Opinion
No. CV07-4025936
June 8, 2007
MEMORANDUM OF DECISION RE APPLICATION FOR A TEMPORARY INJUNCTION
The plaintiffs, Timothy M. Kish and Patricia A. Kish (the "Kishes") and the defendant, Roland Baron ("Baron") own adjacent properties. Baron's property is subject to an easement which permits the Kishes to have their septic system on a portion of Baron's property. The existing system is suitable for a three-bedroom house, such as the one previously located on the Kishes' property, but the Kishes have replaced that structure with a four-bedroom home. Although they have received approval for the construction of a four-bedroom home on the site previously occupied by the three-bedroom dwelling, they now must also install a larger capacity system in order to meet the requirements of the Connecticut Department of Public Health before they can obtain a certificate of occupancy for their new home as constructed.
Baron, relying on his interpretation of the terms of the easement, has refused to permit the Kishes or anyone acting on their behalf onto his property to construct the new septic system. The Kishes have been renting a house during construction and allege that their current lease expires at the end of July. They complain that without a certificate of occupancy, they and their three children cannot legally move into their new home as it has been built and will thus be rendered "homeless." The plaintiffs have therefore brought this action seeking, inter alia, temporary injunctive relief against Baron to allow them access to Baron's property, so that they may install the new septic system in time for them to move in at the end of July.
The Guilford Health Officer, Dennis Johnson, has reviewed plans for the proposed "Ruck-a-Fin" system, which incorporates new technologies not available at the time of the execution of the easement in question. Johnson has testified that the Ruck-a-Fin system, while occupying relatively little additional physical space within the boundaries of the easement, is capable of handling the expected additional effluent produced by a home with an additional bedroom (estimated at 150 gallons per day.) Johnson stated that the proposed system satisfies the Health Department standards for a four-bedroom home.
Baron, however, has continued to refuse to let the Kishes onto his property voluntarily. He contends that their easement entitles them only to maintain the existing system or, if necessary, replace it with another system suitable for a three-bedroom home. He argues in addition that an expansion of the total capacity of the septic systems located on his property violates the letter, spirit and intent of the easement and that the proposed enlarged system effectively prevents him from ever seeking to expand the size of his own home. With the parties thus unable to agree on a way to end the impasse, and with the Kishes' lease nearing its expiration, the Kishes have brought this action seeking various forms of relief including, for purposes of this Memorandum of Decision, a temporary injunction to permit them to install their septic system in time for them to obtain a certificate of occupancy before their present lease runs out. A temporary injunction has been recognized as an appropriate way to seek redress in the case of an alleged easement violation. Leabo v. Leninski, 182 Conn. 611 (1981).
The standards for granting a temporary injunction are well-established. The moving party must show (1) a likelihood of success on the merits; (2) an imminent, substantial and irreparable injury; (3) the lack of an adequate remedy at law; and (4) that a balancing of the equities favors granting an injunction. See Griffin Hosp. v. Comm'n On Hospitals and Health Care, 196 Conn. 451, 457-58 (1985).
The purpose of a temporary injunction, however, has also been described as "to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Citations omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270 (1995). The court has some concern that what the Kishes seek to accomplish here is not to preserve the status quo, but to alter it in their favor prior to the opportunity to hold a full trial on the merits of all of their claims. Essentially, they seek an order permitting them to enter onto the defendant's property, dig up the existing septic system, replace it with the proposed enhanced system, obtain a certificate of occupancy and move into their home before a final hearing on the merits may be held.
