Opinion
MMXCV166014922S
11-17-2017
Ronald J. Borrelli et al. v. Samson D. Liseo
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward S. Domnarski, J.
The plaintiffs, Ronald J. Borrelli and Stephanie A. Borrelli, own property known as 153, 163, and 163-R Toll Gate Road, Middletown, Connecticut. The defendant, Samson D. Liseo, owns property known as 139 Toll Gate Road, Middletown, Connecticut. The two properties are adjacent to and abut each other. The defendant's property is subject to a recorded right of way easement in favor of the plaintiff's property, created by instrument dated September 15, 1971, and recorded in volume 377, page 545 of the Middletown Land Records (deeded easement). In their second amended complaint, the plaintiffs argue that: (1) the defendant has obstructed their use of the easement; (2) they have acquired a prescriptive easement over a portion of the defendant's land; and (3) the defendant has intentionally interfered with their public easement of travel and private easement of access over Toll Gate Road. The court conducted a trial on September 6, 2017. Thereafter, the parties filed post-trial briefs on September 25, 2016. With the consent of the parties, the court conducted a " silent view" of the subject premises without the presence of counsel or parties.
The deeded easement, granted from the defendant's predecessor in title to the plaintiffs' predecessor in title, conveyed " the right to pass and repass over and across a twelve (12) foot wide strip of land from the westerly highway line of Toll Gate Road south westerly and southerly along the top of a ledge located on the southeasterly corner of the releasor's land to land of the releasee herein located southerly of the releasee's land . . ." Exhibit A. The location and use of the easement within the area of the defendant's deeded property description (easement area) is not in dispute.
This dispute between the parties concerns the land lying between the defendant's easterly boundary and the westerly paved edge of Toll Gate Road. This area is not included within the defendant's property deed description. Both parties, however, acknowledge that " [a]n abutting owner is presumed under the law of this state, no evidence having been offered to the contrary, to own the fee of the land to the center of the highway. Therefore, as to the land within the limits of the highway, an abutting owner has all rights not incompatible with the public easement." Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955). Although the plaintiffs do not contest that the defendant owns the land between his deeded property and the edge of Toll Gate Road, they do maintain that they have rights over this portion of land by way of their deeded easement.
The easement area runs in a generally north-south direction, roughly parallel to Toll Gate Road. Within the easement area there is a paved driveway (easement driveway) that extends to the paved edge of Toll Gate Road. At the northerly end of the easement area, the easement driveway turns generally easterly to meet the westerly paved edge of Toll Gate Road. The easement area and easement driveway are depicted on a map entitled " Property/Boundary Survey showing Property of Ronald J. & Stephanie A. Borrelli, 163 Toll Gate Road, Middletown, Connecticut, Scale: 1" = 20ft., 26-Jan-2015* Revised to show bollards; 22 Dec 2015, Bascom & Benjamin, LLC." See Exhibit P. On said map, the scaled distance between the westerly paved edge of Toll Gate Road and the easterly boundary of the easement area is approximately seventeen feet.
The testimony presented at trial and the " silent view" of the premises establishes that the topography of the easement area and the paved driveway, both of which are in the immediate vicinity of the paved portion of Toll Gate Road, can be described as " sloped" and/or " inclined." The land between the westerly edge of the paved portion of Toll Gate Road and the easterly boundary of the easement area incline upward from the paved edge of Toll Gate Road. A map depicting an area of enlargement of a portion of Exhibit P entitled " Plaintiff's Exhibit P (enlarged)" indicates a 21 percent slope on the driveway in this area (enlarged map). See Exhibit P (enlarged). Furthermore, the easement area inclines upward from its northern extremity in the vicinity of Toll Gate Road to the south where it intersects with the plaintiffs' property. See Exhibit P (enlarged). The width of the historical entrance to the easement driveway, at its intersection with the paved portion of Toll Gate Road, was approximately thirty-eight feet (historical driveway entrance). See Exhibit P (enlarged). The wide width of the historical driveway entrance allowed motor vehicles using the easement driveway to make safe and manageable turns onto and from Toll Gate Road.
The defendant's house has an attached garage located generally northwesterly of the northern end of the easement driveway. A paved driveway begins in front of the defendant's garage and extends to meet the westerly paved edge of Toll Gate Road (defendant's driveway). A portion of the defendant's driveway is located on the land that lies between the deeded portion of the defendant's land and the paved edge of Toll Gate Road. As previously discussed, this land is owned by the defendant subject to the public easement for Toll Gate Road. A portion of the historical driveway entrance crossed over a portion of the defendant's driveway in order to provide access to the paved edge of Toll Gate Road.
