Opinion
No. TTD CV 06-4004418-S
March 12, 2008
MEMORANDUM OF DECISION
In this case, the plaintiff, South Windsor Cemetery Association, Inc. ("Cemetery Association"), seeks a declaratory judgment and permanent injunction against the defendant, Richard R. Lindquist ("Lindquist") over a shared driveway. At stake is the Cemetery Association's claim to a right-of-way over Lindquist's gravel driveway, and the right to maintain it. The driveway permits access to Center Cemetery, which lies behind Lindquist's house in South Windsor, CT. In general, the issue is whether the Cemetery Association can maintain the driveway, and, in particular, whether it can remove the potholes that develop in it and cut back encroaching vegetation. Lindquist does not seek to bar mourners from accessing the cemetery over his driveway, but he does counterclaim for injunctive relief to stop the Cemetery Association from removing the potholes, which he considers speed control devices, and in general to prevent it from obstructing his use and maintenance of the driveway. Alternatively, he asks the court for an order allowing the installation of commercial speed bumps in his driveway. For the following reasons, the court rules in favor of the Cemetery Association and against Lindquist on the Amended Complaint and with respect to Lindquist's Special Defense and Counterclaims. Specific orders are set forth at the conclusion of this decision.
I
The standards applicable to declaratory judgment actions are well-settled. The Superior Court has jurisdiction to declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. General Statutes § 52-29(a). A prerequisite to an action for declaratory judgment is that there be an actual, bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties. Practice Book § 17-55(2); Trubek v. Ullman, 147 Conn. 633, 635, 165 A.2d 158, cert. denied 367 U.S. 907 (1960). "To be entitled to a declaratory judgment, the plaintiff must have an interest, legal or equitable, by reason of danger of loss or of uncertainty as to . . . [its] rights or other jural relations." (Citation omitted; internal quotation marks omitted.) St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718, 184 A.2d 42 (1962).
The standards for injunctive relief are equally well-settled. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court." (Citations omitted; internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 236, 919 A.2d 421 (2007). "A mandatory injunction is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004).
The remedies of declaratory judgment and injunction are commonly sought to resolve disputes involving the existence of a right of way, and the rights between parties with respect thereto. See, e.g., Gerlt v. South Windsor, 284 Conn. 178, 931 A.2d 907 (2007).
II
The court heard evidence in this case at a bench trial conducted on October 1, 2, 4 and on November 13, 2007. The Cemetery Association was represented by counsel. Lindquist proceeded pro se. Testifying at trial were Talcott Clap, Paul St. Jean, Angela Vibert, Joseph Vibert and the defendant, Richard Lindquist. The court also accepted into evidence numerous deeds, a map from the land records, a Probate Court notice, proof of payments, discovery documents, a diagram, and numerous photographs and letters. The court also went on a site visit with the parties, counsel and court personnel for a viewing of the cemetery and driveway in question. After trial, the parties submitted briefs arguing their respective positions on the issues.
The court finds as follows: Center Cemetery is an ancient burying ground in the old historic section of South Windsor, nestled between the Connecticut River on the west and Main Street on the east. The older, southern end of the cemetery is owned by the Town of South Windsor. The newer, northern end is owned by the Cemetery Association. The Cemetery Association is responsible for the care and maintenance of burial plots in the cemetery. The cemetery occupies a back lot. To get to it, visitors must cross lots fronting on Main Street, which runs north and south. Among the landowners on Main Street blocking in the cemetery are the First Congregational Church of South Windsor and Lindquist.
