Opinion
WWMCV156009648
06-09-2017
Michelle Morton v. Neal Syriac
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John D. Boland, Senior Judge
This memorandum resolves a dispute between former spouses as to plaintiff's use of a driveway belonging to defendant for access to her adjoining property in the town of Woodstock.
I. Background
A. Geography
To understand the claims of the parties it is essential to understand the physical characteristics of these parcels and their interconnectedness. Plaintiff's property is designated as 95 Rocky Hill Road. Its westerly boundary is entirely coextensive with a portion of the easterly boundary of defendant's tract, known as 97 Rocky Hill Road. Both these tracts lie northerly of and abut upon a portion of a discontinued highway called the Old Connecticut Path, or OCP.
Woodstock's officials have also used " 740 Route 171" to describe this parcel. The court understands that the two addresses relate to the same piece of real estate.
The nearest public highway to the west of the two parcels is a town road named Rocky Hill Road. Rocky Hill Road runs northerly and westerly from State Route 171. Route 171, which runs generally in a north-south direction, is the nearest public highway to the east. The OCP connects these two thoroughfares, and if all three roads ran perfectly straight they would form the shape of a triangle.
Plaintiff's property consists of about an acre of land lying almost dead center on the portion of the OCP connecting the two public roads. Absent a right of way either to the east or the west over the OCP, her piece is landlocked. Defendant's property is much larger, and in parts lies north, west, and south of the OCP. Similarly, his only access to a public highway is via the OCP. To the west of his land, and to the east of plaintiffs, lie lands belonging to abutters who are not parties to this action.
Defendant holds title to the stretch of the OCP leading in the westerly direction (the " west branch"), and that part of the path enables him to access Rocky Hill Road. Plaintiff has a claim to ownership of the portion of the path which leads to Route 171 on the east (the " east branch"), but present or former abutters also possess claims to that strip adverse to hers.
B. The Family Court Action
1. The Separation Agreement and the Dissolution Judgment
Michelle Morton was formerly known as Michelle Syriac. The parties were married for about fifteen years. On April 13, 2010, their union was dissolved by the family division of this court (Swords, J.) in the case of Syriac v. Syriac, Superior Court, judicial district of Windham, Docket #FA 08-4007240S.
The judgment of dissolution incorporated a separation agreement which the court approved. By that agreement, they divided between themselves six parcels of real estate, including the two located along Rocky Hill Road. Pertinent to the instant dispute are subparagraphs 17a, c, g, and h, which read thus:
a. The defendant shall quit claim his right, title and interest to the following properties to the plaintiff:
1. 95 Rocky Hill Road, Woodstock, Connecticut;
c. The defendant shall retain the property located at 97 Rocky Hill Road, Woodstock, CT with no claim by the plaintiff.
g. The defendant agrees to allow the plaintiff and or her agents access to the property located at 95 Rocky Hill Road, Woodstock, CT through 97 Rocky Hill Road, until the terms described below in subparagraph h are complied with.
h. The Defendant shall be responsible to, at his sole expense, install a driveway similar to the driveway presently at use at 97 Rocky Hill Road, from the property located at 95 Rocky Hill Road to Rte. 171 in Woodstock, by October 15, 2010.
The omitted subparagraphs deal with other of the six parcels, and do not shed any light upon the present dispute.
2. Post-Judgment Family Court Proceedings
Post-judgment, the parties have filed a plethora of motions alleging contempt of court orders or aimed at modifying the judgment's provisions, mostly involving parenting and financial issues of no significance to this case. As to the driveway, however, they returned to court within a few months following the execution of their separation agreement with a dispute over its provisions. The family court revisited the driveway dispute a number of times over the next three years. In the present case, they have not even been able to agree upon a description of the current status of the family court orders as it affects this issue. Accordingly, I have reviewed the file in that case in detail.
On November 22, 2010 (filing #141), defendant sought an order restraining plaintiff from using the west branch of the OCP because, he alleged, he had fulfilled the terms and conditions of the decree by installing a new driveway over the east branch and plaintiff was refusing to accept his work as sufficient. The parties initially addressed this motion by a stipulation accepted by the court on December 8, 2010, ordering plaintiff to be responsible for snow removal on " the contested driveway" (without clarifying whether that referred to the east or the west branch). On March 30, 2011, the court conducted a subsequent hearing on that motion. On that occasion, the parties presented the court with a further agreement which is the final word on motion #141. Their agreement deals mainly with custodial issues, but it recites, in paragraph 8, that the parties would arrange to mediate with a family relations officer " the outstanding motions, " including " motions regarding the driveway."
Next, between June and August of 2011, defendant filed motions ##149, 151, and 152, all relating to the driveway. On November 9, 2011, the parties agreed, and the court ordered, that defendant would unblock the west branch path through May 31, 2012, that plaintiff and her tenants would be permitted to access 95 Rocky Hill Road via that path, and that she would henceforth " not . . . pursue the defendant and . . . not hold him liable for the cost to repair" the east branch path.
On May 8, 2012, plaintiff filed her own motion (#154) alleging that there was " an underlying title dispute" regarding the east branch and seeking to modify the 2010 decree accordingly. On May 23, 2012, as part of an agreed interlocutory resolution of the issues raised by that motion, the parties stipulated and the court ordered (#156) that " defendant shall continue to keep the driveway to 95 Rocky Hill Road open . . . until further order of the court." On December 17, 2012, defendant filed another motion to modify (#167) seeking relief from that obligation by alleging, once again, that he had fulfilled the terms of the original decree vis-à-vis the east branch, and requesting a court order setting aside the open-ended order of May 23 and allowing him to block the west branch against access by plaintiff.
On April 22, 2013, the court (Graziani, J.) expressly denied both motion number 154 and motion number 167. The clerk's rendition of the court's order on that occasion is
1.) Defendant motion for modification #154, paragraph #5 is denied. [and]
2.) The Defendant shall keep the driveway to 95 Rocky Hill Road open, pursuant to the terms of the 11/08/2011 agreement of the parties (paragraph 5) which was made an order of the court on April 9, 2011, until further order of the court."
This is apparently a typographical error, as it is clear from the file that plaintiff had filed motion #154.
The file does not reveal any orders entered on that date. This court construes this order as addressing the May 23, 2012 agreement and order, as that is the last preceding relevant order in the file. That order expanded the term of the hitherto time-limited obligation that the defendant keep the driveway open, from " May 31, 2012" to " until further order of the court, " i.e., indefinitely.
