not drawn to scale” with the “path” appearing at its “widest” to be 25 feet and at its “narrowest,” about six feet. The trial court, O’Neill, /., rejected the Savage survey and used that of Charles E. Davis, a licensed surveyor, who testified at the trial. In doing so, the trial court found that the right-of-way was “but 10 feet” as shown on the Davis survey and not “up to 20 feet” as the Kopes claimed. It recognized that the Kopes had obtained a variance from the Suffield zoning board of appeals allowing them to construct a year-round residence on their parcel and that that variance was required because the Kope parcel had no frontage on Mountain Road. That court determined that the zoning board of appeals had “concluded” that the Kopes’ right-of-way across the Kuras parcel was “adequate for the granting of the variance” to which no conditions had been attached.

The trial court, O’Neill, J., viewed the property in March, 1986, traversing it in part in a four-wheel drive vehicle and in part on foot. Running south-southeast on the westerly side of the “right-of-way area for a considerable distance is a ditch.” The land to the west of the “right-of-way area” is almost uniformly higher than the “right-of-way area,” whereas the land to the east of the “right-of-way area” is almost uniformly lower than the “right-of-way area.” The right-of-way is about 70 percent to 80 percent grass or weeds and is crowned in the middle “in large part.” There are tracks that are 5 to 5 1/2 feet apart within the right-of-way and there are many potholes in the tracks with some of them being 12 to 15 inches deep. Moreover, even disregarding the potholes, “there are certain stretches where the tracks are as much as 10 to 15 inches lower than the crown of the right-of-way.” In certain places, the distance between the westerly upslope and the easterly downslope or between an old tree or large rock on one side and a drop-off or upslope on the other side is only 10 to 12 feet. There is a “dump” area along one of the narrow stretches of the right-of-way and in that stretch the Kopes had recently deposited some sand and stone for a distance of less than 100 feet. With this exception, no gravel, processed stone or any other material has been added to the right-of-way.

Although the Kurases maintain fencing parallel to a considerable portion of the right-of-way, that fencing, as it presently exists, is not a source of obstruction to the use of the right-of-way. Kuras had maintained a large water tank on the westerly side of the right-of-way and a pipe from that tank, running across the road to the east, had been removed at the time the court viewed the area. In the “northerly portions” of the right-of-way, the Kurases have a pole gate from which they have removed the poles.

There is a stream that runs roughly east and west across the right-of-way a few hundred feet south of the northerly terminus of the right-of-way. The northerly terminus is the terminus nearest Mountain Road. In order to cross this stream, a person, animal or vehicle must “ford” it and the drop from the bank to the low point in that ford is not less than two feet.

Near the southerly terminus of the right-of-way, about where the Kope parcel is situated, there is another stream that once had a wooden bridge across it, but the wooden crossing members of the bridge are “almost totally gone.” The stone abutments that supported the crossing members of this bridge are still present “and appear capable, with some tidying, of supporting new crossing members.”

Further, the trial court determined that “the right-of-way appears not to have been formed by any agency of man other than use” and that it could find “no indication on the site that the right-of-way had ever been graded or that a plow had been used for snow removal.” It also pointed out that two vehicles could not pass on the claimed right-of-way between the physical impediments on each side of the area over most of the length of the right-of-way.

After conducting the trial and viewing the locus in quo, the trial court made a number of determinations: Because the Kopes’ right to the use of the “dirt road” was established by prescription, it was limited to the use that established it. The Kopes were only entitled to a right-of-way about ten feet in width, and, therefore, the Kurases were entitled to an injunction rejecting the Kopes’ claim of a right-of-way twenty feet in width. It decided that the Kopes’ legal rights to injunctive relief were “essentially” the same as those of the Kurases which would include the enjoining of the Kurases from interfering with the use of the right-of-way by the Kopes.

It further ordered that the right-of-way was defined as set forth in the Davis survey (“about 10 feet wide”) except that the curve at the “southerly end” was found “not to curve out to the west but to continue N 32° -10’ - 07 E i.e. across the old bridge area.” The ditches were not part of the right-of-way nor was any area to its east or west “as depicted on the survey [Davis] which is in many places relatively flat.”

Although deciding that the right-of-way could be used at all times of the year, it found that the Kopes had no right to construct a bridge on the northerly portion of the right-of-way to cross the stream they “ford” and had no right “to add either above or below ground, any poles, wires, pipes or other materials for the transportation or transmission of any materials, electricity, or communication.” Although the Kopes had the right to “maintain” the right-of-way as a “dirt road,” they could not add stone, gravel or sand to it but only fill the “potholes” with “dirt.” They could not grade the “present crown nor raise the tracks” although they could trim bushes and tree branches along the right-of-way that interfered with their use. In addition, the Kopes had no right to build “slopes” on the area along the right-of-way. They had, however, in the building of their residence, the right “to bring in the normal equipment and materials to be used to erect a residence” as well as “rubber tired vehicle[s] necessary construction equipment such as backhoes and bulldozers.”

During those periods when the Kurases needed gates for farm animals, they were allowed to maintain two gates that were hinged and pivoted for ease of opening and closing. These gates, at designated locations, were not to be locked by any party and the Kopes were responsible for closing the gates after using them. The Kurases were permitted to maintain an underground water pipe that crossed the right-of-way. In addition, the Kurases could use their property in any way that they desired so long as they did not interfere with the Kopes’ right to use the right-of-way. In each case, the Kopes appealed to the Appellate Court and both cases were transferred to this court pursuant to Practice Book § 4023. We find error and remand with direction.

The basic issue on the Kopes’ appeal is their claim that the trial court erred in restricting the nature of the improvements that may be made to the right-of-way over the Kuras parcel. Essentially, the Kopes maintain that they are entitled to make the following improvements: grade the right-of-way, lay gravel or asphalt on the right-of-way, repair the damaged bridge over the stream which is near the southerly terminus of the right-of-way, construct a bridge or culvert at the stream (“the north ford”), which now must be “forded” and install, within the right-of-way, underground utilities for electric and telephone service.

