Opinion
No. 99-366942
June 5, 2003
MEMORANDUM
This action concerns the size and scope of a right of way. The plaintiff, Dominick Boccanfuso, is the owner of a residential parcel of land known as 3 Madeline Avenue in Westport, CT. The plaintiff's parcel is landlocked and is located behind another residential parcel, 5 Madeline Avenue, owned by defendants Louis Allen and Aulala M. Conner. The plaintiff's parcel is benefitted by an express right of way ten feet wide and 37.5 feet long for the purpose of ingress and egress over the defendants' property.
On September 17, 1999, the plaintiff commenced this action. As amended, the complaint is in two counts. In the first count the plaintiff alleges that "[t]he defendants have wrongfully obstructed and continue to obstruct the [plaintiff's] right of way, by virtue of a wooden deck and various foliage, so that the plaintiff has been prevented from enjoying and using the right of way." In the second count, the plaintiff claims that he and his predecessors in interest prescriptively acquired the right to use the right of way for the parking of motor vehicles. The plaintiff seeks money damages, a declaratory judgment that he may use the right of way for the parking of motor vehicles and an injunction against the defendants' interference with his use of the right of way.
The defendants have filed two special defenses and a two-count counterclaim. In their first special defense, the defendants allege that they have prescriptively extinguished a portion of the plaintiff's right of way by building and maintaining a deck and shrubbery. In their second special defense, the defendants allege that the deed by which the plaintiff took title excludes from the right of way the area occupied by a deck. In the first count of their counterclaim, the defendants seek a declaratory judgment as to the scope of the right of way. In the second count of the counterclaim the defendants seek monetary compensation for damage to their shrubs caused by the plaintiff.
The case was tried to the court without a jury. The court heard eleven CT Page 8176-l witnesses and received into evidence a thirty-two page joint management conference report and nearly 100 exhibits.
The court is constrained to observe that the resolution of this action has been made exponentially more burdensome by the dizzying blizzard of claims, many without merit, contained in the plaintiff's brief. The claims are so numerous as to appear to be gleaned from a table of contents in a digest or treatise. The brief contains nearly two dozen subheadings — two of which are entitled "Miscellaneous" — within which often lurk multiple claims.
The court finds the following facts. The plaintiff is the owner of 3 Madeline Avenue in Westport, a parcel which measures roughly 1,850 square feet and is improved by a single-family home. The parcel is landlocked and is located behind 5 Madeline Avenue (also referred to herein as Lot 73), a larger, "L" shaped parcel bordering Madeline Avenue and improved by a single-family home. Both parcels are close to Long Island Sound. Prior to purchasing 3 Madeline Avenue, the plaintiff had resided elsewhere in the neighborhood for much of his life.
In the early twentieth century, both parcels were owned by Theodore M Haight. In 1928, Haight conveyed what is now 3 Madeline Avenue to Sarah S. Moser. The deed from Haight to Moser states: "The grantor also conveys to the grantee a right of way for all lawful purposes over the Northerly ten (10) feet of said Lot #73 for the purpose of affording ingress and egress to and from the land hereby conveyed and Madeline Avenue, so-called as designated on the map referred to above." Lot 73 is 5 Madeline Avenue. Thus, for purposes of the easement, 3 Madeline Avenue is the dominant estate and 5 Madeline Avenue is the servient estate. This reservation of a right of way is contained in the deeds to subsequent owners of 3 Madeline Avenue, including the plaintiff. The right of way is the only means of vehicular access to 3 Madeline Avenue.
In 1929, Moser conveyed 3 Madeline Avenue to Samuel E. Nicholas. Between 1948 and November 1963, Nicholas rented the property to Charles and Louise Eaton. Charles Eaton owned a van, which he used in connection with his employment, and a private passenger motor vehicle. During his occupancy of 3 Madeline Avenue, Eaton parked his vehicles in the right of way. During the latter years of his tenancy his three sons, who lived with him, had automobiles which they parked in the right of way. Only the Eatons and occasionally their guests parked in the right of way. No one ever asked the Eatons to move their vehicles.
After January 7, 1950. the Eatons occupied the property under a bond for deed from Nicholas. A "bond for deed" is a contract for the sale of realty, with legal title of record retained by the seller until completion of payment of the purchase price, when legal title is to be transferred to the purchaser. Junkin v. McCain, 221 Iowa 1084, 1089, 265 N.W. 362 (1936).
The bond for deed executed by the parties called for Charles Eaton to make monthly payments of $43.00 in addition to other consideration. It also contained a legal description of the property and included a reservation for the right of way.
Under the doctrine of equitable conversion, a bond for deed gives the holder equitable title. Francis T. Zoppone Co. v. Mark, 197 Conn. 264, 268, 497 A.2d 32 (1985); Stone Stone Pension Plan v. Alston, 12 Conn. App. 670, 674, 533 A.2d 898 (1987); Country Lumber, Inc. v. Newington Builders Finish Co., 4 Conn. App. 589, 591, 495 A.2d 1121 (1985).
Charles Eaton sold 3 Madeline Avenue on November 7, 1963, and moved out with his family. Although no finding is made as to the parking habits of Charles Eaton's immediate successor in title, subsequent owners of the property or their tenants continued to park their vehicles in the right of way.
On May 12, 1978, the defendants purchased 5 Madeline Avenue and have continuously owned and occupied it, except for a period of about a year after the house was destroyed by fire in December 1992, after which the house was rebuilt. All deeds in their chain of title state that the CT Page 8176-m property was subject to the burdens of the right of way.
When the Eatons moved from 3 Madeline Avenue, the house at 5 Madeline Avenue did not have a deck or shrubbery along the right of way. Sometime in the 1970s the defendants or their predecessors in title constructed a deck and planted juniper bushes along the right of way, encroaching upon it.
On December 11, 1992, the defendant's home at 5 Madeline Avenue was destroyed by fire. The defendants rebuilt a home on the property, and a deck, and reoccupied the property by 1994.
In 1998, the plaintiff purchased 3 Madeline Avenue. On September 17, 1999, he commenced this action seeking a declaratory judgment that the defendants' deck encroaches on the right of way and seeking injunctive relief. On July 21, 2001, during the pendency of the action, the plaintiff's brother, in the course of making improvements to 3 Madeline Avenue and acting as the plaintiff's agent, entered the right of way with a backhoe and destroyed two of the juniper trees. The defendants' counterclaim includes a claim for damages for the destruction of the junipers.
Additional facts will be found where necessary to the disposition of the issues.
I
The court first addresses the second count of the plaintiff's amended complaint. In that count, the plaintiff seeks a declaratory judgment that his express right of way has been prescriptively enlarged to permit the parking of motor vehicles in the right of way.
