Opinion
Nos. CV 07 5001651 S, CV 07 5001652 S
January 6, 2009
MEMORANDUM OF DECISION
The court received evidence at a bench trial over four days with respect to two cases wherein the plaintiffs claim the benefit of the same right of way across property owned by the defendants and located in Somers, Connecticut. One case is Sobaski v Bernier. d.n. CV07-5001651 and the other is Pease v. Bernier, d.n. CV07-5001652. The legal claims and allegations of the amended complaints in both cases are parallel except that the plaintiffs in Pease claim to own a dominant parcel situated just to the north of the land of the plaintiffs in Sobaski.
The first count in both cases asserts that the plaintiffs have an easement by grant to traverse land owned by John and Jennifer Bernier, the defendants, to reach Ninth District Road, a public highway in the town of Somers, from their respective properties. The plaintiffs in Pease claim the right to access this putative right of way via another right of way which allows possessors of the Pease property to cross into the Sobaski parcel to join the right of way leading across the Bernier land from the Sobaski parcel which latter right of way is at the heart of this litigation.
The second count alleges that the defendants have denied the plaintiff's use of the claimed right of way across the defendants' land. In the alternative, the third count alleges that the right of way burdening the defendants' property was acquired prescriptively. The plaintiffs seek a judgment quieting title, monetary damages, and injunctive relief.
The Berniers deny all of these allegations and assert the special defenses of laches, estoppel, lack of need, abandonment, discontinuity of use, and extinguishment under the Connecticut Record Marketable Title Act. The defendants also counterclaim in trespass, adverse possession, and seek to quiet title in their favor as well as declaratory and injunctive relief and monetary damages.
In addition to the testimony and exhibits admitted at trial, the court, at the parties' request, personally viewed and walked the purported right of way from Ninth District Road, across the Bernier land, and across property of both sets of plaintiffs. The court finds the following facts and makes the following rulings of law.
On July 24, 1770, Ezra Parsons acquired approximately ninety acres of land, rectangular in shape, on what has been, and still is, colloquially known as Job's Hill. This piece ran from what is now Ninth District Road to Abbey Brook. This conveyance transferred the land which, at its western end, embraces the significant portion of the real estate owned by the parties and upon which the disputed right of way lies.
Ezra Parsons, on January 9, 1815, conveyed the westernmost sixty-five acres of the rectangular piece to his son, Lemuel Parsons. The easterly twenty-five acres of the original ninety acres was sold by Ezra Parsons earlier and are immaterial to the present litigations.
On December 24, 1849, following Lemuel Parson's death, the Somers Probate Court appointed distributors who divided the sixty-five acres as follows:
1. To Lemuel's widow, Lucretia Parsons, as "her Dower or thirds," the thirty-seven acres at the eastern end of the sixty-five-acre tract.
2. To a "son and heir," also named Lemuel Parsons, almost fifteen acres located just to the west of the land distributed to Lucretia, and
3. To another "son and heir," Ezra J. Parsons, thirteen acres forming the western end of the sixty-five-acre piece, which thirteen acres abutted Ninth District Road.
The land distributed to Lucretia and Lemuel Parsons abutted no public highway. A clear illustration of this division by the distributors of Lemuel Parson's land on Job's Hill is Exhibit 1H. That exhibit depicts Lucretia's share in pink, Lemuel's share in green, and Ezra's portion in purple.
The distributors, however, "also set to each of the above named heirs the right to pass across and upon each other's land to their own lands in such a manner as to enjoy all the rights and privileges pertaining to the same." This is the key language upon which the plaintiffs rely as the source in the land records of the express rights of way to access Ninth District Road across the Bernier's property.
This language is critical because, with inconsequential additions and modifications, essentially the Berniers own the land given in 1849 to the sons, and the plaintiffs own the land given to the widow, Lucretia. If one divides her share of land on Job's Hill in half, lengthwise from east to west, the plaintiffs in Pease own the majority of the northern one-half and the plaintiffs in Sobaski own the southern one-half.