The Kopes claim that the trial court’s denial of their right to make these improvements to the right-of-way has taken away all rights incident and necessary to its enjoyment and has taken away “its practical usefulness.” Maintaining that their proposed improvements are in keeping with the nature and use of the prescriptive right-of-way, the Kopes urge that their proposals are reasonable and “as little burdensome” to the Kuras parcel as the nature and purpose of this easement permits. Invoking Judge Bernstein’s 1982 decision concerning ingress and egress to their parcel, they claim that our cases indicate that because the right-of-way has been established, they have the right to so improve it so long as it is done only for purposes related to the ingress and egress from their residence. On this branch of the issue, they also refer for support to the Restatement of Property. See, e.g., 5 Restatement, Property §§ 478, 479. Arguing that the issue is how uses required by new needs can be justified by uses that satisfied old needs, the Kopes contend that the new needs, as evidenced by the proposed improvements, must be satisfied if their prescriptive easement is to be effective. They also claim that some findings of the trial court contradict certain of its conclusions, particularly its conclusion that the right-of-way was not formed by any agency of man other than use.

On the other hand, the Kurases claim that the rulings of the trial court are consistent with the law on prescriptive easements and the earlier decision of Judge Bernstein. Arguing that the “dirt road” is limited to the original use that gave rise to the prescriptive right, they contend that the proposed improvements expand, alter and increase the burden on the servient estate beyond its original use and purpose. In doing so, the Kurases claim that the Kopes have failed to distinguish between easements by prescription and easements by grant. They reject the notion that the Kopes’ proposed improvements in the right-of-way should consider the “evolution” of their parcel upon which a residence is to be built. Arguing that the Kopes “are able to freely pass” over the right-of-way and that the trial court’s rulings should not be disturbed, they stress that its decision is based not only on the trial court’s, O'Neill, J., assessment of the witnesses and the evidence at the trial, but also on the trial court’s personal observations of the actual area involved.

“It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it.” Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements § 415; 5 Restatement, Property §§ 477, 478. “ ‘The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.’ ” Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699; see Aksomitas v. South End Realty Co., supra. “Ordinarily when [judicial] opinions speak of the ‘use’ of an easement, it arises in right-of-way cases. Thus ‘use’ frequently involves the amount of traffic over the easement or alterations to the land to make it passable.” Center Drive-In Theatre, Inc. v. Derby, supra. This is not to overlook, however, that “[t]he owner of an easement has all rights incident or necessary to its proper enjoyment, [although] nothing more.” Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983); Center Drive-In Theatre, Inc. v. Derby,

supra, 464; see 25 Am. Jur. 2d, Easements and Licenses § 72; 5 Restatement, Property § 486. With reference to the owner of a prescriptive right-of-way over the farm of the other party, long ago we said: “The owner of the right of way may repair it, and do whatever is reasonably necessary to make it suitable and convenient for his use.” Nichols v. Peck, 70 Conn. 439, 441, 39 A. 803 (1898). We have said that “[t]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both. 2 Thompson, Real Property (1980 Replacement) § 427.” Peterson v. Oxford, supra. One treatise points out that the “scope” of an easement “is what its holder may do with it, the purposes for which it may be used.” R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property (1984) § 8.9, p. 458.

Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, “the use made during the prescriptive period does not fix the scope of the easement eternally. ” (Emphasis added.) Glenn v. Poole, 12 Mass. App. 292, 293, 423 N.E.2d 1030 (1981). One commentator in this field states that “[i]f it [the above announced rule] were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right-of-way, for instance, would, as has been judicially remarked . . . be available for use only by the people and the vehicles which have passed during the prescriptive period. But the rule is not applied with absolute strictness.” 4 H. Tiffany, Real Property (3d Ed.) § 1208, p. 1039; see Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213,174 P.2d 148 (1946); Cowling v. Higgenson, 4 Mees & W 245 per Parke B (1838); 2 American Law of Property § 8.68. Another authority has said: “Since, however, no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation.” 3 R. Powell, Real Property (1987 Rev.) 1 416, pp. 34-204-205.

The right-of-way in the case before us is an easement appurtenant, which, by definition is one created to serve a dominant parcel of land. 3 R. Powell, supra, f 418, p. 34-215, 1 405, p. 34-19. Because the owner of a prescriptive easement may repair it and do whatever is reasonably necessary to make it suitable and convenient for his use; Nichols v. Peck, supra; it is reasonable to assume that both dominant and servient owners would anticipate, as in this case, that an established right-of-way for ingress and egress to a single-family residence may give rise to the necessity of improvements in that easement to render it of genuine benefit to the owner of the dominant tenement. See 2 American Law of Property § 8.69, p. 281; see also 5 Restatement, Property §§ 478, 479.

This rule is a foreseeable corollary of the proposition that the prescriptive right established is to continue to do the things the doing of which resulted in the creation of the easement. See 2 American Law of Property § 8.68, p. 280. In a word, legal contemplation in this context anticipates “evolutionary but not revolutionary changes.” See generally R. Cunningham, W. Stoebuck & D. Whitman, supra, § 8.9, p. 459; 5 Restatement, Property § 479.

The desire and need for improvements in such a prescriptive easement for ingress and egress emerges from the evolution of the dominant parcel. The nature and scope of such improvements, however, cannot be fully foretold. Acknowledging that the interests and rights of both the dominant and servient tenements often conflict, the problem arises of how present needs may be justified under a prescriptive right that apparently met the needs of another day. This brings into focus the proposition that the use and improvement of this prescriptive easement must not unreasonably burden the servient tenement that is already burdened with the easement. Peterson v. Oxford, supra, 745; Center Drive-In Theatre, Inc. v. Derby, supra, 465; see 5 Restatement, Property § 480, p. 3004; 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699; 4 H. Tiffany, supra, § 1209. Nevertheless, although the making of repairs and improvements necessary to the effective enjoyment of a prescriptive easement is incidental to the easement, repairs and improvements, and “par-ticulary the latter,” will not be permitted if they will unreasonably increase the burden on the servient tenement. 5 Restatement, Property § 480, p. 3006; see 25 Am. Jur. 2d, Easements and Licenses §§84 through 87.

