Opinion
No. KNO-CV-07-4008572-S
June 17, 2009
MEMORANDUM OF DECISION
I. BACKGROUND
This vigorously contested matter concerns the use of land and riparian (littoral) rights located in the "White Beach" section of Lord's Point in Stonington, Connecticut. The relevant properties are shown on Exhibit A-1, the 1927 plan of the White Beach ("1927 Perry Plan"). The properties are bounded by Oak Street, Lindbergh Road and White Beach. The properties are also shown on the following exhibits: a 1981 DEP aerial photograph (Exhibit A-4 and P-15); the October 22, 1987 Lot Plan of Joseph and Clara Falcone, Exhibit A-3 ("1987 Falcone Plan"); an aerial photograph used as the Assessor's Map, Exhibit A-5 ("Assessor's Map"); another aerial photograph which identifies the landowners and shows the location of the bridge over the creek (Exhibit P-13); and a property survey prepared for the Pasqualinis, who were the predecessors of defendant EAPWJP, LLC, in 2005, Exhibit B-13 ("2005 Pasqualini Plan").
The plaintiffs' properties all abut Oak Street, as follows:
Bruce Jablonski owns 25 Lindbergh Road which is located on the earner of Oak Street and Lindbergh Road (being the northern portions of Lots 461 and 462 on the 1927 Perry Plan);
Barbara O. Murphy owns 6 Oak Street (being the southern portions of Lots 461 and 462 on the 1927 Perry Plan);
Aline T. Pollard owns 8 Oak Street (being Lot 463 on the 1927 Perry Plan);
Geoffrey B. Corkhill owns 10 Oak Street (being Lots 464 and 464 1/2 on the Perry plan) and Donald L. Kooken owns 12 Oak Street (being Lot 465 on the 1927 Perry Plan).
There is no dispute as to the ownership or title of any of the plaintiffs' lots.
The plaintiffs' have brought suit against EAPWJP, LLC, (herein EAP or EAPWJP) of which the principal is William Pasqualini, Sr., and also against Steven Dodd and Marion Dodd (hereinafter "the Dodds") who also own property at Lord's Point. The First amended complaint, dated July 3, 2007, originally contained three counts. The second and third counts for injunctive relief and damages were withdrawn. The remaining count seeks a prescriptive easement over a portion of property known as the Triangle (which they allege may be owned by either the Dodds or by EAPWJP) and over the "Beach Parcels" of EAPWJP to White Beach for recreational activities including swimming, boating, bathing and, in paragraphs 12 and 14, the maintenance of mooring poles for boats. Both the "beach parcels" and the Triangle are defined in exhibits to the first amended complaint.
EAPWJP has filed several special defenses to the plaintiffs' claim. The Dodds, however, in their responsive pleading agree that the plaintiffs have such an easement over the Triangle, and the Dodds also claim a prescriptive easement over the Beach Parcels owned by EAPWJP.
The Dodds own property at 29 Lindbergh Road, Lord's Point, Stonington. The Dodds' property consists of Lots 455, 456, 457, 459 and 460 shown on the 1927 Perry Plan. There is no dispute in this case as to the ownership of those lots. The Dodds also claim ownership of a triangular parcel of land (the Triangle) shown on that plan as abutting the Dodds' lots and the undeveloped (i.e., paper) street known as Midway. The Triangle is partly submerged under water, partly saltwater marsh and partly dry land. (See Exhibits A-5 and A-27.) The Dodds acquired all their parcels by a single deed in 1998 and have rented and maintained the property since then. (Exhibit A-19.)
The Dodds have filed a three-count cross claim against EAPWJP. The first count seeks a quiet title to the Triangle. The second count seeks a prescriptive easement over the "EAPWJP beach parcels" (defined by the Dodds as Lots 10 through 16 and the sections of Midway and White Beach owned by EAPWJP) for the purpose of recreational activities including, but not limited to, swimming, boating and bathing. The third count claims an implied easement over White Beach and Midway by virtue of the 1927 Perry Plan. The Dodds make no claims regarding the mooring poles located in the waters of Long Island Sound off the shore of White Beach, nor do the Dodds claim any interest pertaining to the Pasqualini House lot (Lot 466).
