Opinion
No. CV 07 5005120-S
May 26, 2010
MEMORANDUM OF DECISION
I BACKGROUND
This is an action about whether a valid right of way exists. The plaintiff, Hyde Road Development, (HRD), brought this action in four counts as follows: 1) pursuant to General Statutes § 47-31 to settle title to real property; 2) for a declaratory judgment that it possess the right to construct and maintain a roadway where the alleged right of way exists; 3) for injunctive relief pursuant to General Statutes § 52-480 for malicious erection of structures; and 4) for damages from the malicious erection of structures pursuant to General Statutes § 52-570. The defendant, Pumpkin Associates (Pumpkin), in addition to filing five special defenses, is, by way of counterclaim, seeking 1) a declaratory judgment that the alleged right of way is invalid and/or the proposed use is an improper use; 2) pursuant to § 47-31 to settle the title to the right of way; and 3) injunctive relief preventing the plaintiff or the plaintiff's assigns or successors from utilizing the alleged right of way.
Pumpkin alleges by way of special defenses that: (1) if the easement is categorized as an easement appurtenant, then the alleged right of way is invalid and/or its use is a misuse; (2) if the easement is categorized as an easement in gross, then it was personal to the original grantee and therefore terminated; (3) the right of way was abandoned; (4) the right of way was terminated; and (5) the plaintiff has failed to mitigate its damages.
The matter was tried to the court on two days, November 18 and 19, 2009, where the court heard from five witnesses, and received into evidence numerous exhibits. The parties submitted post-trial memoranda and reply briefs in lieu of oral argument. After having reviewed and examined the evidence, and considered the arguments of the parties in their post-trial memoranda, the court issues this memorandum of decision.
II FACTS
HRD is principally owned by Roger Toffolon. Toffolon also principally owns White Oak Corporation, which at the time the facts of this case came to pass was known as White Oak Excavators (WOE). Toffolon also is the principal owner of the Connecticut Sand and Stone Corporation (CTS S), which has also been known as the Connecticut Sand and Gravel Corporation. CTS S owned a parcel (parcel one) and the Balf Corporation (Balf) owned property adjacent to parcel one (parcel two). Balf wished to have a right of way over property located in the Town of Glastonbury owned by WOE. In 1967, Toffolon made a deal with Balf to mutually exchange right of ways with the result that Balf received a right to cross over WOE's property in Glastonbury, and WOE received a right to cross over parcel two. WOE's right to cross over parcel two is the right of way at issue. The right of way was codified into a deed and granted WOE "its successors and assigns forever" the right to construct, maintain and repair a roadway, fifty (50) feet in width over" parcel two. Toffolon testified that the corporations he principally owned used this right of way to haul raw earth materials from parcel one. On November 21, 2001, CTS S sold parcel one to Hyde Road Development (HRD).
Toffolon also testified that at the time he received the right of way the land was vacant land, and Balf had used the land to obtain raw sand and gravel. When he obtained the right of way, he graded it, and used it to access his property.
In the warranty deed from CTS S to HRD, the description of the property conveyed includes the following language, which would appear to be the right of way at issue in this case, although the right of way was never in favor of CTS S. "Together with such rights granted to Connecticut Sand Stone Corporation, 50' in width along the westerly property line and continuing to Hyde Road . . ." (Plaintiff's Exh. 4). Although the court was not furnished with the map referenced in this warranty deed, another map introduced at trial entitled, Conservation Easement Map in favor of the town of Farmington, Land of Hyde Road Development, LLC, Executive Drive, Farmington, Connecticut, depicts the right of way, and reads: "50' right of way in favor of Conn. Sand Stone Corp. Vol. 185 P. 20," which is the right of way from Balf Co. to White Oak.
