Opinion
No. CV 09 5012770
November 3, 2011
MEMORANDUM OF DECISION
This is an action in which the plaintiffs, Christine Kepple and Mark R. Kepple, seek a declaratory judgment finding the defendants, Linda Dohrmann, William F. Dohrmann, Frank Lionelli and Jane H. Lionelli, legally bound by a visual easement, requiring the defendants to remove or trim all objects presently in violation of the easement and enjoining the defendants from any future violations. The defendants claim that the plaintiffs have a private restriction, not a visual easement and, therefore, this action is barred by the three-year statute of limitations found in General Statutes § 52-575a. The defendants alternatively claim that any violation of the restriction has been open and visible for fifteen years or more and, therefore, if the court determines that a visual easement exists, it has been extinguished by adverse possession.
I
The facts in this case are not in dispute. The parties have filed a stipulation of facts, which includes the following pertinent facts. The parties own three adjoining residential properties in Stonington, Connecticut, as depicted on the map entitled "Subdivision Plan, Great Bay Estates, Property Survey for Ann Schmidt, Dated September 27, 1979" (subdivision map), which was recorded as Map #2052 with the Stonington town clerk. In connection with the subdivision's creation, a document entitled "Restrictive Covenants and Agreements" (Covenants and Agreements) was recorded on April 3, 1980, in Volume 226 at Page 412 of the Stonington Land Records.
The defendants Dohrmanns own Lot A as shown on the subdivision map. The defendants Lionellis own Lot B as shown on the subdivision map. The plaintiffs own Lot C as shown on the subdivision map. The properties owned by the parties in the present case are subject to the Covenants and Agreements.
The Covenants and Agreements preface notes that "certain properties . . . designated as Lots A, B, [and] C . . . shall henceforth be subject to the following restrictions . . ." Paragraphs 6 and 7 address the restrictions on defendants Lionellis' property. Paragraph 6 notes that "[t]he remaining portion of Lot B shall be subject to a visual easement to the benefit of Lots C and D . . ." Paragraph 7 states that "[n]o trees, bushes, shrubs, or man-made objects or any other natural or unnatural substance on the remaining portion of Lot B which shall not be used for residential building purposes as defined in Paragraph 6 may attain a height which shall arise five (5) feet above the highest natural point of Lot C . . ." Paragraph 8 addresses the restrictions on the Dohrmanns' property, indicating that "no tree, bushes, shrubs, man-made objects, or any other natural or unnatural substances shall attain such a height as to rise five (5) feet above the highest natural point within the confines of the building area of Lot C . . ." Paragraphs 10 and 11 conclude that the "restrictions shall be construed to be covenants running with the land."
The defendants have allowed vegetation on Lot A and Lot B to attain a height that exceeds the permitted maximum height provided in the Covenants and Agreements.
II
There are two issues before the court: (1) whether the plaintiffs' right to enforce the height restriction is barred by the three-year statute of limitations set forth in § 52-575a; and (2) whether the plaintiffs' right to enforce the height restriction is extinguished by adverse possession.
A
The defendants argue that the Covenants and Agreements granted the plaintiffs a private restriction and, therefore, the plaintiffs' claim is barred by the three-year statute of limitations provided in § 52-575a. The plaintiffs claim that the vegetation restriction pursuant to the Covenants and Agreements constitutes a visual easement and, therefore, § 52-575a does not apply to their rights.
General Statutes § 52-575a provides in relevant part: "No action or any other type of court proceeding shall be brought to enforce a private restriction recorded in the land records of the municipality in which the property is located or a notation on a filed map pertaining to the use of privately owned land, the type of structures that may be erected thereon or the location of same unless such action or proceeding shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation."
"An easement has been defined as [a] right of use over the property of another . . . An easement is a privilege which one person has a right to enjoy over the land of another, for the benefit of the easement holder's land, but it does not create an interest in the land itself . . . Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters." (Citations omitted; internal quotation marks omitted.) Posick v. Mark IV Construction Co., 109 Conn.App. 777, 780-81 (2008). The Restatement (Third) on Property, Servitudes, defines an easement as "creat[ing] 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." (Emphasis added.) 1 Restatement (Third) Property, Servitudes § 2, p. 12-13 (2000).
"A restrictive covenant is a negative covenant that limits permissible uses of land." 1 Restatement (Third) Property, Servitudes § 1.3, p. 23 (2000). "Restrictive covenants as to the use of land . . . may create easements. Such covenants, being limitations on the manner in which one may use his or her own land, generally do not create true easements, however." (Internal quotation marks omitted.) Perkins v. Old Hill Farm, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 06 4015875 (May 25, 2007, Tyma, J.).