Record Right of Way
The first question the court must address is whether the 1849 reservation of mutual rights of way to "the above named heirs" included Lucretia Parsons' "dower" share adjacent to her son's inheritance on Job's Hill. "The term `heirs' in its primary sense means those who would inherit real estate." South Norwalk Trust Co. v. White, 146 Conn. 391, 395 (1959). At common law, this excluded the surviving widow. Id. However, the term is sometimes "construed to include those who take under statutes of distribution." Id.
Under English common law, a surviving wife's dower interest in real estate, a life use, came into being upon marriage and not through distribution upon her husband's death. Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 183 (1927). Therefore, a surviving spouse was not strictly an "heir" because her dower interest was created by the act of marriage and not by the intestate's death. Id.
Connecticut never followed this English rule, however. Brown's Appeal, 72 Conn. 148, 153-54 (1899). Instead, since 1639, in Connecticut the widow's share was through distribution upon her husband's death. Id. "[T]he estate, however, does not arise from the English law of land, but from a statute in aid of Connecticut law of descent and distribution." Id. This statutorily mandated distribution, triggered by her spouse's death, remained "substantially the same" from 1699 until well after the 1849 distribution by the Somers Probate Court in the present case. Id., 154. Because of Connecticut's law of distribution, the term, "heir" is often construed to include the widow's dower share. South Norwalk Trust Co. v. White, supra.
"[T]he technical meaning [of heir] will be given to the word if the intent . . . to use it in a different sense does not appear; but it is a controlling and equally sound rule of construction, that where the intent can be found from the context and the circumstance that intent shall govern." Hartford Connecticut Trust Co. v. Lawrence, supra, 181. And "[t]he meaning and effect of the reservation [of an easement] 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." Castonguay v. Plourde, 46 Conn.App. 251, 257 (1997). Thus, the court must scrutinize the language of the 1849 distribution, the situation of the properties, and all the surrounding circumstances "in order to ascertain" the intent of the distributors. Id.
The use of the word "heirs" by the distributors in 1849 regarding the reservation of mutual rights of way is ambiguous. As noted above, the distribution certificate refers to Ezra and Lemuel as "son and heir" but refers to Lucretia as "widow." This usage might imply that only the sons were "heirs" as that word is employed in the reservation of rights of way.
The particular context and circumstances of the distribution resulted in the shares of land on Job's Hill to Lemuel and Lucretia being landlocked while Ezra's land abutted a highway. It would be very strange for the distributors to grant a right of way to Ezra, who had full access to the public highway, but deny to the widow the right to pass and repass when she otherwise lacked such access.
The court finds that the distributors intended to grant to Lucretia Parsons the right to cross the lands given to her sons so that she might "enjoy all the rights and privileges pertaining to" her share of land on Job's Hill, by having access to Ninth District Road. The court also concludes that this right of way was appurtenant rather than personal. In the absence of evidence to the contrary, it is presumed that a reservation is appurtenant. Castonagay v. Plourde, supra, 258.
Location of Rights of Way
The court next determines that through the years since 1849 the reserved right of way to cross upon the land to the west of that distributed to Lucretia Parsons manifest itself as the cartpath now claimed by the plaintiffs as their right of way across the Berniers' property. An unspecified right to pass and repass across the land of another becomes limited and qualified by the ordinary and historical use by which that right is exercised. Simonds v. Shaw, 44 Conn.App. 683, 690-91 (1997). Also, where a reservation of a right of way is merely described in general terms, later maps may be used to fix the location of the easement if physical evidence supports the depiction on the later-drawn map. Mastronardi v. Infante, 34 Conn.App. 584, 589-91 (1994).
The cartpath is accurately portrayed in Ex. 1A, a survey map entitled "Compilation Plan Showing Properties and Roads In The Area of Ninth District Rd. and Pinney Rd/Jobs Hill Rd.," dated October 31, 2008, and prepared by William P. Palmberg and Son, LLC — Land Surveyors. The route of the cartpath, shown in this survey map runs essentially in the same course as depicted in other exhibits, viz, the locator inset of Exhibit 14, which is an A-2 survey map, dated December 8, 1980, and prepared by Alfred E. Schindler; April 15, 1966 aerial photos of the Job's Hill area, (Exhibits 62-63); a 1948 Connecticut Highway Department map of Somers (Exhibit 16); and a United States Department of Interior geological survey map prepared during World War II by the U.S. Army Corps of Engineers. (Exhibit 18.)