On February 14, 2001, Pumpkin purchased parcel two. Pumpkin is a manufacturing business, owned and operated by Joseph Gilberti. Gilberti testified that he was aware of the existence of the right of way when he purchased parcel two, but believing it to be limited to the occasional truck passing through, was not deleted by it. In fact, the right of way was identified on the appraisal report, which was procured by Farmington Savings Bank, in order to estimate the market value of the property at the time of the purchase (Plaintiff's Exh. 18); the right of way was listed as an encumbrance on the deed to Pumpkin; and the alleged right of way was identified on the Connecticut Attorneys Title Insurance Company Policy insured on behalf of Farmington Savings Bank (Plaintiff's Exh. 19). At the time Gilberti purchased parcel two, the right of way sported two landscaping islands, a loading dock, and a parking area that were put in by Pumpkin's predecessor and a portion of the right of way was paved by the town of Farmington. These changes were approved during a 1995 Zoning and Commission hearing for a special permit and site approval for the initial construction of the building situated on parcel two. At that hearing, a representative from CTS S, Joseph Derby, was present and spoke in favor of the plan. (Defendant's Exh. H.) Toffolon testified that he was generally in favor of the development of that area, presumably because any development would in turn enhance his property.
Plaintiff's Exhs. 18 and 19 were admitted for the limited purpose of indicating that each listed the right of way on the reports. The exhibits were not admitted to indicate the validity itself of the right of way.
The minutes indicate that "[s]peaking in favor of the application were Joe Derby on behalf of Roger Toffolon, Geoff Sager and Jean McCarthy . . ." (Defendant's Exh. H).
In 2003, HRD began negotiations with AT T, who was interested in acquiring a site for a cell phone tower on HRD's property. HRD entered into an Option and Lease Agreement with AT T, whereby AT T would lease a portion of the HRD parcel to install and maintain a cell phone tower (Cell Tower Agreement, Plaintiff's Exh. 9). Under the terms of the Cell Tower Agreement, HRD was to receive $2,000 per month for the lease of its land to AT T. In order to construct and maintain the tower, a roadway would need to be constructed over the right of way, and utilities would need to be installed thereunder for access to the tower. Derby, on behalf of Toffolon, approached Gilberti concerning HRD's desire to use the right of way. Gilberti objected, taking the position that HRD had no right of access over the fifty-foot right of way, claiming that the right of way is invalid, and/or that the proposed use, including the installation of utilities through the right of way, is improper. Gilberti also testified that due to the proximity of the loading dock of his building to the right of way, HRD's proposal to construct a road will prevent him from using the loading dock for his business operations. Due to Pumpkin's objection and the delay, the cell tower has not been built, the roadway has not been constructed, and the contract with AT T has been terminated.
Through a series of amendments and assignments, AT T's rights under the Cell Tower Agreement were transferred to Verizon Wireless. (Plaintiff's Exhs. 10-12.)
Although AT T has walked away from the proposal, Toffolon testified he has been contacted by other carriers to construct a cell phone tower.
During its ownership, Pumpkin added structures: a security gate, a pole, and a camera. Gilberti testified that soon after he moved his business into the property, there were several reported robberies outside the building. Because the robberies occurred at night, and the back parking lot is secluded, he installed the security camera as well as the gate, which runs across the alleged easement and is closed every night. Gilberti did not recall if these erections were built prior to 2003 or after. He did not seek any approval from either the Town of Farmington, or from HRD.
On December 2, 2005, White Oak Corporation granted, by way of a quit claim deed, its interest in the fifty-foot right of way and "permanent easement," described in the right-of-way agreement from BaIf to HRD. The conveyance was recorded in the Farmington Land Records on December 5, 2005. (Plaintiff's Exh. 8.)
On June 1, 1987, White Oak Excavators filed a Certificate of Change of Name, changing its name to White Oak Corporation. (Plaintiff's Exh. 7.)
III STANDING MOOTNESS
Pumpkin first argues that HRD lacks standing and that this issue is moot. "Standing concerns the legal right of an individual to set the machinery of the courts in operation." Alarm Applications, Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545 427 A.2d 822 (1980). "When standing is put in issue, the question of whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded." (Internal quotation marks omitted.) Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 558, 499 A.2d 797 (1985).
"A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347-48, 562 A.2d 499 (1989). "[B]efore a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires: (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of a being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complaint." (Citation omitted; internal quotation marks omitted.) Id., 347.