The plaintiffs argue that in the case of restrictive covenants, i.e. "[c]ovenants restricting or regulating the use of real property or the kind, character and location of buildings or other structures that may be erected thereon, usually created by a condition, covenant reservation, or exception in a deed . . ." Ballentine's Law Dictionary, 3rd ed. (1969), there is case law to the effect that the applicant may be entitled to injunctive relief "without a showing that violation of the covenant will cause harm to the plaintiff, so long as such relief is not inequitable." Expressway Assocs. II v. Friendly Ice Cream Corp. of Connecticut, 22 Conn.App. 124, 130 (1990) rev'd other grounds, 218 Conn. 474 (1991) (quoting Manley v. Pfeiffer, 176 Conn. 540, 544-45 (1979)) (holding that the defendant's claim that the court erred in issuing an injunction in the absence of a finding of irreparable injury to the plaintiff was without merit). Thus, the plaintiffs argue that they need not show irreparable harm in order for a temporary injunction to issue in this case. Discala v. Arcamone, 2006 WL 3759203 *4 (Conn.Super. Nov. 22, 2006) (holding that plaintiff "need only show that the relief requested would not be inequitable" and need not show that she would suffer irreparable harm when enforcing a restrictive covenant).
The irreparable harm claimed by the Kishes is their alleged imminent homelessness, occasioned by the expiration of their current lease and the absence of a certificate of occupancy. The evidence presented at trial, however, establishes that the Zoning Enforcement Officer approved the construction plans in May of 2006, that construction began in around November of 2006 and that the Kishes' first effort to contact Baron to discuss the proposed new septic system did not occur until March 1 of this year. Timothy Kish also testified that he owns his own business, that the purchase price for the lot was $2,000,000 and that the cost to build the house was an additional $2,000,000. The court thus finds that the failure to bring this issue to a head until the antepenultimate moment was largely due to the plaintiff's own delay, and that the evidence strongly suggests that absent injunctive relief, the Kishes and their children are not likely to be found "sleeping under bridges, begging in the streets or stealing bread" after July 31. Anatole France, The Red Lily (1894). The court therefore concludes that the plaintiffs have failed to establish "irreparable harm."
Even if the plaintiffs need not show irreparable harm, however, courts must nevertheless balance competing interests so that the relief is compatible with the equities of the case and not disproportionate to the injuries complained of. Dukes v. Durante, 192 Conn. 207, 225 (1984). The best way to address that issue is to get to the ultimate issue, that is, to examine the easement in order to determine whether the plaintiffs are likely to prevail on the merits. Only doing so can the court balance the various injuries likely to be caused by granting or denying the temporary injunction.
The easement in question was first negotiated between Baron and the Kishes' predecessor in title, Snowden Andrews, in 1996, when Baron purchased his lot from Andrews. In pertinent part, the easement provides as follows.
The grantor [Andrews] expressly reserves for himself, his heirs and assigns the right to maintain, use, service and, if necessary, replace the existing pipes, septic system, and leaching galleries on the premises herein conveyed which disposal system serves the house on property retained by grantor, all as shown on said Map #4212. All work on the system will be done at the sole expense of grantor, his heirs and assigns, and any disturbed areas will promptly be restored to their prior condition.
The septic system currently located on Baron's property, and the easement created to accommodate it, were originally designed to accommodate two houses with a total of seven bedrooms, the four that were to be constructed in the Baron home and the three in the previously existing Andrews "cottage." Once that system was in place, any increase in the number of bedrooms in either home would require a change in the capacity of the septic system.
The Third Restatemnent of the Law, Property, Servitudes, § 4.1 comment d, discussing the interpretation of expressly created servitudes, states "[t]he language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved. Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning." The determination of the scope of an easement is a question of fact for the court. Strallo v. Iannantuoni, 53 Conn.App. 658, 659 (1999).
The defendant testified as to his recollection of the negotiations that led to the easement. See Mackey v. Hull, 69 Conn.App. 538, 541-42 cert. den. 261 Conn. 916, 917 (2002) (the court may consider extrinsic circumstances including the negotiations of parties', composition of a map, the parties knowledge of planning and zoning, and the discussions leading up to a closing in order to construe the language and terms of an instrument to give the expressed intention of the parties its effect). Although Baron claimed that his intent was that any house on the dominant estate should never have more than three bedrooms, the court finds that testimony unpersuasive. Given the nature of the negotiations as described by the defendant, if indeed he had sought to make that intent more specific, it would not have been hard for him to have incorporated language that would have rendered such an intent beyond dispute.