A transcript of the proceeding reveals that Judge Graziani declined to grant either motion #154 or #167 because he determined that the dispute required extensive consideration of legal issues involving easements which would require expert testimony and land record searches. He denied " both motions, without prejudice" after indicating his belief that a civil action brought on the issue would afford the parties a better opportunity to resolve their standoff.
Thereafter, at various times in 2014, and despite Judge Graziani's directive, defendant filed additional motions (##171 and 175) addressing the driveway issue as part of a larger array of issues he believed required court attention. Once again, he maintained that he had fulfilled the terms of the 2010 decree and sought to bar plaintiff from using the west branch. Plaintiff objected in writing on July 7, 2014 (#183). By March of 2015, it appears that the parties had resolved all of their disputes except this driveway issue. By their agreement of that date (#205), they requested a continuance until March 25 " to determine if defendant shall proceed." Apparently, he decided not to, as the dissolution case record ends with the March 15 stipulation. No later orders addressed the driveway issue, and there has been no modification of the 2013 order.
Thus the status quo of family court orders as of April 22, 2013, and at all times since, is that plaintiff's right to use the west branch for access to #95 remains in place " until further order of the court, " and defendant is barred from inhibiting that access.
II. Nature of the Present Dispute
Plaintiff's verified complaint alleges ownership by the parties as set forth above, and alleges a series of actions which defendant has taken designed to impede her use of the west branch driveway. First, she claims, he placed hay bales at the spot where her access in that direction would begin. Later, he escalated to the posting of " no trespassing signs, " placement of boulders, and erection of a wire gate with a lock. As a result, she has kept her residence at another location, and has not been able to rent the property for fear of confrontation between defendant and her tenants. She attempted to sell the parcel, but her buyers backed out when their attorney declined to issue title insurance on account of the right of way dispute. She seeks recognition of the right of way over the west branch as a muniment of title running with her ownership of #95, specifically requesting orders:
1) that the defendant forevermore cease and desist from undertaking, or enlisting any other persons or entities to undertake actions with respect to the property at 95 Rocky Hill Road adverse to, or in any way limit, impede or inhibit plaintiff's rights under the easement;
2) issuing a temporary and permanent injunction ordering the defendant to refrain engaging (sic) in any action or omission thereto . . . in any way limiting or impeding her access to #95 from Rocky Hill Road;
3) allowing her to, without liability, remove and dispose of the physical impediments to her full exercise of her rights located upon the easement area;
4) finding that the benefits under the access and utilities easement run with the land and bind the defendant and all future owners of record title and shall inure to the respective successors and assigns of the plaintiff and defendant; and
5) requiring the defendant to remove the metal gate recently installed on the common driveway.
She goes on to demand, in separate paragraphs, monetary sanctions for any violation of those orders, and " such other relief in equity or law as the court deems just and proper."
Defendant admits those aspects of her complaint that allege ownership of the two house parcels, but denies all claims on her part that #95 enjoys any access rights over the west branch under the dissolution agreement or by any other means. Additionally, he denies taking steps to block that access other than by erecting a gate which he implies is unlocked. He raises eight special defenses which will be examined in due course. Also, he has filed a counterclaim, which in its revised format contains three counts seeking 1) an order quieting title to the west branch of the OCP by eliminating plaintiff's right-of-way claims; 2) an order reforming a certain deed between the parties delivered in response to the dissolution court's orders, in which deed plaintiff specifically retained access to Rocky Hill Road over the disputed west branch of the OCP; and 3) damages for alleged violations by plaintiff of the terms of the separation agreement.
Plaintiff has denied all eight of the special defenses, and the material allegations of each of the three counterclaims.
On September 25, 2015, in this proceeding, the court (Calmar, J.) entered an order commanding and enjoining
NEIL SYRIAC and each of your officers, servants, agents, and employees under penalty of $500.00 per day to wholly and absolutely desist and refrain from undertaking, or enlisting any other persons or entities to undertake actions, with respect to the property at 95 Rocky Hill Road, adverse to, or in any way limit, impede or inhibit plaintiffs, or all future occupants', rights under the access and utilities easement recorded in the Woodstock land records on June 10, 1987 as evidenced by the recording of a document entitled " Grant of Easement" at Volume 167, Page 204. [and]
under penalty of $500.00 per day to refrain engaging in any action or omission thereto including building, erecting, constructing or allowing to be built any structures, temporary or permanent, or engaging individuals to act at your behest within the easement area that would in any way limit or impede foot and/or vehicle access to 95 Rocky Hill Road from the Rocky Hill Road entrance or circumvent or hamper the plaintiff's use and enjoyment of the easement of record.
On two nonconsecutive days in January of this year the parties appeared with counsel and their witnesses before this court for trial as to whether that injunction should be made permanent.
III. Discussion
A. Plaintiff's Case in Chief
Despite his denials, there is no doubt that when he could do so without defying a court order defendant has repeatedly inhibited the use of the west branch driveway by plaintiff and her tenants for access to #95 Rocky Hill Road. He has used physical means such as rocks, a gate, hay bales and farm equipment left in the way, and psychological means including " NO TRESPASSING" signage and notice of camera coverage of the path to accomplish his ends.
Clearly, he believes that his self-assessed compliance with the executory provisions of subparagraph 17(h) justifies his resistance to allowing plaintiff and her agents to travel over his land. He claims that since he has built a driveway over the east path similar to that serving his own piece, it is time for her to give up this battle and utilize that path.
Prior to their divorce, the parties jointly owned two adjacent residential tracts. In the course of their marital dissolution they agreed that each would thereafter own one of those tracts. Plaintiff testified at length and impressed the court as truthful but unsophisticated, particularly as regards the details of real estate titles. She described how on April 13, 2010, the parties appeared at court for a trial on what was until then a contested dissolution action. As often occurs, they and their counsel engaged in extensive last-minute negotiations aimed at compromising whatever. remaining issues divided them. Understanding that " [t]he courts are not well equipped to settle minor differences which inevitably arise between folks who find themselves living in close proximity; " Hickey v. Slovesky, Superior Court, judicial district of Ansonia-Milford, Docket No. AAN CV04 0084068 (April 3, 2008; Levin, J.) [45 Conn.L.Rptr. 347, ], and reflecting the spirit of Robert Frost's admonition that " good fences make good neighbors, " they agreed that each house should have separate access lest they argue ad infinitum over the management of a common right of way.
