Opinion
No. CV 01 0183549
May 17, 2004
MEMORANDUM OF DECISION
This case involves a dispute between the owners of a dominant estate and a servient estate concerning their respective rights to an easement or right of way. The plaintiff, Pilar Davila, resides at 595 West Road, New Canaan, and the defendant, Bump, LLC, owns the adjoining premises at 559 West Road. The Bump property is a rear lot of about five and a half acres that has access to and from West Road over a right of way fifty feet in width and approximately 400 feet in length running along the southerly boundary of the plaintiff's property and consisting of approximately .3 acres.
Bump's general contractor, BD Developers, Inc., is also a defendant in this action. Connecticut Light Power Co. was previously a defendant but no longer is a party. The term defendant in this decision is used to describe both Bump, LLC and its general contractor.
In 1945, the defendant's predecessor in title, John H. Mulliken, conveyed property to Harry H. Haeberly, Jr. and Mabel C. Haeberly, the plaintiff's predecessor in title, by two deeds, the first of which reserved to the grantor, Mulliken, "a Right of Way over a strip of land 50 feet, more or less, in width . . ." The second deed from Mulliken to Haeberly contains the following language which is the key to this controversy. The grantor reserved "a right of way for all lawful purposes to and from West Street [now Road] in, over and upon a strip of land approximately fifty (50) feet in width and being the strip of land shown and designated on said map [#1189] as "Right of Way." The plaintiff obtained the Haeberly property in 1998 and the defendant purchased the Mulliken parcel in the year 2000.
Additionally, the easement provided that the grantor, now the defendant, was not obliged to construct a "roadway over said strip of land," and was not to be held liable for "any matter arising out of the use of said strip as a right of way."
Thus, the defendant has an "express easement" over what is now the plaintiff's property meaning that it was "created by an express grant by deed or other instrument satisfying the statute of frauds." Martin Drive Corp. v. Thorsen, 66 Conn. App. 766, 773, 786 A.2d 484 (2001); see also J. Barnes J. Ely, Jr., The Law of Easements and Licenses in Land, § 3.04, pp. 3-9, 3-10. "[A]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement . . . Easements are not ownership interests but rather privileges to use land of another in certain manner for certain purposes." (Citations omitted; internal quotation marks omitted.) II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000). The privilege in this case is the right of the defendant to use the plaintiff's property for access to the adjacent street and to do what is reasonably necessary to carry out or enjoy that right.
With respect to the rights of the dominant and servient owners of a right of way, "[T]he beneficiary of an easement [can] make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 831, 717 A.2d 1232 (1998). "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 . . . 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." (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341-42, 533 A.2d 1202 (1987). The defendant contends that its proposed changes represent improvements to the easement and enable the defendant to use the easement for the purpose intended.
The owner of an easement may not be "disturbed or obstructed in the exercise of his right to use [the right of way]." Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). "The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it." (Internal quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982); see also 1 Restatement (Third), Properties, Servitudes § 4.13, p. 631 (2000).
The construction and interpretation of the language of an easement is well established. "The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . and its interpretation presented a question of law . . ." (Citations omitted.) Kelly v. Ivler, supra, 187 Conn. 39; see also Wood v. Amer, CT Page 7482 54 Conn. App. 604-05, 736 A.2d 162, aff'd, 253 Conn. 514, 755 A.2d 175 (2000).
At the time of the hearing on the temporary injunction, there was an 18-foot-wide driveway in this right of way or easement out to West Road over which the defendant has ingress and egress to its property. The road was a combination of dirt and broken asphalt with ruts and holes. The defendant, as the owner of the dominant estate, in addition to a new paved driveway bordered by Belgian blocks, wishes to construct stone pillars at the entrance off West Road, to erect some fences and plant some trees and shrubbery, all contrary to the plaintiff's wishes. These proposals by the defendant precipitated this present action. The plaintiff has a driveway from West Road as the main entrance to her home, but she also wants to use the easement in question for additional access, particularly by tradesmen, to the rear of her own property where her pool is located. This raises the issue of whether the defendant has exclusive use of its right of way.
The plaintiff in her amended complaint of September 2, 2001 seeks to enjoin the defendant from removing any trees and shrubbery from the easement, and constructing or creating roads, fences or gates within the easement. The plaintiff's complaint also alleges trespass by the defendant and seeks a declaratory judgment pursuant to General Statutes § 52-29. The plaintiff also seeks multiple damages based on General Statutes § 52-560 for damage to trees.
The defendant filed a counterclaim in which it alleges that the plaintiff has no right to use the easement and is a trespasser thereon. The defendant claims that because the easement does not contain language referring only to ingress and egress, that it has unfettered and unrestricted use of the easement. The defendant seeks to enjoin the plaintiff from using the right of way and a declaratory judgment that it has exclusive use thereof.