Pumpkin's arguments on these two issues are unpersuasive. First, as successor-in-interest to the right of way, HRD categorically has standing to bring this action. Anyone claiming an interest in land has standing to bring an action to quiet title. See, General Statutes § 47-31 ("An action may be brought by any person claiming title to, or any interest in, real or personal property . . . against any person who may claim to own the property, or any part of it, or to have any estate in it . . .").
Second, the parties are clearly in an argument over what interest each party has in the alleged right of way. HRD is claiming that the loss of a contract and interference with its use while Pumpkin is arguing that HRD is interfering with the quiet enjoyment of its property. While Pumpkin argues that the loss of the cell phone tower contract makes this case moot, the loss has not stopped the disagreement between the parties nor has it clarified what rights each party has to this alleged right of way. Thus, HRD has standing to bring this action, and a justiciable controversy exists.
IV THE IMPORTANCE OF EASEMENT CLASSIFICATION
The parties argue over whether the legal classification of this right of way either as an easement appurtenant or an easement in gross is crucial in defining the rights of the parties or whether the matter is purely academic. "All easements . . . are classified as either easements appurtenant or easements in gross." Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 559, 524 A.2d 667 (1987). "The most important classification of easements differentiates between easements appurtenant and easements in gross." J. Bruce J. Ely, Law of Easements and Licenses in Land, § 2:1, pg. 2-2 (2010). "[I]t remains necessary to clarify easements as either appurtenant or in gross for the purposes of assessing transferability and determining the rights of successors in interest." Id., § 2:2, pg. 2-5. Because the classification of the right of way either as appurtenant or in gross gives rise to the rights and liabilities of the parties involved, such a determination in this case is necessary.
A. Definitions
The essential difference between the two types is that an easement appurtenant belongs to the land whereas an easement in gross belongs to the person. In an easement appurtenant, there are "[t]wo distinct estates . . . the dominant to which the easement belongs and the servient upon which the obligation rests." (Internal quotation marks omitted.) Irving v. Firehouse Associates, LLC., 95 Conn.App. 713, 728, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006). Conversely, "[a]n easement in gross belongs to the owner of it independently of his ownership or possession of any specific land. Therefore, in contrast to an easement appurtenant, its ownership may be described as being personal to the owner of it." Id., 728-29.
B. Determining What Type of Easement This Is
In order to decide whether the right of way is appurtenant or in gross, the court must interpret the deed granting this interest and consider the surrounding circumstances. "The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . [H]owever, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances." (Emphasis in original; internal quotation marks omitted.) Bolos v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 140-41, 735 A.2d 798 (1999). "The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . ." (Emphasis added; internal quotation marks omitted.) Castonguay v. Plourde, 46 Conn.App. 251, 257, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
HRD has argued that, when the right of way was granted, Toffolon and the owners of the Balf corporation intended to exchange beneficial easements; therefore, the right of way was intended to benefit both WOE, the named grantee, and CTS S, the owner of parcel one, which were both owned primarily by Toffolon. Pumpkin, conversely, argues that if the court were to follow HRD's argument, it would essentially be allowing Toffolon to rewrite the original grant over forty years after it was created to include a benefit to CTS S. Furthermore, Pumpkin argues that Toffolon's testimony is biased because he is the principal owner of HRD, there is no one to corroborate Toffolon's testimony as to the intent of the parties when the right of way was originally granted, and questions the credibility of Toffolon's memory considering he is ninety years old and had some failures in memory while testifying.
At trial both parties produced attorneys, Robert Moran on behalf of Pumpkin and Robert Myers on behalf of HRD, who are experienced in the area of real estate law, to testify as to Connecticut title searching practices and standards, title searches performed on this property, and general experience with the law of easements as it exists in Connecticut. "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." Conn. Code of Evid. § 7-2. "[A] witness is incompetent to offer a legal opinion except on the issue of foreign law." Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn.App. 292, 299, 614 A.2d 1255 (1992). In this case, the court permitted their testimony as to title searching practices and standards, title searches performed on the property at issue, and their experiences and understanding of the interpretations of easement law. However, in accordance with the Connecticut Code of Evidence § 7-3, the court did not permit these witnesses to testify as to the ultimate issue concerning the validity of the right of way at issue.
"Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue." Conn. Code of Evid. § 7-3(a).
First, the court acknowledges Pumpkin's concerns regarding Toffolon of bias and the fallibility of human memory and will, in accordance with established Connecticut law, look to the language of the deed and the surrounding circumstances at the time of the grant. It is not in dispute that Toffolon was the principal owner of both WOE and CTS S, and that Toffolon negotiated with Balf for an exchange of beneficial easements. It is also not in dispute that the grant of the right of way is from Balf to WOE and WOE's "successors and assigns." The parties also agree that parcel one was owned by CTS S at the time of the grant and that the right of way at issue crossed over parcel two, which was owned by BaIf at the time. Lastly, the parties agree that WOE did not have any property interest in parcel one at the time of the grant and did not own any property abutting parcel two such that the right of way over parcel two could ever reach any property owned by WOE.
Taken individually, some of these facts will support the presumption of an easement appurtenant while others support an easement in gross. "An easement of way will never be presumed to be personal when it can fairly be construed to be appurtenant to land." Blanchard v. Maxson, 84 Conn. 429, 433, 80 A. 206 (1911). "Rights of access are, by nature, easements appurtenant to the land." (Internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn.App. 164, 174, 772 A.2d 1142, cert. denied, 256 Conn. 934 (2001). "The general rule is that an easement may be construed as personal only when the deed language fails to contain the words heirs, successors and/or assigns . . . The absence of words of inheritance may create a presumption that the easement was intended to be personal, but the force of that presumption is negated if the easement serves to enhance the value of the dominant estate, and it appears from all the surrounding circumstances that the parties intended to create a permanent easement . . . If an easement is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross." (Citations omitted; internal quotation marks omitted.) Irving v. Firehouse Associates, supra, 95 Conn.App. 729. "If [the right of way] is of value to the property to which it is appurtenant and will continue to be of value whoever may own the property, that is strong evidence that the parties intended a permanent easement." (Internal quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 42, 450 A.2d 817 (1982).
The essential problem with the right of way in this case is that it benefits parcel one but is named to a corporation that does not have a property interest in that parcel. The only connection between WOE and CTS S is that they are both principally owned by Toffolon. According to Toffolon's testimony, the grant was made to WOE because the property Balf wished to obtain a right of way over was owned by WOE. Thus, both Balf and WOE were grantees and grantors. Essentially Toffolon wished both WOE and CTS S to be able to utilize the right of way over parcel two. However, Toffolon's belief that the mutual exchange of easements could benefit both corporations ignores the basic principles of corporate law. While Toffolon is the majority owner of both WOE and CTS S, both are separate legal entities and the outside world cannot assume that when Toffolon acts on one corporation's behalf he is acting to benefit all others he serves as majority owner thereof. Therefore, if the right of way was an easement in gross, the mere fact that Toffolon owned CTS S would not be enough for CTS S to automatically have a beneficial interest in the deed because the deed would be personal to WOE.
Taking all of the conflicting factors into account, the facts weigh more heavily that this right of way is, and was intended to be, an easement appurtenant held by WOE but benefitting the owner of parcel one. The plain language of the deed gives rise to the inference that the right of way was intended to be appurtenant and belong to parcel one. It creates a right of access from parcel one over parcel two and includes the magical language "successors and assigns," and also grants a "permanent easement." This right of access allows parcel one, a dominant estate, to benefit from a use of a portion of parcel two, a servient estate, thereby enhancing the enjoyment of parcel one, which was intended to last forever.
The court credits the testimony of Attorney Meyers that several factors are considered in determining whether an easement is appurtenant or in gross and, taking all these factors as a whole, will determine what interest was intended by the parties. This testimony is in line with binding case law authority.