Given the context of these negotiations, it is not surprising that they used the word " similar" in subparagraph 17(h) of their separation agreement as a shorthand means of denoting that the plaintiff's tract would have a driveway that was functionally equivalent to that serving the defendant's, nor is it surprising that they did not further elaborate on what they meant in using such a simple word to describe how the new access path would resemble the old. Stated succinctly, the issue dividing the parties at present is the meaning of that common word. If, as defendant maintains, he has fulfilled the obligation he assumed thereunder to build a driveway " similar" to that which served both parcels historically, he is entitled to be free of plaintiff's passage over the west branch. If he has not, as she maintains, then by virtue of subparagraph h she has a continuing right to the use of that portion of the path until he does what he promised her he would do. Determining what they meant is a proper judicial function and is crucial to the outcome of this case.
Webster's Third New International Dictionary defines " similar" as " 1: having characteristics in common: very much alike: COMPARABLE . . . [or] 2: alike in substance or essentials: CORRESPONDING." The court in Japan Import Co. v. United States, 86 F.2d 124, at 131, 24 C.C.P.A. 167, Treas. Dec. 48642, T.D. 48642 (1936) adopted that definition of the word " similar" with specific reference to the Webster's definition. Citing the Japan Import holding, Ballantine's Law Dictionary, 3d. Edition, defines the word to mean " having a resemblance in many respects to, nearly corresponding with, is somewhat like or has a general likeness to some other thing." All three authorities contemplate that for two entities or propositions to be " similar, " there is often a multi-faceted analysis to be performed as to the attributes of each.
That analysis is also contextual; " [t]he word 'similar' is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat alike, or has a general likeness to some other thing . . . Certainly the word 'similar' has no meaning so fixed that a court, reading the contract in the light of its subject matter and the surrounding circumstances, may not give to the phrase such reasonable construction as will fairly effectuate the intent of the parties; " Leo Foundation, Inc. v. Kiernan, 5 Conn.Cir.Ct. 11, 16, 240 A.2d 218 (1967). This observation comports well with the black letter rule that " a contract is considered as a whole so as to give effect to all its provisions without narrowly concentrating [on] some clause or language taken out of context." Gold v. Rowland, 325 Conn. 146, 160, 156 A.3d 477 (2017).
1. Physical Qualities of the Intended Driveway
One measure of the similarity of driveways is their physical design and construction. The parties submitted many photographs of both branches of the OCP taken in 2010, and these depict a completed east branch that may be described as " similar" to the west branch as of that time. Defendant spent more than $10,000 in construction of the east branch. This investment produced a serviceable means of allowing vehicular passage between Route 171 and the dwelling known as #95 Rocky Hill Road.
Plaintiff has two complaints about that work--that today the path is again overgrown with brush, and that in parts it is too steep. Neither has much merit. On May 23, 2012, she agreed to be responsible for the costs of repair on that path. Her photographs of the path today reveal that seven years of brush growth is interfering with the path at many points. This is the result of her own inattention to maintaining the path, and is not a flaw that she can attribute to defendant.
The steepness of the path at one point is of a different nature, and cannot be eliminated by ordinary maintenance. But plaintiff cannot credibly maintain that she was ignorant of this obvious physical feature as of the time that she agreed that she would accept the east branch for access to her parcel. Nothing defendant did adversely altered the topographical features of the landscape so as to create this grade, and her contract with him cannot fairly be read to require that he undertake a massive land-moving project to accommodate her desires.
At the same time, it may be mitigated by plowing or providing a can of sand to provide traction when the path is ice-covered.
2. The New Driveway's Compliance with Governmental Requirements
A comparison of these physical characteristics, therefore, favors defendant. But " similar" has a broader meaning in this context. To function as a driveway appurtenant to a residence requires compliance with local codes such as zoning and wetlands, and having a permit to connect a driveway to a state highway. Absent such compliance, the work done by defendant would be a futile gesture, as the governmental entity whose jurisdiction is implicated could bar all use of the path regardless of the brilliance of its engineering.
On this score, I am unable to find that the necessary permits for use of the driveway exist. The evidence on this point was anecdotal and conflicting, and neither party provided information as to what standard each was utilizing to support their contention that the path either complies with all regulations (defendant's position), or fails to comply with applicable regulations (plaintiff's position).
3. Title to the East Branch of the OCP
The omission of proof on that second criterion could be fatal to plaintiff were it not that she has succeeded in establishing a more significant dissimilarity between the two driveways, specifically that there is a title problem affecting the east branch and she thus lacks marketable title to the home for which she bargained. This conclusion rests upon a complex array of factual content included in deeds, maps, and other documents, introduced primarily although not exclusively through the testimony of plaintiff's witness, Gerald Stefon. He is a land surveyor and qualified as an expert on boundary issues and matters of title. Stefon examined the chain of title as to each of the present-day abutters of the entire length of the OCP between the two public roads, and his investigation of the Woodstock land records concludes that while Neil Syriac has marketable fee simple title today to the west branch, plaintiff's claim to the east branch faces competition from three owners of three other tracts abutting the path, namely Jon Grosjean, Karen Christie, and Karen Roy.
Certain historical details provide the starting point supporting his conclusion. First, it was in 1922 that the town of Woodstock discontinued all public use of the Old Connecticut Path. Upon that event, any public easement encumbering the path was extinguished. In 1922, one William Buell owned all the land along both sides of the path between Rocky Hill Road and Route 171. At later times in the mid-twentieth century, William Buell or his heirs subdivided that large parcel. Roughly speaking, and at different times, they conveyed the easterly half to the predecessors in interest of Grosjean, Christie, and Roy. Along with those conveyances went such title as Buell had to the east branch of the OCP. Separately, and at a later date, Buell or his heirs conveyed the westerly half of his holdings, approximately 34.4 acres in size, to various parties whose interests, over time, were acquired by defendant's father, Cyrille Syriac. As a result of these various transfers, Cyrille Syriac owned both the fee simple and all rights of usage to the western branch of the path.
Conveyances in Cyrille Syriac's chain at times included a clause transferring to him " any interest the grantor may have in and to that section of the Old Connecticut Path running from Rocky Hill Road easterly for about 1500 feet, " that is, to the entire stretch of the path between the two public roads. According to Stefon, however, the grantors of those instruments no longer possessed any transferrable rights to the east branch. Such rights as Buell earlier possessed had been conveyed away in the deeds he delivered to the east branch grantees. Stefon based this claim upon a rule of construction of deeds where highways are utilized as a bound, to the effect that when a highway forms such a bound a conveyance " to the highway" includes transfer of title to the center of the highway.
