Opinion
No. CV-06-4015875 S
May 25, 2007
I INTRODUCTION
In this action, the plaintiffs seek a permanent injunction claiming that the defendant's actions threaten to violate the terms of a right-of-way easement to the extent that they seek to move a barrier consisting of four cut telephone poles placed between Ermine Street and St. Marc Lane in Fairfield in order to prevent through-traffic between the two roads. The right-of-way easement, as modified, required the placement of the barrier. The defendant claims that relocation of the barrier is necessary in order to provide access to a residence that it newly constructed on St. Marc Lane.
The plaintiffs commenced this action by way of verified complaint filed on April 10, 2006. The defendant filed an answer, special defenses and counterclaim seeking a declaratory judgment on April 17, 2006. The counterclaim was subsequently withdrawn. In its first special defense, the defendant claims that the modified easement at issue is ambiguous and void. The defendant asserts in the second special defense that the plaintiffs have unclean hands because they have brought this action with knowledge that the relocation of the barrier does not violate the modified easement. The matter proceeded as a hearing on the permanent injunction.
II FINDINGS OF FACT
The court finds the following facts: The plaintiffs are a group of seven residents who live on Ermine Street and St. Marc Lane. Ermine Street is a private road owned in common by certain owners of real property on the street and St. Marc Lane is a public road. The plaintiffs' respective properties are subject to the right-of-way easement at issue.
The plaintiffs and the properties that they own are the following: William and Judith Perkins, 23 Ermine Street; Emilia Klumpp, 33 Ermine Street; Gerald and Theresa Rasmussen, 37 Ermine Street; and John and Margaret Rehanek, 91 St. Marc Lane.
The defendant is a real estate sales and development company that owns real property originally known as 30 Ermine Street. The defendant purchased the property from S.A.R.G. Development LLC, which entity was successful in obtaining from the Town of Fairfield a two-lot subdivision approval of the property. The defendant has constructed a new home on the property located on St. Marc Lane. The present action arose when the defendant sought to move the poles in order to have vehicular access to the residence from St. Marc Lane. The defendant cannot gain such access without moving the poles. The plaintiffs claim that relocating the traffic barrier violates the recorded easement.
The easement agreement at issue was executed by Harry Engel, John L. Engel, Edward T. Fisher, Doris T. Fischer and Mary Fortuna, as grantors, on July 21, 1964 and was recorded on July 28, 1964 on the Fairfield land records. The agreement states that the grantors "are the owners of Ermine Street, so-called, a private street in the Town and Country of Fairfield and State of Connecticut, shown on map for Walter U. Reisinger and Iona M. S. Reisinger, dated October 14, 1958, and on file in the Office of the Fairfield Town Clerk as Map No. 2911." That map was certified to be substantially correct by The Huntington Company, licensed land surveyors, and shows Ermine Street as running in a straight line in a west to east direction. The map refers to Ermine Street as "Ermine Street Private Road." The easterly terminus of Ermine Street is shown, by dotted line, as having a vehicular turnaround or cul-de-sac. As shown on the map, Ermine Street had only one means of ingress and egress. The apparent intent was to create a turnaround for vehicles using the road.
There is no dispute in this case over the chain of title concerning the deeds and maps in evidence. The parties agreed on the admissibility of the exhibits received into evidence.
The easement granted to Mary Fortuna a right-of-way over Ermine Street so that she could access two parcels of land, identified as parcels 1 and 2, which she owned at the easterly end of the street. The agreement required Fortuna to improve Ermine Street at her own expense, including creating the vehicular turnaround at the terminus of Ermine Street abutting her properties, and contained a restrictive covenant that required her "[t]o permit no through-traffic between Ermine Street and any other street of highway."
The easement giving Mary Fortuna a right-of-way over Ermine Street is not at issue in this case. There is no dispute that Mary Fortuna's chain of title includes a right-of-way over that street. What is at issue is a subsequent modification to the easement agreement that contained a further restrictive covenant concerning vehicular traffic as hereinafter discussed.