The only factor weighing against calling this right of way an easement appurtenant is that the deed gives title to WOE who did not own parcel one. While at one point in legal history this would have given pause under the unity of title doctrine, which required that title to both the dominant estate and the right of way be held by the same person, Connecticut courts have abandoned this doctrine in its entirety. See Bolan v. Avalon Farms Property Owners Association, Inc., supra, 250 Conn. 144; Irving v. Firehouse Associates, supra, 95 Conn.App. 730. The destruction of the unity of title doctrine suggests that it is entirely plausible that an easement appurtenant can be for the benefit of a parcel but placed in the name of someone other than the owner of the dominant estate. The encumbrance would still be listed on the deed to the servient estate, which would provide notice to any subsequent purchasers or devisees. While the easement may not be listed in the chain of title to the dominant estate, at worst an unwitting subsequent purchaser or devisee of the dominant estate will make a happy discovery.
Furthermore, there is no supporting evidence that suggests this right of way was intended to be in gross. Such a finding would suggest that WOE benefitted from a right to cross parcel two when it had no legal interest in parcel one. It is difficult to imagine what practical use a right of way over parcel two would be to anyone other than the owner of parcel one. Considering that the great weight of factors all point that this easement was intended to be appurtenant to parcel one, the right of way shall be deemed to be an easement appurtenant.
V VALIDITY A. Does the Dominant Estate Need to be Mentioned in the Deed?
Pumpkin argues that the right of way cannot be a valid easement appurtenant because the dominant estate was not mentioned in the deed. It argues that Toffolon's ownership of multiple corporations is irrelevant and that the deed never mentions that CTS S has an interest. HRD counters that the dominant estate does not need to be mentioned and that the court can find the dominant estate by looking to the surrounding circumstances.
"Obviously, it is sound conveyance practice to identify the dominant estate in a deed, but generally this is not essential to the creation of an easement appurtenant." J. Bruce J. Ely, supra, § 2:3. If the deed does not identify the dominant estate, it is the party claiming the right to the easement appurtenant to show what property is benefitted. Branch v. Occhionero, 239 Conn. 199, 206, 681 A.2d 306 (1996). Here, HRD has shown that parcel one was the only parcel that could possibly be benefitted by this right of access, and was in fact the intended dominant estate.
B. Does the Dominant Estate Need to be Adjacent to the Servient Estate?
Pumpkin also argues that WOE never owned an estate that was adjacent to parcel two such that the right of way would create a valid easement appurtenant. Rather, it argues that because WOE did not own any property within one mile, no valid easement appurtenant can be found. As discussed above, because the Supreme Court has abolished the unity of title doctrine, there is no need for WOE to own the dominant estate. Thus, the easement remains a valid easement appurtenant.
VI TRANSFERABILITY
"An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed . . . [An easement appurtenant] inheres in the land and cannot exist separate from it nor can it be converted into an easement in gross . . . An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant." (Citation omitted; internal quotation marks omitted.) Harkins v. Girouard Estates, Inc., 31 Conn.App. 485, 495, 625 A.2d 1388, cert. denied, 227 Conn. 906, 632 A.2d 691 (1993). In this case, the right of way is appurtenant to parcel one. The right of way lived with parcel one. Thus, it seems logical that the owner of parcel one should be entitled to hold an ownership interest in the right of way that lives with its land and that such a transfer would be appropriate. CTS S conveyed parcel one to HRD. Consequently, as the owner of parcel one, HRD was a permissible transferee of this right of way.
It should be noted that even if this right of way were an easement in gross, it is possible that it might be transferrable. While traditionally courts did not permit the transfer of easements in gross; Hall v. Armstrong, 53 Conn. 554, 556, 4 A. 113 (1886); some modern courts recognize that easements in gross may be transferred when they are used for commercial purposes or if the parties creating the servitude desired it to be transferrable. J. Bruce J. Ely, supra, § 9:4-9:7. This modern trend supports the above analysis. However, the parties have not cited any binding Connecticut authority to support this proposition. Further, considering the right of way is more properly characterized as appurtenant, the court need not reach this issue.