EAPWJP has pled two special defenses to the Dodds' cross claim. EAPWJP's first special defense to the cross claim alleges that the Dodds' use of the access path to White Beach was done with EAPWJP's permission and consent and that said permission has been revoked. EAPWJP's second special defense alleges that EAPWJP removed a certain wooden walkway pursuant to the requirements of the Connecticut Department of Environmental Protection ("DEP") and that the structure was in violation of C.G.S. § 22a-32 and § 22a-361 and was destroying tidal wetland vegetation.
EAPWJP owns a "house lot" known as 14 Oak Street (also known as Lot 466 on the 1927 Perry Plan, Exhibit A-1), which is the residence of William Pasqualini, Sr, principal of EAPWJP. EAPWJP also owns certain undeveloped "Beach Parcels," identified for the purposes of this opinion as a portion of "White Beach," Lots 10 through 16 and a portion of "Midway," a paper street all as shown on the 1927 Perry plan. The Pasqualinis or EAPWJP have owned their house lot since 1962 and built their house on it in 1975. (Exhibit B-50.) Mr. Pasqualini acquired Lots 10 through 16 in 1980. (Exhibit B-53) The late Eunice Pasqualini acquired the remaining Beach Parcels by an Administrator's Deed from the Estate of Fannie Noyes Lord dated March 17, 1987 (Exhibit B-47). The Third Tract in the 1987 Administrator's Deed purports to convey the Triangle. The Dodds dispute the validity of this purported conveyance of the Triangle. Otherwise, there is no dispute as to the title to the EAPWJP's land, only the issue of whether some or all of it may be subject to easements.
EAPWJP has filed a two-count counterclaim against the plaintiffs sounding in trespass and nuisance.
EAPWJP has also brought a one-count cross-counterclaim" against the Dodds sounding in trespass. (EAPWJP has not alleged a nuisance claim against the Dodds.)
EAPWJP claims that the Dodds installed a wooden walkway over a portion of EAPWJP's property "as a convenient access to the beachfront." EAPWJP claims that the Dodds failed to get the proper permits for the walkway structure, that it was in violation of C.G.S. § 22a-32 and § 22a-361 and was adversely impacting tidal wetland vegetation. EAPWJP alleges that it removed the wooden walkway and notified the Dodds that they are no longer allowed to cross EAPWJP's property. EAPWJP further alleges that despite removing the wooden walkway and notifying the Dodds as aforesaid, the Dodds and their guests have continued to cross EAPWJP's property. EAPWJP claims that the Dodds' actions constitute a willful, malicious and unlawful trespass. EAPWJP seeks damages, punitive damages and injunctive relief.
The Dodds in their answer admit that they have continued to use the pathway to the beach over the EAPWJP Beach Parcels despite the removal of the wooden walkway and despite the attempt of EAPWJP to withdraw permission. The Dodds have also filed two special defenses to EAPWJP's cross-counterclaim. The Dodds' first special defense alleges that EAPWJP cannot assert a trespass claim as to the Triangle because the deed purporting to convey the Triangle to EAPWJP is void pursuant to C.G.S. § 47-21 since the grantor of that deed had been ousted of possession. The Dodds' second special defense claims that EAPWJP cannot assert a trespass claim as to the Triangle because the deed purporting to convey the Triangle to EAPWJP is void because the grantor of that deed had previously conveyed the Triangle to predecessors of the Dodds.
The trial of the matter was held in this court on May 6, 2009, and subsequent days when the parties were well represented by counsel, presented evidence and argument with respect to their various claims. Substantial briefs were filed on May 22, 2009. Thereafter, on or about June 1, 2009 EAPWJP moved the court to amend both its counterclaim and cross-counterclaim to add another count alleging public nuisance. That motion was heard in this court on June 10, 2009, and was thereafter denied as set forth in a memorandum filed that date.
II. ANALYSIS
The plaintiffs' claims in the complaint and the responsive allegations will be discussed first. The Dodd's claims with the EAPWJP responses will be discussed next. EAPWJP's cross complaint against the plaintiffs and EAPWJP's cross-counterclaim against the Dodds will be discussed last. Statements of the law and the factual findings from the evidence, including reasonable and logical inferences therefrom, and taking into account the court's evaluation of the creditability of the witnesses, will be set forth as necessary.
