Opinion
No. AAN CV04 0084068
April 3, 2008.
MEMORANDUM OF DECISION
When Ms. Palmer constructed her "speed bump" it had the immediate effect of lowering the speed of vehicles, but raising the ire of the Wilsons. The fact that this lawsuit was instituted, pursued and ultimately tried gives rise to suspicion that there is more than a philosophical disagreement about the efficacy of "speed bumps" which divides these summer neighbors. The courts are not well equipped to settle minor differences which inevitably arise between folks who find themselves living in close proximity. Unfortunately it is only when one neighbor does something for whatever reason, that so irritates the other that simple disputes must ultimately be the subject of expensive and time-consuming litigation. Although litigants can, and often do, reach some compromise, there can be no middle ground for the Court. One person is usually found to have a legal basis for his or her actions and is vindicated in the eyes of the law. The "victor" will then return to take up residence beside the "loser" and any hope of restoring tranquility to the neighborhood will be severely diminished.
(Emphasis in original.) Wilson v. Palmer, 163 Misc.2d 936, 938, 622 N.Y.S.2d 882 (1995).
The principal issues in this case involve the right to install speed bumps and to park on a narrow private road.
All of the parties, plaintiffs and defendants, own homes abutting Bungalow Lane, a private road in West Haven. The defendant Robert Slovesky owns the fee to a portion of Bungalow Lane; the plaintiffs and all other defendants own a right-of-way over Bungalow Lane. Specifically, the plaintiff Kathleen Hickey's deed to 34 Bungalow Lane includes the following clause: "Together with a right of way for all purposes, in common with others, in, through, over and upon Bungalow Lane, so-called, being a private right of way 23 feet wide, extending from First Avenue to Second Avenue."
The defendant Robert Chevalier's deed contains a similar clause, to wit: "Together with a right of way in common with others, for all purposes whatsoever, in, through, over and upon the southerly 23 feet on all the properties facing on said southerly line of White Street, and in, through over and upon a continuation of the right of way referred to over land now or formerly of A. Emil Carlson, situated both at the First Avenue and the Second Avenue end of said rights of way.
The deed of the defendants Joseph and Donna Begnoche contains the following clause: "Said premises are subject to a right of way for all purposes whatsoever in, through, over and upon each and every portion of the Southerly 23 feet thereof reserved by A. Emil Carlson for himself, his heirs and assigns, and all others to whom a similar right of way may be granted, as set forth in Volume 180 at Page 86 of the West Haven Land Records."
Bungalow Lane is approximately 600 feet long and perpendicular to First Avenue and Second Avenue in West Haven. A short distance beyond First Avenue is Long Island Sound.
Bungalow Lane's greatest width is about twenty-two feet, for a distance of about thirty feet. At the Second Avenue end, Bungalow Lane is only sixteen feet wide; at its narrowest point Bungalow Lane is only fifteen feet.
The first count is prefatory and alleges little more than who owns what and that "[t]he defendants claim estates or interests in said right of way or parts thereof which are adverse to the interests of the plaintiffs, therein." In the second count, the plaintiffs allege that on numerous occasions, "the defendants wrongfully obstructed the right of way over the property known as Bungalow Lane in that they have refused to permit snow plows to plow said Bungalow Lane to permit the use of said Lane by the plaintiffs. On other occasions, the defendants have obstructed the lane and prohibited the plaintiffs from gaining access to their property over said Lane and have obstructed the plaintiffs' use of said Lane for parking of vehicles and further, have threatened police action against City employees from using said right of way to clear same, maintain same, and to allow access for the plaintiffs to use said right of way so that the plaintiffs have been prevented from enjoying and using the right of way." The third and fourth counts are directed against the defendants Joseph Begnoche, Kristie Begnoche, Timothy Steinberg, Robert Young, Alicia Young and Donna Begnoche. The third count claims that those defendants claim estates or interests in the right-of-way or parts thereof which are adverse to the interests of the plaintiffs. The fourth count alleges that these defendants "wrongfully obstructed the right-of-way over the property know as Bungalow Lane in that they installed speed bumps which interfere with the use of said right-of-way by the plaintiffs and prohibits snow plows from plowing Bungalow Lane."
In their claims for relief, the plaintiffs seek a judgment determining the rights of the parties, damages and an injunction restraining the defendants from continuing to close, obstruct, stop up, or interfere with the right-of-way and in any manner interfering with or attempting to prevent the plaintiffs from passing over or using the right-of-way for any purposes whatsoever.