A right of way is an easement. Ives v. Knight, Superior Court, judicial district of Windham at Putnam, Docket No. CV 98 0058539 (November 29, 1999, Sferrazza, J.) ( 26 Conn.L.Rptr. 61); accord, Craighead Electric Cooperative Corp. v. Craighead County, 98 S.W.3d 414, 417 (2003); Marlow v. Malone, 315 Ill. App.3d 807, 818, 734 N.E.2d 195, cert. denied, 192 Ill.2d 692, 742 N.E.2d 329 (2000); Lease v. Doll, 485 Pa. 615, 621, 403 A.2d 558 (1979). "The term `right of way' is merely descriptive of the easement rights." State ex rel. State Highway Commission v. Dannevik, 79 N.M. 630, 632, 447 P.2d 510, 512 (1968). "An easement is a nonpossessory interest in the land of another. [A]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement . . . Furthermore, [t]he benefit of an easement or profit is CT Page 8176-n considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . .
"Easements traditionally have been divided into two categories, express and implied, that relate to the means by which the easement is created." (Internal quotation marks omitted.) Martin Drive Corp. v. Thorsen, 66 Conn. App. 766, 772-73, 786 A.2d 484 (2001). "A parcel of land benefitted by an easement is described as the dominant estate. Land subject to an easement is denominated as the servient estate. An easement appurtenant is an easement that runs with the land and, therefore, is created for the benefit of the owner of the dominant estate." (Internal quotation marks omitted.) Id, 773 n. 7.
Easements for a specified purpose, whether express or otherwise, may be prescriptively enlarged by additional uses over time. Ellsworth v. Smith, Docket No. 00 0674 (Wisconsin Court of Appeals November 22, 2000); Villager Condominium Assn., Inc. v. Idaho Power Co, 121 Idaho 986, 988, 829 P.2d 1335 (1992); Merrill v. Penrod, 109 Idaho 46, 52, 704 P.2d 950 (App. 1985), review denied, 116 Idaho 466, 776 P.2d 828 (1985); Schwenker v. Sagers, 230 N.W.2d 525, 527 (Iowa 1975); Pierce v. Cherry Valley Farms, Inc., 76 Ohio App. 58, 62, 63 N.E.2d 46 (1945), aff'd., 146 Ohio St. 400, 66 N.E.2d 639 (1946); annot., "Enlargement of easement by use for purpose or in manner other than that specified in the grant," 110 A.L.R 915-16 (1937). "It is well settled that before a use may develop into a prescriptive easement, it must be (1) open and visible, (2) continuous and uninterrupted for fifteen years and (3) engaged in under a claim of right." Hoffman Fuel Company of Danbury v. Elliott, 68 Conn. App. 272, 277, 789 A.2d 1149, cert. denied, 260 Conn. 918, 797 A.2d 514 (2002). These elements, which must be established by a preponderance of the evidence; id.; also apply to the enlargement of existing easements by prescription. Merrill v. Penrod, supra, 109 Idaho 52; Pierce v. Cherry Valley Farms, Inc., supra, 76 Ohio App. 62. The defendants contend that the plaintiff has not established these elements.
A.
The purpose of the requirement that a prescriptive use be open and visible is to give" "the owner of the servient land knowledge and full opportunity to assert his rights." Klein v. DeRosa, 137 Conn. 586, 588 79 A.2d 773 (1951). "To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature and extent. Open generally means that the use is not made in secret or stealthily. It may also mean that it is visible or CT Page 8176-o apparent . . . An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement . . . Concealed . . . usage cannot serve as the basis of a prescriptive claim because it does not put the landowner on notice." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002). Here, the Eatons made daily use of the right of way for parking. Moreover, they parked their vehicles only a few feet away from the house situated on 5 Madeline Avenue, the servient estate. The Eatons' use of the right of way was clearly open and visible.
B.
The defendants claim that the Eatons' use of the right of way for parking was not continuous because their cars were not constantly situated on the right of way twenty-four hours a day, seven days a week, but were driven away in the morning and returned in the afternoon or evening. This claim borders on the frivolous. First, it is factually inaccurate. Charles Eaton owned two vehicles, a van for business and an automobile for personal use. Both were parked in the right of way. The van was driven off in the morning and returned in the afternoon or evening. His personal vehicle, however, remained. The use of the right of way for parking became even more intense when Charles Eaton's three sons reached driving age and parked their vehicles in the right of way.
Second, the use for which the plaintiff seeks to expand the scope of his express easement is for parking vehicles, not storing vehicles constantly. "There is a substantial distinction, clearly cognizable, between the meaning of `storage' and `parking.' One has a certain degree of permanency, while the other connotes transience." (Internal quotation marks omitted.) Service Realty v. Planning Zoning Board of Appeals, 141 Conn. 632, 638-39, 109 A.2d 256 (1954).
Third, the requirement that a prescriptive use be continuous "does not require that actual physical use be made constantly, or even frequently. If the use continues to be open and notorious . . . the fact that no physical use of the inchoate servitude is made for some time does not stop the prescriptive period from running. Seasonal uses, intermittent uses, and changing uses all may meet the continuity requirement so long as they are open or notorious." 1 Restatement (Third), Property-Servitudes § 2.17, comment i; see id., illustrations 31-34; Johnson v. Higley, 1999 Ut.App. 278, 989 P.2d 61, 68 (1999), cert. denied, 994 P.2d 1271 (Utah 2000); Breiner v. Holt County, 7 Neb. App. 132, 141, 581 N.W.2d 89 CT Page 8176-p (1998); Lee v. Lozier, 88 Wash.App. 176, 185-86, 945 P.2d 214 (1997). Connecticut cases upholding the finding of a prescriptive easement where the use was clearly not constant are too legion to cite. While there may be no Connecticut case specifically holding that the use need not be constant, "[t]he paucity of cases that specifically decide [this issue] is more a function of a failure to litigate the obvious than a failure to raise and decide the issue." Paulus v. Lasala, 56 Conn. App. 139, 150, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).
Orchard Place Associates, LLC v. Briggs, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0182302 (February 22, 2002, Adams, J.) ( 31 Conn.L.Rptr. 465), on which the defendants rely, is inapposite. In Orchard Place, the court held that the servient owners' parking of motor vehicles in a right of way for substantial periods of time was not sufficient to prove that they had obstructed the right of way so as to extinguish it. The court found that the vehicles were not a permanent fixture and were occasionally moved. It found that the vehicles were not blocking the right of way continually for fifteen years. First, there is a substantial difference between the continuous use required to obtain a prescriptive easement and the use required to obstruct a right of way and thus extinguish another's easement. Cf. Horowitz v. F.E. Spencer Co., 132 Conn. 373, 376, 44 A.2d 702 (1945) (use, to give rise to prescriptive right, need not exclude holder of legal title from the premises). Second, under the evidence presented — namely, that Charles Eaton had two vehicles, one for work and one for personal use, both of which he parked in the right of way — the court finds that there was virtually always a vehicle in the right of way between 1947, at the latest, and 1963.
The court finds that the Eatons' use of the right of way for parking was continuous between 1947 and 1963.
C.
The third requirement for a prescriptive easement is that the prescriptive use be made under a claim of right. "Use made under a claim of right means use that is made without recognition of the rights of the owner of the servient tenement . . . A use by express or implied permission or license cannot ripen into an easement by prescription." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, supra, 260 Conn. 584.