The court's visit to the site of the dispute corroborated that the portion of the cartpath on the plaintiffs' properties conforms to the depiction on the various surveys and maps mentioned above. Also, the driveway on the Bernier property from the Ninth District Road to a barn area also comports with the layout of the cartpath as shown on these exhibits. The cartpath appeared old as revealed by the depth of the roadbed on the plaintiffs' property leading to the Berniers' property.
Heading easterly around 650 feet into the land of the Sobaski plaintiffs from the Berniers' boundary line, the cartpath forks north and south. The northerly branch leads into the property of the Pease plaintiffs, and the southerly branch proceeds to other land of the Sobaski plaintiffs. Because the land distributed to Lucretia Parsons in 1849 entailed both the parcels presently owned by the Pease plaintiffs and the Sobaski plaintiffs, the cartpath has serviced both parcels. The surveys, maps, and photographs noted above document that this has been the case for many years. The court concludes that because the right of way across the Bernier property exists by virtue of the 1849 reservation, both the parcel in the Pease case and the parcel in the Sobaski case are dominant estates with respect to the right of way across the Bernier property.
The burden is on the party seeking to quiet title to prove entitlement to such a determination. The standard of proof is that of ordinary civil cases. Feuer v. Henderson, 181 Conn. 454, 460 (1980). The court concludes that, unless the defendants prevail on their special defenses or counterclaim of adverse possession, the plaintiffs have proven that the cartpath shown in Exhibit 1A is the right of way created by the 1849 reservation benefitting the land distributed to Lucretia Parsons by permitting access to Ninth District Road from the plaintiffs' land across the land owned by the Berniers.
Special Defenses
The defendants' post-trial brief contains no argument as to the special defenses of laches or estoppel, and the court regards these defenses as abandoned.
The third special defense purports to allege a claim of lack of need by the plaintiffs to use the right of way across the Berniers' land. Essentially, the evidence disclosed that the plaintiffs can use other private ways to reach their properties. The court's research discloses no such special defense, under Connecticut law, to a right of way created by grant.
When a right of way is reserved in a conveyance, such as in the present case, the owner of the dominant estate is free to use or refrain from using the right of way as the owner sees fit. "A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land." Smith v. Muellner, 283 Conn. 510, 528 (2007). The right of the owner of the dominant estate to use the right of way is "absolute and unimpaired." Id. It is "well-established" that evidence of frequent use of alternate routes, standing alone, fails to destroy an easement by grant. Id., 530.
The existence of alternate routes may have a bearing as to a determination of equitable remedies, but the lack of need to use a right of way fails to extinguish a right of way created by reservation in a conveyance.
Abandonment and/or Discontinuity of Use
The defendants also contend that the plaintiffs and/or their predecessors in title abandoned any rights of way acquired through the 1849 distribution. In order to succeed on this special defense, the defendants must prove that the plaintiffs voluntarily and intentionally relinquished their right to traverse the defendants' property. Simon v. Miller, 91 Conn.App. 98, 103 (2005). The burden on the defendants is to establish abandonment by clear and convincing evidence, Id., 103-04.
Intentional renunciation of a right of way may be inferred from surrounding circumstances, and nonuse is one important circumstance which may be considered. Id. However, "[m]ere nonuser of an easement created by deed, however long continued is insufficient to establish abandonment." Id., 105 (emphasis added); Rudder v. Mamanasco Lake Association, Inc., 93 Conn.App. 759, 784 (2006). The "nonuser must be accompanied by unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it." Id.