VII UTILITIES
The next issue the court must decide is the scope of this right of way. HRD argues that it was intended to be a road and that use as a road contemplates the installation of utilities. Furthermore, HRD argues that a right of way can evolve over time to accommodate the development of the dominant estate. Pumpkin, however, counters that scope should extend only so far as is reasonably necessary and should place as small a burden as possible on the servient estate. Furthermore, Pumpkin argues that the court should look to location of the right of way and the character of the two parcels when the deed was granted in determining what uses are within the scope of the easement.
When what "is necessary for the use and enjoyment [of an easement] is uncertain, a standard of reasonableness is imposed." Connecticut Light Power Co. v. Holson Co., 185 Conn. 436, 443, 440 A.2d 935 (1981). "The reasonable uses of the dominant estate in connection with which the easement may be used are not limited to those to which the land was being put when the easemnent was granted." Lichteig v. Churinetz, 9 Conn.App. 406, 410, 519 A.2d 99 (1986). "Our courts have upheld as reasonable uses which were not contemplated by the original grant." Id. However, "[t]he 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." (Internal quotation marks omitted.) Strollo v. Iannantuoni, 53 Conn.App. 658, 660, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999). "[A]lthough the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement." (Internal quotation marks omitted.) Sanders v. Dias, 108 Conn.App. 283, 291, 947 A.2d 1026 (2008).
"The laying of pipes for water, gas, or oil is not generally considered incidental to the rights of an owner of a right of way since such installations constitute an additional burden upon the servient tenement or a trespass." 25 Am.Jur.2d, Easements Licenses § 78 (2004). "However, it may determined by the court that the purpose for which the easement was intended includes the right of the dominant owner to install or extend utilities along the grant." Id.
The installation of utilities does not put a heavy burden on the servient estate, was a foreseeable right within the grant to build a roadway, and may be considered reasonably necessary for the enjoyment of parcel one. Firstly, while the installation of utilities is not included in the actual language of the grant, it does not place an unreasonable burden on the servient estate. The language of the deed grants the right to "construct, maintain, and repair a roadway" over parcel two, which naturally permits HRD to turn the right of way into a paved roadway. Jeffrey Ollendorf, Farmington's town planner, testified that utilities are typically part of the construction of a road. While, at the time of the grant parcel one was zoned only for earth excavation, parcel one is now zoned for commercial use. Toffolon testified that the parties to the deed intended to permit utilities to be installed eventually. This testimony makes sense considering the parties specifically granted the right to build and maintain a roadway. Thus, the right to install utilities is within the scope of this right of way.
VIII DEFENSES A. Waiver, Estoppel, Laches
Pumpkin has argued that HRD waived its claim in the right of way when its agent, Derby, represented HRD's approval of the landscaping islands and paving at the 1995 zoning hearing. Further, Pumpkin argues that HRD is estopped from forcing Pumpkin to remove any alleged encroachments because HRD's agent had expressed that it had no objection to their existence. Lastly, it argues that the approval of the landscaping islands and paving was over twelve years ago, thus, laches bars HRD from making a complaint about it now.
"Waiver is the intentional relinquishment of a known right . . . Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352-53, 885 A.2d 194 (2005). Estoppel requires "proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Id., 353. "Waiver is a species of estoppel. Both have roots in equity and may be implied from the acts or conduct of the parties." Frantz v. Romaine, 93 Conn.App. 385, 400, 889 A.2d 865, cert. denied, 277 Conn. 932, 896 A.2d 100 (2006). Lastly, "[t]he defense of laches, if proven, bars a [party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]." (Internal quotation marks omitted.) Fromm v. Fromm, 108 Conn.App. 376, 385, 948 A.2d 328 (2008).