The premise that a transfer of land bounded by a highway confers ownership to the middle thereof is well established in Connecticut law. Support for it appears as early as in the case of Peck v. Smith, 1 Conn. 103 (1814), wherein at page 106 the court queried " [if] the lord of the manor should sell his land lying on the east side of the highway to A., bounding him on the highway west, and should sell the land lying on the west side of the highway to B., bounding him on the highway east . . . has the lord of the manor any interest in the highway after this sale?" It answered that question in the negative, declaring that the purchasers on each side of the highway " own each to the center of the road [and are] then entitled to the highway." Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955), is a modern case holding that " [a]n abutting owner is presumed under the law of this state, no evidence having been offered to the contrary, to own the fee of the land to the center of the highway." The appellate court cited Antenucci in Mierzejewski v. Laneri, 130 Conn.App. 306, 23 A.3d 82 (2011), an even more recent case holding that a deed describing a tract as bounded " southerly by the highway" conveyed to the center of that highway due to a " common-law presumption that landowners whose property abuts a public highway own to the middle of the highway after the highway is discontinued or abandoned, " 130 Conn.App. 306, 318, 23 A.3d 82. Defendant offered no evidence to overcome that presumption, nor any evidence refuting Stefon's discussion of the various items in each of the chains of title he examined. Instead, he confined his response to a challenge to Stefon's resort to a rule of interpretation that has repeatedly and continuously been recognized by our appellate courts as a part of this state's real property jurisprudence.
Eventually, in 1984, Cyrille Syriac conveyed his interest in the parcels to his son Neil. As in the prior deeds of which he was the grantee, Cyrille attempted to provide that Neil would also enjoy the right to use the entirety of the OCP by tendering him his 34.4 acres " together with any interest the grantor may have in and to that section of the Old Connecticut Path running from Rocky Hill Road easterly for about 1500 feet." The inclusion of such vague language in a deed in the chain of title of a dominant estate, however, does not suffice to subordinate the servient estate(s) to any cognizable legal interest; Johnson v. Sourignamath, 90 Conn.App. 388, 399, 877 A.2d 891 (2005). See also, Jackson v. Lee, 51 Conn.Supp. 399, 996 A.2d 762 (2009), affirmed, Jackson v. Lee, 121 Conn.App. 375, 996 A.2d 302 (2010).
Next in the chain of title is a quit-claim deed dated December 31, 1986, by which Neil conveyed to his brother, Eric, a tract about one acre in size. This is the parcel upon which stands the house now known as #95, and is the same tract the 2010 separation agreement and family court decree awarded to plaintiff; the deed alludes to it as " Tract A." In addition to Tract A, the deed grants as " Tract B" the east branch of the OCP, employing a newly-devised metes and bounds description prepared from a survey Neil had obtained sometime between 1984 and 1986. His deed references a map captioned " Boundary Survey, Portion of property belonging to Neil Syriac to be conveyed to Eric Syriac, Rocky Hill Road & Route 171, Woodstock, Conn., Date 12-86 . . . Messier & Associates, Engineers, -Surveyors." A copy of that map is one of the exhibits here.
It is important to note that this 1986 deed and all subsequent deeds convey title to two parcels of land--the house lot, and the separate elongated strip consisting of the east branch of the OCP. At various times in their pleadings and arguments, both parties refer to the tract or employ similar verbiage inaccurately conflating the two into one.
The map depicts an inhibiting, triangular wedge of the path as belonging to Anna Petrone, an abutting predecessor in interest to Karen Roy; the Petrone piece alone cuts by half the usable width of so-called Tract B. On June 10, 1987, Neil delivered to his brother an instrument captioned " Grant of Easement" conveying to Eric a right of way over the west branch. It precisely conveys " the right with others to pass and repass by foot and/or vehicle, and to install and maintain utilities, over and across that portion of the premises now or formerly of Neil Syriac known or formerly known as 'Old Connecticut Path' from the herein described tract westerly to Rocky Hill Road, " i.e., a grant of the right to use the western branch which Neil today opposes when demanded by Michelle.
No evidence was offered as to whether Petrone or Roy has had any interaction with plaintiff or with either Syriac brother. However, in December of 1987, abutter Jean Grosjean declared an overt challenge to Eric's claim to ownership of or right to use the eastern branch. Grosjean wrote to Woodstock's First Selectman asserting his own interest in the path and objecting to Eric's making use of it. The controversy over the east branch did not abate, for in 1993 an attorney for Grosjean wrote directly to Eric Syriac challenging his erection of a fence at the Route 171 intersection of the path and threatening legal action to contest any claim that title to the path belonged to Syriac. After that time, there is no evidence that Eric again used the east branch, but it is clear that the west branch became his primary if not exclusive means of access to #95.
On May 11, 2005, via a survivorship warranty deed, Eric reconveyed all his interest in these various pieces to his brother and the plaintiff, including the easement he obtained in 1987. Eric's deed to them also includes the vague reference to right to use the OCP " subject to the rights of others, " as exists in Cyrille's 1984 deed but which was absent from Neil's 1986 deed. As to the east branch, Eric granted Tract B merely by adding to the house lot " any rights the Mortgagor (sic) may have in and to a certain parcel of land running easterly from the above described premises to Connecticut Highway Route 171, formerly known as [the OCP]." This caution suggests that Eric, at least, had something less than a sterling level of confidence in the ownership of that second tract. This is understandable in light of the obvious claims of others which had emerged between 1986 and 2005.
This marks the first occasion reflecting that Michelle had any interest in the land.
When Neil conveyed his interest in that tract to Michelle on April 13, 2010, his deed again described two tracts as had the earlier instruments, and also included the right of access over the west branch. By virtue of that deed, therefore, plaintiff today has fee simple title to the east branch if one defines " fee simple" to describe " every estate in land granted or conveyed by deed, " as does 26A C.J.S., " Deeds, " § 245. Stefon characterized plaintiff's interest in the east branch as " colorable, " because it flows from a deed purporting to convey title to her. Our case law does not define the term " colorable" with respect to title to real property, but the witness's use of that adjective is not inconsistent with its use in unrelated case law stating that " [w]hether a claim is colorable . . . is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established "; Maris v. McGrath, 269 Conn. 834, 845, 850 A.2d 133 (2004) (emphasis in original).
Both parties use the truncated term " fee title" consistently; the court notes that if they intend by use of this idiosyncratic label to denote something other than " fee simple title, " they have not made that meaning clear.