It therefore appears that one who has a prescriptive easement has the privilege to do such acts as are reasonably necessary to make effective his enjoyment of the easement unless the burden on the servient tenement is thereby increased; Nichols v. Peck, supra; 5 Restatement, Property § 480. A right-of-way for ingress and egress by prescription is more than a mere right for ingress and egress; it involves those sensitive rights of use and enjoyment of that easement that render it genuinely passable without unreasonably burdening the servient tenement. The problem of the extent of the dominant owner’s privilege in this context is largely a question of fact depending on the extent and nature of the lawful use of the easement. See Nichols v. Peck, supra, 441; Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967); Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977); Guillet v. Livernois, 297 Mass. 337, 8 N.E.2d 921 (1937); Mumrow v. Riddle, 67 Mich. App. 693, 242 N.W.2d 489 (1976); Martin v. Norris Public Power District, 175 Neb. 815, 124 N.W.2d 221 (1963); 5 Restatement, Property §§ 478, 479; R. Cunningham, W. Stoebuck & D. Whitman, supra, § 8.9; 112 A.L.R. 1300; 25 Am. Jur. 2d, Easements and Licenses § 86. We must decide whether the trial court’s determinations on the improvements sought by the Kopes are clearly erroneous. Practice Book § 4061.

We take up first the Kopes’ request to grade the right-of-way. The trial court decreed that the Kopes “may not grade the present crown [of the right-of-way] nor raise the tracks.” A fair definition of the verb “grade” in this context is a physical change in the earthen surface by scraping and filling on that surface to reduce it to common level. See generally 38 C.J.S. 972, Grade; Webster, Third New International Dictionary. Mathematical certainty is not demanded, but grading on the ground itself which reasonably effectuates present enjoyment of this easement is. We will not reiterate all the evidence on this branch of the matter. We do, nevertheless, note that the trial court found that the right-of-way is “but 10 feet wide as shown on the Davis survey,” that there are tracks that are 5 to 5 1/2 feet apart within the right-of-way and that there are many potholes with some being 12 to 15 inches deep. Significantly, it found that the right-of-way is “crowned in the middle in large part” and that there are “certain stretches where the tracks are as much as 10 to 15 inches lower than the crown of the right-of-way.” The mere recital of these findings serves to make evident the need to permit this easement to be graded under all the circumstances of this case. The trial court’s refusal to permit grading was clearly erroneous. Practice Book § 4061. Because, however, permitting this improvement requires additional factual determinations to be made before entering specific orders concerning such factors as the nature and extent of grading, we remand this issue to the trial court to conduct an evidentiary hearing for that purpose.

We next examine the request to lay asphalt or gravel on the right-of-way. The laying of asphalt or gravel on the right-of-way raises questions that are factual. The trial court’s order that prohibited the use of any gravel was clearly erroneous. Practice Book § 4061. Whether laying asphalt or gravel, while facilitating the Kopes’ use of the right-of-way, also will unreasonably increase the burden on the servient tenement is for the trial court to determine. Here, too, therefore, we remand for an evidentiary hearing for necessary orders on the issue of placing gravel on this easement.

We next address the request to “repair” the damaged bridge over the stream which is near the southerly terminus of the right-of-way, i.e., nearest the Kope parcel. Two initial observations should be made. First, as noted earlier, the trial court, in accepting the Davis survey as defining the right-of-way, made one correction to that survey. It did this when it ordered that that strip about 96.60 feet in length at the southerly end of the right-of-way not “curve out to the west,” as shown on the Davis survey, “but to continue N 32°-10’-07 E i.e., across the old bridge area.” It is a fair inference that the trial court did this because the evidence demonstrated that the bridge had been in disrepair for some years, had never been “rebuilt” and access to the dominant tenement was now by going around the damaged bridge and crossing in the stream bed. Second, as to this damaged bridge, which the trial court’s decree made part of the right-of-way, facts found by it made clearly evident that the bridge was made “by [an] agency of man,” given its findings that there “had [been] a wooden bridge across [the stream],” that the “wooden crossing members are almost totally gone,” that “stone abutments” which supported the crossing members “are still present and appear capable, with some tidying, of supporting new crossing members for auto traffic.” (Emphasis added.) Despite these findings, that portion of the trial court’s memorandum of decision entitled “Decision and Orders” contains no order for the “repair” of this damaged bridge although its findings of fact implicitly concluded that it should be done. “The verb ‘repair’ has been defined to mean ‘to restore to a sound or healthy state; to make good.’ Webster, Third New International Dictionary.” John A. Errichetti Associates v. Boutin, 183 Conn. 481, 490, 439 A.2d,416 (1981). It contemplates some existing structure or thing which has become somewhat imperfect. Childers v. Speer, 63 Ga. App. 848,12 S.E.2d 439 (1940); see John A. Errichetti Associates v. Boutin, supra, 489-90. Again, because the nature and extent of the necessary repairs involve certain factual determinations, we remand for an evidentiary hearing on this matter. We cannot, however, leave this matter without observing that repairs reasonably necessary to this bridge could hardly increase the burden upon the servient tenement.

We come now to the trial court’s order that the Kopes “have no right to construct a bridge on the northerly portion of the right-of-way to cross the stream they now ‘ford.’ ” In order to cross this stream, the trial court found that a person, animal or vehicle must “ford” it and that the drop from its bank to the lowest point in the ford “is not less than 2 feet.” According to the evidence at trial, there has never been a bridge over this stream. The Kopes argue that they be permitted to build a bridge over this “north ford.” Based on the law and the evidence, this finding that the Kopes had no such right is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); cf. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 66, 485 A.2d 1296 (1985). The Kopes have the right to a reasonable enjoyment of their right-of-way without increasing the burden on the servient tenement; their request for bridging this stream merits serious consideration in the trial court. Consequently, because this matter also involves factual determinations, we remand this branch of the matter to the trial court for an eviden-tiary hearing upon which to base factual findings necessary for it to make appropriate orders to effectuate this right.

Finally, the Kopes claim that the trial court erred in not permitting them to install underground utility lines for electric and telephone service. We do not agree. The rule is generally well established that the owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right. Leabo v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981); see Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 11 A.2d 396 (1940). Again, however, this right must be balanced against the right of the servient owner not to have the existing servitude unreasonably increased. Counsel has not cited nor have we been able to discover any decision permitting underground utilities to be installed in a private right-of-way created by prescription for the purpose of access. Moreover, the Kopes themselves, in urging us to declare such a right, candidly acknowledged, in oral argument before us, their doubts of prevailing on this issue because of the lack of precedential authority to do so. In doing so, we were informed at oral argument that the Kopes have made other arrangements for a utility easement.