The court holds that the defendants have failed to meet their burden of demonstrating, by clear and convincing evidence, that the plaintiffs or their predecessors in title voluntarily and intentionally ceded their privilege to use the right of way across the defendants' land reserved by the 1849 distribution. The presence on the divers surveys, aerial photographs, and maps show that the cartpath depicted in Exhibit 1A was in use throughout the twentieth century. The court finds credible the testimony of Roger Pease, a plaintiff in the Pease case, that he annually drove a tractor along the cartpath across the Bernier property since 1999 for the express purpose of affirming the continued existence of the disputed right of way. He did so on the advice of his grandfather who owned the Pease parcel before him.
The court also heard credible evidence from Mary Pittman, an older sister of the Sobaski plaintiffs, who recalled riding on her father's tractor, as a child in the 1950s, along the cartpath in question from and to Ninth District Road across what is now the Bernier property. Her family ventured along this route to harvest Christmas trees and other decorative flora as well as to pick blueberries in the summer.
Stephen Sobaski, a plaintiff in the Sobaski case, recalled similar activities, along with the harvesting of cord wood which entailed traveling across the Bernier piece from Ninth District Road to the Sobaski land which was and still is woodland. The court also finds this testimony worthy of belief.
The court's examination of the properties which are the subject of these lawsuits reveals that the roadbed or "shelf" of the cartpath, as shown on Exhibit 1A, is quite apparent on the plaintiffs' properties as is a portion of the roadbed of the cartpath on the Berniers' land. At points, the cartpath exhibits considerable use both by the depth of the wheel ruts and the absence of vegetation. Also, a culvert is present on the Sobaski piece which conducts a stream underneath the cartpath along the approach to the Berniers' land. The culvert pipe is made of modern material but appears several years old. It is obvious that the owners of the cartpath right of way expended a large amount of effort to construct the culvert, and the court infers that it was installed to facilitate continued use of the right of way from the plaintiffs' properties across the Bernier land to Ninth District Road and back.
Considering all the evidence in the case, the court determines that the defendants have failed to satisfy their burden of proving abandonment of the right of way across their land reserved by the 1849 distribution to Lucretia Parsons.
Adverse Possession
In the third count of their counterclaim, the defendants claim to have extinguished by adverse possession rights of way acquired by the plaintiffs through the 1849 reservation. Additional facts are necessary to resolve this claim.
In 1961, Ralph and Lorraine Wetherell purchased what is a substantial portion of the property presently owned by the Berniers. On November 2, 1964, the Wetherells conveyed a power line easement to the Connecticut Light and Power Company (CLP). This power line easement was around 300 feet wide and occupied the eastern section of the Wetherell land on Job's Hill. This power line easement is perpendicular to the 1849 reserved right of way across the Bernier property.
After the power company cleared its easement path, Ralph Wetherell had the cleared lane stumped, graded, and seeded so that it became a pasture. It is still used for this purpose today. The regrading of the 300-foot power line easement obliterated the roadbed of the cartpath within that power line easement. The cartpath can be seen to resume at both the eastern and western boundaries of the power line easement. The eastern boundary of the power line easement generally coincides at this point with the boundary line between the property of the Sobaskis and the Berniers.
Around 1990, Ralph Wetherell constructed a fence along the eastern boundary of the CLP easement. Precisely at the point in this fence line which intersects the cartpath coming from the Sobaski land, Wetherell installed a metal gate. The gate is commensurate in width with the cartpath. The gate had no locking device. These circumstances remain static today.
The Wetherells sold their property on Job's Hill to the Berniers on June 11, 2004. The Berniers argue that the obliteration of the shelf of the cartpath as it traversed the power line easement strip forty-four years ago extinguished any right of way created by the 1849 distribution.
It must be observed that the special defense of abandonment and a claim of extinction of a right of way by adverse use "are separate and distinct methods by which an easement may be extinguished." Boccanfusco v. Conner, 89 Conn.App. 260, 280 (2005). As noted earlier, the court has rejected the defendants' special defense of abandonment.
As to adverse use, "if 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." Smith v. Muellner, supra, 517. The adverse use must persist continuously for fifteen years. Id., 517-18.