Defendant has spent enormous energy here seizing upon plaintiff's allegation, in her complaint and elsewhere, that she has " fee title" to the east branch. In the week between the two days of trial the parties prepared lengthy memoranda on the topic of judicial admissions, aimed at his contention that because she has stated that she has " fee title" to part of the OCP in question the court is precluded from finding that she lacks such title. With respect to land titles, " fee simple" is not a synonym for " marketable." " A marketable title is one that can be sold 'at a fair price to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money.' . . . A title is not unmarketable because the vendee is unwilling to accept it or because it is unsatisfactory to his attorney . . . It must be subject to more than suspicion. To render a title unmarketable, the defect must present a real and substantial probability of litigation or loss; " Frank Towers Corp. v. Laviana, 140 Conn. 45, 52-53, 97 A.2d 567 (1953). " It is, of course, possible to have unfettered title without having marketable title; " Peterson v. McAndrew, 160 Conn.App. 180, n.3, 125 A.3d 241 (2015). The short answer to defendant's argument is that while she has " fee title" or " colorable" title she does not have " marketable" title, and the distinction between the terms is material. Her admission, such as it is, does not require that I deem the prerequisites of the separation agreement and family court decree to have been met.
The complaint literally states that plaintiff has " fee title" to the property described on " Exhibit A" (a copy of the 2010 deed from Neil to her); as indicated, that legal description includes both the house lot and the eastern branch driveway.
The legislature has enacted a bright line test for marketability in the form of Conn. Gen. Stat. § 47-33c, which provides that only a " person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest . . ." (Emphasis added.) Because the root of plaintiff's title is found in a 1986 intra-familial deed, she does not yet and may never possess any " marketable" title to the eastern branch. At the time of his conveyance to her, Neil Syriac was aware of the Grosjean and Petrone/Roy claims; Michelle Morton was not. As a result of those claims, she is left with a house lot that has no marketable access route to the east. Indeed even in 2011, Grosjean stated to the Woodstock Building Inspector that " he did not give any permission for this road to be installed, " and that there had been " much controversy on who owns this abandoned road." In 2015, after she listed the property for sale and entered into a purchase and sale agreement containing a marketable title contingency clause, the buyer's attorney refused to issue a title insurance policy given the status of access over the east branch. In light of the land records and the circumstances known to Neil when he transferred #95 to her, " a real and substantial probability of litigation" over the east branch cannot be overlooked. Any attorney who would issue a title policy in the face of these facts would be committing malpractice.
To construe the parties' use of the word " similar" as constrained to the physical aspects of the two driveways, and not encompassing her ability to market her home, or, for that matter, to even get to it other than by helicopter, would deprive her of the benefit of a bargain she entered into in good faith. Absent legal access, the value of #95 obviously declines to near zero. As Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991) informs us, " equity abhors a forfeiture, " and acceptance of defendant's arguments here would yield just such an abhorrent result. Avoidance of such a result is an especially pertinent concern when the only likely beneficiary of her loss would be defendant himself, positioned, as he is, to acquire her property rights for whatever she will take and then provide #95 with necessary access over the west branch.
I conclude, in light of all the foregoing, that plaintiff has sustained her burden of proving that the terms of the 2010 agreement and court order remain substantially unsatisfied. The intent expressed in those documents remains unfulfilled, and the family court's final order granting plaintiff the right to continue to use the west branch remains fully appropriate.
Furthermore, I observe that common law authority provides a parallel path to the plaintiff's goal even had she not prevailed on the contract argument. Connecticut has long recognized the doctrine of easements by necessity. " The law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance . . . The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties; " Collins v. Prentice, 15 Conn. 39, 44 (1842). This doctrine does not depend upon a landlocked landowner's proof of his grantor's intent to convey an easement as element of a case seeking a right of access; see O'Brien v. Coburn, 46 Conn.App. 620, 633, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997) (" the intention of the parties [was] irrelevant" in case establishing easement by necessity). " Thus, absent an explicit agreement by the grantor and grantee that an easement does not exist, a court need not consider intent in establishing an easement by necessity; Thomas v. Primus, 148 Conn.App. 28, 36, 84 A.3d 916 (2014) (emphasis in original). Instead, " [t]he presumption as to the intent of the parties is a fiction of law . . . and merely disguises the public policy that no land should be left inaccessible or incapable of being put to profitable use"; Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 400, 324 A.2d 247 (1973). (Citation omitted.) Because plaintiff has proven the fact of the parties' intent, she has no need to rely upon and has not claimed the benefit of this legal fiction. Because she did not, neither will I use it as the basis for my decision.
B. The Special Defenses
Under Practice Book § § 10-50 and 51, a defendant may allege facts which are consistent with the allegations made by plaintiff but which, if true, show that plaintiff nonetheless has no cause of action. While generally a party availing himself of this procedure must shoulder the burden of proof as to his allegations; see, New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n.10, 717 A.2d 713 (1998); this court has also taken note of the rule requiring a plaintiff to prove those facts crucial to her own case even if separately alleged by her adversary; see, Braffman v. Bank of America Corp., 297 Conn. 501, 998 A.2d 1169 (2010). Defendant has numbered his eight special defenses; but has not affixed a title to any one of them. An examination of their substance renders it obvious that they overlap to an extent, and I will treat them as taking a total of six substantively distinct positions.
1. First Special Defense--Unclean Hands
The gravamen of this first special defense is that plaintiff misrepresented facts in Paragraph 7 and 8 of her verified complaint and so comes before the court with unclean hands.
Paragraph 7 of the complaint alleges the execution and delivery by defendant to plaintiff, and her recording in the land records, of a quit-claim deed conveying to her title to 95 Rocky Hill Road, which includes access and utility easements across 97 Rocky Hill Road which is the subject of this lawsuit. Paragraph 8 recites that the family court " declined to issue orders regarding the plaintiff's rights to access her property pursuant to the easement using the shared driveway."
Given the resolution of the access dispute as discussed above, there is no merit to the attack upon paragraph 7. As to 8, plaintiff misstates the status of the record in the family court, but in a manner favorable to defendant's position. The family court did issue orders regarding her access to her property, and the orders were in fact in her favor. " The clean hands doctrine is applied not for the protection of the parties but for the protection of the court; " Eldridge v. Eldridge, 244 Conn. 523, 536, 710 A.2d 757 (1998). Whatever carelessness may be the cause of the confusing content of paragraph 8, the flaw therein has not misled the court any more than equivalent misstatements of the family court record made here by the defendant, and does not entitle him to an order repudiating her claims as a consequence.