In Patricelli v. First Capital Equity Corp., Inc., Superior Court, judicial district of New Haven, Docket No. CV 0293437 (November 1, 1990, Fracasse, J.), the plaintiff brought a claim pursuant to the defendant's alleged violation of a restrictive covenant that stated in relevant part "that no building will hereafter be erected, maintained, or permitted on the remaining portion of [the defendant's property] . . . and that no hedges, fences, or bushes will be permitted or maintained on the remaining portion of [the defendant's property] which will unreasonably obstruct or interfere with the Southerly view over [the defendant's property] from the dwelling house . . ." Id. The court held that the defendant had sufficiently proven the allegations of its special defense under § 52-575a, finding that the plaintiff's claim "is an action to enforce a recorded private restriction . . . pertaining to the use of privately owned land . . . within the meaning of § 52-575a." (Internal quotation marks omitted.) Id.
Moreover, in Burrows v. Ferrigno, Superior Court, judicial district of New London, Docket No. CV 07 5002954 (April 20, 2010, Devine, J.) ( 49 Conn. L. Rptr. 643), the court addressed a similar set of factual circumstances in determining the applicable statute of limitations for the plaintiffs' claim that the defendant failed to maintain the natural foliage height restriction set forth in a restrictive covenant burdening his property. While the plaintiff argued that the covenant constituted an easement, the court disagreed, finding that § 52-575a applied, as the covenant "[did] not fall within the Restatement's definition of an easement because it does not provide any right to enter and use [the defendant's] land." (Internal quotation marks omitted.) Id., 645. The court further noted that the preface of the covenants "specifically states that the restrictions therein shall be construed `restrictive covenants running with the land,' a construction more conducive to the application of § 52-575a." (Internal quotation marks omitted.) Id.
Similarly, the court in Stefanoni v. Duncan, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0197095 (August 11, 2004, Tobin, J.), aff'd, 282 Conn. 686 (2008), found that the document at issue created a view restriction, as it was not described as an easement, and "[t]he court [could] not find that it was intended by the parties creating the view restriction that the owners of the dominant tenement would have the right to enter upon the servient tenement to trim or remove structures obstructing the protected view." Id. By contrast, in Dent v. Lovejoy, 85 Conn.App. 455 (2004), an authority cited by the plaintiffs in support of their claim, the court found that a view easement existed where the operative document retained the right for the easement owner to enter the servient estate to enforce the easement provisions.
The plaintiffs cite several other cases in support of their position, but none are precisely on point. For example, in Castonguay v. Ploude, 46 Conn.App. 251 (1997), the court held that the restriction at issue constituted a restrictive covenant that was appurtenant to and ran with the land. Id., 258-59. The court did not hold, however, that the restrictive covenant constituted an easement. Id. Furthermore, in Schwartz v. Murphy, 74 Conn.App. 286 (2002), cert. denied, 263 Conn. 908 (2003), while the court found that a view easement existed, although it was not labeled as such in the deed, the defendants did not dispute that the restriction constituted an easement and, therefore, the court did not consider the issue.
In the present case, viewing the Covenants and Agreements as a whole, the court is not persuaded that it granted to the plaintiffs a view easement. While the document contains one reference to a "visual easement" in addressing the restrictions on the defendants Lionellis' property, it makes no such reference in addressing the defendants Dohrmanns' property, and in all other references therein, the limitations are described as restrictions. Additionally, as in Burrows and Stefanoni, there is no enforcement language within the Covenants and Agreements granting the plaintiffs the right to enter and trim the vegetation obstructing the protected view. Furthermore, the restrictions are described in the Covenants and Agreements as covenants running with the land and, as the Burrows court held, "such a construction is more conducive to the application of § 52-575a." Burrows v. Ferrigno, 49 Conn. L. Rptr. 643.
Therefore, the court finds that the applicable statute of limitations in the present case is § 52-575a. As the plaintiffs brought the present action more than three years after they or their predecessor in title had knowledge that the vegetation on the defendants' properties violated the restriction, judgment must enter for the defendants.
B Prescription
"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 . . . [I]f the servient owner should by adverse acts lasting through the prescriptive period obstruct the dominant owner's enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement . . . To prove that an easement has been extinguished by prescription, the owner of a servient tract must show that he, by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominant tract so as to form a basis for an inference of a grant, releasing the easement, by an owner of the dominant tract to the owner of the servient tract . . . In Connecticut, such adverse use, to effect extinguishment, must persist continuously for a period of fifteen years." (Citations omitted, internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 517-18 (2007).
In the present case, as the court has found that the Covenants and Agreements limitation constitutes a private restriction governed by § 52-575a, the defendants' claim that the plaintiffs' rights are extinguished by adverse possession is inapplicable.
III
The court hereby finds that the plaintiffs' claims against the defendants are barred by § 52-575a and, therefore, judgment is entered for the defendants on each count.