Opinion
No. LLI CV 08 5004530S
December 29, 2010
MEMORANDUM OF DECISION
I
PROCEDURAL OVERVIEW
On June 8, 2009, the plaintiffs, Michael E. Connole, Nancy E. Connole (the Connoles) and James W. Maguire, filed a two-count complaint against the defendant, Michele Babij, alleging that the defendant obstructed and interfered with a certain right of way. A six-day trial to the court was held followed by briefing and oral argument on September 28, 2010.
Count one, brought by the Connoles, alleges that the Connoles are owners and in possession of a parcel of land, which fronts on Moreland Road, in Winchester, Connecticut. The Connoles allege that they have a right of way appurtenant to their land over Highland Lake Road, so-called, which they share in common with others. According to the Connoles, on or about June or July 2008, the defendant wrongfully obstructed the right of way by installing a steel cable across the entranceway to the right of way and maintaining a wooden shed on the right of way in a manner that prevents the plaintiffs from enjoying and/or using the right of way. Count two, brought by Maguire, is essentially the same as count one. The plaintiffs seek damages as well as an injunction restraining the defendant from obstructing or interfering with the right of way and any other equitable relief that the court may find.
On August 5, 2009, the defendant filed an amended answer, special defenses and a cross complaint. As a special defense to both counts, the defendant asserts that she and her predecessors in title have had the use and enjoyment of the right of way for more than fifteen years before the commencement of the plaintiffs' action and that this use and enjoyment has been open, visible, continuous, uninterrupted and under a claim of right. Thus, the defendant asserts that she and her predecessors in title have acquired all legal right and title to the use, enjoyment and ownership of the subject right of way. Count one of the cross complaint asserts that the plaintiffs began driving over the right of way and damaged the defendant's personal property. Count one also alleges that the plaintiffs cut trees on the defendant's property. Count two of the cross complaint alleges that the plaintiffs have been driving over the property with four-wheel vehicles making the property unsightly and creating gouges and ditches by diverting water and drainage onto the defendant's property washing out her property, driveway and lawn. The defendant seeks damages, an injunction restraining the plaintiffs from driving on and using the right of way and preventing further water drainage and diversion, and any other equitable relief that the court may find.
On July 27, 2009, the defendant filed a motion to cite in Carmen Bazzano as an additional party plaintiff. The defendant asserts that Bazzano also claims that he has certain rights over the right of way and has diverted water onto the right of way eroding the defendant's property. The defendant filed an amended cross complaint on October 9, 2009. In addition to the allegations in the defendant's original cross complaint, the defendant's amended cross complaint alleges that the plaintiffs and Bazzano trespassed on and destroyed the defendant's personal property by driving and walking over the property. The defendant also asserts that the plaintiffs and Bazzano removed stone walls and rocks from her property. All of the remaining allegations of the defendant's original cross complaint remain the same, but Bazzano is now included in all of those allegations.
Carmen Bazzano will hereinafter be referred to as "Bazzano" and not included in any references to "the plaintiffs," which refers only to the Connoles and Maguire, collectively. However, Bazzano has been made an additional party plaintiff.
Bazzano filed a cross complaint against the defendant on January 26, 2010. In that cross complaint, Bazzano claims title by way of adverse possession to a portion of the right of way for drainage purposes.
II
DISCUSSION
The plaintiffs claim that the defendant obstructed and interfered with the subject right of way that runs in a north-south direction terminating at its southerly point in Wakefield Boulevard. The right of way, which is approximately fifty (50) feet in width, abuts Maguire's property on its northerly and easterly side, the defendant's property on the westerly side, and the Connoles' property abuts the right of way at its most northerly extension. The right of way has a terminal point into Moreland Road, which continues in said northerly direction along the Connoles' property. The plaintiffs introduced various maps prepared by a licensed surveyor, John DiCara (Plaintiffs' exhibits 22, 23, 24 and 25). During the trial, DiCara testified that the right of way bears various names, including Highland Lake Road, Von's Way, Clorinator Road and possibly Morgan Road.
"Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein . . . A judgment upon an issue not pleaded would not merely be erroneous, but it would be void." (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn.App. 146, 160-61, 783 A.2d 1226 (2001). "It is fundamental in our law that the right of a [party] to recover is limited to the allegations of [its] [pleading] . . . 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, [the court] will not conclude that the [pleading] 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).