In 2014 the defendant placed large stones along the southerly edge of the defendant's driveway. These obstructions prevented vehicles that used the easement driveway from traveling over the defendant's driveway in order to reach the paved edge of Toll Gate Road. In November 2015, in place of the stones, the defendant installed three concrete-filled posts, referred to as bollards, along the edge of the defendant's driveway in front of his garage. The bollards are connected by a heavy chain. The bollards and the defendant's driveway are depicted in a photograph entitled " Plaintiff's Exhibit L." See Exhibit L. The easement driveway viewed from north to south is depicted in a photograph entitled " Defendant's Exhibit 2." See Exhibit 2. The same area, viewed from south to north, is depicted in a photograph entitled " Plaintiff's Exhibit I." See Exhibit I. The bollards are also depicted on the aforementioned enlarged map. See Exhibit P (enlarged). The enlarged map indicates that the bollards reduced the width of the historical driveway entrance, at its intersection with paved edge of Toll Gate Road, from 38 to 18.8 feet (current driveway entrance). See Exhibit I. In effect, the defendant has obstructed the use of the northerly twenty feet of the historical driveway entrance at the intersection with the edge of Toll Gate Road. It is important to note that, given the topography next to Toll Gate Road, it is not feasible to extend the entrance to the easement driveway on its southern end, opposite from the defendant's driveway.
DISCUSSION
I
First Count: Obstruction of Easement
The plaintiffs argue that the bollards placed by the defendant have obstructed their historical use of the easement and interfered with the access to their property. In Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829-32, 717 A.2d 1232 (1998), " [the Supreme Court] adopted the position set forth in certain provisions of the Restatement (Third) of Property . . . [S]ee 1 Restatement (Third), Property, Servitudes § § 4.1 and 4.10 (2000)." (Citation omitted.) Zhang v. Omnipoint Communs. Enters., 272 Conn. 627, 636, 866 A.2d 588 (2005). " [Section] 4.1 of the Restatement (Third) [ supra ] makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude. Only if the rules of § 4.1 are not fully applicable do supplemental principles, set forth in [§ 4.10 of the Restatement (Third), supra ], provide additional guidance. Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, § 4.10 permits the beneficiary of an easement to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose ." (Emphasis added; internal quotation marks omitted.) Id., 636-37.
In addition to the language from the deeded easement document quoted previously, the document also contains the following language after the running description of the easement area: " Said right-of-way shall be for all purposes of ingress and egress for use of said releasee, his heirs and assigns as a driveway for access to and from his property and the public highway know as Toll Gate Road ." Exhibit A. It is significant to note that the easterly boundary description of the easement is described as follows: " [T]hence in a generally northerly direction along the westerly highway line of Toll Gate Road, a distance of 12 feet to the point or place of beginning." Exhibit A. The defendant does not claim that the reference to the " highway line of Toll Gate Road" refers to the paved edge of the road. The easement document does not mention, nor does it restrict, the right to pass and re-pass to any specific portion of the land between the defendant's deeded property description and the paved edge of Old Toll Gate Road. See Exhibit A.
The plaintiff Ronald J. Borelli acquired his property in 2005. He testified that he and his tenants have utilized the historical driveway entrance from 2005 until 2014, when the obstructions were placed along the edge of the defendant's driveway. The plaintiffs' predecessor in title, Larry Thomas, acquired the property in 1984 and owned it until 2005, when he sold the property to the plaintiffs. Thomas testified that, while he owned the property, he and his tenants also used the historical driveway entrance to and from Toll Gate Road. It is reasonable to infer that travel onto and over the historical driveway entrance was part of, and necessary for, the utilization of the easement right of way, i.e., gave access to the easement driveway located upon it. The evidence established that the historical driveway entrance had a wide entrance of thirty-eight feet that allowed motor vehicles to make wide turns, which were necessary given the layout of the driveway intersection onto or from Toll Gate Road.
The court finds that travel over the defendant's property between the boundary of the easement area and the westerly edge of Toll Gate Road is reasonably necessary and convenient for the utilization and enjoyment of the plaintiffs' easement rights under the deeded easement. The court further finds that the establishment of the historical driveway entrance, located on the defendant's property, was intended by the parties to the original easement. This finding is on the basis of the evidence that the wide historical driveway entrance was in use from at least 1984 until 2014, some thirty years.
Both the plaintiff Ronald J. Borelli and Thomas testified that the bollards have significantly interfered with the use of the easement driveway when turning onto or from Toll Gate Road. As a result, large trucks, such as those used to deliver propane and fuel oil, must now back up onto the easement driveway. Additionally, it is very difficult for plows to clear the area and, thus, the plaintiffs have to use a snowblower to clear the easement driveway.
The court's " silent view" of the property confirmed that the bollards and the reduced width of the current driveway entrance make turns onto and from the easement driveway very difficult. For example, upon exiting the easement driveway to make a right turn onto Toll Gate Road, it is difficult to get a good sight line to the south to check for oncoming traffic. Further, upon entering the easement driveway from the south, it is impossible to make a wide enough turn to proceed up the driveway. Finally, upon entering the driveway from the north, it is necessary to cross over into the other lane in order to make a wide enough turn to get around the bollards. It is obvious that large trucks, such as fire trucks, would have even more difficulty making these turns.
The court finds that the defendant has interfered and obstructed with the plaintiffs' easements rights by installing the bollards in the easement driveway entrance area. The plaintiffs are entitled to judgment on count one of their second amended complaint.