The defendant Robert Chevalier has counterclaimed against the plaintiffs and cross claimed against the other defendants claiming that they have interfered with his use of the right-of-way by parking vehicles in it. He alleges: "The width of the right of way is not adequate to provide parking in the right of way while allowing the movement of vehicles and full access to the many driveways located on both sides of Bungalow Lane . . . Parking vehicles on Bungalow Lane conflicts with vehicular movement on the lane and with access to driveways and garages of abutting properties. On street parking conflicts with public safety and convenience." Chevalier seeks a declaratory judgment and a permanent injunction against the plaintiffs and the other defendants from parking in the right-of-way.
Prior to the commencement of this suit, the defendant Chevalier installed two metal poles on opposite sides of Bungalow Lane. The plaintiffs claim that the poles were installed so that a chain might be strung across the lane, preventing the flow of vehicular traffic. Chevalier claims that the poles were installed to post signs because city plows, invited into Bungalow Lane by other parties, would sheer off city signs. Prior to installing the poles, Chevalier put a bicycle ramp across the lane, impeding vehicular traffic. The bicycle ramp was soon removed. Chevalier has also told family members of easement owners not to park on Bungalow Lane.
After the commencement of this action, the defendants Slovesky and Chevalier installed speed bumps near their respective properties on Bungalow Lane. The defendants moved for a temporary injunction. After a contested hearing, the defendants Slovesky and Chevalier were temporarily enjoined by the court (Curran, J.) from obstructing the plaintiff's use of the easement and were further ordered to remove the speed bumps and metal posts on Bungalow Lane. After the initiation of contempt proceedings, the speed bumps and metal posts were removed.
However, the defendant Joseph Begnoche also has installed three speed bumps on Bungalow Lane after consulting with a highway engineer. One speed bump is in front of his house, another is in front of the home of the defendants Young and the third is in front of the home of the defendant Slovesky. The elevations of the three speed bumps are 3 3/4", 3 7/8" and 31/2", respectively.
I A.
The plaintiffs claim that the Begnoche speed bumps interfere with their use of the right-of-way. They do not necessarily object to the maintenance of speed bumps, or preferably speed humps, but claim that the Begnoche speed bumps are unreasonably high and that the plaintiffs are entitled to injunctive relief ordering their removal. The defendant Begnoche argues that the speed bumps are necessary to discourage traffic that uses Bungalow Lane as a "cut-through" street, from 1st Avenue to 2nd Avenue in this beach area of West Haven, and that the speed bumps are reasonable in height. Begnoche is supported in these contentions by the defendants Young. Begnoche further argues that the plaintiffs are not entitled to injunctive relief because they have not proven that they are irreparably harmed.
"The law is settled that the obligation of the owner of the servient estate, as regards an easement, is . . . to refrain from doing or suffering something to be done which results in an impairment of it." Carrig v. Andrews, 127 Conn. 403, 407-08, 17 A.2d 520 (1941). The owner of a right-of-way may not "be disturbed or obstructed in the exercise of his right to use it." Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954).
"The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit . . . Ordinarily when [judicial] opinions speak of the `use' of an easement, it arises in right-of-way cases. Thus `use' frequently involves the amount of traffic over the easement or alterations to the land to make it passable. [T]he owner of an easement has all rights incident or necessary to its proper enjoyment, [although] nothing more." (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).
In Kelly v. Ivler, 187 Conn. 31, 35, 450 A.2d 817 (1982), the trial court found that a speed bump in an easement "was a nuisance and must be removed." So too did the courts in Beiser v. Hensic, 655 S.W.2d 660, 663 (Mo.App. 1983), Monell v. Golfview Road Ass'n., 359 So.2d 2, 4-5 (Fl.App. 1978), and Hunter v. McDonald, 78 Wis.2d 338, 345-46, 254 N.W.2d 282 (1977). On the other hand, in Marsh v. Pullen, 50 Or.App. 405, 408, 623 P.2d 1078, cert. denied, 290 Or. 853, 642 P.2d 307 (1981), the court stated: "Speed bumps are a reasonable means to control the speeding problem on the easement . . . [I]f limited to a height of seven inches they will not unreasonably interfere with plaintiffs' use of the easement."
Whether speed bumps impair or obstruct the use of a right-of-way depends not only on their dimensions but on all of the surrounding circumstances. Wilson v. Palmer, supra, 163 Misc.2d 940; Beiser v. Hensic, supra, 655 S.W.2d 663.