Because the present action is not only one in law but also in equity, "the trial court may examine all relevant factors to ensure that complete justice is done . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court . . ." (Internal quotation marks omitted.) Danzig v. PDPA, Inc., 125 Conn.App. 254, 262-63 (2010). This is because "[t]he principles of equity evolved as a necessity in order to obtain justice because the law by reason of its universality was deficient. Equity in its true and genuine meaning is the soul and spirit of all law, and positive law is construed by it and rational law is made by it. In this, equity is synonymous with justice. Equity depends essentially upon the particular circumstances of each individual case. That being so, there can be no established rules and fixed principles laid down for its application, without destroying its very existence, and reducing it to positive law. The nature of equity is to amplify, enlarge, and add to the letter of the law and every particular case stands upon its own circumstances." (Emphasis in original; internal quotation marks omitted.) Natural Harmony, Inc. v. Normand, 211 Conn. 145, 150, 558 A.2d 231 (1989).
The parties all request "any other equitable relief" that the court may find. Moreover, a request for an injunction "falls within the field of equitable remedies . . ." E.M. Lowe's Enterprises v. International Alliance of Theatrical Stage Employees, 127 Conn. 415, 418-19, 17 A.2d 525 (1941).
With these principles in mind, the court turns to the present case. First, the court must determine the record owner of the right of way. The defendant alleges that she has title to the entire right of way by deeded interest and, alternatively, by adverse possession. Bazzano alleges that he has acquired title, by adverse possession, to a fifteen-foot portion of the right of way. "[A] person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious, exclusive and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership . . . The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title." (Citations omitted; internal quotation marks omitted.) Konikowski v. Everson, 42 Conn.App. 658, 659-60, 680 A.2d 1366, 1367 (1996).
The court finds that the defendant is the record owner of the subject right of way based on her deeded interest. The defendant has claimed, by way of special defense, that her ownership is not only by deeded interest but that her usage has been open, visible, continuous, exclusive, and under a claim of right and, therefore, the right of way has been adversely possessed by her against the plaintiffs. The defendant asserts that she has established this adverse possession claim by way of clear and convincing evidence. See Anderson v. Poirier, 121 Conn.App. 748, 752, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). The court finds, however, that the defendant's claim of adverse possession has not been established by clear and convincing evidence and rules that the defendant's ownership is derived from her chain of title in the various deeds and not by way of adverse possession. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner . . . A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession . . ." (Internal quotation marks omitted.) Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 44, 3 A.3d 975 (2010). In the present case, the court finds that the defendant's use of the right of way was not continuous, as it was certainly interrupted by the various plaintiffs' activities and intrusions on an intermittent, but continuing basis for more than the past fifteen years. The plaintiffs' testimony indicated that they have used the right of way over a fifteen-to twenty-year period in intermittent ways for pedestrian and, occasionally, vehicular passage establishing certain permissive rights over the right of way. Moreover, there was credible evidence that Bazzano had exercised a certain level of control, particularly for drainage purposes, over the lower portion of the right of way.
The defendant is, however, the record owner of the right of way based on her deeded interest. The right of way is described in a series of deeds ending with the defendant. The origin of the right of way has not been clearly established by the evidence from the parties, but the court finds that it has existed since the original subdivision as the "third piece" in the defendant's chain of title. In the defendant's chain of title, the right of way is described as forty-five (45) to fifty (50) feet in width, approximately eight hundred and ninety-seven (897) feet in length, and containing .93 acres. The right of way is further described as partially paved and abutting those parcels belonging to the respective plaintiffs and Bazzano. The right of way has a specific description originating in July 1984, in a deed from Howe into Hinman (Plaintiffs' exhibit 27). In that deed, the right of way is referenced as the "third piece." Thereafter, in June 1985, the "third piece" is described in a deed from Hinman into Ruzbasan (Defendant's exhibit 28). Subsequently, in March 1991, the "third piece" is described in a deed from Ruzbasan into the defendant (Babij deed) (Defendant's exhibit 27).
Although the right of way varies in width between forty-five (45) to fifty feet (50), the actually traveled and paved portion of the right of way has an approximate width between twenty (20) and twenty-five (25) feet, based on the plaintiffs' exhibit 23 and the court's on-site inspection.
Having established that the defendant is the record owner of the right of way, the court must now determine if the right of way is a fee simple into the defendant to the exclusion of all other abutting land owners. Specifically, the court must determine (1) whether Bazzano's claim of adverse possession divests the defendant of her title to a portion of the right of way; and/or (2) whether the plaintiffs have any rights to the use and enjoyment of the right of way.
