Opinion
No. FST CV 05 4007576 S.
December 8, 2006.
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Matthew Motley and Katharine Motley, record owners of 5 Brown Place, Norwalk, CT (Plot 1B), instituted this action on November 30, 2005, by filing a three-count complaint against the defendant, Dean Russell, Jr., in his capacity as trustee of the Russell Trust. In the first count the plaintiffs bring an action to quiet and settle title to alleged easement rights over the defendant's property. They allege that they enjoy the following rights: appurtenant easement rights by virtue of a warranty deed; implied appurtenant rights created by operation of law and arising out of the circumstances surrounding the conveyance of Plot 1A; and certain prescriptive appurtenant rights because of the open, visible and adverse use of the easement by the plaintiffs and their predecessors. In count two, the plaintiffs allege that the defendant has interfered with their easement rights. In the third count, the plaintiffs allege that the defendant's conduct qualifies as trespass. The plaintiffs seek a declaration settling title to the property interests in question pursuant to General Statutes § 47-31; an injunction ordering the defendant to refrain from interfering with the plaintiffs' easement rights and to remove any physical obstructions affecting the plaintiffs' enjoyment or exercise of such rights; damages; costs, interest and attorneys fees; and such other and further equitable relief as may be necessary.
The Russell Trust is the record owner of 43 Yarmouth Road, Norwalk, CT (Plot 1A).
On November 30, 2005, the plaintiffs filed a notice of lis pendens.
On January 19, 2006, the defendant filed his answer, special defenses and counterclaim. Therein, the defendant admits that, as trustee of the Russell Trust, he is the record titleholder of Plot 1A. He also admits the allegation in the plaintiffs' complaint stating that the "defendant may claim an interest adverse to the rights of the plaintiffs . . ." The balance of the plaintiffs' allegations were denied.
In his first special defense, the defendant alleges that the plaintiffs' easement rights were prescriptively extinguished through adverse use. In his second special defense, the defendant alleges that the plaintiffs' easement rights were abandoned. The defendant also filed a two-count counterclaim. In the first count, he alleges that his predecessor in title erected a fence or barrier that prevented the plaintiffs or their predecessors from accessing the easement areas for fifteen years, thereby extinguishing the plaintiffs' alleged easement rights. In his second count, the defendant alleges that the fence or barrier prevented the plaintiffs or their predecessors from accessing the easement areas for fifteen years, thereby causing the alleged easement rights to be abandoned.
Although neither party raises this issue, it should be noted that, under Connecticut law, the doctrine of tacking applies. See Reynolds v. Soffer, 190 Conn. 184, 187 n. 3, 459 A.2d 1027 (1983). Therefore, transfers in ownership of either Plot 1A or Plot 1B will not affect the court's analysis.
The defendant seeks a declaration extinguishing the plaintiffs' claim to or use of any easement or rights over the defendant's property; an injunction ordering the plaintiffs to refrain from physical presence on the defendant's property; costs, interests and attorneys fees; and such other relief as law or equity may permit.
The following evidence was presented at trial. Plot 1A and Plot 1B were initially owned as one parcel of land with a single building located on what is now Plot 1B (Plaintiffs' Exhibit 1). In 1968, Harold Dean purchased the property and subdivided the land into the two plots. As divided, Plot 1A adjoins Plot 1B on the northern side of Plot 1B (Plaintiffs' Exhibits 1 and 2). Additionally, Plot 1A has frontage on the Long Island Sound, while Plot 1B remains landlocked (Plaintiffs' Exhibit 2).
Dean, by warranty deed, recorded on July 2, 1969, conveyed Plot 1A to Dean Russell, Sr., subject to easement rights in favor of Plot 1B (Plaintiffs' Exhibit 3). Using the following language, the deed established an easement of way (walkway), and the right to use an area of the beach (beach area): "An easement of way for all lawful purposes 8' in width in favor of [Plot] 1B, as shown on said map, along the Easterly boundary of said Plot 1A to and from said [Plot] 1B to the waters of the Long Island Sound, together with the right to use the beach approximately 25' in width bounded by the retaining walls shown on said map and bounded on the East by Yarmouth Road."
