Opinion
No. CV 06-4025433
October 24, 2007
MEMORANDUM OF DECISION ON APPLICATION FOR TEMPORARY INJUNCTION
Plaintiff, owner of 161 Beacon Street, Hartford, seeks a temporary injunction to prevent defendant, the neighboring owner of 167 Beacon Street from erecting a fence on what is claimed to be a "common driveway" running westerly from Beacon Street between the two houses.
An evidentiary hearing was held on October 11, 2007 with closing arguments heard on October 16, 2007.
The fence to be erected is a four feet high wooden picket fence originally planned to be erected on the common boundary line between the two properties but now planned to be erected on defendant's property eighteen inches north of said boundary line. Each party has submitted a survey of their properties and a number of photographs. The survey submitted by plaintiff shows the distance between plaintiff's house and the boundry line to be 7.19 feet or approximately 86 inches. An engineer hired by the defendant testified that the closest distance from plaintiff's house to the boundary line by his measurement, was 91 inches. These measurements indicate the width of plaintiff's driveway located within his property was at least 86 inches.
Plaintiff claims that this driveway is too narrow for his safe use and that of his tenants and that he has an easement over defendant's driveway, either by implication or necessity, that would be violated by erection of the fence.
I.
In Kenny v. Dwyer, 16 Conn.App. 58 (1988) our Appellate Court stated: There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. Id. at 64.
The evidence introduced shows that the two properties were once owned by Philip Sycord; that he conveyed 167 Beacon Street to one Katz in 1964, now owned through several owners by defendant, Sycord retaining ownership of 161 Beacon Street; that according to some witnesses, a shared, casual use by both succeeding owners of both driveways took place after this severance. Plaintiff has not specified the dimensions of the easement claimed but in oral argument claimed an easement by implication over the entire driveway of the defendant. Nothing appears in the land records or in any written agreement concerning the intention of the parties or the common use of the driveways. In a written real estate listing of 167 Beacon Street prepared by an agent, Mollie Abend, there is a notation "Driveway paved, shard" but Abend testified that she did not know the basis for this statement. Defendant testified that he ordered a title search of her property which indicated no common or shared driveway. Some owners of each property testified that snow removal had been informally shared; others testified that each had taken care of his own property. At present plaintiff's driveway on his property is paved; defendant's driveway on her land is completely surfaced with colored gravel.
In Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630 (2002), our Appellate Court stated:
[A]n easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence. Id. at 638.
Plaintiff has thus far failed to establish by a preponderance of the evidence that he can establish an easement by implication over defendant's driveway.
II.
To establish an easement by necessity requires plaintiff to prove that without the claimed easement he would not have reasonable access to the garages in his backyard. His effort has concentrated on the possible safety concerns over motor vehicle occupants using his paved driveway and the difficulty experienced when trying to turn around in his back yard. No expert testimony was available as to the turning space in his back yard. Plaintiff emphasized the safety concerns to children of the day care center located on the first floor of his property since 2004.
No case has been cited or found that justified an easement by necessity based on safety considerations. Moreover, in the present case there was evidence that cars could enter or park on the front portion of plaintiff's paved driveway without any problem.
In First Union National Bank v. Eppoliti Realty Co., 99 Conn.App. 603 (2007), our Appellate Court has stated:
The requirements for an easement by necessity are rooted in our common law. [A]n easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee . . . [T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way . . . The necessity need only be a reasonable one. Id. at 608.
The court went on to state:
In defining the authorized limits on an easement necessity, a court is obligated to define the intended limits on the use of the easement.
The location of the proposed fence would leave an area of 104 inches wide between plaintiff's house and the proposed fence, sufficient, according to the evidence, to accommodate even SUV vehicles.
Moreover plaintiff has failed thus far to furnish evidence on or even a description of the "intended limits" of the claimed easement. In Smith Brook Farms, Inc. v. Joseph Wall, 45 Conn.Sup. 515 (1997), affirmed at 52 Conn.App. 34 (1999), this court held that a prescriptive right of way cannot be acquired unless the use defines its bounds with reasonable certainty.
III.
In order to obtain a temporary injunction, the plaintiff must show, inter alia, substantial irreparable harm and likelihood of success on the merits.
The evidence shows that the proposed fence is easily removable and therefore any harm is not irreparable, that there is no reasonable necessity for the plaintiff to have more driveway space than that available up to the proposed fence; and that the likelihood of his establishing an easement by implication or necessity is low.
Application for temporary injunction denied.