A map is annexed to, and recorded with, the easement agreement. The map concerns a "Proposed Subdivision for Mary Fortuna and Helen Richard, Fairfield, Conn., dated April 17, 1964 and prepared by The Huntington Company." The map shows Ermine Street as running in a west to east direction and shows, by dotted lines, the turnaround referenced in the agreement. The turnaround is shown as partially encroaching upon both of Fortuna's properties.
It is undisputed that St. Marc Lane did not exist at the time the easement was recorded in 1964. The map attached to the easement shows that the property that would eventually become the turnaround portion of St. Marc Lane was at that time unimproved property owned by the Randolph estate.
On September 12, 1964, Mary Fortuna entered into an agreement concerning the joint maintenance of Ermine Street. Therein, she and the other common owners agreed to share on a pro rata basis the costs relating to any repairs of or improvements to the street. The maintenance agreement referenced the same map that was attached to the easement agreement and a copy of that map was attached to, and recorded with, the maintenance agreement.
During 1965, Mary Fortuna subdivided certain of her properties. By warranty deed dated May 28, 1965 and recorded on June 3, 1965, she conveyed to Joseph Fortuna a parcel of land identified as 2R as shown on a map entitled "Resubdivision for Mary Fortuna and Dorothy S. Fortuna, et al., Fairfield, Conn., dated February 3, 1965. . . and on file in the office of the Fairfield Town Clerk as Map No. 3587. . ." The map was certified as substantially correct by The Huntington Company. The conveyance was subject to the easement agreement, the joint maintenance agreement and "[r]ights of others in and to Ermine Street." Significantly, the deed into Joseph Fortuna reflects that the acknowledgment of Mary Fortuna's execution of the deed was taken by Attorney W. Bradley Morehouse, who also took Mary Fortuna's acknowledgment on the easement agreement on July 21, 1964.
The map referenced in the deed to Joseph Fortuna shows parcel 2R as being a portion of parcel 2 located on the easterly terminus of Ermine Street. As did the map attached to the easement agreement, map 3587 shows a dotted line constituting the temporary turnaround at the end of Ermine Street. The map refers to the street as "Ermine Street (Private)." As previously discussed, that street runs from west to east on the map. Moreover, the map is the first one that shows an extension of Ermine Street, which is referenced as "Ermine Street (Private Road Extension)." The extension forms an "L" with the original portion of Ermine Street, with the extension embodying the bottom portion of the "L." While the original portion of Ermine Street runs east to west on the map, its extension runs north to south.
The metes and bounds description set forth in the deed provides, in part, that parcel 2R is bounded westerly "by Ermine Street, as shown on said map, 173.85 feet." The metes and bounds description contained in the deed to Joseph Fortuna, when viewed in conjunction with the applicable map, shows subdivided parcel 2R as being partly bounded by the extension of Ermine Street, and not bounded at all by the original portion of Ermine Street. That is clearly what was meant by the use of the phrase "Ermine Street" in the deed and demonstrates the broad use of the phrase by its drafter. While map 3587 shows an extension of Ermine Street, St. Marc Lane was still not in existence at the time the map was recorded. The map shows that what would eventually become the turnaround portion of St. Marc Lane was at that time unimproved property owned by the Randolph estate.