In this case, HRD has not taken any actions to waive its rights to the right of way or cause Pumpkin to rely to its detriment. HRD's predecessor, CTS S endorsed the paving of a portion of its right of way by the town. However, paving the right of way is consistent with the intended use of the right of way as a roadway. The fact that CTS S allowed the town to pave a portion of the right of way only shows that it permitted the town to use the right of way consistent with its intended purposes. Furthermore, Pumpkin has not shown how it changed its position from the CTS S's failure to object to the installation of landscaping islands from Pumpkin's predecessor in interest. Here, the islands existed prior to Pumpkin having any interest in the parcel. It would be quite impossible for it to change its position based on representations that were made before it had any position to take. Further, Pumpkin did not expend money, time, or effort in the erection of these islands and has, therefore, suffer no injury and any delay on the part of HRID cannot be said to have prejudiced the Pumpkin. Consequently, these defenses are not applicable.
B. Statute of Frauds
"Easements, as interests in land, must meet the requirements of the Statute of Frauds . . ." J. Bruce J. Ely, supra, § 1:29. "The statute of frauds requires the essential terms of contracts for the sale of real estate to be evidenced by a writing, consisting of the subject of the sale, its terms and the parties to it." BRJM LLC. v. Output Systems, Inc., 100 Conn.App. 143, 155 n. 10, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). In this case, the essentials of this land grant are mentioned in the deed. The grantor, Balf, gave to the grantee, WOE, a right of way over parcel two for the purpose of building a road there in consideration for one dollar. The parties, what property, and what consideration are all clear from the face of the deed. Thus, the statute of frauds will not provide a bar to upholding this grant.
C. Abandonment
Pumpkin argues that because it used the right of way adversely to the interests of HRD, HRD effectively abandoned the right of way and can no longer claim an interest in it. HRD counters that only affirmative actions by the dominant estate owner constitute abandonment. Because HRD took no such actions, it argues that it did not abandon the right of way.
HRD is correct that the abandonment of an easement requires "unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it." Smith v. Muellner, 283 Conn. 510, 527, 932 A.2d 382 (2007). Pumpkin has not pointed to any such actions taken by HRD, but rather seems to argue that HRD's lack of objection in Pumpkin's adverse use constitutes abandonment. However, inaction does not constitute abandonment of an express easement. Considering this is an express easement and there has been no affirmative action on the part of HRD that would indicate it no longer desired to maintain its property interest, HRD cannot be said to have abandoned its interest.
D. Termination
"Although the law does not favor termination of property rights, a deeded easement may be extinguished by acts of the owner of the servient tract, showing an intent to obstruct the dominant owner's enjoyment of the easement." (Internal quotation marks omitted.) Smith v. Muellner, supra, 283 Conn. 517. "[T]he 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., 518. "[A]n act that serves to start the prescription period in the servient [owner's] favor must be one clearly wrongful as to the owner of the easement, for example, the erection of permanent structures, such as . . . building[s] . . . or other obstructions seriously interfering with the right of use . . ." (Emphasis in original; internal quotation marks omitted.) Id., 519. "It is essential, in order that the user be adverse, that it be such as would give rise to a right of action to the dominant owner, since otherwise he might be deprived of the right without the power to prevent it." (Internal quotation marks omitted.) Id., 520. "In Connecticut, such adverse use, to effect extinguishment, must persist continuously for a period of fifteen years." Id., 517-18; General Statutes § 47-37.
In this case, Pumpkin has erected a gate and a security camera, and maintains the landscaping islands placed by his predecessor. Furthermore, the town of Farmington paved a portion of this right of way in 1995. Pumpkin points to the fact that HRD claims the structures Pumpkin erected on its property interfere with HRD's use as evidence that HRD's interest has been terminated through Pumpkin's adverse use and the partial paving of the right of way by the town.
Unfortunately for Pumpkin, none of these structures has existed long enough to constitute a termination. Pumpkin has only owned parcel two since 2001. It is impossible for gate and security camera to have interfered with HRD's use for the requisite fifteen years since the gate and security camera did not exist until, at the earliest, February of 2001. Furthermore, the landscaping islands were erected sometime in 1995, but cannot be said to have existed without complaint of HRD for the required fifteen years considering this action was commenced in 2007. Therefore, the easement has not been terminated.