THE PLAINTIFFS' COMPLAINT
The plaintiffs have claimed a prescriptive easement over the Triangle which is specifically defined as follows:
The following described parcel of land situated in the Town of Stonington, County of New London and State of Connecticut, bounded and described as follows:
Beginning at a point, which is the southwest corner of Lot #466 on a map entitled "Amended Plat of The White Beach Section, LORDS POINT, Stonington, Conn., Owned by James E. Lord, July 30, 1927, George W. Perry CC, Putnam, Conn., Scale 50' to inch' which point marks the southwest corner of the herein described tract; thence proceeding in a northerly direction along the west line of Lots #466, 465, 464-1/2, 464 and 463 to a point on the southerly line of Lot #460 as shown on said map, which point marks the northwest corner of said Lot #463; thence proceeding in a westerly direction along the southerly line of a portion of Lot #460 and Lots #459, 458, 457 and 456 to a point, which point marks the southwest corner of Lot #456 on said map; thence proceeding southerly in a straight line, which line is the extension of the westerly boundary line of said Lot #456 to a point on the northerly line of Midway on said map; thence proceeding in a southeasterly direction along the northerly line of said Midway as shown on said map to the point and place of beginning.
Being the Third Tract in a deed from James A Morgan, Administrator d.b.n. c.t.a. of the will of Fannie Noyes Lord, dated March 19, 1987 and recorded in Volume 281, Page 495 of the Stonington Land Records.
The plaintiffs also claimed a prescriptive easement over the EAPWJP's "beach property" which is defined as follows:
FIRST TRACT
Part of a beach known and delineated as White Beach as shown on a map entitled, "Amended Plat of The White Beach Section, LORDS POINT, Stonington, Conn., Owned by James E. Lord, July 30, 1927, George W. Perry CC, Putnam, Conn., Scale 50' to inch." Said tract is more particularly bounded and described as follows: Commencing at the southwest corner of Lot #10 as shown on said map and thence proceeding in a southeasterly direction along the southerly lines of Lots #10, 11, 12, 13, 14, 15 and 16 and continuing in said southeasterly direction to a point, which point marks the southwest corner of Lot #25 on said map; thence proceeding southwesterly along the line shown on said map as `Radius'1430* to Long Island Sound; thence proceeding northwesterly by and along Long Island Sound to a point which point is a prolongation of the westerly line of Lot #10 on said map to the Long Island Sound; thence proceeding northerly to the point and place of beginning.
SECOND TRACT
That portion indicated as Midway on map entitled, "Amended Plat of The White Beach Section, LORDS POINT, Stonington, Conn., Owned by James E. Lord, July 30, 1927, George W. Perry CC, Putnam, Conn., Scale 50' to inch." Said tract is more particularly described as follows: Beginning at the northeast corner of Lot #6 and the northwest corner of Lot #7; thence proceeding in a northerly direction across said Midway in a straight line to a point on the southerly line of Lot #455 on said map; thence proceeding southeasterly along the northerly line of said Midway as shown on said map to the southwest corner of Lot #466 as shown on said map; thence continuing southeasterly to a curve which commences on the southeasterly portion of said Lot #466; thence proceeding in a general southeasterly and thence northeasterly direction along the radius of said curve to the west line of Oak Street as shown on said map; thence proceeding southerly in a straight line along the westerly line of Oak Street to a point, which point marks the northeasterly corner of Lot #15; thence proceeding in a northwesterly direction along the southerly line of said Midway and along the northerly line of Lots 15, 14, 13, 12, 11, 10, 9, 8 and 7 to the point and place of beginning a distance of 461.32' more or less.
Reference is made to a deed at Volume 379, Page 183.
Parcel Two:
A lot or parcel of land, located at Lord's Point, so-called, in the Town of Stonington, County of New London and State of Connecticut, and described as Lot No. 466 on a Plat entitled, "Amended Plat of the White Beach Section Lord's Point, Stonington, Connecticut, owned by James E. Lord, made by George W. Perry, Civil Engineer, of Putnam, Connecticut, dated July 30, 1927," which Plat is on file in the office of the Town Clerk of said Town of Stonington, to which reference is made for a more particular description of the premises hereby conveyed. Said lot fronts on Oak Street, so-called.
Reference is made to a deed at Volume 379, Page 187.
Parcel Three:
Seven lots or parcels of land, situated on the Southerly side of Midway and the Westerly side of Oak Street at Lord's Point, in the Town of Stonington, County of New London and State of Connecticut, shown on "Amended Plat of the White Beach Section, Lord's Point, Stonington, Conn. owned by James E. Lord, July 30 1927, George N. Perry C.E., Scale 50' to inch" on file in the Stonington Land Records, Plat Book 5, Page 23, designated as Lots No. 10, No. 11, No. 12, No. 13, No. 14, No. 15 and No. 16.
