Opinion
No. LLI CV 08 4007577S
April 7, 2010
MEMORANDUM OF DECISION
This case arises out of a disagreement about the use of a right-of-way. The plaintiffs, J. Patrick Cooke and Jane S. Cooke, have sued the defendants, Joan A. Turnure and Diane V. Libby, Trustee of the Joan A. Turnure Qualified Personal Residence Trust, seeking a declaratory judgment, an injunction, and monetary damages arising from the defendants' use of the right-of-way. The case was tried to the court on December 2, 3 and 4, 2009. The court had taken an earlier view of the property with the attorneys. The parties filed post-trial briefs and reply briefs.
For several years prior to August 1998 the defendants owned a summer cottage on the shore of Lakeville Lake, formerly known as Lake Wononscopomuc, in the Lakeville section of Salisbury. The defendants also owned a year-round residence which lies on an adjacent parcel of land without lake frontage. During August 1998 Ms. Cooke approached Ms. Turnure and informed her that she was interested in purchasing the waterfront property. They talked about the purchase and walked the property. They observed a narrow mowed pathway that traversed the eastern portion of the property on which the cottage was situated. Ms. Turnure told Ms. Cooke that she followed this path to walk to the lake for swimming or boating.
Prior to the sale of the waterfront property, the defendants and their family and guests accessed the lake from the rear property by way of the waterfront property. They walked across the waterfront property and drove a motor vehicle and trailer down the driveway and across the lawn to launch boats. But, prior to the sale, there was no need for a recorded easement because the defendants owned both pieces.
Following these discussions between Ms. Cooke and Ms. Turnure, the parties reached a verbal understanding about the purchase and sale. The plaintiffs or their agent prepared a document entitled Notice of Intent to Purchase Real Estate which was in the form of a letter from the plaintiffs to the defendant, Ms. Turnure. The plaintiffs presented the Notice of Intent to Ms. Turnure who signed it on or about August 20, 1998. The Notice of Intent includes the following statement: "We would take title subject to a right of way running from your other property to the shore of Lakeville Lake. It is our understanding that you would continue to use this right of way as you have in the past and that no roadway or walkway would be installed on it and that you would place a dock on this location and would store your dock and canoe over the winter."
The parties each retained a competent and experienced attorney to represent them and to arrange for the closing of title. The defendants' attorney prepared a warranty deed which was approved by the plaintiffs' attorney and accepted by the plaintiffs at the closing of title in November 1998. The deed to the plaintiffs included reference to a right-of-way retained by the defendant. The right-of-way is described in the deed from the defendant to the plaintiffs as follows: "A right-of-way twenty-five (25') feet in width, containing 0.164 ±acre, in favor of Lot No. 1 as shown on the above referenced map, leading from said Lot No. 1 to Lake Wononscopomuc. Said right of way shall be for the purpose of ingress and egress, but is subject to a restriction that no roadway or paved walkway may be constructed on it. Nothing herein shall prohibit the use of the right of way for installation, maintenance and storage of a dock, and/or boats on the right of way area by the owner of Lot No. 1."
From the date of closing in November 1998 until July 2008 the parties had no conflict connected to the right-of-way. Ms. Turnure regularly walked to the water over the path which she kept mowed. This path was also used by family and friends when they would come to visit. She installed wooden steps which permitted her to descend from the easement area to the lakeshore. She used a small sailboat and canoe which she stored along with her dock at the end of the easement area. Whenever the defendant needed to use a motor vehicle to launch a boat, she obtained permission from the owners of a neighboring property, the Schlesingers, to drive over their driveway to the lake. The defendant continued to mow the path which she used to walk to the lake. The plaintiffs never objected to the defendants' use of the right-of-way. There is a public boat launch in close proximity to the defendants' home, at which lake residents are permitted without charge to launch boats and floats which can then be pulled over to lakefront property. Ms. Turnure has never used it.
During the period from November 1998 until July 2008 the easement area was heavily vegetated. The area nearest the defendants' land was filled with ferns, Azaleas and other ground cover. The middle portion of the easement contained a dense patch of Mountain Laurel. The area nearest the water had several mature trees of different varieties. The plaintiffs hired contractors to prune the trees on the easement area, to spray the Mountain Laurel and the Azaleas, and to weed undesirable species of invasive plants such as Poison Ivy. Without using the path mowed by the defendants, it would have been difficult to walk down the right-of-way from the defendant's property to the water. A motor vehicle could not have driven down the easement to the water.
Things began to change in early 2008 when the Schlesingers sold their property to the Adlers. The Adlers had their property surveyed and discovered that the plaintiffs and defendants had misjudged the boundary line between the Cooke property and the Adler property. Sometime during the spring of 2008, when the Adlers removed fences which the plaintiffs had placed on what they thought was the boundary line, it became clear that portions of the mowed path to the lake used by the Ms. Turnure were, in fact, on the Adler property.