In any event, we believe that in the circumstances of this case, the request for this “improvement” at this time exceeds, as a matter of law, the scope of the prescriptive easement that was found by Judge Bernstein in 1982. The Kopes argue that such a request takes into consideration needs that result from a normal evolution in the use of its land and that all land is subject to constant changes in its condition. They argue that the result of this changing nature of things means that these emerging “requirements” of dominant tenements must benefit them in their changed condition. Therefore, because the construction of a residence on the dominant tenement is a normal evolution in its use, the Kopes assert that such underground utility installation should be permitted as it would not “adversely affect” the use by the Kurases of the servient tenement.

Initially, this claim has some appeal, but, on more penetrating consideration, it is not persuasive in this case. A normal development is one that accords with common experience and, therefore, one that might reasonably have been foretold. 5 Restatement, Property § 479, comment (a). Such uses, however, must be consistent with the pattern formed by the adverse use by which the prescriptive easement was created. An adverse use for the prescriptive period does not create “a privilege to make thereafter all the uses required by the needs which might have been foreseen during that period. It creates only the privilege to make the uses required by the normal development of the conditions the needs of which were satisfied by the adverse uses made during the prescriptive period.” Id., comment (b). That is not to say that uses required by such a development may not be satisfied although they differ from the uses made during the prescriptive period, but although some change in the character of the physical use of the servient tenement is so permitted, any change that unreasonably increases the burden on the servient tenement is not permitted. 5 Restatement, Property § 479, comments (a) and (b). “An unreasonable increase in burden is such a one as it is reasonable to assume would have provoked the owner of the land being used to interrupt the use had the increase occurred during the prescriptive period . . . [w]ithin reasonable limits, the possessor of the servient tenement is required to anticipate the future and guard against it. Obviously, he should not be required to guard against the unforeseeable. Hence, prescriptive interests do not include the privilege to make uses necessitated by a development of the dominant tenement not foreseeable during the prescriptive period as a normal development of that tenement.” Id., comment (c).

In this specific case, not only is there no evidence concerning “utilities” that might or might not have served an energy or any telephonic function in the past, but there is also no evidence that, even in the normal evolution of the Kope parcel, any underground electric or telephone lines were ever reasonably foreseen on a right-of-way that traverses over one third of a mile through the entire Kuras parcel. Moreover, what “the possessor of the servient tenement may reasonably be expected to foresee depends in part upon the nature of the adverse use being made of the servient tenement. The more the use varies with changes in the current needs of the dominant tenement during the prescriptive period, the more the possessor of the servient tenement is required to anticipate and therefore to submit to future variations. The more precise the use and the less it varies according to the current needs of the dominant tenement during the prescriptive period, the less the possessor of the servient tenement is required to anticipate changes in accordance with the future needs of the dominant tenement.” Id. The servient parcel has been in the Kuras family since about 1900 and has been used as a farm. It then would appear that its use as a farm has been fairly consistent for many years. The farm use even entails the right, ordered by the trial court, to maintain a water pipe “only under” the right-of-way. (Emphasis added.) In addition, the Kopes point to no finding—or even any evidence—that such utilities underground could be fairly foreseen by the ser-vient tenement in this obviously rural setting.

We point out that our opinion on the underground utilities issue is in no sense a determination that a similar request under circumstances different from this case will necessarily yield the same result.

There is error, the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

In this opinion the other justices concurred.

       The memorandum of decision in the 1982 Superior Court action, i.e., Ara T. Dildilian v. Chester A. Kuras, Superior Court, judicial district of Hartford-New Britain, Docket No. 1426257 (October 7,1982), was an exhibit in the trial court.

       There was evidence at the trial of the case on appeal here that the Kuras family had owned its farm property since “around 1900.”

       The Kurases appealed the decision of the Suffield zoning board of appeals that granted the variance to the Superior Court. That court affirmed the granting of the variance and no appeal was taken from that court’s decision.

       The trial court found that “one of the narrow stretches of the right-of-way area (10-12 feet) runs along a dump of old vehicles, tires, boxes and other human discards on the easterly side of the right-of-way area.” This area, according to the trial testimony of Chester Kuras, is a “farm dump.”

       The trial court’s determinations must, of course, be considered in the light of the judgment entered in the 1982 action by the Superior Court, Bernstein, J., which decided that the Dildilians had established a right-of-way by prescription.

       There was evidence at the trial that “out of necessity” to gain access to the Kope parcel, the Kopes, because the south bridge could not be used, would go around that bridge “slightly to the west” and “cross the stream bed.” It is a fair inference from the trial court’s order here that the right-of-way extends over the damaged bridge that will be repaired and that the Kopes may no longer curve out from the right-of-way and use the bed of the stream to cross to their parcel.

         It is claimed by the Kurases that not only did the trial court base its decision on the evidence adduced at the trial itself, but also on its making personal observations of the area involved, and, therefore, this court should not substitute its thinking for that of the trial court as it has not been proven that an “injustice has been done.”
      Information obtained through a visual observation of the locus in quo is just as much evidence in the case as any other evidence in the case. Dooley v. Leo, 184 Conn. 583, 587, 440 A.2d 236 (1981); Romaniello v. Dyna Distributors, Inc., 154 Conn. 605, 606, 227 A.2d 430 (1967); W. Maltbie, Connecticut Appellate Procedure § 149. While a view arguably may tend to be more in the ken of demonstrative evidence than the spoken word from the witness stand or a photograph in evidence, the fact of a view does not require any modification of our clearly erroneous test on the review of a trial court decision.
      This court does not, of course, find facts. In passing, however, on the trial court’s findings, we have had the opportunity to examine some twenty-two color photographs of this right-of-way which were exhibits at the trial. Included in these was a set of nineteen photographs covering the entire length of the right-of-way and taken at one hundred foot intervals along its course.

       We note that the entire right-of-way is bounded on both sides by the lands owned by the Kurases.

       Although the trial court made no specific finding on the Kopes’ claim to install underground utilities, an examination of the briefs of the parties in the trial court indicates that the Kopes claimed the right to do this and that the Kurases opposed this claim.