In August 2002, Judge Adams of this court held a hearing on the plaintiff's application for a temporary injunction. The parties signed a stipulation of fact. The temporary injunction was granted in part and denied in part [ 33 Conn. L. Rptr. 56]. The defendant was prohibited, until further order of the court, from installing Belgian block on the northern side of the proposed new driveway "unless an adequate exit opening is available" (for the plaintiff to use the easement). The defendant was also prohibited from removing trees or live growth (unless they were in the path of a proposed new driveway), from planting new trees or shrubs or constructing an underground irrigation system on the easement, and from constructing walls and/or a gate or stone pillars on the right of way.
The defendant was not enjoined from constructing a new road over the easement and thus, after Judge Adams' decision, a new paved driveway to the defendant's home was constructed, including Belgian blocks, but leaving a 25-foot opening so that the plaintiff could access her property from this right of way. The defendant's other plans were held in abeyance pending the outcome of the present hearing for a permanent injunction.
Both parties seek permanent injunctions, as authorized by General Statutes § 52-471. "An injunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." Schwartz v. Murphy, 74 Conn. App. 286, 296, 812 A.2d 87 (2002). It is well established that a party seeking such an injunction "has the burden of proving irreparable harm and lack of an adequate remedy at law . . . The request for injunctive relief is addressed to the sound discretion of the trial court . . . In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction . . ." (Citations omitted; internal quotation marks omitted.) Tomasso Brothers, Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994). "Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).
"A decision to grant or deny an injunction must be compatible with the equities in the case." Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972). In addition, the granting of an injunction in a case such as this is discretionary and "in exercising that discretion, . . . may consider and balance the injury complained of with that which will result from interference by injunction." Castonguay v. Plourde, 46 Conn. App. 251, 267, 699 A.2d 226, cert. denied 243 Conn. 931, 701 A.2d 660 (1997).
The only purpose for this easement is for the defendant to gain access to its rear lot so the easement is in reality concerned with and limited to that purpose. The easement does not permit the defendant to do whatever it wants on that easement but is restricted to using it for ingress and egress. In Hall v. Altomari, 19 Conn. App. 387, 562 A.2d 574 (1989), the court dealt with a right of way "for all lawful purposes" to and from the adjacent street. "We interpret the phrase `to and from said premises to Long Ridge Road' in this case as words of limitation restricting the defendant's rights with respect to the private road to those of ingress and egress." Id., 391. In this present case, the defendant must be restricted to those activities reasonably necessary to travel to and from West Road.
The court is satisfied that the plaintiff has met her burden of proof and is therefore entitled to the permanent injunction she seeks against the defendant's intended actions including the construction of any gates, fences or stone pillars with lights on the top, which would constitute violations of the meaning and effect of the easement because such items, although perhaps aesthetically pleasing, are not necessary or required by the defendant to exercise its rights of ingress and egress over the plaintiff's property. This injunction also prohibits the parking of vehicles on said right of way. Furthermore, the injunction prohibits the defendant from planting new trees, shrubbery and bushes on its easement.
Whether parking is permitted on an easement is the subject of differing views in the Superior Court. The parties cite Hagist v. Washburn, 16 Conn. App. 83, 546 A.2d 947 (1988), and Hall v. Altomari, 19 Conn. App. 387, 562 A.2d 574 (1989). As pointed out in Hall v. Altomari, "for a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties." Id., 390. In Hagist v. Washburn, the deed referred to using the right of way "by foot or vehicle" and the owner of the servient estate was found to be blocking the driveway and interfering with the right to use this driveway. Id., 86. In Hall, the deed referred to the right-of-way "to and from said premises to Long Ridge Road over and across the private way." Hall v. Altomari, Id., 391. "We interpret the phrase `to and from said premises to Long Ridge Road' . . . as words of limitation restricting the defendant's rights with respect to the private road to those of ingress and egress." Id. The court distinguished Hagist by saying that the right of way in that case was "granted in general terms." Id. Therefore, a court must determine whether a particular grant is in "general terms" or contains "words of limitation." Id. The right of way in this present case appears not to be a grant in "general terms," but rather uses words of "limitation" and those words are "right of way for all lawful purposes to and from West Street." Hence, the defendant and its guests and delivery vehicles do not have the right to park vehicles on the subject easement or right of way.
The plaintiff may also use this easement because the defendant and its predecessors did not receive exclusive use thereof from the original grantor. In using the easement, however, the plaintiff is prohibited from interfering with the defendant's use of the right of way for access to and from West Road. In this regard, it should be noted that the plaintiff does not dispute the right of the defendant to use and maintain the right of way to West Road and there was no evidence that she ever attempted to impede the defendant's use thereof. Thus, the defendant is not entitled to an injunction preventing the plaintiff, the owner of the dominant estate, from also using the easement. The 25-foot gap in the Belgian blocks is already in place and must remain for the benefit of the plaintiff. The new road is in place and is not affected by this injunction.
The claims in the complaint and counterclaim for overburdening the easement and seeking treble damages pursuant to General Statutes § 52-560 for cutting down some trees are denied for lack of proof thereof. The court's response to the requests for declaratory judgments is encompassed within the rulings on the applications for permanent injunctions.
So Ordered.
William B. Lewis, Judge (TR)