There was credible evidence that speed bumps of up to four inches in elevation are within industry standards. That, however, is not the test the court is required to apply here. Bungalow Lane is a short, narrow right-of-way. Moreover, the speed bumps are relatively close together and, in elevation, are near the upper end of acceptable industry standards. After having made a visit to the site, with the consent of the parties, the court finds that at nearly four inches in height, the speed bumps do obstruct and impair the plaintiffs' right to use the right-of-way. Speed bumps not more than 2 3/4" inches in height would be sufficient to deter the cut-through traffic that all parties seem to agree ought to be deterred.
B.
The court next considers what the appropriate remedy should be. The defendants Begnoche argue that the plaintiffs were required to show irreparable injury and lack of an adequate remedy at law and failed to do so. The court disagrees.
"An [i]njunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." (Internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn.App. 286, 296, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003). "Ordinarily, except in cases of trespass, a plaintiff is entitled to an injunction only in the event that he can show that the threatened conduct will cause him irreparable damage. Specifically, the owner of easement is entitled to relief only if he can show that he will be disturbed or obstructed in the exercise of his right to use it." Wambeck v. Lovetri, supra, 141 Conn. 564. Otherwise stated, "the owner of an easement is entitled to [injunctive] relief upon a showing that he will be disturbed or obstructed in the exercise of his right." (Emphasis added.) Leabo v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981). "Injunctive relief is appropriate in an action to bar the closing, obstructing or interfering with the right-of-way." (Emphasis added.) Simonds v. Shaw, 44 Conn.App. 683, 687, 691 A.2d 1102 (1997); see Brodman v. Cea, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0181628 CV 010181888 (March 1, 2001, D'Andrea, J.) ("The nature of the plaintiffs' right affected in this case, the loss of enjoyment of land, is a right whose diminishment constitutes irreparable harm since it cannot be adequately compensated in damages nor be measured by any pecuniary standards."). "A property need not be landlocked to create irreparable harm if the property owner is disturbed or obstructed in the exercise of his right to use [the right-of-way]." (Internal quotation marks omitted.) Crandall v. Gould, 46 Conn.App. 164, 169-70, 698 A.2d 934 (1997), rev'd on other grounds, 244 Conn. 583, 711 A.2d 682 (1998); cf. Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979), overruled on other grounds, Mannweiler v. LaFlamme, 232 Conn. 27, 35 n. 10, 653 A.2d 168 (1995).
The court has found that, at their present elevation, the speed bumps do obstruct and impair the plaintiff's right to use the right-of-way. Accordingly, the plaintiff is entitled to injunctive relief removing the speed bumps or reducing their height within a reasonable time not exceeding 120 days, unless extended by the court for good cause.
Both the plaintiffs and the defendants recognize that one or more speed bumps or speed humps are desirable on Bungalow Lane. While the court may order the removal or reduction of the existing speed bumps, it cannot fine tune a solution for Bungalow Lane. The parties deserve a final opportunity to determine for themselves whether, if any, speed impediment should exist on this private right-of-way, whether that speed impediment should be a speed bump or speed hump, the dimensions of that object and who should pay to install it. For this reason, the court orders the appearing parties to confer with Judge George Ripley at the Superior Court in Derby on Wednesday, May 7, 2008 at 2:00 P.M. and defers the entry of final injunctive relief with respect to the speed bumps until after that conference.
II
The defendant Robert Chevalier has counterclaimed against the plaintiffs and cross claimed against the other defendants claiming that they have interfered with his use of the right-of-way by parking vehicles in it. He seeks a declaration that parking is not permitted in the right-of-way.
The language conferring the right-of-way in the deed of the named plaintiff, and most other parties, states: "Together with a right of way for all purposes, in common with others, in, through, over and upon Bungalow Lane, so-called, being a private right of way 23 feet wide, extending from First Avenue to Second Avenue."
Lichteig v. Churinetz, 9 Conn.App. 406, 410, 519 A.2d 99 (1986), involved a right-of way conferred by the same language as that here with respect to property in the West Haven beach area. In Lichteig, the court stated: "The right of way in this case is one created by grant and not by prescription, the latter being more limited in nature . . . Moreover, it is one created in general terms and without any restrictions on its use. Such a 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. The reasonable uses of the dominant estate in connection with which the easement may be used are not limited to those to which the land was being put when the easement was granted." (Citation omitted.) Lichteig v. Churinetz, supra, 9 Conn.App. 410.
"For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties . . . The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent . . . [T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary . . . In determining the scope of an express easement, the language of the grant is paramount in discerning the parties' intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered. See 1 Restatement (Third), Property, Servitudes § 4.1 and comment (d), pp. 496-97, 499 (2000)." (Citations omitted; emphasis added; internal quotation marks omitted.) Leposky v. Fenton, 100 Conn.App. 774, 778, 919 A.2d 533 (2007).