Acquisition of a prescriptive easement and extinguishment of someone else's easement by adverse use are "fundamentally" different. Id. Acts considered sufficiently hostile to acquire an easement may be insufficient to extinguish one. Id. The "fundamental" difference is that in gaining an easement the party claiming the easement has "no right to use [the land] in any fashion." Id. Thus, any visible use by the claimant is adequate to start the prescriptive period. Id.
In the extinguishment situation, however, the adverse actor is the fee owner and "is entirely justified in using that land in any way not inconsistent with the existence of the easement." Id. In other words, the ordinary use of the land by the servient estate owner is not adverse or hostile to the right of way, and the fifteen-year period never commences with such ordinary ownership usage. Id. "Accordingly, the acts of a servient owner necessary to extinguish an easement must be distinctly adverse to the existence of the easement and not merely acts showing dominion over the servient estate." Id.
The burden is on the defendants to establish, by clear and convincing evidence, that they and their predecessors in title, the Wetherells, openly and continuously engaged in activity "clearly wrongful as to the owner of the easement." Id., 519. An example of such conspicuously wrongful acts would be the erection of a permanent building which seriously interferes with the right of way. Id.
Where the nature of the right of way demands only rare use by the dominant estate, it is "more difficult for the servient owner to establish the adverse character of behavior." Id. The difficulty arises because the servient owner is able to use his property "quite freely" without impinging on the seldomly used easement. Therefore, improvements constructed upon the land subject to the right of way by the servient owner are not adverse unless the improvements constitute an "unreasonable interference with the servitude." Id., 719-20. "If the improvement is temporary and easily removed, it is generally not unreasonable." Id., 720. The expense and difficulty of removal, along with the nature of the easement, are considerations which may dictate whether a use of the servient property unreasonably interferes with a right of way. Id., 719-20.
Also, as pointed out in the memorandum earlier, the owner of the dominant estate has no obligation to use a right of way created by grant. Consequently, it is a daunting task for the servient owner to demonstrate unreasonable interference with an infrequently used right of way.
With these principles in mind, the court determines that the defendants have failed to prove, by clear and convincing evidence, that the regrading of the CLP power line strip for use as a pasture was such an interference with the plaintiffs' right of way as to be adverse. First, the defendants must show that Ralph Wetherell intended to obstruct the plaintiffs' right of way by regrading his land within the power line easement. It is true that the regrading of the strip and use as a pasture obliterated the wheel ruts and roadbed of the cartpath within the power line strip. But the fact that Wetherell installed a metal gate in his boundary fence exactly where the cartpath entered his land from what is the Sobaski parcel belies any intent on his part to extinguish the plaintiffs' right of way across his land to Ninth District Road. On the contrary, facilitating the use of the cartpath by means of a gate expresses an intent not to interfere with that right of way.
The mere erection of a boundary fence across a right of way has been held insufficiently adverse to extinguish that right of way. Dewire v. Hanley, 79 Conn. 454, 456-57 (1907). In that case, the servient owner assembled a three and one-half-foot thick stone wall across the dominant estate's entry onto the servient estate. The stonewall blocked the passageway for more than the requisite fifteen years. Id. The defendant argued that "if the plaintiff ever had a right to use any of the ground under said wall, that right was lost by the operation of the statute of limitations." Id., 456. Our Supreme Court rejected this argument and observed that the servient owner had a right to construct a border wall and its construction failed to undermine the right of the dominant owner to dismantle it whenever the dominant owner wished to use the right of way despite the long passage of time. Id., 456-57.
Also, the longstanding cultivation of land under a right of way is inadequate to constitute an adverse use. Smith v. Muellner, supra, 524-25. "[C]ourts routinely reject that vegetation on an easement, both cultivated and natural, constitutes adverse use adequate to extinguish the easement." Id., 525. Even the maintenance of an orchard upon the right of way fails to supply adverse use to trigger the prescriptive period. Id.
A servient owner owes no duty to the dominate estate to maintain the right of way for the dominant estate. Id., 525-26. Therefore, the failure of the servient owner to do so cannot form the basis of a lawsuit nor the foundation for extinction by use. Id.