Neither Charles Eaton, Louis Eaton, Samuel Nicholas nor the past owners of 5 Madeline Avenue testified at trial. Therefore, there was no direct evidence as to whether the Eatons' parking in the right of way was under CT Page 8176-q a claim of right, that is, without the permission of the owner of the servient estate. In Connecticut, however, the law does not recognize a presumption of permissive use that must be overcome by the party claiming a prescriptive easement. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983). It is not "the plaintiff's burden to establish that his use of the property was without permission. Such a rule would often charge a party with proving a negative. Rather, it was the plaintiff's burden to establish that his use of the property was under a claim of right. Reynolds v. Soffer, [ supra, 190 Conn. 188]. This is not to say, however, that evidence indicating a lack of permission is irrelevant to whether the plaintiff has established use under a claim of right." Lisiewski v. Seidel, 72 Conn. App. 861, 873, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002).
"Needless to say, time always obscures the sharp outlines of all controversies, and to a large extent the court must rely wherever possible on reasonable inferences that may be drawn from such evidence as the parties have been able to offer." Gray v. Hudson, 34 Conn. Sup. 31, 35, 375 A.2d 1039 (1974), aff'd. per curiam, 173 Conn. 230, 377 A.2d 295 (1977). Although Charles and Louise Eaton were deceased at the time of trial, three of their children, all of whom lived at 3 Madeline Avenue between 1948 and 1963, did give evidence. The deposition of Kenneth Eaton, born September 4, 1941, was admitted into evidence. Charles Eaton, Jr., born December 4, 1943, and Doris Eaton McArthur, born in 1946, appeared and testified. All three Eaton children testified that to the best of their knowledge, neither of their parents had an agreement with anyone relating to the use of the right of way for the parking of motor vehicles; neither of their parents ever asked anyone for permission to use the right of way for parking; no one ever told either of their parents that he or she was giving them permission to use the right of way for the parking of motor vehicles; and, neither of their parents ever spoke to anyone about their use of the right of way for parking motor vehicles. Doris testified that she always considered the right of way to be the driveway to her parents' house. Charles testified that he felt his family and their guests had a right to park in the right of way.
The court credits the evidence of the Eaton children. While parents will often refrain from discussing financial and business matters with their children, the use of the right of way for parking was something that affected the Eaton children when they later operated motor vehicles and when their friends visited and parked in the right of way. It is telling that during the entire lives of these three siblings, and especially when they lived at 3 Madeline Avenue with their parents in what appears to have been an ordinary family, their parents never once mentioned that the use of the right of way for parking was at the CT Page 8176-r sufferance of the owner of 5 Madeline Avenue. Certainly it would have been natural for either the parents or the owner of 5 Madeline Avenue to have alluded to this when the Eaton children began to drive and parked their own vehicles in the right of way, thereby intensifying that use of it. The absence of the mention of permission in these circumstances for so many years is probative, indeed compelling. "Silence," Justice Brandeis observed eighty years ago in another context, "is often evidence of the most persuasive character." State ex rel. Bilokunsky v. Tod, 263 U.S. 149, 153-54, 44 S.Ct. 54, 68 L.Ed. 221 (1923).
The court is constrained to observe that not only was the Eatons' use of the right of way for parking made under claim of right. it may very well have been made pursuant to an actual right. "[S]everal courts have considered the question of whether `driveway easements' or `right of way for ingress and egress' allow for parking on the burdened land by the owner of the dominant estate. See annot., [`Right to Park Vehicles on CT Page 8176-ah Private Way'] 37 A.L.R.2d 944 [1954]. Courts generally have construed such easements to allow this provided that the vehicles are not parked in such a manner as to interfere with the use of the property by the owner of the servient estate. Id., 946-47; State v. Larson, 75 Oh.L.Abs. 211, 213, 143 N.E.2d 502 (1956)." Hagist v. Washburn, 16 Conn. App. 83, 88, 546 A.2d 947 (1988).
Here, no one claimed or provided evidence that the parking of vehicles on the right of way interfered with the defendants' use of their property or that of their predecessors in interest. Moreover, although the right of way is only ten feet wide, it is straight and level. Compare Russo v. Stepp, 2 Conn. App. 4, 6-7, 475 A.2d 331 (1984) (driveway situated on steep downhill grade and only eighteen feet wide made ingress and egress inherently dangerous when vehicles parked on any portion of easement and vehicles attempting to back out of driveway had collided with parked vehicles). Finally, the right of way granted in the plaintiff's deed and those of his predecessors in interest is in general terms and there is little room on the plaintiff's property for parking and then only close to the house. Compare Hall v. Altomari, 19 Conn. App. 387, 391-92, 562 A.2d 574 (1989) (right of way not one granted in general terms and dominant estate "contain[ed] a large parking lot adequate to serve the parking needs of the three-family residence located [thereon]").
Since, however, the plaintiff did not claim that he had an express right to park on the right-of-way. nor was the case tried on that theory, the court does not rest its judgment on that basis. Cf. O'Brien v. Coburn, 39 Conn. App. 143, 147, 664 A.2d 312 (1995) (judgment finding easement by implication set aside where pleadings alleged only prescriptive easement); Francis v. Hollauer, 1 Conn. App. 693, 475 A.2d 326 (1984) (judgment of adverse possession set aside where plaintiff's alleged only prescriptive easement).
D.
The defendants also argue, citing Deregibus v. Silberman Furniture Co., Inc., 121 Conn. 623, 186 A. 554 (1936), that the plaintiff cannot tack the Eatons use as tenants to their subsequent use as owners of 3 Madeline Avenue to establish a prescriptive right to park in the right of way because, for most of their use, the Eatons were only tenants.
In Deregibus, the plaintiff sought a prescriptive easement of a passageway between two buildings. He sought to tack his use as a tenant of one of the buildings to his use after he became an owner of the building. The trial court's finding did not disclose whether any of the plaintiff's leases of the building ever included the right of way. The Supreme Court held that for a tenant's adverse use of a right of way to be tacked to that of the owner for the purpose of meeting the fifteen years required to establish a prescriptive easement, the right of way must have been expressly or impliedly included in the leased premises. Id., 638-40. Since the trial court's finding in the original trial did not "disclose that any of the leases of the land now owned by the plaintiff, prior to the deed to him . . . included any right of way over the defendant's land"; id. 638; the Supreme Court set aside the judgment for plaintiff and ordered a new trial. Id., 640.