The Cemetery Association uses three driveways for visitor ingress and/or egress. The first, southernmost driveway, is actually a driveway belonging to the First Congregational Church and it runs along the southern side of the church. The Cemetery Association is allowed to use that driveway, but permission is not in writing, and it is at the pleasure of the church. At times, particularly when the church is running a fair, that driveway is not available to the Cemetery Association. The second driveway, to the north, the middle driveway, is on the northern side of the church. That driveway is owned by the Town, but it allows exit only out to Main Street. Due to the awkward circumstance involving the first two driveways, and to acquire a more direct, and a clearly written, right of access to its section of the cemetery, the Cemetery Association, in 1963, purchased a twelve-foot wide right-of-way over a driveway further to the north on land owned by Elizabeth Parker. That right-of-way essentially overlays, and follows the same course as the driveway. It starts on Main Street, then goes straight west to the cemetery, passing close to Parker's house just along the north side of the house. The deed, dated January 31, 1963, granting the right-of way over the driveway, reads, in pertinent part, as follows:
I, Elizabeth A. Parker . . . do give, grant, bargain, sell and confirm unto the said The South Windsor Cemetery Association, Incorporated, its successors and assigns forever,
A perpetual right of ingress and egress for all purposes for which a right of way may be used over and across the following described real estate:
*****
Said right of way herein conveyed is a right of way in common with others as of record may appear or otherwise.Deed, Plaintiff's Exhibit 4.
That driveway thus provides the third access to the cemetery. That shared driveway is the one that is in issue in the instant case. Parker conveyed her lot to Albro Case on October 29, 1966, "subject to the rights of way as of record appear." Deed, Plaintiff's Exhibit 5. Case conveyed the property to Marshall and Jean Lamenzo on September 11, 1969, "subject to rights of way of record." Deed, Plaintiff's Exhibit 6. The Lamenzos conveyed the property to the Richard and Susan Lindquist on May 1, 1978, "subject to a Right of Way over the Northerly portion of said premises. Said Right of Way being twelve (12) feet wide." Deed, Plaintiff's Exhibit 7. Richard Lindquist became the sole owner following his wife's death in 2003. Probate Certificate, Plaintiff's Exhibit 8. Thus, Lindquist is the successor in title to the Parker lot and he uses the same driveway to access his land and home, sharing it with the Cemetery Association. The subject lot is known as 1047 Main Street.
Parker was cooperative in granting the right-of-way to the Cemetery Association. Indeed, the land that the Cemetery Association maintains as its section of Center Cemetery was purchased by the Cemetery Association from her a few years earlier, in 1961.
The Cemetery Association and the Lindquists co-existed relatively peacefully, at first. The Cemetery Association and Susan Lindquist consulted with each other over the maintenance of the driveway. When potholes developed, they both shared in making repairs. Susan Lindquist wanted red, crushed stone for the driveway, and the Cemetery Association cooperated in purchasing and spreading red, crushed stone in the driveway.
Friction developed over the years, particularly over vegetation. The Lindquists' lot is almost completely overgrown with vegetation, and Susan Lindquist cultivated flowers which grew into the driveway. She once complained to the Cemetery Association that she was almost hit by a car while tending her flowers in the driveway. The Cemetery Association told her she should not grow flowers in the driveway. A compromise was reached, and the Cemetery Association put up a sign restricting the speed limit in the right-of-way to 5 mph. Further friction developed over the encroaching jungle of vines and plants, which were scratching cars as they entered the cemetery, and as potholes again developed in the driveway. The potholes and vines were inconvenient obstacles at best, and caused rerouting of cemetery traffic on occasion to avoid damage. A truck got stuck in a hole once. But, Susan Lindquist was dying, and the Cemetery Association decided to let her live out her days without confrontation from them.
After her death, in 2003, the potholes and vegetation were getting out of control. Hearses were occasionally forced to use the other entrance for fear of getting stuck. Cemetery Association officials attempted to communicate with Richard Lindquist, but they were unable to reach any accord. Face to face discussions were treacherous. When a Cemetery Association official dumped a pail of gravel in one pothole, Lindquist's son came out of the house and said that his father did not want the right-of-way touched, and said, "I'm sorry, I'm only the messenger." In the written correspondence that was fired off, it was made clear that Lindquist would resist any efforts to fix the right-of-way. When Cemetery Association officials attempted to cut back the encroaching vegetation, Lindquist called the police. The Cemetery Association thence brought this lawsuit.