Bazzano seeks title to a fifteen (15) foot strip of the right of way along his southerly boundary towards Wakefield Boulevard and Highland Lake. Bazzano seeks title by way of adverse possession, alleging that he used approximately fifteen feet of the right of way for approximately fifteen years in an open, visible, continuous and uninterrupted manner and under a claim of right. The court finds that there is credible evidence that Bazzano exercises a certain level of control, particularly for drainage purposes, over a portion of the right of way. Specifically, Bazzano presented evidence that he established, on his southerly boundary within the right of way, a ten (10) to fifteen (15) foot clearance for drainage pipe purposes running in a southeasterly direction for more than one hundred and sixty (160) feet toward Wakefield Boulevard. Nonetheless, the court does not find that Bazzano has acquired title by adverse possession because Bazzano established only his adverse use of, not possession of, the subject area. The court does find, however, that Bazzano has established a right to a prescriptive easement for drainage purposes and for his own passage to Wakefield Boulevard and Highland Lake.
"Whether a [prescriptive easement] has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered." (Internal quotation marks omitted.) 140 Main Street-Derby, LLC v. Clark Development, LLC, 116 Conn.App. 188, 191, 975 A.2d 113, cert. denied, 293 Conn. 927, 980 A.2d 911 (2009). As noted earlier, "[a]s 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, [the court] will not conclude that the [pleading] is insufficient to allow recovery." (Internal quotation marks omitted.) O'Brien v. Coburn, supra, 39 Conn.App. 147. Here, the elements necessary to prove a prescriptive easement do not differ significantly from those pertaining to adverse possession such that the opposing party would suffer surprise or prejudice. "The proper inquiry in evaluating a claim that easement rights have been acquired by prescription is whether the claimant adversely used the property at issue and not whether he adversely possessed that property." (Emphasis in original.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007). "In proving its burden of establishing a prescriptive easement, [a party is] obligated to prove by a preponderance of the evidence that his use of the area claimed was (1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim or right." (Emphasis in original; internal quotation marks omitted.) Blow v. Konetchy, 107 Conn.App. 777, 784, 946 A.2d 943 (2008).
"When the factual basis of the court's decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous . . . In such cases, the trier's determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached." (Internal quotation marks omitted.) 140 Main Street-Derby, LLC v. Clark Development, LLC, supra, 116 Conn.App. 188, 191.
"[T]he two types of claims differ as to the burden of proof to be applied. Claims of adverse possession are evaluated under the heightened standard of clear and positive proof, whereas claims of prescriptive easements are assessed under the preponderance of the evidence standard." Smith v. Muellner, supra, 283 Conn. 536.
The court now turns to what rights, if any, the plaintiffs have in the right of way. "It is well settled that [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 . . . [T]he benefit of an easement . . . is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . ." (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000). "In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation." Stefanoni v. Duncan, 282 Conn. 686, 704, 923 A.2d 737 (2007).
If the language in the subject deed is ambiguous or incompatible with the reality on the ground, then the court must exercise sound discretion in resolving such ambiguity. "A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face." (Internal quotation marks omitted.) Lacic v. Tomas, 78 Conn.App. 406, 415, 829 A.2d 1, cert. denied, 266 Conn. 922, 835 A.2d 472 (2003). Latent ambiguity exists where, although language in a deed appears to be certain on its face, it is rendered uncertain when compared to the land that it is purported to describe. See, e.g., F AK, Inc. v. Sleeper, 161 Conn. 505, 510-11, 289 A.2d 905 (1971). "Hence, [a] trial court correctly [may conclude] that [a deed is] rendered uncertain by comparing [it] with the land which [it] is purported to describe . . . The latent ambiguity thus disclosed by parol [evidence] could be removed by parol [evidence]." Id., 511. "When there is a latent ambiguity, the meaning of the ambiguous term in a deed is an issue of fact for the trial court . . ." (Internal quotation marks omitted.) Stefanoni v. Duncan, supra, 282 Conn. 686, 704.
In the present case, the right of way directly benefits the defendant's two parcels, 5J and 5K (Defendant's exhibit 25) and the only driveway access to her residence is over the right of way (Defendant's exhibit 25; Plaintiffs' exhibit 25). The Babij deed, however, includes the following language: "conveyed subject to such right if any as the grantor has in and to a right a way from the northeasterly corner of the herein described premises, southerly and easterly direction in common with others over said roadway known as Morgan Drive running to Wakefield Boulevard." The implication of this language is that Morgan Drive a/k/a Highland Lake Road, Clorinator Road, and Von's Way, all being part of the same right of way, would be subject to certain rights of passage, ingress and egress "in common with others over said roadway."
Morgan Drive may be a misnomer of the subject right of way, but appears to be a northerly extension of it.
