Opinion
CV095012770
05-10-2016
Christine Kepple v. Linda Dohrmann
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Joseph Q. Koletsky, Judge Trial Referee.
This case was heard on remand from the Appellate Court, 141 CT APP 238, 60 A.3d 1031 (2013) whose rescript was for the trial court to determine whether the dominant of the servient tenement was responsible for the expense of undertaking necessary trimming of numerous trees and other shrubbery which had grown to a size where they were in violation of the view easement in favor of the dominant estate.
The Appellate Court opinion sets forth all of the relevant facts, and those facts will not be repeated in this opinion.
" The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it . . . Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982); see also 1 Restatement (Third), [Property, Servitudes, ] § 4.13, p. 631 [(2000)]. The duty of maintaining an easement so that it can perform its intended function [therefore] rests on the owner of the easement absent any contrary agreement. Powers v. Grenier Construction, Inc., 10 Conn.App. 556, 560, 524 A.2d 667 (1987); see also 1 Restatement (Third), supra, § 4.13, p. 631." (Footnote omitted; internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn.App. 286, 297, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003). Without an agreement requiring the servient estate owner to maintain a view easement, " the law is clear that it is the [dominant estate owner's] responsibility to maintain the view easement at his expense, and he [has] no right to compel the [servient owner] to maintain it for his benefit." Id., 297-98.
There is a possible exception when a servient estate owner unreasonably interferes with the servitude. " Except as limited by the terms of the servitude . . . the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude." (Internal quotation marks omitted.) Id., 297 n.7 (quoting 1 Restatement (Third), supra, § 4.9, p. 581). Where a servient estate owner interferes with a dominant estate owner's use of the servitude, the servient may be forced to remove obstructions causing such interferences. See, e.g., Zirinsky v. Carnegie Hill Capital Asset Management, LLC, 139 Conn.App. 706, 708-18, 721, 58 A.3d. 284 (2012) (holding that six large trees planted by servient estate in easement area reserved to dominant estate for " any lawful purpose, including but not limited to landscaping and maintaining the grounds" interfered with dominant estate's use, and directing trial court to order removal of trees).
In Schwartz v. Murphy, the Appellate Court held the servient estate was under no obligation to maintain the view easement for the dominant estate. Schwartz v. Murphy, supra, 74 Conn.App. 298. The view easement prohibited the servient estate from placing accessory structures or view obstructions in the easement area. Id., 297. The offending hedge and tree in the easement area existed prior to the creation of the view easement, and, therefore, the defendants did not violate the terms of the easement by allowing them to continue growing. Id. The deed did not contain language concerning, nor was there evidence of, any other agreement requiring the servient estate to maintain the view easement. Id., 297-98. The court, therefore, held that it was clear under the law that the dominant estate owner was responsible for maintaining the view easement at his own expense, and he had no right to compel the servient owner to maintain it for his benefit. Id., 298.
The court remanded for further proceedings " with direction to dissolve the injunction and to determine the respective rights and obligations of the parties with respect to the maintenance of the view easement in accordance with [its] opinion." Id. On remand the trial court found the Appellate Court decision controlling regarding the dominant estate's responsibility to maintain the view easement. Schwartz v. Murphy, Superior Court, judicial district of Stamford, Docket No. CV-00-0180296-S, (October 9, 2003, Lewis, J.). Accordingly, the trial court entered judgment, only adding clarity to the scope of the easement area and that the dominant estate owner could enter at reasonable times in order to maintain the easement, but for no other purpose. Schwartz v. Murphy, supra .
The Appellate Court explained in Schwartz the dominant estate owner's rights are not unfettered: " Although the plaintiff is entitled to maintain the view easement in a manner that is reasonably necessary for his enjoyment of it, he must do so without causing unreasonable harm to the existing hedge and tree. See 1 Restatement (Third), supra, § 4.10, at p. 592; see also Gager v. Carlson, [146 Conn. 288, ] 292-94, 150 A.2d 302 [(1959)]. We agree with the court that it is not necessary to remove or to excessively trim and to prune the hedge and tree for the plaintiff to conveniently enjoy the view easement. We also agree with the court's finding that if the hedge and other bushes in the view easement area are kept at a height of six feet and the tree is trimmed so that it is kept at approximately the same shape and height as it is shown in exhibits twelve and thirteen, which are photographs of the property, there is no impingement on the plaintiff's view of Long Island Sound." Schwartz v. Murphy, supra, 74 Conn.App. 298 n.8.
In the present case, the Appellate Court " conclude[d] that the covenant document grants to the plaintiffs a view easement over both lots A and B." Kepple v. Dohrmann, 141 Conn.App. 238, 245, 60 A.3d 1031 (2013). The only question that the court addressed was whether the covenant document created a private restriction--as held by the trial court--or a view easement. Id., 239 and n.2. The Appellate Court's determination that the plaintiffs possess a view easement and its holding in Schwartz dictate that it is the responsibility of the plaintiffs to maintain the easement absent a factual finding of a contrary agreement. While a possible exception exists for a servient estate owner's unreasonable interference with the servitude, it is inapplicable here since there is no evidence that the defendants placed any obstructions in the view easement and given that they cannot be faulted for failing to maintain what it was the legal duty of the plaintiff to maintain.
The court therefore holds that it is the responsibility of plaintiffs to undertake, if they wish, the restoration and maintenance of their view easement. It is the further order of the court that offending vegetation may be trimmed so that it is ten feet below the agreed height limitation, or plaintiff will have an impossible task if limited to the precise height limitation, since the view easement will be encroached upon with in a very short time if plaintiff is so limited.
Such remedial work may be carried out by plaintiff and/or their employees at reasonable times and upon reasonable notice to the owners of the servient estate. Judgment shall enter accordingly.