About the same time that the correct Adler boundary line was discovered, Ms. Turnure's adult son, who frequently visited his mother on weekends in the summer, decided that he wanted to use the deeded right-of-way to drive back and forth to the lake to launch boats. He engaged an attorney to write a letter dated July 1, 2008 to the plaintiffs which states, in relevant part: "I am writing on behalf of my client Mrs. Michael Turnure in regard to a 25-foot right-of-way that she reserved on your property when she sold it to you in 1998. The said right-of-way is for ingress and egress to her dock on Lakeville Lake. In particular, Mrs. Turnure asked me to inform you of her plans to construct a 20-foot wide pathway over the said right-of-way so that she may transport her boats back and forth from her dock. While the exact design of the said pathway has yet to be finalized, we expect that it will be gravel covered by woodchips or some other such natural material (so that it blends in with the landscape)."
The plaintiffs notified Ms. Turnure and her attorney that they objected to the work outlined in the attorney's letter. However, in mid-July 2008, without making any efforts to resolve the plaintiffs' legitimate objections, the defendants engaged a contractor to construct a road from their driveway to the boundary line between the Turnure property and the Cooke property and then down the easement area to the water. The road to the boundary was to be constructed with aggregate fill which consisted of a dirt and stone blend. When the contractor began clearing the easement area near the boundary line between the two properties, the plaintiffs objected, in person, and engaged an attorney. At this point the first contractor quit the job.
The creation of a 20-foot wide gravel pathway for vehicular traffic to the lake as outlined in the attorney's letter would have constituted a "roadway" which is prohibited by the easement.
The defendants engaged a second contractor who proceeded with the job but without using the aggregate fill which had been used on the defendants' land. This suit was commenced before the work was completed. The vegetation removed from the easement area included patches of mature Mountain Laurel in excess of seven feet in height, a Hemlock, a Douglas fir, a Birch, and three Oaks, all of which were in excess of forty feet in height. The contractor removed the stumps and graded the area using fill from the site. The area was seeded for grass. At the direction of the Salisbury Conservation Commission the contractor installed flat granite stones near the lake to create a firm incline to the lake. The surface of the easement area is now grass which is maintained by the plaintiffs. Since the easement has been cleared, the defendants have driven a truck and trailer down the easement to launch a 15'x15' floating dock in the spring and to remove it in the fall.
The main issue in this case is construction of words used in the right-of way retained by the defendant. "The principles governing our construction of conveyance instruments are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence . . . The construction of a deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances . . . Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Citations omitted; internal quotation marks omitted.) II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-11 (2000). "Further, [i]t is a well established principle of construction that wherever possible each part of the scrivener's phraseology should be given some import . . . Every word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . ."(Internal quotation marks omitted.) Bird Peak Road Ass'n., Inc. v. Bird Peak Corp., 62 Conn.App. 551, 557 (2001). "Any ambiguity in the instrument creating an easement, in a case of reasonable doubt, will be construed in favor of the grantee. The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . and its interpretation present[s] a question of law . . ." (Citations omitted.) Ezikovich v. Linden, 30 Conn.App. 6 (1993).
Although the deed from the defendants to the plaintiffs uses the term "right-of-way," both parties have treated the term as synonymous with the word "easement." "An easement is a nonpossessory interest in the land of another. An 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." Martin Drive Corp. v. Thorsen, (Citations and interual quotation marks omitted.) 66 Conn.App. 766, 772-73 (2001).
The court agrees with the plaintiffs' analysis that the easement in this case is an express easement that is appurtenant to the defendant's property, and that it is of a limited rather than general scope. Unlike an easement granted in general terms which may be used for any purpose reasonably necessary for the party entitled to use it, an easement of limited scope is limited to the purposes expressed in the easement. Hall v. Altomari, 19 Conn.App. 387, 391 (1989). The express purpose of the easement in this case is "ingress and egress." The court also agrees with the plaintiffs that the language in the easement that addresses docks and boats is framed as an exception to what would otherwise be prohibited.
"If an easement is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtant and not an easement in gross." Lichteig v. Churinetz, (Citations omitted.) 9 Conn.App. 406, 411 (1986).
An easement which uses the words "for the purposes of ingress and egress" will normally be interpreted as being limited to ingress and egress uses. Hall v. Altomari, 19 Conn.App. 387, 391 (1989).
Given the parameters set forth above, the court must determine the expressed intention of the parties. Needless to say, the parties disagree. The plaintiffs argue that the easement language contained in their deed is nothing other than a memorialization of the intent manifested by the parties in the Notice of Intent signed approximately two months before the closing. They argue that the Notice of Intent demonstrates an intention to maintain the status quo with regard to Ms. Turnure's use of the narrow mowed pathway. They argue that motor vehicle traffic is prohibited and that the cutting of vegetation was wrongful. They also argue that maintenance of the status quo for ten years casts light on the intention of the parties. Finally, the plaintiffs argue that the defendants have installed a roadway from their property to the lake, something explicitly prohibited by the language of the easement.