"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." Kelly v. Ivler, 187 Conn. 31, 39 (1982) (citations omitted). The court believes that this case is capable of being decided based on the intent as expressed in the deed.
The easement contains two terms in particular whose meaning must be ascertained. The first of these is "replace." Ballentine's Law Dictionary, 3rd ed. (1969) defines "replace" as: "To restore to a former position. To substitute; to provide an equivalent, as in building a house to take the place of one destroyed by fire." The implication of this definition is that the object which is being substituted for the previous object must be its essential equivalent. Our courts recognize, however, that "[t]he manner, frequency, and intensity of the [dominant estate's] use of the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude." (internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 831 (1998). The plaintiffs direct the court's attention to what they claim are analogous easement cases from other states which suggest that under appropriate circumstances, improved or enhanced objects may be substituted for the originals. One such example is found in Continental Ill. Nat'l Bank Trust Co. v. Village of Mundelein, 407 N.E.2d 1052 (Ill.App.Ct., 2d Dist., 1980), in which the court held that the holder of a sewer line easement was entitled to replace a 27-inch diameter line with 48-inch line when the old line became overloaded. The court concluded that the town's sewer system's expansion was necessitated by development and population growth.
The Kishes seek to analogize Mundelein to their situation. They argue that the Illinois court concluded that the Mundelein system became overloaded because of the reasonable and natural development of the town, and that therefore the enhancement of the sewer system was consistent with the easement. They urge this court to conclude that their decision to increase the size of the home they originally planned to build is an analogous reasonable and natural development of their own property and that they are entitled to a comparable reading of the present easement.
This analogy, however, fails. The growth of the village of Mundelein, and its concomitant need for larger sewer pipes, was an evolutionary process that took place over the course of the fifty years since the original pipes were laid, during which time a small village had grown to one with a population of over 18,000. The plaintiffs' decision to increase the size of their planned home, and by doing so, to create the need for an enlarged septic system, is hardly of the same character; it is, rather, a self-created exigency.
The second and most critical term in the easement is "if necessary." It is true that there is a long line of cases, perhaps deriving from the old English case of Newcomen v. Coulsen, 5 Ch. Div. 133 (1876), to the effect that ". . . the right of way is one including the right of improving, from time to time, according to the improvements of the age." See Weaver v. Natural Gas Pipeline Co., 27 Ill.2d 48 (1963); Talty v. Commonwealth Edison Co., 38 Ill.App.3d 273 (1976). In Mundelein, the village's consulting engineer testified that the present sewer was "overloaded" "worn out," and "in need of replacement," so that replacement and enhancement under those circumstances, which reflected "only the exigencies of the community's sewer problem, not the village's intent to obtain an additional easement," Mundelein, supra, 707, was surely a matter of "necessity" by any reasonable definition.
Similarly, Hayes v. City of Loveland, 651 P.2d 466 (Colo.Ct.App. 1982), another case cited by the plaintiffs, held that the replacement of wooden power poles with taller steel structures was a change in degree and not in kind, and that the change was therefore within the scope of the prescriptive easement at issue in that case. The court, citing Restatement of Property §§ 478 and 479, stressed that the needs arising from the "normal and usual evolution and development for this type of power line" must be considered, and that the reconstruction of the power line by the City was a "change in the degree of use, not the kind of use, and is within the scope of the easement which burdened. the property at the time of the petitioners' acquisition." Id., 468. Leaving aside the fact that in both cases cited by the plaintiffs, unlike this case, the owners of the dominant estates were governmental authorities using their easements to provide services to their citizens, a difference which may or not be a distinction, the change sought be brought about by the Kishes has not been shown to be a "normal and usual evolution and development" entitled to the liberal construction of the easement language which the Kishes seek.