The court in Lepofsky v. Fenton, supra, 100 Conn.App. 778 n. 4 observed: "Section 4.1 of the Restatement (Third) Property, Servitudes, states, `(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.' Comment (d) further provides in relevant part that `[i]n interpreting expressly created servitudes, the expressed intention of the parties is of primary importance . . . Because servitudes are interests in land, subject to the Statute of Frauds and the recording acts, heavy emphasis is placed on the written expressions of the parties' intent. The fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land.'"
"[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 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." Hagist v. Washburn, 16 Conn.App. 83, 88, 546 A.2d 947 (1988); see also Boccanfuso v. Connor, Superior Court, judicial district of Fairfield, Docket No. 99 366942 (June 5, 2003, Levin, J., aff'd 89 Conn.App. 260, 292, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005); 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); Leposky v. Fenton, supra, 100 Conn.App. 778-80 (parking not permitted in right-of-way for "ingress and egress" where grant not in general terms); 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]").
Here, as in Lichteig v. Churinetz, supra, 9 Conn.App. 410, the right-of-way is created by grant and not by prescription. It is in general terms and without any restrictions on its use ("for all purposes") and or manner of use ("in, through, over and upon"). Bungalow Lane is flat and level. The problem: Bungalow Lane is relatively narrow and densely populated by single-family homes packed closely together on legally nonconforming lots. However, except for the approximately 100 feet nearest to Second Avenue, the right-of-way is not so narrow that parking may be said to be an unreasonable use. Some people whose homes border the right-of-way have been parking on it for many years. The court infers that some purchased their homes in reliance on the right to park. The court finds, in accordance with the language of the parties' deeds and the surrounding circumstances, that parking is permitted in the right-of-way by owners of the right-of-way, their lessees and those using any of estates benefitted by the easement with the permission of owners or lessees.
Such a right, of course, does not inure to the unorganized public. See Mihalczo v. Woodmont, 175 Conn. 535, 541-44, 400 A.2d 270 (1978).
III
The plaintiffs contend that: "The defendants, Slovesky and Chevalier, have attempted to erect barriers which would prevent vehicles from being operated on Bungalow Lane; they have chased and harassed relatives of the plaintiffs and other people rightfully on the right-of-way; they have interfered with parking and have installed speed bumps . . ." The plaintiffs seek an injunction against Chevalier and Slovesky enjoining them "from interfering with the plaintiffs' use of the right-of-way in any way including, but not limited to: a. Attempting to erect barriers to restrict traffic; b. Maintaining speed bumps which are too high and improperly interfere with the traffic on Bungalow Lane; c. That they be enjoined from stopping traffic or harassing people rightfully on said right-of-way."
The granting or denial of injunctive relief "rests within the trial court's sound discretion. Dupuis v. Submarine Base Credit Union, Inc., [ 170 Conn. 344, 356, 365 A.2d 1093 (1976)]. Those equities should take into account the gravity and wilfulness of the violation, as well as the potential harm to the defendants. Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981). Johnson v. Murzyn, [ 1 Conn.App. 176, 183, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984)]. `The proof of violations does not . . . obligate the court mechanically to grant the requested injunction for every violation. [ Conservation Commission v. Price, 193 Conn. 414, 430, 479 A.2d 187 (1984).]' Gelinas v. West Hartford, [ 225 Conn. 575, 588, 626 A.2d 259 (1993), cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001)]; see and compare Crabtree v. Coyle, 19 Conn.App. 208, 211, 561 A.2d 455 (1989)." (Internal quotation marks omitted.) Monroe v. Renz, 46 Conn.App. 5, 15, 698 A.2d 328 (1997).
It has been years since Slovesky or Chevalier has undertaken any offensive action. It is now clear that they may not erect barriers to restrict traffic using Bungalow Lane with the consent or request of owners of the right-of-way, their lessees, or those using the estates benefitted by the right-of-way, nor may Slovesky or Chevalier maintain speed bumps that would impair the use of the right-of-way by those entitled to use it, nor may they harass people rightfully on the right-of-way, as aforesaid. Nevertheless, the court finds that issuing an injunction at this time against Slovesky or Chevalier is not warranted. See Kelley v. Tomas, 66 Conn.App. 146, 157-58, 783 A.2d 1226 (2001) (ordering but declining to issue an injunction).
Should this be "without" rather than "with." I believe this is a typo. Of course, I could be wrong, perhaps they are not allowed to do anything with consent either.
Judgment shall enter in accordance with this decision.