Reference is made to a deed at Volume 379, Page 185.
Section 47-37, C.G.S. provides that "No person may acquire a right of way or any other easement from, in, upon or over the land of another, by adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years." A "party claiming to have acquired an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." " Westchester v. Greenwich, 227 Conn. 495, 501 (1993). The proof must be by a fair preponderance of the evidence. Galbo-Mure v. Tomchik, 78 Conn.App. 699, 704-05 (2003). Further, the fact that much of the use was seasonable, with the greater use during the warm weather months is adequate to support a claim of adverse use. Roche v. Fairfield, 186 Conn. 490, 501, note 11 (1982).
From the testimony and exhibits offered on behalf of all plaintiffs it is found that they had used the pathway, the wooden walkway, portions of the Triangle and beach parcels in an open, visible, continuously and uninterruptedly for at least fifteen (15) years under a claim of right. Such use is found to have been without permission of EAP or its predecessors in title, and without objection.
The testimony on behalf of all plaintiffs was, and it is found, that their use was made under a claim of right which is "without recognition of the rights of the owner of the servient estate." Zavisga v. Hastings, 143 Conn. 40, 46 (1955).
Plaintiff Murphy testified and it is found that there was a use by she and her family of the Triangle parcel for recreation and for access to the beach, and that she, her family and guests used a certain path and footbridge over Midway and the EAP lots to reach the southerly portion of Lots 10 and 11 and that they used White Beach for recreational purposes such as swimming, boating, fishing, and occasional walks of the entire length. Mrs. Murphy also testified to the use of mooring poles for her dinghy.
Plaintiff Jablonski testified and it is found that since 1969, he and his parents, John and Helen Jablonski, had access to Long Island Sound over the Triangle parcel and EAP's beach parcels, and that he, his parents and siblings always used such pathways and the mooring poles.
Mr. Jablonski testified and it is found that neither he nor his parents ever requested permission to use the Triangle parcel, the pathways, and the mooring poles and that from the period of his recall, 1968 to 2007, no one ever objected.
Mr. Pollard testified and it is found that he and/or his parents used the contested access paths and White Beach since 1972 It is found that the wooden boardwalk was about 18"-24" wide but, as indicated above, when others were using the boardwalk it was necessary to step off the wooden portion onto the marsh to allow passage. He further testified to the relocation of the mooring poles, under the supervision of Mr. Tabor, the State of Connecticut harbormaster, in April 2007. Pollard testified and it is found that there was continuous use of the pathway, the boardwalk, White Beach and mooring poles since the acquisition of their lot in 1971 by his parents and that this use of the pathway and mooring poles was open, obvious, continuous, uninterrupted and under a claim of right without objection from anyone. Neither his parents or he ever asked permission to use the access way, White Beach or the mooring poles. It is found that such facilities had existed when the Pollards went into possession in 1971.
Plaintiff Corkhill testified and it is found that he acquired his property in September 1993 (Exhibit P-8) from Joseph Schaffhauser and that he and his wife have resided year round at the dwelling since then. He further testified and it is found that he made use of the pathways over the Triangle parcel and EAP's beach properties to reach White Beach and he maintained and used the mooring poles. He also testified and it is found that his wife used White Beach for recreational purposes and his primary use of the access way was to reach his mooring poles on White Beach where he secured his boat, as well as walking his dog along the length of White Breach. There was other testimony and it is found by the court that there was use of the access way, the Triangle parcel and mooring poles by Mr. Schaffhauser Corkhill's predecessor in title, from approximately 1968 until 1993. Neither Corkhill nor his wife asked anyone for permission to use the Triangle parcel, the access ways over EAP's property, White Beach and the mooring poles. No one ever objected to this use. Corkhill identified the wooden boardwalk as being shown on Exhibits A-27 and B-37. From his testimony, it is found that White Beach may also be reached from his lot by using Oak Street to access his mooring poles.
Plaintiff Kooken testified and it is found that he purchased his property in April 1972 (Exhibit P-7) and that it was used by his family for vacations and holidays. It was also at times rented out. From his testimony, it is found that his family and tenants used the Triangle parcel to access lands of EAP and that White Beach was used for bathing. He testified and it is found that these pathways existed when he purchased the property in 1972 and were used openly, visibly, continuously and uninterruptedly under a claim of right. Kooken further testified that he does not maintain mooring poles for boating. It is found that he has occasionally used Oak Street to access White Beach from his lot. It is found that Kooken never asked anyone's permission to use the Triangle parcel or the access way across EAP's property and White Beach and that no one ever objected to such use.