The crux of the dispute is that Lindquist's primary operating entrance and exit door from his house is on the northern side of the house. That door is near the driveway. Lindquist is very concerned about cemetery traffic in the driveway and his personal safety when entering and exiting his house from that door. There are numerous, other doors around the house not so affected by the close proximity to the driveway, but he does not use them because they are blocked in by vegetation, or they are structurally unsound due to the age of the house. Indeed, parts of the house date back to 1697. There is a "coffin door," used in ancient times to carry a coffin out of the house, but Lindquist would rather not use that one. Another door is available on the opposite side of the house from the primary entrance, but he does not want to use that one either, for a variety of reasons. The door that Lindquist uses as his primary entrance and exit, so close to the driveway, is a relatively new door. It did not exist when Parker granted the right-of-way in 1963, but it was there when he bought the house in 1978.
Lindquist experiences severe anxiety from the fact that the door is so near the right-of-way. When he hears a car pass, he is concerned about speeding and his physical safety, and he experiences painful anxiety. He does not want the potholes in the right-of way fixed because he believes they serve as speed control devices to slow the traffic. His concern is not well grounded in the facts. There is very little traffic associated with this ancient cemetery, and those that use it are not in a hurry. There have never been any reports or complaints about speeding cars in the driveway made to the Cemetery Association, even from Susan Lindquist.
Lindquist's story about his own life explains many things. He testified that he is a physician who treated trauma patients at the Walter Reed Medical Hospital in the Washington, D.C. area during the Vietnam era. He said he now suffers from Post Traumatic Stress Disorder and other conditions. He no longer works with patients, but does research. He experiences distress, anxiety, pain, and Vietnam era flashbacks when he perceives danger and that occurs when he hears what he believes is a car speeding down his driveway. He said he is extremely conscious of what he considers to be a danger of cars speeding down his driveway, and he remembers what he considers close calls that he says were reported to him by his wife, and by his children, who are now grown and living elsewhere. However, the court finds that his concerns about speeding in his driveway were not proven to be based in fact at trial.
III
Before addressing the merits, the court must resolve several motions filed on the first day of trial, and on which the court reserved judgment. Pending are defendant's Motion for Summary Judgment for Plaintiff's Spoliation dated October 1, 2007, defendant's Motion for Summary Judgment to Punish dated October 1, 2007, and defendant's Motion for Adverse Inference from Spoliated Evidence dated October 1, 2007. Permission to file is granted pursuant to Practice Book § 17-44. The motions, however, are denied for the following reasons.
The gravamen of all three motions is Lindquist's contention that the Cemetery Association spoiled evidence in this case when it filled the potholes in the driveway on July 26 and 28, 2007. Lindquist argues that this action robbed him of his ability to prove that these were reasonable speed control devices which slowed the unsafe speed of cars. He also argues that his counterclaim of injunctive relief to prevent the filling of the potholes was rendered moot by the Cemetery Association's unilateral activity. The court is not persuaded.
The spoliation rule is rooted in the parties' common-law duty to preserve evidence relevant to pending litigation. Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 234, 905 A.2d 1165 (2006). A victim of spoliation is not entitled to summary judgment as a matter of law. Rather, the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996). This inference, with other evidence, can be used to help a party prove his or her case, but it does not relieve the party of his or her burden of proof. Id., at 779. Our Supreme Court established the requirements as follows:
To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliation was intentional, in the sense that it was purposeful, and not inadvertent; (2) the destroyed evidence was relevant to the issue or matter for which the party seeks the inference; and (3) he or she acted with due diligence with respect to the spoliated evidence.
Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 237
Additionally, the intentional spoliation of evidence can be the basis for court-ordered sanctions against the offending party, including entry of a non-suit if the spoliator is the plaintiff. Id., at 240.