Both parties rely on language concerning the distinction between a change in degree or scope and one in type or kind, as found in the recent case of Leposky v. Fenton, 100 Conn.App. 774 (2007). Plaintiffs contend that the new technology in this case is "minimally larger, not substantially different, and will be underground," and that because the easement in dispute is an express easement created by grant, it is to be construed more generally than an easement created by prescription, such as that in the Hayes case. See e.g., Lichteig v. Churinetz, 9 Conn.App. 406, 410 (1986).
There is no need for a more liberal construction of the terms of this easement, however. Just as the "ingress and egress" easement in Leposky was held not to contemplate parking privileges, the critical terms in this easement do not contemplate an enhancement and enlargement of the system. While the court could conceive of circumstances under which replacement of a failed existing system with the Ruck-a Fin system might be deemed a change in degree that reflects improved technologies, what is missing in this case is a necessity for doing so when the existing system has not failed. The Kishes' claim that they wish to install a "remedial sanitary sewer system," rather than a new septic system, but the proposed system is not an effort to remedy any existing flaw in the present system. It is merely an effort to accommodate a change in their construction plans.
The Kishes nonetheless claim that the new system is "necessary" within the meaning of the easement because without it, they can not move into their home as built. That claimed "necessity," however, is not the result of some normal or evolutionary process, but rather the result of the plaintiffs' unilateral decision, albeit approved by Town authorities, to increase the size of the house they originally planned to build and, essentially, to force this "necessity" upon the defendant.
Although the court finds the plaintiffs' failure to satisfy the "if necessary" requirement of the easement to be dispositive, leading it to conclude that the Kishes are not entitled to a temporary injunction because they are not likely to prevail on the merits, it will nonetheless address certain other issues raised by the parties. One is Baron's claim that granting the injunction would diminish his capacity to expand his own home. "The dominant easement owner cannot utilize an easement if it unreasonably increases the burden on the servient estate." Pudion v. Moses, 20 Conn.Sup. 311 (1957). Although there was no hard evidence of any previous intent to do so, Baron has argued that permitting the new system would prevent him from ever increasing the number of bedrooms in his house. As there was no credible evidence of an actual plan to increase the size of his house, the court does not consider that risk to constitute an unreasonable burden on the servient estate.
Another of the defendant's arguments had been that the ". . . easement expressly does not allow any enlargement or expansion of the existing septic system." In fact, the easement is silent on this subject. It "expressly" allows the Kishes to "maintain, use, service and, if necessary, replace" the system . . . nothing more, nothing less. It does not "expressly" prohibit expansion.
Yet another of the defendant's arguments had been that the size of the original Andrews "cottage" and garage had been 2289 square feet, and the Kishes' building permit required that the original square footage not be exceeded. The new house is admittedly considerably larger than 2289 sq. ft. The Zoning Enforcement Officer, however, has made clear his interpretation that the square footage limitation is to apply to the footprint, not the total square footage of all the floors, and die footprint of the new home is 2283 sq. ft. The court, therefore, does not consider this claim to be relevant to the decision it has been asked to make.
Although the court is not convinced that the plaintiffs would be irreparably harmed by a decision to deny the application for a temporary injunction, the truly dispositive issue in this case is that the Kishes' basement does not entitle them, absent a showing of necessity, to replace the existing septic system with the Ruck-a-Fin system. Unlike those situations in which normal and evolutionary change require replacement of existing systems with technologically enhanced models, the "need" for the Kishes' proposed system was unilaterally created by the Kishes themselves. "Necessity," within the context of this easement, implies a failure of the system that can not be remedied by maintenance or servicing. Because replacement is not "necessary," it is not permitted under the terms of the easement. The court therefore concludes that the plaintiffs are unlikely to prevail on the merits of their claim, and the application for a temporary injunction is denied.