On January 29, 1970, Dean conveyed Plot 1B to Verna Russell, the wife of Dean Russell, Sr., along with the aforementioned easement rights that had been expressly reserved in the 1969 deed (Plaintiffs' Exhibit 4). Subsequently, ownership of Plot 1B changed three times. Verna Russell, by deed recorded on October 20, 1977, conveyed Plot 1B to Malcolm Bramley and Carol Bramley (Plaintiffs' Exhibit 5). The Bramleys, by deed recorded on April 1, 1981, conveyed Plot 1B to Robert Sachs and Dee Ann Sachs (Plaintiffs' Exhibit 6). Finally, the Sachses, by deed recorded on November 4, 2002, conveyed Plot 1B to the plaintiffs (Plaintiffs' Exhibit 8). The defendant's predecessor in title, Dean Russell, Sr., remained the record owner of Plot 1A from 1969 until 2001.
None of the deeds used to convey Plot 1B expressly excluded the aforementioned easement rights.
In 2001, following the death of Dean Russell, Sr., the property was devised to the Russell Trust (Plaintiffs' Exhibit 7).
At trial, the defendant attempted to show that he and his predecessor in title had obstructed the use of the easement areas in several ways. First, the record reveals that there are trees and shrubbery existing within the walkway on Plot 1A. Further, the beach area of Plot 1A contains a rock jetty, built by Dean Russell, Sr., that has existed in various forms from 1971 to the present. Additionally, the record contains evidence of the following fences or walls located near the easement areas: a picket fence located near the northern boundary of Plot 1B; a rock wall located near the southern boundary of Plot 1A; and a chain link fence running along the eastern boundary of Plot 1A.
The plaintiffs called both Robert and Dee Ann Sachs to testify. Both witnesses testified that they regularly and openly used the easement areas, including the beach area and the rock jetty, for activities such as boating and photography. Moreover, Robert Sachs testified that he could use the entire length of the walkway without significant obstruction from vegetation. Additionally, Dee Ann Sachs testified that the defendant's predecessor in title did not place any physical structures within the easement areas that obstructed the Sachs' use of those areas. Both Robert and Dee Ann Sachs testified that their use of the easement areas spanned their twenty-one-year ownership of Plot 1B.
Finally, Matthew Motley testified that, in 2002, he had a brief confrontation with the defendant regarding the plaintiffs' use of the rock jetty. Motley testified that he informed the defendant that he had a deeded easement to the beach area. According to Motley, the defendant said that he would speak with his attorney about the matter. There is no evidence that any further discussions or confrontations occurred between the defendant and either one of the plaintiffs.
DISCUSSION
General Statutes § 47-36l states that "[i]n any conveyance of real property all rights, privileges and appurtenances belonging or appertaining to the granted or released estate are included in the conveyance, unless expressly stated otherwise in the conveyance and it is unnecessary to enumerate or mention them either generally or specifically." In the present case, the defendant has not produced evidence showing that the easement rights, as set forth in the 1969 deed, were expressly excluded in any of the conveyances used to transfer ownership of Plot 1B. Accordingly, the court should find that the plaintiffs have a deeded easement in favor of Plot 1B.
At trial, the defendant attempted to show that the plaintiffs' deeded easement rights had been extinguished through abandonment or, alternatively, through adverse use. "First, it is clear that abandonment by the dominant estate owner and adverse use by the servient estate owner are separate and distinct methods by which an easement may be extinguished." Boccanfuso v. Connor, 89 Conn.App. 260, 280, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). "Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law. The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement . . . [Abandonment] implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances . . . Although, before legal abandonment can be found, there must be proof of an intent to abandon . . . that requirement can be met without resort to proof of specific intent. Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon . . . but nonuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." (Internal quotation marks omitted.) Simone v. Miller, 91 Conn.App. 98, 103, 881 A.2d 397 (2005).