These rules evidence a legal protection that shields a party from the harm of intentional spoliation. Lindquist, however is using it as a sword — calling the potholes evidence and arguing that they must remain untouched preventing the Cemetery Association from being able to use and maintain its property. The law does not permit such a role reversal. See, e.g. State v. Anonymous, 237 Conn. 501, 516, 680 A.2d 956 (1996); Breton v. Commissioner of Correction, 49 Conn.Sup. 592, 597-98, 899 A.2d 747 (2006); Rubenstein v. Rubenstein, 48 Conn.Sup. 492, 500, 851 A.2d 1262 (2004).
Moreover, the filling of the potholes did not prevent Lindquist from making his case. The testimony, photographs and site visit supplied the court with ample information as to the situation, and plaintiff was able to draw a picture of a pothole. See Diagram, Defendant's Exhibit E. The particular potholes, which would no doubt change with time with exposure to the elements and vehicle traffic, were not necessary to the case and, therefore their destruction did not hinder Lindquist's defense. See, Beers v. Bayliner Marine Corp., supra, 236 Conn. 778. Also, this case has been pending since January 2006. Lindquist had ample time to preserve proof of the potholes and/or arrange for expert witness to evaluate them, if he so desired. He did not do so. Thus, Lindquist did not exercise due diligence. Beers v. Bayliner Marine Corp., Id. Therefore, he does not qualify for a spoliation inference, summary judgment or sanctions for spoliation of evidence. Accordingly, his motions are denied.
IV
As to the merits, the facts in this case clearly showed that by deed dated January 31, 1963, the Cemetery Association acquired a right-of-way, or easement, over the driveway in question from Elizabeth Parker. Two distinct estates are created in an easement: the dominant estate to which the easement belongs, and the servient estate upon which the obligation rests. Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 512, 757 A.2d 1103 (2000). In the instant case, the Cemetery Association has the dominant estate, and the Parker property is considered the servient estate. Easements can also be in gross or appurtenant. An easement is in gross if it is merely personal to the particular parties; an easement is appurtenant if "runs with the land," i.e., permanent and binding on successors in title. See, Kelly v. Ivler, 187 Conn. 31, 39-40, 450 (1982). In determining whether the easement is in gross or appurtenant, the court looks to "the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances." Kelley v. Ivler, supra, 187 Conn. 39. In the instant case, the deed which created the easement utilized the typical words of inheritance, "successors and assigns forever" and the words "perpetual right of ingress and egress for all purposes for which a right of way may be used" all expressions evidencing the creation of a permanent estate. Also, the permanent nature of the cemetery affected and the lack of other clear, written rights of access suggest that a permanent easement was intended to benefit the cemetery. These are hallmarks of the creation of an easement appurtenant. See Kelley v. Ivler, supra, 187 Conn. 44; Dunn Bros., Inc. v. Lesnewsky, 164 Conn. 331, 334-36, 321 A.2d 453 (1973). Accordingly, the court finds that the easement in the instant case is an easement appurtenant running with the land for the benefit of the cemetery land, and it applies to Lindquist as a successor in the chain of title and he is subject to it. That he took his property subject to the easement is corroborated in his own deed, that expressly provided that it is "subject to a Right of Way over the Northerly portion of said premises. Said Right of Way being twelve (12) feet wide." Deed, Plaintiff's Exhibit 7. The court thus finds that the Cemetery Association has a permanent right-of-way for ingress and egress to the cemetery over Lindquist's driveway as described, in meets and bounds, in the deed creating the easement in evidence as Plaintiff's Exhibit 4.
In the caselaw, the terms "right-of-way" and "easement" are used synonymously.