On remand, the Superior Court made the finding of fact necessary for the plaintiff to tack his use as a tenant. Deregibus v. SiLberrnan Furniture Company, Inc., 5 Conn. Sup. 155 (1937). The Supreme Court affirmed, stating: "While a tenant cannot effect a disseisin in his landlord's favor or originate adverse possession or [use] unless the lease includes the land or easement, the inclusion need not necessarily be expressed; it suffices if it is impliedly included. Whether or not the easement here in question was within the leases was a question of fact, to be determined in the light of the circumstances, including the use made of it." Deregibus v. Silberman Furniture Company, Inc., 124 Conn. 39, 41, 197 A. 760 (1938); see also Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 433, 151 A.2d 881 (1959). CT Page 8176-s
Here, the court finds, based on a reasonable inference, that the right of way was included in the premises leased to the Eatons. Unlike the situation in Deregibus, there is no question that the owner of 3 Madeline Avenue had an express easement over the right of way. Since 3 Madeline Avenue is landlocked, it is utterly unlikely that the right of way was not included, impliedly if not expressly, within the leasehold premises. The daily open and notorious use of the right of way by Charles Eaton, and later his sons, within a few feet of the home on 5 Madeline Avenue, without complaint by the owner of that property, adds further circumstantial corroboration to the fact that the right of way was included in premises leased to the Eatons. Accordingly, their use was functionally that of the owner of 3 Madeline Avenue. Since the Eatons parked in the right of way daily for fifteen uninterrupted years, their use alone establishes the prescriptive easement for parking.
The defendants have raised two special defenses. While those defenses implicate the dimensions of a portion of the right of way, they do not implicate the plaintiff's right to park motor vehicles in the right of way. Those defenses are addressed in part II of this decision.
By a preponderance of the evidence, the court finds that Charles Eaton, first as tenant and then as owner, used the right of way, the location of which is not in issue, for the parking of his two vehicles, and that his use was open and visible, continuous and uninterrupted for fifteen years and engaged in under a claim of right. As his successor in title, the plaintiff's use of the right of way includes the right to park motor vehicles thereon. The court finds the issues for the plaintiff on the second count of his amended complaint.
II
In the first count of his complaint, the plaintiff alleges that the "defendants have wrongfully obstructed and continue to obstruct the . . . right of way, by virtue of a wooden deck and various foliage, so that the plaintiff has been prevented from enjoying and using the right of way." In their first special defense, the defendants allege that they and their predecessors in title have extinguished a portion of the right of way by the maintenance of a wooden deck and certain shrubbery thereon. In their second defense, the defendants allege that the map referred to in the plaintiff's deed to 3 Madeline Avenue expressly excepts from the right of way the area by which the defendants' deck encroaches thereon.
In the first count of their counterclaim, the defendants allege that in order for them "to use and enjoy their property, it is necessary that the CT Page 8176-t existence and extent" of the plaintiff's right to use the right of way be judicially determined. In the second count of the counterclaim, the defendants allege that they have extinguished a portion of the right of way by their maintenance of certain shrubbery "alleged by the Plaintiff in his Complaint," that the plaintiff's agent destroyed that shrubbery and that the defendants are entitled to damages therefore.
The first count of the plaintiff's complaint and the defendants' defenses and counterclaims all implicate the question of whether and to what extent the plaintiff's easement has been extinguished by the defendants' deck and shrubbery. For analytical convenience, these claims and defenses are considered together.
A.
The defendants' first special defense alleges that the plaintiff's right of way has been diminished by virtue of a reference in the plaintiff's deed to a map that expressly excepts from the right of way the area by which the defendants' deck encroaches thereon. This defense has not been briefed and is deemed abandoned. Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 31 Conn. App. 455, 474-75. 626 A.2d 307 (1993); Grace Community Church v. Planning Zoning Commission, 42 Conn. Sup. 256, 259, 615 A.2d 1092, 6 Conn.L.Rptr. 152 (1992).
A review of the record does not reflect any evidence to support the first special defense.
The plaintiff argues that the court cannot grant affirmative relief to the defendants based on their claim, clearly made at trial, that the right of way has been diminished by the encroachment of the defendants' deck, as opposed to their shrubbery, because the defendants did not properly allege a claim based on the deck in the counterclaim.
"The allegations of a complaint [or counterclaim] limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . A plaintiff [or counter-claimant] may not allege one cause of action and recover upon another." Lundberg v. Kovacs, 172 Conn. 229, 232-33, 374 A.2d 201 (1977); see Matto v. Dan Beard, Inc., 15 Conn. App. 458, 477, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988). "However, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citations omitted; internal quotation marks omitted.) O'Brien v. Coburn, 39 Conn. App. 143, 147, 664 A.2d 312 (1995). CT Page 8176-u
The pleadings here provide sufficient notice of the facts claimed and the issues to be tried. The first count of the counterclaim alleges that in order for the defendants "to use and enjoy their property, it is necessary that the existence and extent of the Plaintiff's . . . [use] as relates to said `grant' [of the right of way] be judicially determined." In the second count of the counterclaim, the defendants expressly allege that the right of way has been partially extinguished by their shrubbery. Paragraph three of the second count further alleges that "the Plaintiff, and his predecessors in title, have been ousted from their use of said area as a right of way and been kept out uninterruptedly for over fifteen years, under a claim of right by Defendants by Defendants' open, visible and exclusive possession without license or consent of Plaintiff or Plaintiff's predecessors in title."
The existence and extent of the plaintiff's right to use the right of way, as alleged in the first count of the counterclaim, is clearly implicated by the defendants' claim that the right of way has been partially extinguished. Moreover, the second count of the counterclaim clearly alleges that the right of way has been diminished by the defendants' shrubbery and adverse use. While the second count of the counterclaim does not mention the defendants' deck, this is not a material variance. "[A] variance is material only if the defendant is prejudiced by it." Commissioner of Motor Vehicles v. De Mio Co., 233 Conn. 254, 276, 659 A.2d 148 (1995). "An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case . . . Ordinarily, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and the complaining party, at all times, was in a position to know the true state of facts." Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969); see Practice Book § 10-62.
Practice Book § 10-62 provides: "In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his or her prejudice in maintaining the action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the judicial authority, such amendment shall be made only upon payment of costs or upon such terms as the judicial authority may deem proper; but in any other case, without costs. Immaterial variances shall be wholly CT Page 8176-ai disregarded."
The plaintiff has not been prejudiced by the defendants' claim for declaratory relief that they have diminished the right of way by their deck as well as by their shrubbery. There is no requirement that a party claiming adverse possession itemize in his complaint all the actions giving rise to such possession. The claim that part of the right of way was extinguished by the defendants' adverse use was clearly asserted at trial and has been briefed by both parties. Notably, the plaintiff raised the issue of the encroachment of the defendants' deck in his complaint.
Moreover, the allegations of a party's pleading must be read in light of that party's legal claims. Rose v. Van Bosch, 119 Conn. 514, 521, 117 A. 565 (1935).In their prayers for relief, the defendants seek "[a] CT Page 8176-v declaratory judgment limiting the Plaintiff's rights within the claimed Right of Way to that area north of the deck and juniper trees and south of the easement as defined in the original grant . . ." (Emphasis added.)
The court holds that it may consider the defendants' claim for a declaratory judgment that the right of way has been diminished by their deck as well as by their shrubbery.
C.
The plaintiff admits that an express easement or an easement acquired by prescription may be fully extinguished by adverse use. He argues, however, that an easement cannot be partially extinguished by adverse use. The court disagrees.