By warranty deed dated November 24, 1965 and recorded on the land records, Dorothy Fortuna, as owner of an undivided one-third interest, and Mary Fortuna, in her capacity as trustee for Diana Fortuna and Terrence Fortuna and to the extent of an undivided two-thirds interest, conveyed to Arthur S. Bennett and Catherine R. Bennett, parcel 5R as shown on "Resubdivision for Mary Fortuna and Dorothy S. Fortuna et al., Fairfield, Conn., Feb. 3, 1965. . . on file in the office of the Fairfield Town Clerk as Map No. 3587. . ." This is the same map referenced in the deed from Mary Fortuna to Joseph Fortuna. As did that deed, the deed into the Bennett makes reference to both "Ermine Street" and "Ermine Street Extension." The metes and bounds description in the deed provides, in part, that parcel 5R is bounded "[n]ortheasterly by Ermine Street Extension, as shown on such map, 119.65 feet" and "[s]outherly by Ermine Street, as shown on such map, 151.68 feet. . . together with a right-of-way for all lawful purposes in common with others over, through and upon Ermine Street as shown on such map." As described in the deed and depicted on the referenced map, parcel 5R is bounded by the northerly side of Ermine Street and the westerly side of Ermine Street Extension. The deed provided that the property was conveyed subject to the "[a]greement respecting the maintenance of Ermine Street. . ." St. Marc Lane did not yet exist at the time of the execution of this deed.
By agreement dated December 29, 1972 and recorded on February 9, 1973, the parties to the original easement agreement executed a modification to it. The reason for the modification was Mary Fortuna's further subdivision of her real property identified as parcel 2 on map 3563 in order to incorporate a northwest portion of it into Lot 4B "as shown on a map entitled 'Subdivision for Joseph Fortuna, Fairfield, Conn., June 22, 1972,'. . . on file in the office of the Fairfield Town Clerk." The map was certified as being substantially correct by The Huntington Company. At the time the map was filed, Mary Fortuna owned the property on which the posts now are located.
The further subdivision creating lot 4B, upon which lot a personal residence was constructed, prompted the parties to the easement agreement to modify paragraph 2(ii), which paragraph provided "[t]hat there be no more than one private, single family residence each/shall be erected, moved or maintained on property shown as Lots 1 and 2 on [the attached map]." The modification provides in paragraph 2 as follows: "It is the condition of this modification that no vehicular access to Lot 4B as above-described shall be had over Ermine Street, access thereto being solely over St. Marc Lane; and a further condition that an adequate fence, wall or planting strip be placed and hereafter maintained between Ermine Street and St. Marc Lane to block vehicular traffic." The restriction in the modified easement agreement concerning vehicular access and traffic does not describe, by metes and bounds or otherwise, the precise location that the barrier was to be placed. It merely recited that it be placed at some point between the two streets in order to effectuate its express purpose, which is to ensure that the property to be subdivided and located on Ermine Street could only be accessed from St. Marc Lane and that there be placed a barrier to prevent any through-traffic from traversing the two roads.
Such a modification was consistent with the restriction in paragraph 2(v) of the original easement that in consideration of being granted a right-of-way easement over Ermine Street, Mary Fortuna was "[t]o permit no through-traffic between Ermine Street and any other street or highway." The modification did not in any way affect the right-of-way easement in favor of Mary Fortuna and those in her chain of title over Ermine Street. That paragraph in the original easement agreement remained unchanged. The modification merely dealt with access to the new lot and reinforced the prohibition in the original easement against through-traffic between Ermine Street and St. Marc Lane by requiring the placement of a traffic barrier. As discussed, no other street was in existence at the time of the original easement that could connect directly to Ermine Street. At the time of the modification, however, the deeds and maps establish that Ermine Street had been extended and St. Marc Lane was in existence. It was possible at that time to connect the roads in order to allow for through-traffic.
The language of the modification refers to two specific maps: (1) map 3563 dated December 29, 1964 that shows Lot 2 relating to the subdivision for Mary Fortuna and Helen Richard and (2) map 4215 dated June 22, 1972 that shows that Lot 2 as shown on map 3563 was subdivided and partly incorporated into Lot 4B as shown on map 4215 relating to a Joseph Fortuna's subdivision. Among other things, the map is subject to the joint maintenance agreement dated September 12, 1964.