       During oral argument, the Kopes recognized that underground utilities, under existing law, might be considered too great a burden on the Kuras parcel, but nevertheless asked us to permit them to install permanent underground utilities. We decline to do so in this case. The Kopes also stated at oral argument that they had negotiated for and had acquired a utility easement to the south from a nonparty to this case.


source: Caselaw Access Project

author: Shea, J. Callahan, J., Arthur H. Healey, J.,

license: Public Domain

text:
    State of Connecticut v. William McDonough
    (13155)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      (One justice dissenting)

    Argued September 29
    decision released November 24, 1987

      James G. Clark, assistant state’s attorney, with whom, on the brief, was Christopher Malany, deputy assistant state’s attorney, for the appellant (state).

      Milo J. Altschuler, for the appellee (defendant).
   Shea, J.

After a jury trial the defendant was found guilty of the crimes of assault in the third degree, a violation of General Statutes § 53a-61, sexual assault in the third degree, a violation of General Statutes § 53a-72a, and unlawful restraint in the first degree, a violation of General Statutes § 53a-95. State v. McDonough, 9 Conn. App. 631, 521 A.2d 160 (1987). The Appellate Court determined that the trial court had erred in instructing the jury concerning the inferences it might draw from circumstantial evidence. The state, after this court had granted certification, appealed from the Appellate Court’s judgment reversing the judgment of the trial court. We conclude that the trial court’s error was harmless in nature. Accordingly, we reverse the judgment of the Appellate Court, and remand the case to that court with direction to reinstate the judgment of the trial court.

Although the facts that the jury could reasonably have found are set forth in State v. McDonough, supra, we summarize those pertinent to the issues in this appeal. The victim testified that on the night of the crime, she had met the defendant, who was previously known to her, while out dancing. The defendant then invited her back to his apartment, ostensibly to check on his pets and have a nightcap. After they had spent a short time there, he proceeded to assault her both physically and sexually. The victim suffered bleeding and bruising from blows to her face and body. The defendant knocked the victim to the floor, straddled her legs, pinned her arms down, punched her in the face, and attempted to undress her. He refused to let her leave the apartment and threatened her life. The victim was ultimately successful in escaping, and subsequently was taken to the police station and the hospital.

The defendant testified that he had not sexually assaulted the victim, that there had been no physical altercation, and that he had not touched the victim at all, except to wake her after she had fallen asleep in his apartment. He further testified that the victim, because of her intoxicated condition, had fallen over various items of furniture in his apartment.

I

The only issues presented by this appeal are whether the Appellate Court was correct in concluding that the trial court erred in its charge to the jury on the use of circumstantial evidence in drawing inferences and that such error was not harmless under the standard applicable to constitutional errors. Initially, we note that ordinarily the defendant’s failure to except to this portion of the court’s charge would preclude review. Practice Book §§ 854, 4185. We will review his claim, however, as did the Appellate Court, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The state makes no contention to the contrary.

During its charge to the jury, the court stated: “There is an application of our rule as to circumstantial evidence. Circumstantial evidence involves the offering of evidence of facts from which the jury is asked to infer the existence of and so to find proven another fact or facts. Such facts may be so found proven, but only if the jury finds: one, that the fact or facts from which the jury is asked to draw the inference has been proven by a fair preponderance of the evidence; and two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find it is more probable than not that the fact you are asked to infer is true.”

The Appellate Court found this portion of the charge to be erroneous. “The court’s charge on circumstantial evidence allowed the jury to find facts from which an inference may be drawn, and to make the inference itself, by a fair preponderance of the evidence standard. Such an instruction is erroneous as applied to facts which are essential to proof of an element of a crime because such facts, whether basic or inferred, must be proved beyond a reasonable doubt. State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1986).” State v. McDonough, supra, 634.

We agree with the Appellate Court’s conclusion that this portion of the trial court’s instructions was erroneous. Although, as an abstract proposition, it is not illogical to draw an inference if the evidence establishes that it is probable, such an instruction in a criminal case may confuse a jury with respect to inferring a particular fact essential to prove an element of the crime. State v. Rodgers, supra, 58 n.1. Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). We have disapproved of this type of instruction because of its potential for misleading a jury concerning the state’s burden to prove each element of the crime beyond a reasonable doubt. State v. Rodgers, supra, 57-59.

II

We have recognized that an erroneous charge is not always harmful. State v. Miller, supra, 489-92. An isolated error in an instruction may be cured by other portions of the charge, or circumstantial evidence may be so insignificant compared to direct evidence that it is clear beyond a reasonable doubt that the erroneous instruction did not affect a jury’s determination of guilt or innocence. Id.

We have often said that the charge should be read as a whole in determining whether it is reasonably possible that an erroneous instruction could have misled a jury concerning the state’s burden of proof. “It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).” State v. Reddick, 197 Conn. 115,132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Miller, supra, 491-92; State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994,107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The Appellate Court recognized the principle that the disputed charge should be read in the context of the charge as a whole. State v. McDonough, supra, 631. Nevertheless, it concluded that the charge as a whole was likely to mislead the jury concerning the state’s burden of proof. Id., 636. We disagree with this conclusion.

While the Appellate Court acknowledged that the charge should be read as a whole, it failed to give proper weight to a crucial portion of the trial court’s supplemental instructions, given in response to a jury request for further instructions. After the jury had begun its deliberations, it requested that the court reread its instructions on several issues including those relating to drawing inferences from circumstantial evidence. The trial court in reinstructing the jury on circumstantial evidence repeated the same misleading statements it had made in the original charge, but then clarified its meaning by giving the following supplemental instruction: “Keeping in mind that ultimately, regardless of the instructions I’ve given you on inferences, the State bears the burden of proving each element of each charge beyond a reasonable doubt. That’s something else. This is simply the charge with respect to inferences. It does not relate to the ultimate burden of proof that the State has in the case.” This instruction significantly reduced the harmfulness of the erroneous portion of the charge.

In analyzing whether the disputed portion of the instructions was harmful, the Appellate Court also erred in concluding that circumstantial evidence was an important factor in this case. “Although the principal factual issue for each crime charged in this case was not the intent of the defendant, because he denied the commission of any crime, this was nonetheless a case in which the circumstantial evidence and instructions thereon played a major role in the state’s proof.” State v. McDonough, supra, 636.

In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role. “Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, ‘we will closely scrutinize the court’s instructions’ on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.” State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role. “Accordingly, we review the court’s instruction not in isolation, but in the context of the charge as a whole, to determine whether it is ‘ “reasonably possible that the jury was misled” ’ by an erroneous explanation regarding the use of circumstantial evidence.” Id.