The plaintiff cites American Brass Co. v. Serra, 104 Conn. 139, 132 A. 565 (1926), Public Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn. App. 380, 567 A.2d 389 (1989), and Russo v. Terek, 7 Conn. App. 252, 508 A.2d 788 (1984), in support of his claim. In none of these cases was the issue of partial extinguishment of an easement raised. Therefore, these cases do not hold that an easement cannot be partially extinguished. "It is the general rule that a case resolves only those issues explicitly decided in the case." State v. Ouellette, 190 Conn. 84, 91, 459 A.2d 1005 (1983).
While no Connecticut case precludes the finding of partial extinguishment of an easement, only one Connecticut case has been cited to or found by the court that appears to recognize the doctrine of partial extinguishment. Goodwin v. Bragaw, 87 Conn. 31, 39, 86 A. 668 (1913) (abutting landowner who builds structure that extends into an easement might, by adverse possession, acquire "a part of the plaintiff's rights [in the easement] to the extent of his ouster of the plaintiff of his unity of possession . . ."). The language in Goodwin, however, is obiter dicta. "Consequently, we look to other jurisdictions for guidance." State v. Archuleta, 857 P.2d 234, 240 (Utah 1993); Ambrogio v. Carusone, Superior Court, judicial district of New Haven, Docket No. CV 89 0285291 (April 19, 1993, Burns, J.) ( 9 Conn.L.Rptr. 69).
As a leading treatise states: "The servient owner can extinguish an easement in whole or in part by adverse use continued for the prescriptive period." (Emphasis added.) 4 R. Powell on Real Property (1999) § 34.21, citing Glatts v. Henson, 31 Cal.2d 368, 370-71, 188 P.2d 745 (1948); Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. 417, 388 N.E.2d 1195 (1979); White v. Lambert, CT Page 8176-w 175 W. Va. 253, 332 S.E.2d 266 (1985). "The extinguishment by adverse possession need not be of the entire easement. It may be extinguished in part — to the extent that is embraced in the scope of the adverse possession . . . The nonpermissive erection and maintenance for the statutory period of permanent structures, such as buildings, which obstruct and prevent the use of the easement will operate to extinguish the easement." Glatts v. Henson, supra, 31 Cal.2d 371. Such a rule is consistent with Connecticut law. See Goodwin v. Bragaw, supra, 87 Conn. 31. The court holds that an easement may be partially extinguished by adverse use.
D.
In Public Storage, Inc. v. Eliot Street Limited Partnership, supra, 20 Conn. App. 385-86, the Appellate Court held that the standard of proof for a claim that an easement has been extinguished by adverse use is the fair preponderance standard, not the clear and convincing evidence standard required for adverse possession. The Plaintiff, however, claims that the defendants have assumed the higher standard by virtue of their pleading, specifically their first special defense.
In their first special defense, the defendants allege that by virtue of their deck and shrubbery, the plaintiff and his predecessors in title "have been ousted from their use of said area as a right of way and been kept out uninterruptedly for over fifteen years, under a claim of right . . . by Defendants' open, visible and exclusive possession without license or consent of Plaintiff or Plaintiff's predecessors in title."
These allegations are repeated in the defendants' counterclaim by which they seek declaratory relief that the right of way has been diminished. Essentially, the plaintiff claims that because the defendants have alleged "exclusive" possession of the area in question, words of art connoting adverse possession, they should be held to the clear and convincing evidence standard necessary to establish adverse possession. See Gemmell v. Lee, 59 Conn. App. 572, 578, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000). The court is not persuaded.
The defendants' use of the word "exclusive" was unnecessary surplusage. To extinguish another's easement, the servient owner need not prove exclusive possession. "[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." (Emphasis added.) American Brass Co. v. Serra, supra, 104 Conn. 146. Thus, while exclusive possession of the subject property CT Page 8176-x is necessary in order to acquire adverse possession, all that is required for a servient owner to extinguish an easement is obstruction of the dominant owner's enjoyment of the easement, with intent to deprive him of the easement. Supra, 7 Conn. App. 255.
There is no showing that the plaintiff has been misled. The defendants ought not be held to an unnecessarily elevated standard of proof because they inserted the word "exclusive" in their pleading. Absent prejudice, such surplusage may be ignored. Holbrook v. Judd, 1 Root 456 (1792); see New Haven Water Co. v. Russell, 86 Conn. 361, 366-67, 85 A. 636 (1912); Hoyt v. Seeley, 18 Conn. 353, 357-58 (1847); Woodford v. Webster, 3 Day 472, 475 (1809); Olmsted v. Doty, 2 Root 184, 185 (1795). This remains the rule today. Drummond v. Hussey, 24 Conn. App. 247, 248-49, 588 A.2d 223 (1991). Moreover, the word "exclusive" aptly describes the nature of the defendants' possession of that part of the easement occupied by the deck.
E.
The plaintiff next argues that the defendants cannot prove that they obstructed the plaintiff's easement under "a claim of right" because the defendants knew that they were encroaching. Even assuming the factual predicate on which the claim is based, the court disagrees with the plaintiff's conclusion.
What the Supreme Court stated in Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998), is applicable here by analogy: "Use made under a claim of right means use that is made without recognition of the rights of the owner of the servient tenement . . . To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient estate] to stop such use . . .
"The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement. 4 R. Powell, Real Property (1997) § 34-10, pp. 34-111 through 34-133. Nevertheless, it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified. 5 Restatement, Property, Servitudes § 458, comment (d) (1944). Instead, the essential quality is that the use not be made in subordination to those against whom it is claimed to be adverse. Id. A use which is not made in recognition of and in submission to a present CT Page 8176-y authority to prevent it or to permit its continuance is adverse though made in recognition of the wrongfulness of the use and, also, of the legal authority of another to prevent it. Thus, one who uses the land of another in defiance of the owner is nonetheless an adverse user though he admits his lack of legal justification in making the use. Id., § 458, comment (c)." (Citations omitted; internal quotation marks omitted.) Crandall v. Gould, supra, 244 Conn. 590-91.
Accordingly, the court finds that the defendants' incursion into the right of way by their deck and shrubbery was made under a claim of right.
F.
The plaintiff argues that the defendants should be barred from partially extinguishing his right of way easement because the defendants' deck, which is one of the bases for the claim of extinguishment. violates the Westport zoning regulations. The plaintiff cites Crandall v. Gould. supra, 244 Conn. 583, in support of his argument.
The following additional facts are found. The deck, both as it existed prior to 1992, and as it was rebuilt in 1993 subsequent to the December 11, 1992 fire, was constructed without first having obtained a zoning permit. On February 22, 1995, however, the zoning enforcement office issued a certificate of zoning compliance to the defendants. On July 19, 1999, the plaintiff, by his attorney, wrote to Katherine Barnard, director of planning and zoning of the town of Westport, arguing that the deck was in violation of the Westport zoning regulations. Barnard contacted the defendants who, by their attorney, submitted information and documents to Barnard. By letter dated September 1, 1999, Barnard wrote to the defendants' attorney opining that while the deck did not conform to the setback requirements of the local zoning regulations, the building, having been in the same location for more than three years was now legally nonconforming with respect to setbacks, pursuant to General Statutes § 8-13a. Barnard also stated that the certificate of zoning compliance had been properly issued. A copy of this letter was sent to the plaintiff's attorney.