The 1964 map shows the original portion of Ermine Street as being a straight road running from west to east and terminating at its eastern point where it abutted the properties owned by Mary Fortuna. The map shows a "temporary easement for turnaround which terminates upon extension of the road." The 1972 map, which is dated approximately six months prior to the modification agreement, shows the south to north extension to Ermine Street, which is referred to on the map as "Ermine Street Private Street." That map also shows the extension to Ermine Street and St. Marc Lane as being close in proximity, but not abutting each other. St. Marc Lane is shown on the map, by way of dotted line, as ending in a turnaround which the map notes as a "temporary turnaround easement which terminates upon extension of the road."
Those maps as filed indicate an intention to join the two roads and to eliminate the turnarounds depicted on both maps. Further, the 1972 map notes that the arced edge of the turnaround is the "edge of turnaround." The map also notes that the extension of Ermine Street consists of "existing pavement" as shown between the dotted lines. The linear measurements on the map show that the pavements are approximately thirty-eight feet apart. The photographs of the area between the two roads shows that there is a grassy area directly between the top of the cul-de-sac on St. Marc Lane and the end of the paved portion of the extension of Ermine Street. Despite the plaintiffs' argument that maps 4164 and 4215, both filed in 1972 prior to the modification, show Ermine Street and St. Marc Lane as abutting each other, the court finds that it is clear from the maps and other evidence that the paved portion of the extension to Ermine Street does not abut the edge of the pavement at the turnaround portion of St. Marc Lane, and that Ermine Street does not abut St. Marc Lane.
III CONSTRUCTION OF THE EASEMENT
The court first has to determine the nature and extent of the original easement as modified in 1972 by agreement of the parties. The defendant claims that this court should not consider the construction of the easement because a decision by the court (Radcliffe, J.) denying a motion to dismiss filed in this case by the defendant constitutes law of the case.
"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause. . . Where a matter has previously been ruled upon interlocutory, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted; citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).
"The practice, however, of one judge adopting the opinion of another judge made previously in the same matter is not mandatory. A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted; citations omitted.) City of Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005).
In this case, the defendant filed a motion to dismiss the action claiming a lack of jurisdiction. The basis for the defendant's motion was its claim that the plaintiffs in the present action failed to intervene in the zoning appeals relating to the property taken by its predecessor-in-interest, S.A.R.G. Development, and therefore could not bring an independent action in the nature of an injunction. The court denied the motion to dismiss finding that "the failure of the plaintiffs to intervene in the appeal" from the zoning decision did not render the present action subject to being dismissed for reasons of subject matter jurisdiction. In doing so, the court reached certain conclusions that the defendant asserts constitute law of the case.
The doctrine of law of the case is not applicable under the circumstances present in this case. The proceedings relating to the determination of the motion to dismiss and the injunction hearing are different. The issues confronting the court in the motion are different from the issues raised by the present proceedings. The standards of review are different. In ruling on a motion to dismiss, the court must construe the facts in the complaint in favor of the pleading party in determining the jurisdictional challenge. A hearing on a permanent injunction requires the court to make factual findings based on the evidence presented and to render conclusions of law. See Classic Limousine v. Alliance Limousine LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-99-0174911 S (August 13, 2002, D'Andrea, J.) (in deciding a motion for summary judgment trial court concluded, among other things, that law of the case not applicable where initial decision involved a temporary injunction and the proceeding involved different standards of review).
"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. . . The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent." (Internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Ass'n., 239 Conn. 769, 777, 687 A.2d 1270 (1997). "[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law. . . In determining the scope of an express easement, the language of the grant is paramount in discerning the parties' intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered." (Citation omitted; internal quotation marks omitted.) Leposky v. Fenton, 100 Conn.App. 774, 778, 919 A.2d 533 (2007).
"Furthermore, [a] reference to [a] map in [a] deed, [for a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein. . . [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein." (Internal quotation marks omitted; citations omitted.) Schwartz v. Murphy, 74 Conn.App. 286, 290-92, 812 A.2d 87 (2002).