II
Second Count: Prescriptive Easement
The plaintiffs argue that they have a acquired a prescriptive easement to pass and repass over the land of the defendant lying between the easement area and the paved portion of Toll Gate Road. " [General Statutes § ]47-37 provides for the acquisition of an easement by adverse use, or prescription." Slack v. Greene, 294 Conn. 418, 427, 984 A.2d 734 (2009). General Statutes § 47-37 provides: " No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years." " In applying that section, [the Supreme Court] repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right . . . The purpose of the open and visible requirement is to give the owner of the servient land knowledge and full opportunity to assert his own rights . . . 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." Slack v. Greene, supra, 427.
On the basis of the evidence and findings set forth in the preceding paragraphs, the court concludes that the plaintiffs have established a prescriptive easement over that portion of the defendant's land that includes the historical driveway entrance, which gives them access to the easement area. The testimony of the plaintiff Ronald J. Borelli and Thomas establish that the historical driveway entrance was continuously and visibly used, without interruption, for a period in excess of fifteen years. Because the plaintiff and his predecessor used this historical driveway entrance as part of their deeded easement, the use was made under a claim of right. There was insufficient evidence to establish that this use was only by permission of the defendant or the defendant's predecessors in title.
The plaintiffs are entitled to judgment on this count. The purpose of the easement acquired by prescription is to pass and repass over the defendant's land over and across the defendant's driveway. The location of the prescriptive easement is shown and depicted on the enlarged map. See Exhibit P (enlarged). The easement area, noted as the " Paved Driveway" on the enlarged map, is the portion of land that lies between the easterly boundary of the defendant's property--as shown on said map--and the westerly edge of the paved portion of Toll Gate Road. See Exhibit P (enlarged). The westerly boundary of the easement area that is located within the defendant's driveway in front of the defendant's garage is designated on the enlarged map by a broken line running from the edge of the pavement of Toll Gate Road to a solid line depicting the westerly boundary of the " paved driveway." See Exhibit P (enlarged). The width of the easement area where it meets the paved portion of Toll Gate Road is thirty-eight feet. See Exhibit P (enlarged).
III.
Third Count: Intentional Interference with Public Easement of Travel and Private Easement of Access
The plaintiffs argue that the defendant has intentionally interfered with their right to exercise their public easement of travel over Toll Gate Road and their private easement of access over Toll Gate Road. The plaintiffs rely on Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982), for the proposition that " [i]nstead of creating a fee, the taking of the highway creates two easements: the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits landowners who abut the highway to have access to the highway and to the connecting system of public roads."
As previously noted, the plaintiffs' deeded easement rights are for the purpose of " access to the public highway known as Toll Gate Road." These easement rights equate to the rights of abutting landowners to have access to the highway. The evidence establishes that the defendant has interfered with the plaintiffs' private easement of access to the highway known as Toll Gate Road. The plaintiffs are entitled to judgment on this count.
IV
Injunctive Relief
In their demand for relief, the plaintiffs request a permanent injunction requiring the defendant to remove the bollards and prohibiting the interference with passage from their property to Toll Gate Road. The defendant testified that he installed the bollards in order to protect his family from motor vehicles that used the historical driveway entrance to access the plaintiffs' property. The court does not find this testimony credible. " Injunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." Gerald Park Improvement Ass'n v. Bini, 138 Conn. 232, 236, 83 A.2d 195 (1951).
The defendant is ordered to remove the three bollards and chains that he installed in the vicinity of Toll Gate Road--near the northern end of the easement driveway and the historical driveway entrance--within thirty days. The defendant is enjoined from taking or directing any action that interferes with the plaintiffs' deeded rights or the prescriptive easement rights established by this judgment.
CONCLUSION
Judgment may enter in favor of the plaintiffs and against the defendant as to counts one and three of the plaintiff's second amended complaint. Judgment may enter in favor of the plaintiffs as to count two of their second amended complaint as follows: The plaintiffs have acquired an easement by prescription to pass and repass over the defendant's land over and across the defendant's driveway. The location of the prescriptive easement is shown and depicted on the enlarged map. The easement area, noted as the " Paved Driveway" on the enlarged map, is the portion of land that lies between the easterly boundary of the defendant's property as shown on said map and the westerly edge of the paved portion of Toll Gate Road. The westerly boundary of the easement area that is located within the defendant's driveway, located in front of the defendant's garage, is designated on the enlarged map by a broken line running from the edge of the pavement of Toll Gate Road to a solid line depicting the westerly boundary of the " paved driveway." The width of the easement area where it meets the paved portion of Toll Gate Road is thirty-eight feet.
The defendant is ordered to remove the three bollards and chains that he installed in the vicinity of Toll Gate Road within thirty days. The defendant is enjoined from taking or directing any action that interferes with the plaintiffs' deeded easement rights or the prescriptive easement rights established by this judgment.
The plaintiffs' counsel is directed to prepare a judgment file.