Opinion
No. CV04-0182197 S
February 4, 2004
MEMORANDUM OF DECISION
Plaintiff Bisceglia ("Bisceglia") is the owner of a residential parcel of land in the Town of Southbury. Defendant Town of Southbury ("Town") is the owner of an abutting parcel of land in said town. Southbury has an ingress-egress easement over the land of Bisceglia. Bisceglia's complaint alleges that the Town has failed to comply with the terms of that easement, with respect to the maintenance of the traveled portion of said easement. Bisdeglia's complaint seeks an injunction restraining the Town from continued use of the easement, monetary damages, costs, and such other relief as the court may deem equitable.
The matter came before the court on Bisceglia's application for a temporary injunction. A temporary injunction is a court order issued at the outset or during the pendency of a case forbidding the performance or continuance of certain acts until the rights of the parties have been finally adjudicated. Deming v. Bradstreet, 85 Conn. 650 (1912). The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the merits of the case have been determined after a full trial. Olcott v. Pendleton, 128 Conn. 292 (1941). To be entitled to the equitable relief of a temporary injunction Bisceglia, as the moving party, must show that: (1) he is likely to prevail on the merits of his claim after trial, (2) he faces immediate and irreparable harm absent an injunction, and (3) the harm he faces without the injunction is greater than the harm an injunction would do to the defendants. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456-58 (1985); see generally, Fleet National Bank v. Burke, 45 Conn. Sup. 566, 570, 23 Conn. L. Rptr. 516 (1998).
I. FACTS CT Page 1871
For purposes of the court's decision on the injunction, the following facts are found based on a hearing on the temporary injunction application and the testimony and other exhibits introduced through witnesses.
A. History
In about 1994, the Bisceglias purchased their residential property of 3+ acres ("Parcel A") from Mr. Vaszauskas, a farmer, through the U.S. Bankruptcy Court and American Bank of Connecticut. This residential property was subject to an easement, specifically the deed contained the following language:
Parcel "A" shall be subject to an easement for ingress and egress for vehicles of any kind and for the installation of utilities under, over or across said parcel solely for the benefit of property now owned by Randy Vaszauskas that presently abuts Parcels "A" and "B" on the south, all as shown on said Map. Said easements and obligations hereunder shall be a covenant running with the land and shall be binding upon Randy Vaszauskas, his successors, heirs and assigns and American Bank of Connecticut and its successors, assigns and transferees. The Grantor, his heirs, successors and assigns shall be responsible for the maintenance of the easement area at his and their sole expense, without contribution from the owner of Parcels "A" and "B" as shown on said Map. All work performed within the easement area shall be done in a workmanlike manner, and, to the extent, reasonably possible shall provide continuous access to the home on Parcel "B" during any such construction, maitenance (sic) or repair. (Vol. 283, p. 935.)
The easement is situated over a substantial part of Bisceglia's driveway, several hundred feet from the public street up the hill towards their house. Thus, Bisceglia uses the land underlying the easement on a regular daily and continuous basis, to get from the town road to their driveway. In 2000, Vaszaukas sold the remaining 68+ acres of his land to the Town of Southbury. Mr. Vaszaukas was represented at the sale by his attorney, Mr. Bisceglia, also the plaintiff in this case. Vaszaukas retained a 10-year life use of the property sold to the Town. The deed to the Town of Southbury contained the following language:
Together with the ingress-egress easement, and utilities easement over land N/F of David J. Bisceglia and Jody Neuman Bisceglia as shown in Deed recorded in Volume 283, Page 934 of the Southbury Land Records.
Vaszaukas died in 2001. For the years that the Bisceglias owned their residential property while Vaszaukas was alive and farming his 68+ acres, Vaszaukas utilized the ingress-egress easement on a frequent basis and maintained the easement, at his sole expense, without contribution from the Bisceglias, in a workmanlike manner.
B. Recent Developments
The Town of Southbury has developed the 68 acre of farmland parcel into ballfields. There is separate parking for and access to the ballfields from another town road. The Town uses the Bisceglia easement, at this time of year, on an occasional basis to check on that portion of their property that lies behind the Bisceglia house and contains the well and water storage for the ballfield irrigation system. The Town will begin to use the easement on a regular frequent basis once the playing fields are in use beginning in the early spring, and the risk of faulty irrigation heightens.
The Town has failed to maintain the easement in any manner, since their purchase of the 68-acre parcel. In addition, the Town has steadfastly refused to contribute even a proportionate share towards Bisceglia's costs of maintaining the easement. Bisceglia's costs have included grading, spreading gravel, plowing, repairing base, etc. Bisceglia and the Town have had several conversations wherein Bisceglia demanded that the Town maintain the easement in the manner it had been maintained by Vaszaukas, and the Town has refused.
II. DISCUSSION
Bisceglia applies for a temporary injunction enjoining the defendants from "any continued use of the easement, to prevent further erosion and damage." To obtain a temporary injunction plaintiff must show clearly that protectable interests are at stake. It must establish that it will prevail subsequently at a final hearing on its application for a permanent injunction. CT Page 1873 Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn. Sup. 1, 3 (1977). To obtain injunctive relief plaintiff bears the burden of proving facts which will establish irreparable harm. Wilcox v. Willard Shopping Center Associates, 208 Conn. 318 (1988). Plaintiff must also show the lack of an adequate remedy at law. Stocker v. Waterbury, 154 Conn. 446, 449 (1967). If the plaintiffs have an adequate remedy at law, then they are not entitled to the injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183 (1916).
The power of equity to grant injunctive relief may be exercised only under demanding circumstances. Restraining the action of an individual or a municipality such as here is an extraordinary power always to be exercised with caution, never without the most satisfactory reasons. Anderson v. Latimer Point Management Corporation, 208 Conn. 265, 267 (1988); Cheryl Terry Enterprises v. City of Hartford, No. 547097 (Aug. 7, 1998) 1998 Ct. Sup. 8927; Ravenswood Dev. Corp. v. Town of Newington, No. CV98 0581791 (Dec. 17, 1998), 1998 Ct. Sup. 15200.
Finally, having heard lengthy testimony on the issues, it is clear that injunction relief is particularly inadvisable here, where damages suffered by Plaintiff are reducible to monetary compensation readily recoverable at law.
III. CONCLUSION
The court denies the request for a temporary injunction and orders that the parties report to caseflow for scheduling of the trial on the matter.
Alvord, J.