In the case at bar, the credibility of the witnesses was the primary issue. As the Appellate Court noted: “The basic factual issue for the jury to determine was whether the defendant had committed the assaults and the restraint. The defendant admitted that he was with the victim during the evening and early morning hours in question but denied that he was the perpetrator of any crimes. The defense, therefore, was similar to an alibi defense in that the defendant did not deny that the victim sustained injuries but did deny that he was responsible for these injuries. A significant factor for the jury’s consideration was the credibility to be accorded to the victim and to the defendant. The principal factual issues, therefore, were not classically dependent upon circumstantial evidence for their proof, as is true in cases where the principal factual issue is the intent or state of mind of a defendant.” State v. McDonough, supra, 635.

In this case there was substantial direct evidence of the crime from the victim and from a witness who lived in the apartment directly beneath the defendant’s apartment and who had overheard portions of the conversation between the victim and the defendant. The Appellate Court recognized that direct evidence from the victim and this neighbor was the heart of the state’s case against the defendant: “The victim’s testimony about the actions of the defendant was direct evidence offered as the primary proof that the assaults and restraint did, in fact, take place, and that the defendant was the perpetrator of them. The state also offered the direct evidence of a witness who lived in the apartment directly beneath the defendant’s apartment. The words overheard and testified to by that witness corroborated the testimony of the victim.” Id. The victim through her testimony provided direct evidence of every element of each crime charged. In addition, the neighbor presented direct evidence corroborating the victim’s testimony.

The Appellate Court erred when it concluded that the trial court’s instructions on drawing inferences . from circumstantial evidence constituted harmful error. An erroneous instruction on circumstantial evidence need not be given constitutional significance where there is sufficient direct evidence, not implicated by the error, to establish all essential elements of the crime charged. In similar cases, where the principal issue at trial was the credibility of the victim, where there was substantial direct evidence of the crimes charged, and where intent was not seriously disputed, we have found erroneous instructions suggesting the probability standard for drawing inferences from circumstantial evidence to be harmless error. State v. Smith, 201 Conn. 659, 673, 519 A.2d 26 (1986). “Under these circumstances it was not reasonably possible that the trial court’s erroneous explanation concerning circumstantial evidence misled the jury. State v. Reddick, [supra, 132]; State v. Farrar, [7 Conn. App. 149,156, 508 A.2d 49 (1986)]. The error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).” State v. Smith, supra, 673-74.

In the present case, none of the circumstantial evidence was essential to prove an element of the crime. According to the Appellate Court: “The state’s circumstantial evidence consisted of the testimony of other witnesses who saw the victim shortly after she had left the defendant’s apartment. These witnesses testified that the victim had blood all over her face and clothes and was crying. Other circumstantial evidence relating to the elements of the crime was comprised of the victim’s hospital emergency room report, and the testimony of a police officer.” State v. McDonough, supra, 635. This evidence served only to support the victim’s credibility and to corroborate her account of the crime. Each evidentiary fact need not be proved beyond a reasonable doubt. “It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” State v. Rodgers, supra, 58 n.1. Therefore, the possibility that the jury, as a result of the erroneous instruction, applied a preponderance of the evidence standard in drawing inferences from the circumstantial evidence in the case could not reasonably have affected the findings of the jury that the defendant had committed the crimes of sexual assault in the third degree, unlawful restraint in the first degree, or assault in the third degree. Especially in light of the supplemental instruction given at the jury’s request, any error in the instructions was harmless beyond a reasonable doubt. State v. Smith, supra, 673-74.

We reverse the judgment of the Appellate Court and remand the case to the Appellate Court with direction to reinstate the judgment of the trial court.

In this opinion Peters, C. J., concurred.

Callahan, J.,

with whom Covello, J., joins, concurring. While I agree with the result reached by the majority, I disagree with the proposition of law quoted from State v. Rodgers, 198 Conn. 53, 58 n.1, 502 A.2d 360 (1985), which provides: “It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” I believe this proposition is misleading and has led to a great deal of confusion.

It is axiomatic that the state’s burden of proof beyond a reasonable doubt applies to each and every element comprising the offense charged. But this burden of proof does not operate upon each of the many subsidiary, evidentiary, incidental or subordinate facts, as distinguished from elements or ultimate facts, upon which the prosecution may collectively rely to establish a particular element of the crime beyond a reasonable doubt. See United States v. Viafara-Rodriguez, 729 F.2d 912, 913, (2d Cir. 1984), citing United States v. Valenti, 134 F.2d 362, 364 (2d Cir.), cert. denied, 319 U.S. 761, 63 S. Ct. 1317, 87 L. Ed. 1712 (1943); United States v. Beechum, 582 F.2d 898, 913 n.16 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed. 2d 472 (1979); Frick v. State, 111 Ark. 404, 411-12, 6 S.W.2d 514 (1928); People v. Klinkenberg, 90 Cal. App. 2d 608, 632, 204 P.2d 47 (1949); State v. Raine, 93 Idaho 862, 864, 477 P.2d 104 (1970); Burris v. State, 465 N.E.2d 171,186 (Ind. 1984); State v. Davis, 25 N.C. App. 181, 185, 212 S.E.2d 516 (1975); State v. Barry, 34 A.2d 661, 663 (N.H. 1943); 1 F. Wharton, Criminal Evidence (14th Ed.) § 15, p. 37. Where the prosecution must rely upon circumstantial evidence, either in part or in whole, each link in the chain of circumstantial evidence need not be established beyond a reasonable doubt. Frick v. State, supra; People v. Hall, 114 Ill. 2d 376, 499 N.E.2d 1335 (1986); State v. Laue, 225 Neb. 57, 402 N.W.2d 313 (1987); C. McCormick, Evidence (3d Ed.) § 341, p. 962 n.6. As the majority first notes, supra, 355, it is not any one fact, but rather, the cumulative impact of a multitude of facts and the reasonable and logical inferences therefrom which establish guilt beyond a reasonable doubt in a case involving substantial circumstantial evidence.