Robert Tabor, the duly appointed harbormaster whose jurisdiction included Lord's Point, was a witness. The position of harbor-master exists pursuant to C.G.S. § 15-1. Mr. Tabor testified and it is found that in April 2007 he supervised the relocation of the mooring poles of Jablonski, Murphy, Pollard and Corkhill and others from locations that may have been on property of EAP to locations seaward of the high water mark. There were 11 outhaul moorings altogether. No evidence was offered as to the owners of the other moorings. He further testified and it is found that these individuals had valid mooring permits when the relocation occurred and at the time of trial. No evidence was offered as to which of the 11 mooring locations was owned by which parties or persons.
"In Connecticut the public, whose representative is the state, is the owner of the soil between high and low-water mark upon navigable water where the tide ebbs and flows." Rochester v. Barney, 117 Conn. 462, 468 (1933). It is found from the evidence that the White Beach area abuts navigable water where the tide ebbs and flows.
The pathway and wooden walkway can be seen clearly in a series of photographs in Defendant's Exhibit A-27 and Exhibits A-31 and 32 and Plaintiffs' Exhibits P-10 and P-15. Some of the mooring poles, as they existed in 1968, can be seen in photographs in Defendant's Exhibit A-23.
These mooring poles (sometimes referred to as clothes-line moorings or outhaul moorings) were located such that one pole was on the beach and another was a considerable distance into the water. They had a revolving rope running between them on pulleys so that a small boat could be hauled in and out as needed. (Exhibit B-12.)
It is found that the area of White Beach primarily utilized by the plaintiffs for swimming and other beach activity is in front of EAP's Lots 10 and 11 including the southerly 30 feet of these lots.
It is found that prior to 2007 the entire beach frontage of EAP, from Lot 10 to Lot 16, has been utilized for mooring poles since at least 1968. No evidence was offered, however, as to which poles in what specific location were used by which party. The exhibits show more mooring poles than there are plaintiffs in this case. It is found that the poles which were on EAP property were removed in 2007 and eleven poles were relocated below the high water mark with permits issued by the state-appointed harbormaster. No permits had been obtained by any of the plaintiffs prior to 2007 for any of the mooring poles.
A person cannot obtain a property interest from an activity which was done without required permit. See Ertel v. Rocque, 108 Conn.App. 48 (2008).
With respect to the walkway to the beach there are, as indicated above, several photographs and maps in evidence which show the location and appearance of the same. All of the plaintiffs used this same walkway to access the beach from their respective lots. Some portion of the walkway was covered by a wooden boardwalk which was from time to time repaired, maintained and, in some areas, replaced by some of the plaintiffs and/or the Dodds. No permits were obtained for the wooden boardwalk. The walkway to the beach crossed a stream or a salt marsh drainage ditch. A wooden bridge was in place over the same, but the evidence does not establish who placed it there. The bridge was removed at the same time as the wooden boardwalk in 2007.
It is found that as the plaintiffs, their predecessors, and Mr. Dodd maintained, modified and replaced the wooden walkway over the years they were in violation of C.G.S. § 22a-361 and § 22a-32.
As indicated above, a person cannot obtain a property interest from an activity which was done without a required permit. See Ertel v. Rocque, 108 Conn.App. 48 (2008).
There is no evidence in actual feet or percentages as to how much of the path to the beach from the plaintiffs' lots and the Dodds' lot over the Triangle and the EAPWJP land is or was at any particular time covered by a wooden walkway over tidal marsh. The 2005 Pasqualini Survey, done by Dempsey Associates, shows a depiction of the existence of wooden boardwalks, but that is a "dependent resurvey" with no measurements or distances indicated. It is found that not all of the pathway to the beach was covered by an unauthorized wooden boardwalk.
Defendant EAP has alleged seven special defenses to the plaintiffs' claims.
"When the defendant raises permission by way of a special or affirmative defense, the burden of proof rests on the defendant . . . who must prove the special defense by a fair preponderance of the evidence." Zabaneh v. Dan Beard Associates, LLC, 105 Conn.App. 134, 140 (2008).