Servient owner obstruction "of an easement by a wire fence, throughout the prescriptive period and well beyond," is also insufficient. Id., 521. For that proposition, our Supreme Court cited American Brass Co. v. Serra, 104 Conn. 139 (1926). In the cited case, the dominant estate comprised a wood lot which only required access for logging "once in thirty or thirty-five years." Id., 142. "[T]he owner of the dominant tract did not use the way, and had no occasion to use the way, and would not have occasion to use it until the wood by natural growth reached a suitable size for cutting . . ." Id., 145. The installation of the wire fence across the right of way to the woodland was inadequate to commence the statutory time period. Id., 150-51.
The plaintiffs' land in the present case is also woodland, and there is evidence of recent logging. The regrading of the CLP. power line easement land did not unreasonably impair the plaintiffs' right to pass and repass across the Bernier land using the cartpath route to and from Ninth District Road. The court rules that the defendants have failed to prove their third counterclaim of extinguishment of the plaintiffs' right of way by adverse use.
Marketable Title Act
In the sixth special defense, the defendants claim the benefit of Connecticut's Marketable Title Act, General Statutes § 47-33b et seq. Section 47-33e nullifies certain interests in land whose geneses predate "the effective date of the root of title" to the property. Under the Act, the phrase "root of title" means that conveyance in the defendants' chain of title "which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined," General Statutes § 47-33b(e).
It is clear that the Berniers have marketable title to their property on Job's Hill under General Statutes § 47-33c. Section 47-33d provides that marketable record title is not subject to easements recited in conveyances which are only mentioned by "a general reference . . . unless specific identification is made therein of a recorded title transaction which creates the easement . . ."
The defendants' roots of title are the deeds conveying land to the Wetherells in the early 1960s. On February 14, 1961, Hartford National Bank and Trust, as executor of the estate of Edward J. Glynn, sold to the Wetherells the bulk of the real estate later transferred to the Berniers.
That deed was recorded in the Somers land records on February 17, 1961. It states that the premises being sold "are subject to such rights of way as may exist or appear of record . . ."
A small portion of the land eventually conveyed to the defendants was transferred to the Wetherells by CLP on November 19, 1964, by a deed recorded on February 2, 1965. That deed lacks reference to any easements except for the power line easement reserved by CLP for itself.
As noted above, the Berniers purchased their property from the Wetherells on June 11, 2004, which transaction was recorded on June 14, 2004.
The nullification provisions of § 47-33d and § 47-33e are subject to the statutory exceptions set forth in General Statutes § 47-33h. The pertinent exception of § 47-33h retains the vitality of an easement that would otherwise be extinguished by the Marketable Title Act "if . . . the existence of such easement . . . is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable . . ." (emphasis added). This exemption from extinction under the Marketable Title Act is sometimes referred to as the "apparent easements" exception. Johnson v. Sourignamath, 90 Conn.App. 388, 402 (2005).
The defendants need not have raised this issue as a special defense. Extinguishment of an easement by the Marketable Title Act is properly raised by a general denial of the plaintiffs' allegations that the easement exists. Coughlin v. Anderson, 270 Conn. 487, 502-04 (2004). Where, as in these cases, the proponent of the easement claims the benefit of the apparent easement exception of § 47-33h, the burden is on that proponent to prove that the exception applies. Id., 505.
As found above, the wheel ruts of the cartpath are visible on the Berniers' property for around 100 feet west of the CLP power line clearing. The roadbed is indistinct across the power line strip, which is around 300 feet wide, because of Wetherell's regrading of this area. However, Wetherell inserted a metal gate in his fence along the eastern border of the power line easement right at the point where the clearly visible cartpath on the Sobaski parcel leads into the clearing of the power line easement. That gate and the conspicuous roadbed of the cartpath on the Sobaski piece just to the east of the power line clearing directly align with the resumption of the wheel ruts of the cartpath on the Berniers' land west of the power line strip. These wheel ruts, in turn, aim toward another gate erected between the defendants' barns. Farther west of that gate lies the driveway which empties onto Ninth District Road.