The defendants argue that there is nothing in the easement which would confine the easement to the mowed path to the water. They also argue that they had the right to cut vegetation in order to permit them to make use of the easement for the expressed purpose of ingress and egress, especially so that they can install a dock and boats. They argue that installation of a dock and boats requires a motor vehicle with a trailer. Finally, they argue that the grass lawn which now encompasses the easement area is not a roadway.
The facts of this case present the court with what has sometimes been termed a "hard case." It is hard because the actions taken by the defendants were not neighborly. Once the Adlers pointed out the misunderstanding in location of the boundary line, the defendants could have collaborated with the plaintiffs to relocate a walking path to the lake rather than announcing through an attorney a plan to build a gravel roadway to the lake, a clear violation of the easement. They could have used the public boat launch to launch any boats which required a vehicle to bring them to the shore of the lake, an action which would have been equally convenient and far cheaper. Simply because one has a legal right to do something does mean that it is neighborly to exercise that right to the fullest if a reasonable alternative exists. But, the court's job is to enforce the law, not neighborly behavior. It has been recognized that "hard cases" may tempt the court to find a way to reach a result which is not in accordance with the law. "As the old adage goes, hard cases make bad law." Wasko v. Manella, 74 Conn.App. 32, 44 (Peters dissenting) (2002). With that adage firmly in mind, the court is constrained to find the central issue for the defendants. In summary, the defendants' original plan to construct a gravel roadway to the lake would have violated the terms of the easement, but the grass lawn actually installed does not.
Although the Notice of Intent expresses a clear intent that Ms. Turnure would continue to use the narrow mowed path to the lake, the language of the easement reveals no such intent. There is no reference in the deed to the continued use of the narrow mowed path. Instead, the easement area is described as 25 feet in width running along the boundary of the land conveyed to the plaintiffs. It is not the actual intent of the parties which controls but the intent expressed in the deed. Stefanoni v. Duncan, 282 Conn. 686, 700-01 (2007). If the defendants were limited to the narrow mowed path, the 25-foot width of the easement would be meaningless. In construing a deed, the court should attempt to give meaning to every word. Bird Peak Road Ass `n Inc. v. Bird Peak Corp, 62 Conn.App. 551, 557 (2001). It is the language of the deed, not the language of the Notice of Intent, which controls. The language of the deed reserves to the defendants an easement which is 25 feet wide, not a narrow path.
Once it is determined that the defendants were not restricted to the narrow mowed path, the law is clear that the defendants, as dominant owners, were entitled to put the easement in a usable state and to maintain it thereafter. Smith v. Muellner, 283 Conn. 510, 525, footnote 14 (2007). The defendants were entitled to cut the vegetation to enable them to walk to the water and to use the easement for the specific purpose of installing a dock and boats. It stands to reason that a vehicle and a trailer would be necessary to haul boats and docks to the lake. The evidence was that the defendants had used a vehicle and a trailer to launch boats prior to the sale, and that they used them across the Adler property after the sale. Although they showed little regard for the feelings of their neighbors, they were within their rights to clear a 20-foot-wide area to make full use of their reserved right-of-way. They were also permitted to grade the bank of the area to provide a gradual incline to the water so that it can actually be used to install a dock and boats.
The grass lawn which now covers the easement area is not a roadway. To decide otherwise would be to distort the word beyond meaning. It is true that the defendants had plans to construct a roadway by continuing the gravel driveway on the defendants' land all the way to the water. This plan to construct a 20-foot-wide pathway of gravel covered by wood chips was outlined in their attorney's letter. But, on account of the plaintiffs' protests, the defendants only cut the vegetation and planted grass which blends attractively in with the other lawn on the plaintiffs' land. If this is a roadway, then every grass lawn is a roadway.
Although Ms. Turnure used the mowed path to the lake for 10 years after the sale, she cannot be prevented from making full use of the reserved easement. The plaintiffs do not make a claim of estoppel or laches. Also, although the public boat launch would provide a reasonable alternative, the defendants are within their rights to use the grass easement area to drive to the shore to install boats and a dock. Finally, the flat stones near the water are reasonably necessary to provide a firm foundation for a trailer and to meet the demands of the Conservation Commission.
The plaintiffs use five sentences in their brief to argue that the defendant has no right to install a 15'x15' float which the defendant anchors off the shore. This claim is not made in the amended complaint, and there was no evidence addressing the issue of whether this float was a "dock." The plaintiffs bear the burden of proof on all essential elements of a claim. Ivimey v. Watertown, 30 Conn.App. 742, 753 (1993). The court will not decide this claim in the absence of pleading and proof.
Because the actions taken by the defendants — not the actions which they threatened — do not violate the terms of the easement, judgment may enter for the defendants.