In the present case, the testimony and evidence elicited at trial demonstrate that neither the plaintiffs nor their predecessors in title abandoned the easement rights in question. The record reveals that both the Sachses and the plaintiffs used the easement areas on a regular basis. Moreover, the defendant did not produce evidence of a single affirmative act by any of the dominant estate holders that might suggest an intent to abandon the easement rights. Accordingly, the defendant has failed to prove that the plaintiffs or their predecessors abandoned the easement rights in question.
"[T]o prove extinguishment of an easement by prescription, the rights and acts of the respective parties are considered toward the end of establishing that the owners of the servient tract, by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominant tract so as to form a basis for an inference of a grant, releasing the easement, by an owner of the dominant tract to the owner of the servient tract." (Emphasis in original; internal quotation marks omitted.) Boccanfuso v. Conner, supra, 89 Conn.App. 281. "[I]f the servient owner . . . should by adverse acts lasting through the prescriptive period obstruct the dominant owner's . . . enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement." (Internal quotation marks omitted.) Russo v. Terek, 7 Conn.App. 252, 255, 508 A.2d 788 (1986). "The owners of the servient tract have by law all the rights and benefits of ownership consistent with the existence of the easement, and the exercise of such rights is not an adverse or hostile act which gives the owner of the dominant tract a right of action therefor." American Brass Co. v. Serra, 104 Conn. 139, 150, 132 A. 565 (1926). Finally, "[a]n easement by adverse use need only be established by a preponderance of the evidence." (Internal quotation marks omitted.) Public Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn.App. 380, 385, 567 A.2d 389 (1989).
The statutory prescriptive period is fifteen years. General Statutes § 47-37.
Here, the defendant has failed to show, by a preponderance of the evidence, that either he or his predecessor in title obstructed or interfered with the easement rights associated with Plot 1B for the duration of the prescriptive period. Indeed, the plaintiffs and the Sachses testified that neither the defendant nor his predecessor in title did anything that might obstruct their use of the easements in question. Instead, the record reflects that both the Sachses and the plaintiffs have made regular use of the deeded easement areas without interruption or significant interference during the course of their respective occupancies.
The record is less clear as to whether the defendant's predecessor in title interfered with or obstructed the easement rights in question during the periods in which Verna Russell and the Bramleys owned Plot 1B. Nevertheless, those two periods of time run from 1970 until 1981. As the statutory prescriptive period is fifteen years, their ability to use the easement areas is irrelevant due to the fact that the Sachses began using the easement areas, without obstruction, in 1981.
To begin, the vegetation existing within the walkway does not extinguish or reduce the plaintiffs' easement rights. Robert Sachs testified that the Sachses regularly used the entire length of the walkway and that the vegetation did not significantly interfere with their use. The Sachs' ability to use the walkway, for the duration of their ownership of Plot 1B, is enough to overcome the defendant's claim that the easement rights associated with the walkway have been prescriptively extinguished or reduced through adverse use.
To the extent that Matthew Motley testified that a tree obstructed the walkway in one place, the court should find that the obstruction was not significant enough to prevent the plaintiff from using the walkway to access the beach area. Moreover, as noted, Robert Sachs testified that nothing prevented him from traversing the entire length of the walkway in order to access the beach area.
Additionally, the rock jetty, which falls within both easement areas, was used regularly by the plaintiffs and their predecessors. Rather than interfere with or obstruct the use of the easement areas, the rock jetty serves to enhance the dominant estate holder's enjoyment of the easement rights. As extinguishment of deeded easement rights requires the servient landowners to obstruct or interfere with the dominant landowners' easement rights, the defendant has failed to meet his burden with regard to the rock jetty.