2. Second Special Defense--Dissolution Judgment, and Seventh Special Defense--Separation Agreement
In his second special defense, defendant claims that the April 13, 2010, judgment of dissolution " terminated the plaintiff s right to utilize the defendant's driveway upon completion of a new driveway from Route 171 to the defendants (sic) house." The seventh special defense claims that the disputed easement " is governed by the Parties Separation Agreement." Since the language of both instruments is identical, these two defenses are substantively indistinguishable.
The inadequacy of this special defense is demonstrated by the resolution of the question of why there has not as yet been full compliance by defendant with the conditions included within those mandates, as set forth above, and no further discussion is required.
3. Third Special Defense and Sixth Special Defense--Issue or Claim Preclusion
His third special defense merely states that the April 23, 2013, order in family court denied plaintiff's motion to modify the divorce judgment. His sixth special defense is evidently intended to show the significance of that ruling, as he claims that this action by the family court brings the doctrines of res judicata or collateral estoppel to bear in his favor.
To begin with, I note that both the third and the sixth special defenses (and the fourth also) allude to the earlier case as bearing docket number FA98-4007420S; the correct docket number is FA08-4007420S.
In the recent case of McDonald v. McDonald, 171 Conn.App. 519, 157 A.3d 702 (2017), the court instructed us, at pages 525-6, that
The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . More specifically, collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . .
Because these doctrines are judicially created rules of reason that are enforced on public policy grounds . . . we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.
Defendant's reliance upon either of these doctrines is misplaced. First, as to the " necessarily determined" factor in the test for collateral estoppel, Judge Graziani's orders denying both parties' motions on April 23, 2013, expressed a disinclination to rule rather than a ruling. He expressly stated that his orders were " without prejudice, " thus the opposite of a decision on the merits.
More importantly, defendant's claim that the family court has decided this issue adversely to plaintiff is just plain wrong. The last order extant in that proceeding is that " Defendant shall keep the driveway to 95 Rocky Hill Road open . . . until further order of the court." On the same day that order entered, the court also denied defendant's motion extinguishing plaintiff's right to use that driveway. He conveniently fails to mention that fact. Thereafter, he attempted again to have the family court deny her that opportunity, and failed to pursue that attempt to any conclusion altering the 2013 order. Thus, to the extent that doctrines of issue preclusion control the instant case, they favor plaintiff.
It would be a simple response to hold that the family court orders now in effect require him to keep the west branch path open, and to mirror those orders in this case without further ado. But this litigation, now entering its eighth year, is a war of attrition draining the parties' resources and requiring substantial time on the court's part as well. Given that two days have been expended upon a trial here, and given that the family court order which was entered upon a stipulation of the parties remains vulnerable to challenge by further proceedings in that forum, it is inappropriate that I decline to decide the disputed issue of whether or not defendant has in fact done what the parties expected him to do when they separated their properties in 2010.
Between the end of trial and the preparation of this decision, I was assigned to hear motions in a new but related case filed by plaintiff against defendant, captioned " Morton v. Syriac, " WWM CV17-6011145. Its return date is January 3, 2017. In the first five months of that case's existence, the docket records the filing of an original and two amended complaints, and four motions to dismiss.
4. Fourth Special Defense--Waiver of Right to Utilize Driveway
In his fourth special defense, defendant alleges that " plaintiff voluntarily gave up the right to utilize the driveway in the Separation Agreement." Had she done so unconditionally, this defense might shield him from her present claims. As noted above, she did so conditionally and the conditions precedent to her cessation of use remain in significant part unmet.
5. Fifth Special Defense--Scrivener's Error
The fifth special defense asserts, in full, that " the easement referred to [by plaintiff] is a result of a scriveners error." This premise is the same as that which underlies the second count of his counterclaim, although there it is expressed in greater detail.
As a special defense, the allegation is insufficient because plaintiff's claims possess a foundation independent of the language in the deed. Thus whether or not the deed accurately reflects the intent of the parties, the alleged mistake, if corrected, would not defeat her claims for relief. The court will revisit this issue in the discussion below regarding the counterclaim.
6. Eighth Special Defense--Failure to Plead or Prove Irreparable Injury and Lack of Adequate Remedy at Law
Via his eighth special defense and at other occasions in his pleadings and in oral argument, defendant has gone to considerable length to point out that " a party seeking injunctive relief has the burden of alleging and proving irreparable harm and a lack of an adequate remedy at law; " Tighe v. Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002). Focusing on the word " alleging, " he insists that because the terms " irreparable injury" and " lack of adequate remedy at law" are nowhere to be found within the four corners of the complaint he is entitled to a judgment on the merits. At the conclusion of her case, he moved for a judgment of dismissal on account of this defect, which I denied. I note that he could and ought to have raised this issue on a motion to strike (see Practice Book § 10-39(a): " A motion to strike shall be used whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, etc.") rather than in full defense against plaintiff's cause of action as he has done here; had that motion been filed and granted, she would have had the privilege of repleading as a matter of right under Practice Book § 10-44.
I must also note that the verified complaint is dated August 5, 2015. The special defense addressing this pleading defect was filed on September 11, 2015. Between then and the trial commencement date of January 13, 2017--more than sixteen months--plaintiff made no attempt to amend or revise her complaint to remedy this omission. Doing so would have removed this defense from defendant's arsenal and would have averted a substantial risk that her cause might have been lost before the merits were determined, and would have saved the parties and the court many hours instead spent on argument and briefing.
The requirement that an application for injunctive relief recite these two elements is stated so often as to be axiomatic. The rule is not, however, absolute. The court in Wad Realty, Inc. v. Licamele, 1 Conn.App. 371, 472 A.2d 352 (1984), at note 5 cited several federal cases to conclude that while " plaintiff did not specifically allege lack of an adequate remedy at law in its complaint . . . such an omission is not fatal" if such can be inferred reasonably from the entire complaint. The proper hierarchy is that, if irreparable harm and lack of an adequate remedy are proven, the failure to use those precise terms formulaically in the complaint may not require that it be doomed to dismissal; U.S. v. White County Bridge Commission, 275 F.2d 529 (7th Cir.), cert. denied sub nom. Clippinger v. U.S., 364 U.S. 818, 81 S.Ct. 50, 5 L.Ed.2d 48 (1960) (" [w]here a complaint alleges facts from which the court may reasonably infer lack of an adequate remedy at law or irreparable injury, the want of express allegations thereof is not fatal; " 275 F.2d 529, 536). On the other hand, " plaintiffs must allege facts which, if proven, would establish irreparable injury and assume the burden of proving facts which will establish substantial and irreparable damage if they are to prevail in their request for injunctive relief, " and failure to allege those underlying facts is an insurmountable deficiency; Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971); Empire Transportation Co. v. Johnson, 76 Conn. 79, 55 A. 587 (1903).