This case does not involve a determination of the nature and scope of the actual easement granting a right-of-way to Mary Fortuna and those in her chain of title over Ermine Street. There is no dispute that those in Mary Fortuna's chain of title have a right-of-way over Ermine Street. Rather, the case involves an interpretation of the restriction set forth in the right-of-way easement pertaining to the placement and maintenance of a traffic barrier.
"[A] covenant, by definition, obligates parties to observe rights and duties in relation to physical characteristics of land to which covenant attaches. . ." Saphir v. Neustadt, 177 Conn. 191, 198, 413 A.2d 843 (1979). "Restrictive covenants as to the use of land. . . may create easements. Such covenants, being limitations on the manner in which one may use his or her own land, generally do not create true easements, however." 25 Am.Jur.2d, Easements and Licenses § 4 (2005). The restrictive covenant at issue in this case does not result in the creation of an easement.
In any event, any distinction between restrictive covenants and easements for purposes of construction is not material. Cannavaro v. Washington Community Housing, Superior Court, judicial district of Litchfield, Docket No. CV-03-0091521 (May 23, 2005) [ 39 Conn. L. Rptr. 413] (trial court concluded that any distinction between an easement and a restrictive covenant is "without a difference" because The Restatement (Third) of Property, Servitudes defines both as "types of servitudes" that are not distinguished in their creation); Dent v. Lovejoy, 85 Conn.App. 455, 461 n. 1, 857 A.2d 952 (2004) (noting that the Restatement defines both as servitudes). "Covenants which restrict the use of land may be characterized as rights in the nature of servitudes or easements. When negative in character, as practically all of them are, such covenants are said to create equitable easements, amenities, or servitudes, or as sometimes characterized, reciprocal negative easements, mutual, reciprocal, equitable easements of the nature of servitudes, or merely negative easements." 20 Am.Jur.2d, Covenants, Conditions, and Restrictions § 148 (2005).
The language of the modified easement, viewed within its four corners, is ambiguous as to what is meant by Ermine Street. Specifically, it is not clear from the modification whether the reference to Ermine Street includes the extension to Ermine Street. Therefore, the court will consider the situation and the circumstances existing at the time the modification was executed to determine the intent of the parties.
The deeds, maps and circumstances establish that the extension to the private road known as Ermine Street and the public road named St. Marc Lane were in existence at the time that the 1972 modification to the 1964 easement agreement was executed. The various references in the relevant deeds and maps to Ermine Street and to the extension to Ermine Street demonstrate that the terms were used interchangeably. That is, Ermine Street and Ermine Street extension are one in the same. The terms are not, as claimed by the defendant, separate descriptions of separate roads. There is only a single Ermine Street for purposes of construing the modification to the easement.
The defendant places great emphasis on the varying references in the relevant documents to the original Ermine Street and the extension of Ermine Street. The defendant argues that Ermine Street and the extension of Ermine Street are used as separate and distinct terms in the relevant maps and deeds. In this regard, the defendant asserts that the agreement by which the easement was modified refers to map 3563 dated December 29, 1964, at which time only Ermine Street running west to east existed and not the perpendicular extension to the street. The defendant argues that this map defines Ermine Street for purposes of the original easement and subsequent modification. Based on this assertion, the defendant argues that the barrier can be moved back as far as the original portion of Ermine Street to the extent that the barrier stays between that portion of Ermine Street and St. Marc Lane.
The first map to show the extension of Ermine Street is map 3587 entitled "Resubdivision for Mary Fortuna et al., Fairfield, Conn., Feb. 3, 1965." The map refers the original street as "Ermine Street (Private)" and to the extension as "Ermine Street (Private Road Extension)." The map is referenced in the warranty deed dated November 24, 1965 by which the Bennetts took title parcel 5R. That deed refers to Ermine Street and Ermine Street Extension in the metes and bounds description of the property. In so doing, it does not use the language on the map of "Private" versus "Private Road Extension." Therefore, the extension to Ermine Street existed as of the end of 1965.