General Statutes § 8-13a provides in pertinent part: "When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be."
The plaintiff again wrote to Barnard on January 21, 2002, arguing that the defendants' deck constituted a zoning violation because it was not a building and urging that she issue a cease and desist order to the defendants. Barnard responded by letter citing provisions of the Westport zoning regulations and stating that "[t]he Planning and Zoning staff has consistently considered decks attached to buildings as part of the building." By letter dated January 29, 2002, the plaintiff's attorney CT Page 8176-z wrote to Barnard again arguing that the deck was not a building, urging her "to consult with the Town Attorney and then to take proper action to force the removal of the encroaching deck." The plaintiff's attorney also, by letter dated March 6, 2002, wrote to the town attorney, Michael S. Toma, complaining of Barnard's interpretation of the zoning regulations.
This letter is undated.
By letter dated March 12, 2002, Toma wrote to the plaintiff's attorney, noting Barnard's observation that the Westport zoning authorities had, for many years, in interpreting the Westport zoning regulations, deemed decks as being a part of the building to which they were attached. Toma further stated: "I believe it is important that there be continuity in the application of the regulations, and therefore, I will not disturb the determination of the Planning and Zoning Director . . . that the deck at 5 Madeline Avenue is not in violation of the regulations."
The plaintiff claims that the defendants should be precluded from relying on their deck as a basis for partially extinguishing the plaintiff's easement because the deck is in violation of the Westport zoning regulations. The plaintiff, however, has failed to adequately brief this issue. Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., supra, 31 Conn. App. 474-75; Grace Community Church v. Planning Zoning Commission, supra, 42 Conn. Sup. 259. The plaintiff's entire analysis of this issue is contained in one seven-sentence paragraph in his thirty-three-page brief. He does not analyze any zoning regulations or statutes, specifically General Statutes § 8-13a. He cites only two cases, both unofficially reported Superior Court decisions, but fails to analyze them. Neither did the defendants brief this issue.
A party "may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.) Moulton v. Lemieux, 74 Conn. App. 357, 363, 812 A.2d 129 (2002).
Although the court does not reach the merits of this issue, the following observations are appropriate in the event of further review.
First, the zoning director, in accordance with Westport's longstanding practice, denied the plaintiff's request for a cease and desist order based on her Interpretation of the local zoning regulations that the deck was not a building. Rather, in accordance with the town's longstanding practice, she interpreted the regulations such that the deck was part of the house, which was the building for zoning purposes. "If a board's time-tested interpretation of a regulation is reasonable, that Interpretation should be accorded great weight by the courts." Dayen v. Zoning Board of Appeals, 67 Conn. App. 597, 611, 789 A.2d 478. cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).
The court assumes that if the deck were an independent, free-standing structure, and not affixed to the house, it would not be a building. See generally, discussion in Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 412-14, 429 A.2d 905 (1980); see also General Statutes § 8-12 (distinguishing between building and structures). Here, however, the deck is not an independent, free-standing structure. It was built with and as part of the house when the house was rebuilt in 1993. The deck is ordinarily and reasonably adapted to the customary residential use of the house. In such circumstances, a deck is not deemed to be independent of but part of the building. Cf. Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 240-42, 820 A.2d 275 (2003).
Second, this court holds that Crandall v. Gould, supra, 244 Conn. 583, cannot be extended to the facts here. In Crandall, the issue was whether an easement could be acquired by an adverse use that violated a permanent injunction. The court answered that it could not. The court's holding had CT Page 8176-aj two bases. First, the court held that it "cannot in good conscience, encourage or condone, through its interpretation of statutes or prior cases, conduct that violates a valid court order for the purpose of facilitating the acquisition of a legal right or for any other purpose." (Emphasis added.) Id., 592. Second, the court held that the overall scheme of General Statutes §§ 47-37, 47-38 is that once a party engaged in adverse use has received notice from an owner of land disputing the right of way or easement, such notice shall be deemed an interruption of the adverse use and shall prevent the acquiring of a right based on the continuance of that use thereafter.
Neither basis is valid here. There has been no court order directed against the defendants and no notice to them, prior to this lawsuit and the events leading up to it, that their deck violated zoning regulations. A court order is qualitatively different from a zoning regulation that has not been subject to enforcement.
Third, where, as here, the zoning authority has determined that there is no violation, precluding an adverse use that is arguably in violation of zoning violations would be inconsistent with the rule requiring a private party enforcing a zoning regulation to show irreparable harm. Unlike a zoning enforcement authority, a private party seeking to enjoin a zoning violation must allege and prove irreparable harm. Crouchley v. Pambianchi, 152 Conn. 224, 205 A.2d 492 (1964); Benson v. Housing Authority, 145 Conn. 196, 203, 140 A.2d 320 (1958); Lehmaier v. Wadsworth, 122 Conn. 571, 577, 191 A. 539 (1937); Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482-83, 138 A. 483 (1927), later, 110 Conn. 130, 137, 147 A. 513 (1929). To allow the plaintiff to raise the defendants' alleged violation collaterally in this proceeding would circumvent this rule.
Finally, in this case the plaintiff requested that the Westport zoning authorities take action against the defendants for their alleged zoning violation. The town refused to do so. It was thereupon incumbent on the plaintiff to exhaust his administrative remedies by appealing that refusal to the zoning board of appeals or be barred from seeking judicial relief based on that violation. Simko v. Ervin, 234 Conn. 498, 661 A.2d 1018 (1995); see also Munroe v. Zoning Board of Appeals, 261 Conn. 263, 805 A.2d 55 (2002). The policies underlying the rule requiring the exhaustion of administrative remedies counsel against allowing a party to raise the violation collaterally, as here. See Simko v. Ervin, supra, 234 Conn. 503-04.
G.
The court finally arrives at the merits of defendants' claim that they have, by their deck and shrubbery, partially extinguished the plaintiff's easement. CT Page 8176-aa
The plaintiff admits that the shrubs and deck were open and visible. He disputes, however, that they were continuous and uninterrupted for fifteen years.
The court finds the following additional facts. On the northerly side of the defendants' house at 5 Madeline Avenue, along the plaintiff's right of way, is a deck. The deck is five feet wide and twenty feet long. Until July 21, 2001, there were several juniper bushes along the deck. A deck was constructed and the shrubs were planted in their present location by 1975. No finding is made as to the width of the deck at that time. When the defendants purchased 5 Madeline Avenue in 1978, the deck was old and somewhat rotted. By 1983 the deck that existed at 5 Madeline Avenue was five feet wide and by 1984 the defendants had begun to trim the juniper bushes.
This is evidenced by Plaintiff's Exhibit V. There is no evidence as to precisely when the deck was constructed and the shrubs were planted, CT Page 8176-ak though neither existed in the early 1960s.