Moreover, a review of the five paragraphs of plaintiff's claim for relief quoted at Part II of this decision, above, reveals that only number two asks for injunctive relief, while paragraphs one, three, four, and five simply request orders in aid of a judgment on the right of way issue. In Kelley v. Tomas, 66 Conn.App. 146, 783 A.2d 1226 (2001), the appellate court responded to an appellant who claimed that the trial court had improperly granted an injunction against him in favor of parties who had not alleged irreparable harm and lack of an adequate remedy at law in their pleadings. That argument, the court held, was off the mark because the trial court had entered orders directing that party not to interfere with certain property rights of the successful parties, but had not framed those orders as an injunction. The court held that the phrase " [N]either the plaintiff nor the defendants are to interfere with the other's use of the steps, landings and railing located between the two buildings" is not tantamount to an injunction. " [A]n order of the court" is not to be confused with " an injunction. It was within the court's inherent power to issue the order in an effort to effectuate its equitable remedy [and] [i]t is axiomatic that the Superior Court, as part of an independent and separate branch of government, has inherent power to do all that is reasonably necessary to enable the court to discharge its judicial responsibilities and to provide for the efficient administration of justice . . . the court did not issue an injunction; it exercised its inherent authority to issue an order that would assist in the discharge of the equitable remedy that it decreed; " 66 Conn.App. 146, 158, 783 A.2d 1226. (Citations omitted.)
With regards to all paragraphs of plaintiff s claim for relief except number two, therefore, the special defense depends upon an immaterial consideration. With respect to number two, now that I have heard all the evidence here it is clear both that the substantive allegations of the complaint are sufficient to indicate that plaintiff will suffer an irreparable injury if denied access to her property--that being the virtual elimination of any value in the parcel--and that she has no adequate remedy at law. Furthermore, she has not merely alleged those facts, but has succeeded in proving them by a preponderance of the evidence. This special defense is not adequate to rebuff plaintiff's claim for injunctive relief if the court deems it appropriate.
C. The Counterclaims
1 Action to Settle Title to Land
By this count, defendant states his case for a declaration that he owns and enjoys title to #97 Rocky Hill Road without interference from plaintiff. For the same reasons I found in her favor as to the import of the parties' agreement and the court order embodying it, I find adversely to him on this count.
2 Reformation of Deed
Defendant's post-dissolution deed to plaintiff included a clause identical to that contained in the 1986 deed to Eric Syriac, conveying to her " the right with others to pass and repass by foot and/or vehicle, and to install and maintain utilities, over and across that portion of the premises now or formerly of Neil Syriac known or formerly known as 'Old Connecticut Path.' By this count, he seeks to have this court declare that the insertion of that clause in that instrument was a scrivener's error, and order that it be expunged.
" Reformation of a deed can be ordered when it has been executed as the result of a mutual mistake and by reason thereof each party has done what neither intended . . . Reformation is also available as an equitable remedy when the deed does not express the true intent of the parties owing to mistake of one party coupled with fraud, actual or constructive, or inequitable conduct on the part of the other . . . The function of a deed is merely to pass title to land, pursuant to the agreement of the parties . . . What the terms of the agreement were in the case at bar was a question of fact for the trier; " Patalano v. Chabot, 139 Conn. 356, 359-60, 94 A.2d 15 (1952). (Citations omitted.) " Reformation is appropriate in cases of mutual mistake--that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party . . ." Derby Sav. Bank v. Oliwa, 49 Conn.App. 602, 604, 714 A.2d 1278 (1998). " Reformation must be established by evidence that is 'clear, substantial and convincing; ' Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981).
Defendant stands upon the language of the agreement and court order, which he insists he has satisfied by construction of the driveway improvements. He invokes these documents as though they set forth an immutable obligation on plaintiff's part to relinquish her claim to access over the west branch. As discussed above, her commitment to that release was conditional, and the condition precedent to defendant being entitled to force her hand to execute such a release has not occurred and may never occur. The fact that the deed he signed to her inadvertently included language contained in previous deeds in the chain of title and granted her an easement he disputes is a mere fortuity, and under the circumstances of this case does not warrant reformation. Such a process would only add further confusion to an already complicated situation.
Moreover, the clause in question contains more than the right of ingress and egress addressed by the parties' separation agreement. It expressly includes the right " to install and maintain utilities." At trial, it was established that utility service to both #95 and #97 runs through a single underground conduit buried within the west branch. The Marketable Record Title Act, Conn. Gen. Stats. § 47-33b et seq., at § 33h includes a specific provision bolstering the viability of an easement for utility service when " the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable . . ." Here, the existence of those features beneath the right of way over the western branch was well known to both parties. The divorce case documents include no indication that the parties bargained for plaintiff to be ousted from future use of that conduit. Defendant's plea that the 2010 deed be reformed to delete the contested clause would set plaintiff up for deprivation of a right defendant has not hitherto disputed, in the absence of any evidence that either party intended that result throughout their protracted dispute.
3 Breach of Contract
The essential premise of this count is that " the defendant in counterclaim continues to attempt to avoid the terms of the separation Agreement dated April 13, 2010, " (116), causing, he alleges, a diminution in value of the servient estate and a loss of income.
That premise is untenable, for the reasons set forth above.
IV. The Motions to Dismiss
Between them, the parties have filed three motions to dismiss since the beginning of trial on January 13. On January 20, plaintiff filed the first (#185), seeking to dismiss the counterclaims for failure to join the owners of interests in the east branch of the OCP as allegedly necessary parties. On the same date, defendant filed his motion to dismiss (#189) alleging that plaintiff had failed to make out a prima facie case. Later, on April 7, he filed a motion challenging plaintiff's standing to pursue this action (#196). Each motion has generated a written opposition from the other side, and each party has been allowed to argue his or her motion.
Defendant also raised this motion orally as the plaintiff rested her case. I heard the parties' arguments on the motion and denied it on the record in the course of the trial.
A. Motion to Dismiss for Failure to Join Necessary Parties
The counterclaim which plaintiff's motion challenges was filed on September 11, 2015. She filed this motion on January 20, 2017, with nothing having occurred in the intervening sixteen months shedding any new light on who were the owners of competing claims to the east branch or how their interests might be affected by defendant's counterclaim. Practice Book § 10-39 provides that " a motion to strike shall be used whenever any party wishes to contest . . . (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or . . . the failure to join or give notice to any interested person." (Emphasis added).
Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties . . . A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Citation omitted; footnote omitted; internal quotation marks omitted.)In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127, (2003).
Ignoring for the moment the time limit of thirty days for filing such a motion (Practice Book § 10-8), the waiver provisions of § 10-38, and the obvious choice of the wrong motion to advance her argument, plaintiff's motion to dismiss also fails on its merits. The gist of defendant's argument is that plaintiff has " fee title" to the east branch by virtue of the deed he presented to her in 2010. For the reasons stated above, this argument is both true and insufficient. Deeming it to be true does not implicate the interests of the competing landowners, because those interests endure notwithstanding the complicated interactions of the Syriac family.
Plaintiff's motion to dismiss is denied.
B. Motion to Dismiss for Lack of Standing
Throughout the trial, plaintiff's allegation in her complaint that she possesses " fee title" to the east branch was a source of much spirited discussion. Defendant's reliance upon this premise as a dispositive fact led him to consistently insist that it was undeniable. This was especially the thrust of his cross-examination of the plaintiff and, to a lesser extent, of her expert witness. As indicated above, he and plaintiff both authored mid-trial memoranda of law addressing whether this judicial admission constituted an irrefutable fact precluding plaintiff from obtaining any relief.
In his present motion he pivots a full half-circle to rely upon the counterfactual proposition that plaintiff does not have fee title to " the tract" and hence lacks standing to bring her action in the first place. He derives this premise from an inartful comment in plaintiff's post-trial brief where she states " [t]he reason the Plaintiff made the allegation in the complaint that she held 'fee title' was to establish standing to bring an action: nothing more; " plaintiff's post-trial brief, page 5.
See footnote 5. Plaintiff has never denied ownership of the house lot, and defendant would be hard pressed to argue that she is not its owner. The reference to fee title as the phrase is used in plaintiff's brief clearly refers to the east branch, yet defendant pins it to the house lot. Throughout his cross examination defendant took full advantage of plaintiff's flawed appreciation of the subtleties of land titles, but other evidence exists supporting the conclusion that she has title by deed to both parcels, albeit title which in the case of the path is inadequate.
Plaintiff's counsel committed an unforced error by failing to append the adjective " marketable" to that assertion. Since defendant has maintained throughout the case that marketability of title to the right of way is immaterial, his shining the spotlight upon this apparent undermining of plaintiff's standing is not surprising. This court does not concur with his analysis of the title issue, however, as I have explained above. By any definition of the concept of standing, plaintiff, who stands to lose practically the entire value of the land she obtained in the divorce if she cannot assure access to it, clearly has standing to bring this action.
Before leaving this topic, I commend to plaintiff's counsel a reading of the case of Daniels v. Alander, 268 Conn. 320, 844 A.2d 182 (2004). The confession in her brief that she made a false assertion of fact for the sole purpose of avoiding a dismissal for lack of standing could, if true, lead to disciplinary action against her. Fortunately, here she has confessed to a crime she did not commit.
Defendant's motion to dismiss is denied.
V. Conclusion and Orders
Plaintiff's quest in this case is to obtain recognition of her continued right to use the western branch of the OCP as the means of access to her land, and to have this court issue permanent orders along the lines of the temporary orders issued by Judge Calmar. If this court denies her request, the best that plaintiff can expect is that she might access #95 over the east branch at the grace of her neighbors, which in light of the Grosjean challenges cannot be presumed. It is remotely possible that fifteen years from now she could bring an action against them for a declaration that she possesses an easement by prescription.
In considering whether an injunction or other order is the appropriate form of relief, the principles guiding the discretion of a court of equity apply in either case. " 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; " Independence One Mortgage Corp. v. Katsaros, 43 Conn.App. 71, 76, 681 A.2d 1005 (1996). In the exercise of that discretion, " [in] an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done; " id., at 75. The Court indicated in Home Owners' Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 242, 193 A. 769 (1937), that an equitable result " depends to a large extent upon the circumstances of the particular case." " The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm . . . We note also that, [i]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction"; Tighe v. Town of Berlin, 259 Conn. 83, 87-88, 788 A.2d 40 (2002) (Citations omitted). Additionally, " [a] decision to grant or deny an injunction must be compatible with the equities in the case, which should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendant; " Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996).
There is undoubtedly substantial likelihood here that in the absence of judicial intervention the plaintiff stands to lose a valuable asset. To prevent that result requires a fairly minimal burden being placed upon defendant, requiring that he not interfere with the use of her easement over the west branch. Hers is a single-family residence generating little traffic, over a path he himself already uses for his own home and must maintain whether or not plaintiff shares in its use. Defendant tolerated the burden of use of that easement for over two decades, first by his brother and then by tenants occupying #95 between 2005 and 2010; only now that his ex-spouse demands the same right has he dug in his heels and said no. The court is also mindful both that he had superior knowledge of the potential roadblocks to use of the east branch when he negotiated that plaintiff would use that route as her sole means of access, and that should she fail in achieving her goal here he is uniquely poised to take advantage of her predicament and reacquire possession of #95 at a fire-sale price.
Accordingly, it is adjudged, ordered, and decreed that:
1. Defendant, and his servants, agents, and employees, are to wholly and absolutely desist and refrain from undertaking, or enlisting any other persons or entities to undertake actions, adverse to, or in any way to limit, impede or inhibit plaintiff, with respect to the property at 95 Rocky Hill Road (or 740 Route 171), in the exercise of her rights under the access and utilities easement as first evidenced by the recording of a document entitled " Grant of Easement" at Volume 167, Page 204, in the Woodstock land records on June 10, 1987, and the same easement conveyed by him to her in a quit-claim deed dated April 13, 2010, and recorded at Volume 519, Page 385 of the Woodstock land records.
2. Said easement is not personal to plaintiff but is an easement appurtenant to the land known as #95 Rocky Hill Road, Woodstock, and plaintiff may convey said easement to her heirs, successors, and assigns. See Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 898 A.2d 270 (2006).
3. Defendant shall refrain from placing, constructing or allowing to be built any gates, fences, or other structures, temporary or permanent, within the easement area that would in any way limit or impede foot and/or vehicle access to 95 Rocky Hill Road from the Rocky Hill Road entrance.
4. Defendant shall cease and desist from any harassment of plaintiff or her invitees in their use of the easement, whether by signage, cameras, personal confrontation or other means.
5. The clerk's office shall prepare a judgment file permitting these orders to be recorded in the Woodstock land records.
6. No costs are taxed to either party.