Accordingly, to the extent that the majority’s use of the phrase “a particular subordinate fact essential to the proof of an element” may be read to require that any evidentiary, subordinate or incidental fact need be proven beyond a reasonable doubt, even where such a fact is crucial to proof beyond a reasonable doubt of an element of the crime, I disagree. “Burdens of proof never operate on evidence; they operate on the ultimate facts or elements that the evidence is offered to prove.” (Emphasis added.) United States v. Viafara-Rodriguez, supra. If the state fails to prove a crucial evidentiary fact to the jury’s satisfaction it may not have met its required burden of proof beyond a reasonable doubt of the element or elements of the crime to which that evidentiary fact is crucial. That burden of proof, however, applies only to the element or elements, not to the evidentiary fact.

I also disagree with the dissenting opinion because it requires that the fact or facts, from which a trier of fact is asked to draw an inference, be proven beyond a reasonable doubt prior to the inference being drawn. I note that this alleged principle of law is first seen in State v. Rodgers, supra, 57, but the Rodgers opinion fails to cite any authority nor am I able to find any to support this proposition. Accordingly, I respectfully disagree with the dissent for, I believe, it relies upon an erroneous statement of the law regarding proof of evidentiary facts and the drawing of inferences therefrom.

Arthur H. Healey, J.,

dissenting. I do not agree and I would affirm the judgment of the Appellate Court.

The majority agrees with the Appellate Court that the challenged jury instruction was erroneous. That instruction was the following: “Circumstantial evidence involves the offering of evidence of facts from which the jury is asked to infer the existence of and so to find proven another fact or facts. Such facts may be so found proven, but only if the jury finds: one, that the fact or facts from which the jury is asked to draw the inference has been proven by a fair preponderance of the evidence; and two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find it is more probable than not that the fact you are asked to infer is true.”

The majority concludes, however, that, under the circumstances, including the reading of the charge as a whole as well as a supplemental charge, it is not reasonably possible that this erroneous instruction could have misled the jury concerning the state’s burden of proof beyond a reasonable doubt. In its ultimate deci-sional calculus, the majority maintains that although the Appellate Court acknowledged the necessity of reading the charge as a whole, “it failed to give proper weight to a crucial portion of the trial court’s supplemental instructions.” These instructions were given in response to a jury request for “a written copy of the elements” making up each of three charges in the information and on each of which the defendant was subsequently found guilty. After the court told the jury that it normally did not give the jury written copies, the court indicated that it would reread that portion of its charge “which related only to the charges.” At that point, a juror said: “Your Honor, we would like to have that portion that relates to the inference read in particular.” The following then took place:

“The Court: All right.
“Juror: I don’t know if that’s part of the charge, the elements that make up the charge.
“The Court: My understanding of the request was simply that the jurors wanted to hear the definitions of the three specific crimes themselves. If you also wish to have the portion of the charge dealing with inferences read to you, I will do that as well.
“Jurors: That’s what we want.” The court then adjourned for the day.

The next day before recharging the jury, during a further colloquy with the jury about its request, the following took place:

“Juror: We’re talking about the definition of the charges?
“The Court: Yes. There are three charges.
“Juror: We understand that. It’s the definition we want to specify on that we are deliberating on.
“The Court: The elements of each crime is what you want. We will give you copies of the statute, or. I’ll reread that portion of the charge, whichever you prefer is acceptable.
“Juror: I think the copy would be better.
“The Court: All right. Now, you also want reread the portion of my instructions concerning the question of inferences. . . .”

Thereupon, the court recharged the jury on circumstantial evidence and repeated the prior erroneous instruction, not once but twice, during the recharge. It closed its recharge with the following instruction: “Keeping in mind that ultimately, regardless of the instructions I’ve given you on inferences, the State bears the burden of proving each element of each charge beyond a reasonable doubt. That’s something else. This is simply the charge with respect to inferences. It does not relate to the ultimate burden of proof that the State has in the case.”

It is this last quoted portion of its supplemental instruction that the majority maintains was the vehicle by which the trial court “sought to clarify its meaning” of the earlier erroneous instructions and which, the majority notes, was the supplemental “instruction [which] significantly reduced the harmfulness of the erroneous portionfs] of the charge.”

The majority’s analysis, which includes the intent-identity talismanic differences of such cases as State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985) (intent), and State v. Reddick, 197 Conn. 115,132,496 A.2d 466 (1985), cert. denied, 474 U.S. 1067,106 S. Ct. 822, 88 L. Ed. 2d 795 (1986) (identity), in reaching its ultimate result, is fatally flawed.

First, the erroneous instructions are uniquely erroneous. We have ruled on the “more probable than not” instruction at least six times in the last two years. State v. Miller, 202 Conn. 463, 522 A.2d 249 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Smith, 201 Conn. 659, 519 A.2d 26 (1986); State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994,107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, supra; State v. Reddick, supra. In not a single one of these cases did the trial court instruct the jury that it could infer a fact if the fact or facts from which it might draw the inference was proven only by a fair preponderance of the evidence. The state agreed at oral argument that the statement in the defendant’s brief to that effect was correct. Moreover, in each of these six cases the jury was instructed immediately prior to the challenged “more probable than not” instruction that it might use the “more probable than not” route to draw an inference only if it first found that the fact or facts from which it chose to draw an inference had been proven beyond a reasonable doubt. State v. Miller, supra, 490; State v. Mullings, supra, 11; State v. Smith, supra, 673; State v. Whelan, supra, 755.

Without delving into the intrinsic merits of the Rodgers-Reddick cluster of cases, we have been at pains to point out the significance of proof beyond a reasonable doubt in the process of drawing an inference in a criminal case. For example, in Rodgers we said: “Circumstantial evidence is evidence offered to prove a certain fact from which the jury is asked to infer, and so to find, the existence of another fact in issue. The jury must initially find that the state has proved the basic fact, from which the jury is asked to draw the inference, beyond a reasonable doubt. If and only if the jury finds the basic fact to have been proved beyond a reasonable doubt may it go on to consider the inference.” State v. Rodgers, supra, 57.

In this case, we are confronted with an instruction on the legal process of drawing inferences that is erroneous in a fashion not presented in any of our earlier cases. The “beyond a reasonable doubt” standard is nowhere present in the challenged instruction; that instruction clearly sounds in the civil and not the criminal context.