The Cemetery Association's easement, by law, includes the right to maintain and repair it for that purpose. "It is well settled that [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." (Citation omitted; internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 660, 923 A.2d 709 (2007). "The owner of land over which an easement has been granted has, by law, all the rights and benefits of ownership consistent with the existence of the easement." Center Drive-In Theater, Inc. v. Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974) citing American Brass Co. v. Serra, 104 Conn. 139, 150, 132 A.2d 565 (1926). Furthermore, "[t]he 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." (Citation omitted.) Carrig v. Andrews, 127 Conn. 403, 407-08, CT Page 4153 17 A.2d 520 (1941). Rather, "[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." (Citation omitted.) Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 560, 524 A.2d 667 (1987). "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." Nicholas v. Peck, 70 Conn. 439, 441, 39 A. 803 (1898); see also Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987). Thus, it was held in a recent Superior Court case that the holders of an easement by deed over a driveway had the right to keep that paved driveway in good repair, including repaving the entire driveway from time to time as needed, and the owner of the servient estate in that case was enjoined from in any way interfering with the rights of the holders of the easement. See Panagos v. Cooke, Superior Court, judicial district of Fairfield, Docket No. CV 03-0405596 (February 9, 2006, Skolnick, J.)
In the instant case, the Cemetery Association seeks to maintain the driveway by keeping it in good repair, and in particular by cutting back the vegetation to keep it from harming vehicles, and by filling in the potholes that appear from time to time in the gravel driveway. The court finds that these activities are within its rights under the circumstances of this case. Thus, the Cemetery Association has established its right to a declaratory judgment on the point.
The Cemetery Association has also satisfied the requirements of injunctive relief. By obstructing the Cemetery Association's efforts to keep its entrance to the cemetery useable as necessary, Lindquist has caused it irreparable harm for which there is no adequate remedy at law. The Cemetery Association has proven a need for a dignified entry to the burial grounds — one that does not jeopardize hearses, cars carrying mourners, or other equipment by getting stuck or damaged. It is also necessary for the sake of visitors, particularly those in the grieving process, who should not be subject to the indignity and shame of a dilapidated presentation in their hour of sorrow or while paying their last respects. That there may be other entrances available is no defense. The Cemetery Association has a right to use its right-of-way as necessary. Lindquist's interference constitutes a continuing trespass on those rights for which the extraordinary remedy of injunction is, comparatively speaking, liberally granted. See Walton v. New Hartford, 223 Conn. 155, 166, 612 A.2d 1153 (1992) citing Hartford Rayon Corporation v. Cromwell Water Co., 126 Conn. 194, 199, 10 A.2d 587 (1940).
V
Lindquist's responsive pleadings in this case contained a Special Defense alleging that, inter alia, the Cemetery Association never plowed or spread gravel in the driveway previous to the events that precipitated this litigation and that, therefore, there was an implied contract that Lindquist would maintain the right-of-way. He further alleges the facts supporting the need for the potholes as speed control devises. He also counterclaims for a permanent injunction to enjoin the Cemetery Association from removing his potholes and to enjoin them generally from obstructing use of the driveway for, inter alia, medical assistance and support should he develop a lingering terminal illness. At trial, the evidence showed that the Cemetery Association owned gravel which Susan Lindquist permitted to be spread in the right-of way, and there was other evidence of the Cemetery Association's maintenance or attempts to maintain the right-of-way over the years, and that they cooperated with Susan Lindquist in the maintenance of the driveway over the years. There was no proof of a contract or agreement, either express or implied, wherein the Cemetery Association ceded maintenance to Lindquist. Nor has Lindquist proven his claims of unlawful interference with his rightful use of his driveway, either with respect to the potholes, or medical assistance, or in any other way. Accordingly, the court finds in favor of the Cemetery Association on Lindquist's Special Defense and Counterclaims.
VI
Lindquist argues that the Cemetery Association's case should fail because the Cemetery Association has the burden of establishing that he materially interfered with their easement, and they failed to do so in this case because his potholes do not materially interfere with traffic. Defendant's Trial Brief, pp. 3-17. The court finds that the potholes and vegetation are a material interference.
The law on point provides that "[t]he owner of land over which an easement has been granted has, by law, all the rights and benefits of ownership consistent with the existence of the easement . . . 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." (Citations omitted, internal quotation marks omitted.) Center Drive-In Theatre, Inc. v. Derby, supra, 166 Conn. 464-65. The burden is on the easement owner to establish that the owner of the servient tenement is materially interfering with its easement. Connecticut Light Power v. Holson Co., 185 Conn. 436, 443, 440 A.2d 935 (1981).