The plaintiff's brother corroborated the defendants' testimony insofar as he testified that the defendants' deck was enlarged between 1983 and 1984.
On December 11, 1992, the interior of the defendants' house was gutted by a fire. The house and the deck were demolished in the summer of 1993 to allow for reconstruction, which commenced immediately thereafter. For two or three months, however, no deck existed at 5 Madeline Avenue. After the building was reconstructed, the deck was approximately in the same position as it was before the fire and approximately the same width. The east end of the deck extends .9 feet into the right of way; the west end of the deck encroaches 1.2 feet into the right of way. Juniper bushes encroached somewhat farther into the right of way.
The court finds that the defendants' juniper bushes have been rooted in the same position since the 1970s. The plaintiff claims that the fact that the jumpers have been trimmed or pruned in height and circumference from time to time destroys their continuity. The plaintiff has cited no authority for this proposition, which the court finds to be unpersuasive.
The court further finds by a preponderance of evidence that the defendants' deck has been maintained at a width of five feet for fifteen years preceding the commencement of this action, specifically since 1983, except for a period of two months when the building was under reconstruction. This hiatus, however, did not interrupt the continuous and uninterrupted nature of the defendants' use for four reasons. First, the hiatus was brief and not more than a few weeks. As discussed in part I of this decision, the requirement that a use be continuous does not require that it be constant. 1 Restatement (Third), Property — Servitudes § 2.17, comment i. Second, the hiatus was occasioned by a fire that destroyed the building. Indeed, the deck itself was not destroyed by the fire but was only replaced with new construction when CT Page 8176-ab the house was rebuilt in the same footprint. Cf. Forsyth Corporation v. Rich's Inc., 215 Ga. 333, 110 S.E.2d 750, 755-56 (1959). Third, it is reasonable to infer that during this brief period the area of reconstruction continued to occupy the area occupied by the deck. Thus, the defendants continued to obstruct the plaintiff's enjoyment of that portion of the right of way. American Brass Co v. Serra, supra, 104 Conn. 146. Finally, though not dispositive, it is noteworthy that the hiatus was not occasioned by a reentry by the plaintiff.
By a preponderance of evidence, the court finds that the defendants, by adverse acts lasting for more than fifteen years, between 1983 and 1999, intentionally obstructed the plaintiff's enjoyment of the portion of his right of way occupied by the defendants' deck and juniper trees, thereby extinguishing that portion of the easement.
The court has considered the plaintiff's defenses and finds them unpersuasive.
H.
The plaintiff further argues that the court cannot extinguish his right of way on account of the defendants' maintenance of a deck and shrubbery because "the Defendants have failed to provide . . . a legal description or other useful way of describing the boundaries of the shrubbery encroachment." The court disagrees.
Exhibit E is a map prepared shortly before trial for the plaintiff by a registered surveyor. The document was offered and received as a plaintiff's exhibit. The map is drawn to scale and states that it is" "Certified Substantially Correct" Class A-2 Accuracy." The map reflects that the deck encroaches .9 feet over the right of way at its northeast end and 1.2 feet at the northwest end; and the existing shrubs encroach 2.5 feet into the right of way for an approximate distance of six feet. The map also approximates, based on a photograph supplied to the surveyor, that the previously existing line of shrubs that was destroyed by the plaintiff's brother extended 2.9 feet into the right of way for an approximate distance of fifteen feet. The portion of the deck that is without shrubbery encroaches approximately .9 feet for about another 6.75 feet.
While the former shrubbery line is based on a hearsay photograph. "[a]n exhibit offered and received as a full exhibit is in the case for all purposes." MerriLl, Lynch, Pierce, Fenner Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983). "`Hearsay evidence admitted without objection, if believed by the [trier or fact], is a sufficient basis for a finding of fact . . .' In re Juvenile Appeal (83-BC). 189 Conn. 66, 75 n. 6, 454 A.2d 1262 (1983). `As explained by Professor McCormick: If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value . . . This principle is almost universally accepted . . ." 1 C. McCormick, Evidence (4th Ed. 1992) § 54, pp. 219-20.'" State v. Outlaw, 70 Conn. App. 160, 168, 797 A.2d 579 (2002).
"A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty." Kaiko v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981). However, mathematical certainty in terms of metes and bounds has never been required. See, e.g., Simonds v. Shaw, 44 Conn. App. 683, 691, 691 A.2d 1102 (1997); Wadsworth a Zahariades, 1 Conn. App. 373, 377, 472 A.2d 29 (1984). The same requirements should logically apply to the partial extinguishment of an easement. Based on the evidence and the exhibits, the court finds that the portion of the CT Page 8176-ac plaintiff's easement extinguished by the defendants' use of the deck and shrubbery is defined with reasonable certainty.
III
In the second count of their counterclaim, the defendants allege that on July 21, 2001, the plaintiff, acting by his brother, destroyed certain of the defendants' juniper trees using a backhoe. In their claims for relief, the defendants seek treble damages pursuant to General Statutes § 52-570.
The court finds the following additional facts. During July 2001, the plaintiff was renovating his home at 3 Madeline Avenue, with the assistance of his brother. On July 21, 2001, in the course of performing that renovation, the plaintiff's brother, Joseph Boccanfuso, operated a large backhoe over the right of way. In doing so, he destroyed three of the junipers. Although he did not operate the backhoe with the specific intent to destroy the junipers, he admitted that he knew he would do so if he used the large backhoe. Although he had asked the defendants to cut the shrubs, the defendants said that he could maneuver the backhoe without their doing so.
A.
Although the plaintiff concedes that his brother destroyed the defendants' bushes and that he is responsible for his brother's acts; Banks v. Watrous, 134 Conn. 592, 600-01, 59 A.2d 723 (1948); the plaintiff argues that the defendants may not recover damages for the destruction of their shrubbery because they have failed to allege a trespass. The court disagrees.
First, this is not the time for the plaintiff to complain of pleading deficiencies in the defendants' counterclaim. "Our rules of practice are designed to have all formal and technical objections made known as early as practicable, so that the [opposing party] may amend or proceed anew, and the parties may, as expeditiously and inexpensively as possible, reach and settle their controversy upon its merits." (Internal quotation marks omitted.) Bombero v. Planning Zoning Commission, 40 Conn. App. 75, 86, 669 A.2d 598 (1996). "Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect." (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990).
Second, while the defendants do not plead the word "trespass" in their CT Page 8176-ad counterclaim, they do allege in paragraph 5 of their second counterclaim: "At all times from May 2, 1978 to the present time, the Defendants' Juniper trees, the `shrubbery' alleged by Plaintiff in his Complaint, have grown in their present location within the ten-foot right of way . . .; and the Plaintiff, his predecessors in title, have been ousted from their use of said area as a right of way and been kept out uninterruptedly for over fifteen years, under a claim of right by defendants by Defendants' open, visible, and exclusive possession without license or consent of Plaintiff or Plaintiff's predecessors in title." (Emphasis added.) "Although essential allegations may not be supplied by conjecture or remote implication the [pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the [pleading] is insufficient to allow recovery." (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002).