Turning to the supplemental instruction, there the majority maintains that the Appellate Court “failed to give proper weight to a crucial portion of the trial court’s supplemental instructions.” The majority asserts that it “significantly reduced the harmfulness of the erroneous portion of the charge.” It is true that the Appellate Court’s opinion does not develop the significance of this supplemental instruction which, reasonably read and fairly heard by a lay jury, is actually not the curative legal poultice for which the majority touts it. In it, the trial court did tell the jury that “regardless of the instructions I’ve given you on inferences, the State bears the burden of proving each element of each charge beyond a reasonable doubt. That’s something else.” After its “[tjhat’s something else” observation, the trial court then instructed the jury that “[t]his is simply the charge with respect to inferences. It does not relate to the ultimate burden of proof.that the State has in the case.” Under all the circumstances, this supplemental instruction significantly increased the harmfulness of the earlier erroneous instructions rather than acting as a curative. The charge on inferences, contrary to the instruction given, does relate to the ultimate burden of proof of the state. When this defendant pleaded not guilty and elected a jury trial, he then triggered his constitutional right to have the state prove him guilty beyond a reasonable doubt on each essential element of each of the crimes charged. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978). This is so, whether intent is or is not the or a basic factual issue at the trial, as opposed, for example, to identity. Intent was an essential element of the crimes charged and this jury was not given, in the charge as a whole, the standard for drawing inferences in a criminal case that was constitutionally correct. Rather, this defendant was convicted by a jury based on instructions that unconstitutionally diluted the state’s burden of proof.

The majority has determined that the Appellate Court erred when it concluded that the instructions on drawing inferences from circumstantial evidence constituted constitutional error. It then follows that determination with the statement that “[a]n erroneous instruction on circumstantial evidence need not be given constitutional significance where there is sufficient direct evidence, not implicated by the error, to establish all the elements of the crime charged.” Two observations: First, its opinion skirts the constitutional flaw by saying that credibility was the principal issue and intent “was not seriously disputed.” It cannot possibly be suggested that the defendant conceded at the trial that he intended to commit the crimes to which he pleaded not guilty. Every element was in dispute. Second, how could a criminal jury find this defendant guilty when it was given the civil standard to employ the process of drawing an inference? No amount of instruction elsewhere in the whole charge that the state had to prove each element of each crime beyond a reasonable doubt can cure and make harmless beyond a reasonable doubt the instructions on the drawing of inferences given to the jury in this case.

Even were a discussion in order that the “beyond a reasonable doubt” standard applies in the inference area only with reference to inferences necessary to prove an essential element of the crime, as opposed to inferences where the inference is an evidentiary fact not necessary to proving an essential element of the crime; see State v. Rodgers, supra, 58 n.1; that does not avail the majority. This is so because the instructions never elucidated that distinction for the jury but rather, as the Appellate Court properly suggests, the instructions here “indivisibly bound proof of each element of the crimes charged,” insofar as circumstantial evidence was involved, to the standard of a fair preponderance of the evidence. The jury was therefore given two standards of proof: the fair preponderance rule for circumstantial evidence and the beyond-a reasonable doubt rule for direct evidence. The comings and goings of the jury indicate its uncertainty resulting from the court’s instructions. The jury did single out the challenged portions of the instructions; it asked about inferences, the challenged instruction was focal in the reinstructions and the erroneous instruction was repeated not once but twice after the jury had started its deliberations. I cannot come to any conclusion other than that it is reasonably possible that the jury was misled here. I would accordingly affirm the judgment of the Appellate Court.

Therefore, I dissent.

       In concluding its general instructions on circumstantial evidence, the trial court repeated this instruction in a slightly different form: “Circumstantial evidence is no different from direct evidence when the prerequisites to its use are established. You are free to apply the principle with the same force and effect as an eyewitness’s direct testimony once you’re satisfied [that], again, the underlying fact or facts have been proven by a fair preponderance of the evidence, and that the inference is logical, reasonable and is strong enough for you and is strong enough to permit you to find that it is more probable than not that the fact you’re asked to infer is true.”

       This neighbor testified as follows:
      “Q. You say you heard him walk down the hall? You know his walk?
      “A. I heard the door shut, and after a while I heard a girl’s voice . . . .
      “Q. What did you hear her say?
      “A. She was saying—Just a few minutes after that I heard her say, ‘Get off of me. Get off of me. Leave me alone. Don’t touch me.’ And she was crying.
      “Q. You could hear that?
      “A. I could hear that. And she was swearing at him. Then I heard Bill say, ‘Shut up because everybody is going to hear you.’
      “Q. Could you hear the tone of the voice in which he said this?
      “A. The girl?
      “Q. Bill. Could you hear what tone he was saying this?
      “A. Well, he said it a little mad. And she kept saying, ‘Stay away from me. Don’t touch me. Leave me alone.’ And then I heard Bill say, T just want to put a wet cloth on your face.’ She says, ‘Leave me alone. Don’t touch me. Get away from me.’ That’s what I heard.
      * ** *
      “Q. You said that you heard the girl say, ‘Get off of me?’
      “A. Yes.
      “Q. This went on, you say, for quite a period of time?
      “A. Yes.
      “Q. Could you tell the state of her voice? Was she laughing? Was she crying?
      “A. Well, she sounded scared.
      “Q. That’s what it sounded like to you?
      “A. Yeah.”

       The reliance of the dissenting opinion upon the quotation from State v. Rodgers, 198 Conn. 53, 57, 502 A.2d 360 (1985), that “only if the jury finds the basic fact to have been proved beyond a reaonable doubt may it go on to consider the inference,” overlooks the significance of footnote 1 in Rodgers defining the term “basic fact.” The first sentence of the footnote, referenced to the words “basic facts,” which conclude the paragraph discussing that concept, is as follows: “Our discussion is concerned with only those facts essential to prove an element of the crime.” Id., 58 n.1. It is reasonably clear from this footnote that the “basic facts” that must be proved beyond a reasonable doubt are those facts “essential to the proof of an element of the crime . . . Id.

       Some time later, the court, apparently sua sponte, with the consent of counsel, again recharged the jury on each of the three specific charges involved including the elements of each.

       Specifically, the defendant’s brief stated: “In not one of these cases [the six cases just cited] did the court also instruct the jury that they could infer a fact if the facts from which they were to draw the inference were proven only by a fair preponderance of the evidence.” It is with this statement the state agreed at oral argument. In addition, I would add to these six cases our decision in State v. Robinson, 204 Conn. 207, 527 A.2d 694 (1987), handed down after the briefs in this case had been filed.