The Cemetery Association met its burden of proof in this case. The testimony in this case showed, and the site viewing corroborated, that the potholes and vegetation encroachment do materially interfere with the Cemetery Association's right to use the driveway as a route to the burial grounds. Such disrepair is an insult to the grieving families and is disrespectful to the deceased buried in Center Cemetery. If allowed to exist it would reflect shamefully on the Cemetery Association. The condition caused users to avoid the driveway and use other, less convenient, entrances on occasion and impeded cemetery officials. Lindquist's justification for allowing the deterioration — to slow those he perceives to be traveling at unsafe speeds — was not proven. The court finds that his insistence on keeping the potholes and preventing the cutting of vegetation materially interferes with the Cemetery Association's easement rights.
VII
Alternatively, Lindquist argues the court should allow the installation of commercial speed bumps, arguing that multiple courts have found speed bumps reasonable and have upheld or ordered their use by servient owners in right-of-way disputes, citing Wilson v. Palmer, 229 A.D.2d 647, 644 N.Y.S.2d 872 (1996) aff'g 163 Misc.2d 936, 622 N.Y.S.2d 882 (1995); Phillips Industries, Inc. v. Firkins, 121 Idaho 693, 827 P.2d 706 (1992); Marsh v. Pullen, 50 Or. 405, 623 P.2d 1078 (1981) and Everdell v. Carroll, 25 Md.App. 458, 336 A.2d 145 (1975). Of course, decisions from other states are not binding on this court. They are useful, by analogy, and they demonstrate that speed bumps are often approved as reasonable uses in easements in situations where there is a speeding problem. See, e.g., Marsan v. Pipeling, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 92-0454193 (March 8, 1993, Langenbach, J.). In the instant case, there was no speeding problem proven, thus no justification for the erection of speed bumps. Also, the factual circumstance of each case are critical to a just and lawful resolution. None of the cases cited involved a cemetery. The Cemetery Association in this case has established its need to be free from the dilapidated conditions demonstrated at trial as such would be a material interference with its easement rights permitting ingress and egress to the burial grounds, and there was no evidence of a speeding problem needing correction with speed bumps. The use of speed bumps would constitute an unnecessary jostling of hearses and mourners materially interfering with the Cemetery Association's rights almost as much as potholes.
VIII
Lindquist also argues that relief should be denied in this case because plaintiff sought permission from the court to revise its complaint, but that motion was never placed on the short calendar. The argument is of no avail. Plaintiff filed a Request for Leave to Amend in August 2007, to add a request for injunctive relief. Requests for Leave to Amend do not go on the short calendar. They are automatically granted unless a timely objection is filed. Practice Book § 10-60(a)(3). No such objection was filed in this case.
IX
Lindquist challenges the Cemetery Association's argument that it does not have any other legally guaranteed access to its property. Defendant's Trial Brief, p. 34. He argues that they have, in the past, achieved access across the church property. The argument misses the point. The fact is that the Cemetery Association has no other right of way by deed, or other written agreement, which would make their rights clear. This circumstance supports its argument that its deeded right of way is appurtenant and runs with the land, as that was motivation for getting the deed in the first place — to acquire a permanent, clear, written right of access that would be binding on future title holders, like Lindquist. The fact that the Cemetery Association is sometimes forced to use entrances other than the one it purchased a right-of-way over due to Lindquist's interference is also relevant to the issue of irreparable harm.
X
Another argument by the defense is that some of the Cemetery Association's requests for relief should be denied because the relief requested is too broad and was not prayed for in their Amended Complaint. Defendant's Trial Memorandum, pp. 35-37. The Cemetery Association asks the court to enter (1) a declaratory judgment that the right-of-way over the northern twelve (12) feet of the property located at 1047 Main Street, South Windsor, CT is enforceable and that said right-of-way may be maintained by the South Windsor Cemetery Association, Inc. Maintenance includes, but is not limited to the removal of pot holes and the trimming of vegetation; (2) the defendant, Lindquist, be permanently enjoined from interfering with the Association's right to maintain the right-of-way; and (3) the defendant, Lindquist, be permanently enjoined from creating any condition or placing any object in the right-of-way that would interfere with the Association's ability to utilize the right-of-way. Plaintiff's Trial Brief, p. 18.