The defendant's claim is unreasonable, illogical and legally incorrect in view of the deeds, maps and surrounding circumstances pertaining to the easement. Among other things, the fact that the parties to the modified easement placed the traffic barrier where they did evinces their understanding of the descriptions. For the reasons already discussed, the court disagrees with the defendant's narrow characterization of Ermine Street.
The court concludes, based on the language of the original easement and the subsequent modification to it, considered in light of the circumstances surrounding their execution, that the intent of the parties concerning the restrictive covenant in the modified easement was to prevent access to newly subdivided Lot 4B as shown on map 4215 by way of Ermine Street and to continue to ensure that there would be no through-traffic between Ermine Street and St. Marc Lane by requiring the placement and maintenance of the barrier strip between Ermine Street as extended and St. Marc Lane. It is undisputed that at all relevant times Mary Fortuna, who conveyed lot 4B to Joseph Fortuna, was the owner of the property designated as the extension to Ermine Street and on which the barrier was placed and, in any event, the court finds that fact from the relevant deeds and maps. Essentially, the modification required that the entrance to the driveway to the newly conveyed lot 4B be off of St. Marc Lane and not Ermine Street.
In view of the foregoing, the court construes the reference to "Ermine Street" in the restrictive covenant set forth in the modified easement as including the extension to Ermine Street. Therefore, the physical barrier was required to be placed and maintained by the parties at a location between Ermine Street as extended and St. Marc Lane.
The defendant additionally claims that the modified easement does not specify the precise location of the barrier, thereby permitting the court to move the barrier consistent with the terms of the easement; that the plaintiff has failed to prove that the defendant's proposed placement of the barrier is inconsistent with the terms and conditions of the modified easement and that the defendant prevails in a balancing of the equities.
Having established the scope of the easement and the restriction contained therein includes the extension to Ermine Street, the court next must consider whether or not the physical barrier must remain where it has been set or whether it can be moved from its present location consistent with the terms of the restriction. This requires the court to determine whether an injunction should issue in favor of the plaintiffs in this case.
III BURDEN OF PROOF RELATING TO INJUNCTION
The general law concerning injunctions is well established. "[A] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Branch v. Occhionero, 239 Conn. 199, 207, 681 A.2d 306 (1996).
"[T]he general rule requiring that substantial irreparable injury must threaten before an injunction will issue is subject to an exception. A restrictive covenant may be enforced by injunction without a showing that violation of the covenant will cause harm to the plaintiff, so long as such relief is not inequitable." Hartford Electric Light Co. v. Levitz, supra, 173 Conn. 22. See also Manley v. Pfeiffer, 176 Conn. 540, 544, 409 A.2d 1009 (1979); Rampone v. Richards, Superior Court, judicial district of Waterbury, Docket No. CV 05 4008453 (March 8, 2006, Brunetti, J.).
The inequitable harm exception set forth in Hartford Electric Light Co. v. Levitz has been interpreted by the Connecticut Supreme Court to place the burden of proving the right to an injunction in such a case on the defendant. "When presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable." (Emphasis added.) Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984); see also Grady v. Schmitz, 16 Conn.App. 292, 302, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d, 755 (1988). Therefore, the court must consider whether the defendant has sustained its burden of showing that the plaintiffs' enforcement of the restriction in the modified easement is inequitable under the facts of this case.
The plaintiff argues that the defendant cannot meet its burden because the general language of the restriction concerning the location of the barrier created a "floating easement" that once fixed cannot be moved regardless of the equities of the situation. The court disagrees.