IX INJUNCTIVE RELIEF
HRD is seeking injunctive relief under General Statutes § 52-480 for malicious erection of structures and is asking the court to require Pumpkin to remove the gate, security camera lamp post, and landscaping islands in order that it may construct a roadway. Under § 52-480 a structure is considered maliciously erected when 1) it was erected with the intent to injure the property owner in his enjoyment of the land 2) the structure actually injures the enjoyment of the property 3) the structure causes a decrease in the value of the adjacent property and 4) the structure primarily served to injure the plaintiff rather than serve a legitimate and useful purpose for the defendant. "Whether a structure was maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." DeCecco v. Beach, 174 Conn. 29, 32, 381 A.2d 543 (1977).
General Statutes § 52-480 provides: "An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same."
While HRD only plead that the landscaping islands were a malicious erection in its complaint, the court allowed the parties to present evidence regarding the malicious erection of the gate and security camera. Gilberti and Toffolon both gave testimony regarding these erections and Defendant's Exh. F, a photograph, shows their existence on the property at issue.
In this case, the structures cannot be said to be malicious erections. The court credits the testimony of Gilberti that the security camera and gate were erected in response to robberies at parcel two. Consequently, these erections were placed with the purpose of deterring future crimes and not with the intent to annoy or injure its neighbor in the use of its right of way. While these structures may have in fact hindered HRD, they primarily serve a legitimate and useful purpose to Pumpkin. Considering Pumpkin lacks the requisite intent to be malicious, the structures cannot be considered malicious erections.
However, as the court has already stated above, this right of way is a valid easement appurtenant, and the court finds that the gate serves to block HRD's use of this easement. Gilberti testified that the gate was closed every night with the intent to block access to the driveway. It would be incongruent for the court to find that HRD has a valid and express right of way over parcel two, but then also find that Pumpkin may block the HRD's access to that right of way. Therefore, Pumpkin must remove the gate, which serves to hinder HRD in its enjoyment of its right of way.
X DAMAGES
HRD also seeks damages pursuant to General Statutes § 52-570, again for malicious erection of structures. HRD claims to have suffered the loss of the cell phone tower contract, which it estimates is worth $275,233.11 in lost rental income. It also claims to have suffered a loss to its property value by Pumpkin denying it the ability to build a roadway, which it estimates is a loss of $150,000. Pumpkin argues that HRD has not proved that the structures encroach on HRD's property rights. Furthermore, Pumpkin argues that HRD did not plead the loss of the cell phone tower contract in its complaint and, therefore, it should be estopped from raising this loss at trial. Lastly, Pumpkin argues that if the court finds that HRD suffered damages through the loss of the cell phone tower contract, that HRD failed to mitigate these damages by finding a new renter.
General Statutes § 52-570 provides: "An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land."
HRD made no claim for tortious interference with its contractual relationship with AT T.
The same standard from § 52-480 applies here; the court must find that the structures were erected with the intent to injure HRD and that the structure decreased the value of HRD's property.
Once again, these structures cannot be said to be malicious erections because they primarily serve a legitimate purpose to Pumpkin and were not erected with the intent to injure and annoy HRD. While, as outlined above, the security gate does interfere with HRD's use, "[i]njunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." (Internal quotation marks omitted.) Peckheiser v. Tarone, 186 Conn. 53, 60, 438 A.2d 1192 (1982). Furthermore, HRD has only suffered minimal harm, which "is an insufficient springboard for an award of substantial damages" Mackin v. Mackin, 186 Conn. 185, 191, 439 A.2d 1086 (1982). Once, the gate has been removed, the injury to HRD will be removed, it will be able to rent its property, and the value to the property will remain the same. Since the gate was not erected maliciously and the injury to HRD may be cured through injunctive relief, HRD shall not receive monetary damages.
XI CONCLUSION
For the foregoing reasons the court finds that the right of way is a valid easement appurtenant containing the right to build a roadway containing utilities and that Pumpkin must remove the gate and any other structures and/or plantings in order to allow HRD to build its roadway. Furthermore, HRD is not entitled to monetary relief.