A tree or bush is part of the real property on which its trunk is situated. Lyman v. Hale, 11 Conn. 177, 185 (1836); 98 C.J.S., Woods and Forests § 2 (2002) ("Standing or growing timber, and trees generally, form a part of the realty, and belong to the owner thereof, as much so as the soil itself"). An action for trespass is an appropriate action by which to recover for damage to real estate. Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905). "An action for damages for trespass is a possessory action; Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973); for which title is only incidentally relevant." McCullough v. Waterfront Park Ass'n., Inc., 32 Conn. App. 746, 749, 630 A.2d 1372, cert. denied, 227 Conn. 993, 632 A.2d 707 (1993). Since trespass is a possessory action, it is necessary for the plaintiff to allege and prove possession, actual or constructive, to prevail. Koennicke v. Maiorano, 43 Conn. App. 1, 30-31, 682 A.2d 1046 (1996). The defendants adequately alleged, as well as proved, actual possession.
B.
General Statutes § 52-560 provides: "Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or CT Page 8176-ae shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value."
The burden was on the plaintiff to prove mistake. Petroman v. Anderson, 105 Conn. 366, 368, 135 A. 391 (1926). However, it is unnecessary to determine whether he did so. The only evidence of damages offered by the defendants was evidence of the cost to replace the shrubs. "Although § 52-560 provides that the injured party in a tree cutting case is entitled to the `reasonable value' of any tree that was destroyed, the replacement cost of the destroyed trees is not a proper measure of damages under § 52-560." Stanley v. Lincoln, 75 Conn. App. 756, 788-89, 815 A.2d 1261 (2003). "The proper measure of damages . . . is either the market value of the trees, once they are severed from the soil, or the diminution in the market value of the real property caused by the cutting." Id., 787. Since the defendants did not prove the reasonable value of their shrubs, the court awards them only nominal damages of $1.00.00. "The award of nominal damages is appropriate when there is a clear invasion of a legal right, such as the one in the present case, but no finding of a compensable injury." Lyons v. Nichols, 63 Conn. App. 761, 769, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001).
"Our Supreme Court has held . . . that an award of $100 can qualify as nominal damages." Creem v. Cicero, 12 Conn. App. 607, 611, 533 A.2d 234 (1987).
Although there is authority in other jurisdictions for the trebling of nominal damages; McDonough v. Ferrar Pool 'N Patio, Inc., 2000 Mass. App. Div. 100 (2000); Pinehurst, Inc. v. O'Leary Bros. Realty, Inc., 79 N.C. App. 51, 338 S.E.2d 918, review denied, 316 N.C. 378, 342 S.E.2d 896 (1986); Mott v. Kulesza, 1984 Mass. App. Div. 169 (1984); Karp v. Margolis, 169 Cal.App.2d 69, 323 P.2d 557 (1958); the court finds that it would be incongruous, given the Connecticut concept of nominal damages, to indulge in a trebling even assuming that the plaintiff did not prove mistake. "Nominal damages means no damages . . . They exist only in name and not in amount." (Internal quotation marks omitted.) Kelley v. Montest, 14 Conn. App. 104, 107, 539 A.2d 1020 (1988).
IV
Both parties seek injunctive relief. The plaintiff seeks injunctive relief restraining the defendants from continuing to obstruct or reduce the right of way and from interfering with the parking of motor vehicles in the right of way. The defendants seek an injunction against the plaintiff's use of the right of way for any purpose other than ingress and egress. They also seek an injunction against the plaintiff's use of any heavy equipment in the right of way.
"Injunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement . . . It is an equitable form of relief, however, which does not follow automatically upon establishment of a strict legal right where such a remedy would not be compatible with the equities of the case." Peckheiser v. Tarone, 186 Conn. 53, 60-61, 438 A.2d 1192 (1982). "[T]he owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right. Leabo v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981)." (Internal quotation marks omitted.) Espressway Associates II v. FriendLy Ice Cream Corp., 22 Conn. App. 124, 130, 576 A.2d 575 (1990), rev'd in CT Page 8176-af part on other grounds, 218 Conn. 474, 590 A.2d 431 (1991).
The plaintiff's request for injunctive relief is denied. While the defendants extinguished a portion of the right of way by their maintenance of a deck and shrubbery, there is no evidence that they have sought to encroach further in the last twenty years.
The defendants' request for injunctive relief against the plaintiff's using the right of way other than for ingress or egress is, in accordance with part I of this decision, denied.
The defendants also request an injunction against the plaintiff's use of the right of way for the passing of heavy equipment. This request implicates the scope of the use permissible under the plaintiff's express grant of an easement for ingress and egress, as opposed to his prescriptive easement for the parking of vehicles. Although this request has not been adequately briefed, the court addresses it to afford a further degree of finality to the parties' dispute.
Moreover, the scope of the requested injunction is vague. What, for example, is meant by "heavy" equipment? To be enforceable, an order of injunction must not be vague and indefinite. In re Jeffrey C., 261 Conn. 189, 195, 802 A.2d 772 (2002); Sablosky v. Sablosky, 258 Conn. 713, 723, 784 A.2d 890 (2001); Papa v. New Haven Federation of CT Page 8176-al Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982); Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998); Sender v. Sender, 56 Conn. App. 492, 495-96, 743 A.2d 1149 (2000); Baldwin v. Miles, 58 Conn. 496, 502, 20 A. 618 (1890) ("we think the language of the injunction is too vague and indefinite to be the foundation of proceedings in contempt").
Unlike an easement established by prescription, the use of which must be both "reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit"; Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987); "[a] right of way created by grant is to be construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant . . ." New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); see Birdsey v. Kosienski, 140 Conn. 403, 413, 101 A.2d 274 (1953) (express grant of right of "passway" over land included the right to cart sand and gravel over the passway). The defendants have not shown that infrequent use of the right of way by construction equipment would be an unreasonable use of 3 Madeline Avenue. Although there is no evidence that it is likely to recur in the near future, there may be a need to perform additional construction on the house or lot again in the future. Use of the right of way for the purposes of ingress and egress of equipment necessary to perform such work would not necessarily be unreasonable. The request for injunctive relief is denied.
A declaratory judgment is granted declaring that the plaintiff, his heirs and successors, have prescriptively acquired the right to park motor vehicles in the right of way.
A declaratory judgment is granted determining that the defendants, owners of the fee, have extinguished so much of the plaintiff's right of way as follows: Beginning at a point 1.5 feet from the southwest corner CT Page 8176-ag of the right of way, extending into the right of way for 2.5 feet for a distance of six feet; then extending into the right of way 2.9 feet for a distance of fifteen feet; then extending into the right of way .9 feet for a distance of 6.75 feet.
The defendants are further awarded $100 nominal damages.
Costs shall not be allowed to either party. See Practice Book § 17-57.
Practice Book § 17-57 provides that in a declaratory judgment action: "Costs shall be discretionary and may be granted, to or against any party to the action."
LEVIN, J.