An injunction is the "strong arm" of equity that is utilized to protect property or rights from irreparable harm or injury by prohibiting or ordering certain acts. R. Bollier and S. Bushby, 2 Stephenson's Connecticut Civil Procedure (Third Ed., 2002) § 227 citing 42 Am.Jur.2d Injunctions § 1 (2000). The decree should be sufficiently clear and definite for the defendant to determine "with reasonable certainty" what conduct is permitted and what is prohibited. Adams v. Vaill, 158 Conn. 478, 485-86, 262 A.2d 169 (1969); Castonguay v. Plourde, 46 Conn.App. 251, 268, 699 A.2d 266, cert. denied 243 Conn. 931, 701 A.2d 660 (1997).
With these principles in mind, the court finds that the first two requests are clear enough and within the scope of the Amended Complaint and will enter such orders as requested by the plaintiff. The third is rather broad, but is no doubt aimed at Lindquist's alternative request in this case that the court order that commercial speed bumps be installed in the right-of-way. Since the court has rejected Lindquist's request for commercial speed bumps, the court will address plaintiff's third request for an order, but only specifically as to the request commercial speed bumps.
XI
Finally, plaintiff argues that the court should deny injunctive relief to the Cemetery Association because a third party also has a right-of-way over the same driveway. Indeed, a 1960 map of the vicinity, marked Plaintiff's Exhibit 1, suggests a right of way held by the Paul family, permitting access to their land behind the cemetery, over the driveway. Furthermore, the deed to the Cemetery Association's right of way indicates that it is "in common with others as of record may appear or otherwise." Plaintiff's Exhibit 4. Whether the Paul family still owns the parcel and a right-of-way was not an issue in this case at trial. The Paul family was not a party, and rights of the Paul family, or their successors, were not litigated or decided in the instant case. The existence and location of their right-of-way, if any, was not substantiated in the evidence.
Moreover, that others might also have a right-of-way over the same driveway does not defeat the Cemetery Association's rights. "It is well settled that [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 . . . Furthermore, [t]he benefit of an easement or profit is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . Typically, roadway easements are nonexclusive in that the servient owner has the right to use the road and the right to grant additional easements or licenses for the use of the road." (Citations omitted; internal quotation marks omitted.) Gerlt v. South Windsor, supra 284 Conn. 191. The Cemetery Association has a right to use and maintain the right-of-way, and that is not defeated by the fact that it might share that right with others.
The court, in this case, can only dispose of the rights of the parties, not non-parties, and Lindquist cannot argue the rights of persons other than himself. Generally, a party does not have standing to raise another person's rights. Third Taxing Dist. of City of Norwalk v. Lyons, 35 Conn.App. 795, 798, 647 A.2d 32 (1994).
XII
For all of the foregoing reasons, the court enters judgment in favor of the plaintiff, Cemetery Association and against the defendant Lindquist on the Amended Complaint and with regard to the defendant's Special Defense and Counterclaims in this case.
It further orders: (1) that a declaratory judgment enter declaring that the right-of-way over the northern twelve (12) feet of the defendant's property located at 1047 Main Street, South Windsor, CT is enforceable, and that said right-of-way may be maintained, by the plaintiff South Windsor Cemetery Association, Inc. Maintenance includes, but is not limited to, the removal of pot holes and the trimming of vegetation from the right-of-way; (2) that the defendant, Lindquist, is permanently enjoined from interfering with the Cemetery Association's right to maintain the right-of-way; and (3) that the defendant Lindquist's request for an order requiring the installation of commercial speed bumps in the right-of way is denied.