"[A] 'floating easement' is an easement that, by the terms of its creating instrument, has not been confined to a specific location on the servient estate. . . Without language defining its location, the easement is said to float because it potentially could be exercised anywhere on the servient estate and therefore constitutes a burden on the entire servient estate." Coughlin v. Anderson, 270 Conn. 487, 494 n. 7, 853 A.2d 460 (2004). "Once a floating easement has been used by the easement holder in a certain manner and once the owner of the servient estate has acquiesced in such use, the easement has become fixed and the easement holder, absent an express grant of authority to do so, thereafter may not vary the location of the easement to another portion of the servient property without the consent of the servient estate owner. See J. Bruce J. Ely, Jr., Easements and Licenses in Land (2001) § 7:6, p. 7-13; see also Richardson v. Tumbridge, 111 Conn. 90, 96, 149 A. 241 (1930) (recognizing well established principle that when easement has been granted in indefinite terms, and owner of dominant estate has definitely fixed its location and manner of use, location cannot thereafter be varied without consent of owner of servient estate)." Coughlin v. Anderson, supra, 270 Conn. 509.
As previously discussed, at issues in this case involve the restrictive covenant pertaining to through-traffic and not the right-of-way easement over Ermine Street. Consequently, the concept of a floating easement is inapplicable. Even if it was applicable, the scope of the right-of-way is specific as to its location and would not constitute a "floating easement." Neither would the language creating the traffic barrier if it were considered to have created an easement. The location of the barrier was specific to the extent that it was required to be placed between the two streets, which streets are close in proximity. The deeds and maps establish that the area where the barrier could have been placed was relatively small.
The defendant has sustained its burden of showing that the plaintiffs' enforcement of the restriction in the modified easement the traffic barrier is inequitable under the facts of this case. The defendant purchased the property from S.A.R.G. Development L.L.C. in early 2006. At the time of the purchase, the property was known as 30 Ermine Street. It is part of the same property that was transferred from Dorothy Fortuna and Mary Fortuna, Trustee and identified as "Lot 5R" on map 3587. S.A.R.G. had received approval from the town for a two-lot subdivision of the property prior to conveying it to the defendant.
The defendant purchased the property for a million dollars with the intent to construct two homes, one on 30 Ermine Street and one on 90 St. Marc Lane. Magi testified that he bought the property based on a review of the map filed at the time of the subdivision approval. He stated that he was unaware of the existence of the poles constituting the traffic barrier at the time that he purchased the property.
Exhibit 17 is a map entitled "Resubdivision Map #30 Ermine Street, Fairfield, Connecticut prepared for S.A.R.G. Development L.L.C. dated June 15, 2002" filed in the town clerk's office as map 7137.
Magi testified that he is required as a condition of his subdivision approval to move the posts for purposes of constructing a driveway to ingress and egress the St. Marc Lane lot. He wants to move the posts approximately fifty feet south of their present location, keeping them between Ermine Street and St. Marc Lane. Magi testified that he will suffer damages of approximately $750,000.00 if he were not allowed to move the posts for purposes of constructing a driveway for the reason that the lot would be considered unbuildable. The court finds his testimony credible.
Significantly, the plaintiffs have not offered any evidence that the conditions of the traffic restrictions in the modified easement could not be met if the poles were moved to another location. The plaintiffs merely argue that the restriction means that the poles cannot be moved under any circumstances.
The court finds based on the evidence that the poles can be moved from their present location without violating the terms of the restriction. In other words, the evidence establishes that the poles can be moved to another location near their present location and still be between Ermine Street and St. Marc Lane such that any through-traffic would be prevented. Additionally, the movement of the poles would permit the defendant to satisfy the condition of its subdivision approval by constructing a driveway for 90 St. Marc Lane off of that street.
The court finds that the defendant has not proven either of its special defenses to the plaintiffs' action. The defendant has, however, sustained its burden of showing that the plaintiffs' enforcement of the restriction in the modified easement the traffic barrier is inequitable under the facts of this case.
The plaintiffs' request for a permanent injunction is denied. The matter shall be scheduled for a further evidentiary hearing concerning the placement of the traffic barrier. The court orders counsel to contact the clerk's office to schedule the hearing with a reasonable time from the issuance of this decision. The court orders that the barrier not be moved pending further orders of this court.