The court's research discloses no case law construing the words "evidenced by the location . . . upon . . . any part of the land . . . of any road [or] track," contained in the apparent easement exception of § 47-33h. Nor has the court discovered appellate case law defining the quantum of evidence needed to satisfy the statutory exemption. What is obvious is that § 47-33h incorporates an objective rather than subjective perspective when determining whether physical evidence confirms the existence of the right of way. The presence of physical facilities, such as sewer pipes, support the continued life of an easement "whether or not the existence of such facility is observable."
Consequently, the apparent easement exception may appertain even though the defendants were subjectively unaware that the plaintiffs had a right of way across their land. The court interprets § 47-33h to require only that the plaintiffs prove, by a preponderance of the evidence, that sufficient physical evidence of the cartpath right of way on the Berniers' property exists to cause an ordinarily observant owner to have reasonably perceived its existence.
As noted above, wheel ruts are present on the Berniers' land which are directly in line with a continuation of their driveway from Ninth District Road pointing precisely at a substantial gate in their easterly boundary fence exactly at the intersection of that fence with the clearly defined roadbed of the cartpath on the Sobaski parcel. This alignment matches the right of way depicted on the various surveys and maps described above and the 1966 aerial photographs of the Job's Hill area.
Therefore, the court concludes that the plaintiffs have met their burden of proving that the § 47-33h rescues their right of way across the defendants' land from the nullification provisions of the Marketable Title Act.
Conclusion
The court decides in favor of the plaintiffs on the first count of their complaints determining that the plaintiffs' parcels are dominant estates with respect to a right of way across the defendants' property. This determination necessarily means that the court also decides in favor of the plaintiffs on the first and second counts of the Berniers' counterclaims. The third count of that counterclaim was decided against the counterclaimants earlier in this memorandum.
The third count of the amended complaints sets forth the plaintiffs' alternate theory that the right of way now declared by the court to exist by the virtue of the 1849 distribution, was acquired prescriptively. Once an easement by grant is found, the trial court must defer resolution on the prescriptive easement claim until appeals, if any, may be decided. Johnson v. Sourignmath, supra, 407. The court reserves decision on this count pending appeal.
As to the second count of the amended complaint, the plaintiffs allege that the defendants have "wrongfully denied the Plaintiff's continued use of the right of way by advising the Plaintiffs that the Defendant [sic] disputed Plaintiff's right to continue using the right of way because it conflicted with the Defendant's development plans and by so doing the Plaintiffs have been prevented from enjoying and using the right of way." While the plaintiffs have proven these allegations, no pecuniary losses were proven to have incurred as a result of the inability to cross the Berniers' land. In fact, since this dispute arose, the plaintiffs have asserted this right by using the cartpath to access Ninth District Road. Therefore, the court awards nominal damages on this count of one dollar.
The plaintiffs also seek injunctive relief. "Injunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." Peckheiser v. Tarone, 186 Conn. 53, 60-61 (1982). The court must weigh the equities in deciding whether to grant injunctive relief and its content. Id.
The cartpath has been used sparingly in the recent decades. Its use appears limited to tractor and small truck traffic. The width of the wheel ruts determine the extent of past usage. As indicated above, the Berniers have the right to enjoy the use of their land in any fashion as long as that enjoyment does not unreasonably interfere with the plaintiffs' right of way. Again, the Berniers bear no burden to maintain the right of way; instead their burden is to refrain from frustrating its use.
The court enjoins the defendants from erecting permanent structures upon the right of way whose path is depicted in Exhibit 1A; from locking the gates without providing the plaintiffs means to unlock them; and from refusing, upon reasonable notice, to remove obstructions from the right of way placed there by the defendants. The plaintiffs' right to enforce this injunction is limited to use of the right of way by vehicles no larger than a typical farm tractor or small truck and appropriately sized trailer.
Costs to be taxed in the plaintiffs' favor by the clerk.