The confrontation between the defendant and Matthew Motley regarding the use of the rock jetty is insufficient to establish interference or obstruction. Instead, the plaintiffs did not heed the defendant's assertions regarding the rock jetty and the defendant did not press the matter further.
Additionally, the easement language does not prohibit the servient estate holders from using or improving the beach area. As noted, an exercise of rights by the servient estate holder that is consistent with the easement does not qualify as adverse use. American Brass Co. v. Serra, supra, 104 Conn. 150. Accordingly, construction of the rock jetty does not qualify as adverse use.
Similarly, neither the chain link fence nor the picket fence diminished or interfered with the use of the easement areas. The chain link fence, which runs along the eastern side of Plot 1A, does not prevent access to the walkway or the beach area. Indeed, the walkway can be accessed from the northern boundary of Plot 1B, and the beach area can be accessed from the walkway. As for the picket fence, Dee Ann Sachs testified that the picket fence did not prevent her from accessing the walkway. Finally, there is no evidence to suggest that the stonewall prevented the plaintiffs or their predecessors from accessing the walkway. Accordingly, the defendant has failed to demonstrate, by a preponderance of the evidence, that any of the plaintiffs' easement rights have been prescriptively extinguished or reduced.
As for the second and third count in the complaint, the plaintiffs allege that the defendant, by creating physical obstructions within the easement area, has interfered with their easement rights and committed trespass. Although the record reflects that the plaintiffs have to step around some of the vegetation existing within the walkway, that inconvenience is not significant enough to warrant a finding that the defendant has interfered with their easement rights or committed trespass. Accordingly, the court should find in favor of the defendant as to the second and third count.
Finally, the plaintiffs seek an injunction ordering the defendant to remove any physical obstructions affecting the plaintiffs' enjoyment or exercise of their easement rights. In the present case, only the vegetation within the walkway has the potential to obstruct the plaintiffs' comfortable use of the easement areas. "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 . . ." (Internal quotation marks omitted.) Hall v. Altomari, 19 Conn.App. 387, 390, 562 A.2d 574 (1989). In Hall, the court determined that the phrase "for all lawful purposes" was limited by the phrase "to and from said premises to Long Ridge Road." (Internal quotation marks omitted.) Id., 391. The court concluded that the latter phrase restricted "the defendant's rights with respect to the private road to those of ingress and egress." Id.
As the language from the 1969 deed in the present case is almost identical to the language in the deed examined by the court in Hall, the court should find that the plaintiffs' rights regarding the walkway are limited to those of ingress and egress. Therefore, the plaintiffs may only remove those objects that substantially impair their ability to access the beach area.
Although the plaintiffs ask the court to order the defendant to remove objects from the walkway, "[t]he duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement." Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 560, 524 A.2d 667 (1987). Accordingly, the plaintiffs, rather than the defendant, have the duty to remove those objects that substantially impair their use of the walkway for the purpose of ingress and egress.
By Way of Summary
The court finds in favor of the plaintiffs as to count one of their complaint. The court finds that the plaintiffs, as record owners of Plot 1B, have deeded easement rights over Plot 1A and that those easement rights were neither abandoned nor extinguished. Accordingly, the plaintiffs and their successors have the right to full use of the walkway for ingress and egress to the beach area, as well as the right to remove any vegetation within the walkway that substantially impairs their use of the walkway. Further, the plaintiffs have the right to use the beach area, including the rock jetty. At the same time, however, none of the defendant's actions qualify as interference with easement rights or trespass. Therefore, the court finds for the defendant as to counts two and three of the plaintiffs' complaint. Finally, in finding that the plaintiffs' easement rights were neither extinguished nor abandoned, the court necessarily finds in favor of the plaintiffs as to counts one and two of the defendant's counterclaim.
As the court has found in favor of the plaintiffs as to the primary count in their complaint, the court will award them costs. Finally, neither party has introduced evidence that would warrant the granting of damages, interest or attorneys fees.
Judgment may enter in favor of the plaintiff in accordance with this decision.