The inference, therefore, is that the abutting owners, including the plaintiffs, would have limited passage rights over the right of way. The court finds, however, that the plaintiffs have not established a claim to the right of way by adverse possession. The plaintiffs' testimony indicates that they have used the right of way over a fifteen (15) to twenty (20) year period in intermittent ways for pedestrian and, occasionally, vehicular passage. Moreover, the plaintiffs presented evidence that the cable blockage erected by the defendant was in fact removed by one of them. The defendant, however, clearly established that the shed in the middle portion of the right of way (Plaintiffs' exhibits 12, 13, and 17), placed there by previous owners, was some evidence of her control over the right of way. Furthermore, the use of cables at the most northerly point of the right of way along with the installation of a dog kennel, invisible dog fence, tree cutting and floral gardening are also evidence of the defendant's control and possession. Additionally, there was credible evidence that Bazzano had exercised a certain level of control, particularly for drainage purposes, over a portion of the right of way.
The court may, however, use its equitable powers to reach some resolution that allows certain rights to each of the abutting owners with corresponding duties concerning the use of the subject right of way. The court finds that the more credible and probative evidence establishes certain permissive rights of the plaintiffs and Bazzano over the right of way. Accordingly, the court finds that the right of way is a deeded interest into the defendant, but that title is subject to certain prescriptive easement rights in the plaintiffs and Bazzano.
Finally, with respect to the defendant's amended cross complaint, the court will defer those specific claims of the defendant to subsequent proceedings, if not fully addressed in this decision.
III
FINDINGS AND CONCLUSION
Based on the more credible evidence or the lack thereof, the Court makes the following findings. The Court finds against the plaintiffs, the Connoles and Maguire, for any injunctive relief or damages against the defendant, but does allow other equitable relief hereinafter for the plaintiffs.
The Court finds in favor of the defendant, by way of special defense, in that she has established by a fair preponderance of the evidence the right and title to the right of way (Third Piece), as described in the relevant deeds.
The Court finds for the defendant on her amended cross complaint and enjoins the plaintiffs from entry on the right of way except as provided for in this judgment.
The Court finds for the third-party plaintiff Bazzano on the cross complaint, limited to said findings contained herein.
The Court finds that the right of way under its various names is a deeded interest into the defendant and that, in effect, such title is ratified and vested in her by way of this judgment. The credible and more probative evidence establishes her title by deed, but that title is subject to certain prescriptive easement rights. These prescriptive rights are not out of necessity or implication, but by usage and enjoyment of the right of way (Third Piece) by the abutting owners, namely the plaintiffs, the Connoles and Maguire, and Bazzano for more than fifteen years openly, continuously, and under a right of claim.
Now, certain conditions are imposed on the Connoles and Maguire. They each will pay to the defendant in advance and to her heirs, successors, and assigns an annual amount of $100.00 by January 15th of each year for the privilege of passing by way of pedal bicycle and/or by foot, but not by motorized vehicle of any type, on, over and across the right of way from its most northern terminus south to Wakefield Boulevard. Failure to pay said annual fee to the defendant will cause that plaintiff to forfeit any right to pass, use or repass over the subject right of way. The said plaintiffs, in addition to an individual annual fee, will do nothing to interfere with the use, enjoyment or condition of the right of way and will in no way cause or divert water over the right of way onto the other parcels of property belonging to said defendant and in effect will refrain from doing anything that would generate water diversion or erosion along the said right of way due to their use of it. Further, the plaintiffs will refrain and desist from removing or cutting any trees, plantings and/or shrubbery from the right of way.
Bazzano is excused from this annual fee because of other obligations placed on him as set forth in this decision.
The plaintiff Bazzano has established, based on the more probative and credible evidence, that he has in good faith attempted to alleviate the drainage and erosion problems that occur in the area of the northerly bend in the right of way. Therefore, Bazzano and his successors and assigns are entitled to maintain the subject drainage line and catch basin installed by him, starting from the north westerly side of his property line and extending along his southern property line abutting the right of way with a width no greater than ten (10) feet. Maintenance of said drainage easement is for the mutual benefit of all parties to include the defendant.
The plaintiffs and Bazzano will do nothing further to interfere with the quiet enjoyment and usage of the right of way by the defendant and her successors to include use by her of any motor vehicle to gain access to her residence and to the property north of her residence along the said right of way if she so chooses as well as unobstructed access to the subject shed on the subject right of way.
No costs or legal fees are awarded to any party in this matter and all further expenses involved in the maintenance of said right of way will be borne by the defendant as owner of the said right of way. Such costs shall include, but not be limited to further drainage and piping work, erosion control, tree and brush removal, and general maintenance of said right of way in order to make it safe and usable for all parties to this action and their respective guests and invitees.