The first and second special defenses assert that the use of the boardwalk and access path to the beach and use of the mooring poles was with EAP's permission and consent. Ii is alleged that such permission and consent was revoked. The defendant EAP has not sustained its burden of proof with regard to this allegation. The testimony on behalf of all plaintiffs which is credited by the court was that they never asked anyone's permission to use the boardwalk, access path, White Beach or the mooring poles and that such use was never objected to by EAP or anyone else until the 2007 letter revoking the use. The attempted "revocation" of the alleged "consent" is the event which precipitated this litigation.
EAP's third and fourth special defenses assert that the boardwalk and mooring poles were removed because they were in violation of Connecticut statutes and destroying the wetlands, and that the mooring poles were installed without permits. Whatever the purpose of these allegations, they do not challenge plaintiffs' claim of prescriptive easements.
EAPWJP's fifth special defense alleges the mooring poles posed a health and safety risk to families using the beach and that the poles interfered with EAP's use "of the waters and their littoral rights." There was some evidence as to the rusting and breaking of galvanized iron poles and a picture of the same but, notwithstanding that evidence, the defendant EAP has not sustained its burden of proof with regard to a claimed health or safety risk. Prior to 2007 the mooring poles which were located along White Beach did not have permits from either EPA or a harbormaster.
Again it should be repeated that a person cannot obtain a property interest from an activity which was done without a required permit. See Ertel v. Rocque, 108 Conn.App. 48 (2008).
Even though such use of the mooring poles may have been open, obvious, continuous and uninterrupted under a claim of right, it does not avail the plaintiffs' claim of prescriptive rights. As the plaintiffs assert in their brief, such rights, if established, would "trump" EAP's alleged littoral rights. McGibney v. The Waucoma Yacht Club, Inc., 149 Conn., 560 (1962). However, this unauthorized use, in violation of the requirement of a permit, will not serve that purpose. Moreover, the plaintiffs have offered no evidence as to any specific location of and plaintiffs' particular mooring poles except the general location of all such poles in front of the EAPWJP waterfront.
Our Supreme Court has said, "Like the Appellate Court, we agree with the courts that have concluded that `the right-of-way to a body of water, alone, does not entitle the grantee to the right to construct a dock or a pier.'" Stefanoni v. Duncan, 282 Conn. 686, 701 (2007).
Under those circumstances, the defendant EAP has sustained its burden of proof that the plaintiffs have no prescriptive rights to interfere with the riparian rights appurtenant to the ownership of White Beach.
EAP's sixth special defense is that it removed the mooring poles to "avoid losing its liability insurance." This allegation, even if it could be established, is not a defense to the claims of the plaintiffs in their complaint and will not avail EAP.
EAP's seventh special defense alleges plaintiffs "have other convenient access to the beach and waters." The fact that there may or may not be other convenient access is not a defense to the plaintiffs' claim of a prescriptive easement.
It has been held that one who has a prescriptive easement has the privilege to do such acts as are reasonably necessary to make effective the enjoyment of the easement for its intended purpose. Kuras v. Kope, 205 Conn. 332 (1987).
From the above analysis, judgment may enter that the plaintiffs have established for themselves, their heirs and assigns, a prescriptive appurtenant easement to the use of a pathway over a portion of the Triangle and the EAP land to the White Beach as well as an appurtenant prescriptive easement to the use of White Beach and the southerly 30 feet of Lots 10 and 11 as shown on the Plan. These rights are appurtenant to the respective lots owned by the plaintiffs to run with the land.
From the evidence, it is determined that the easement is three feet in width and is for use as a walkway by the plaintiffs, their agents, guests and tenants and their successor and assigns to access that portion of White Beach identified above. The location of the easement is its present location as partially shown and delineated on a plan entitled "Property/Boundary Survey of 14 Oak Street, Lords Point, Stonington, Connecticut, Prepared for William Eunice Pasqualini, Sheet 1 of 1, Scale l"`20,' Date April 12, 2005, J. Dempsey Associates LLC, Professional Land Surveyors." and shown if full on Plaintiffs' Exhibit P-13, An Aerial photo — Oak St., Lords Point. The plaintiffs shall have the rights to maintain and improve the walkway as reasonably necessary for the enjoyment of its intended purpose, subject to whatever regulation, if any, may be imposed by a governmental authority having jurisdiction over such activity.
No rights are established in favor of the plaintiffs as to the unauthorized wooden walkway which has since been removed. And no prescriptive rights are established in favor of the plaintiffs for the use of mooring poles, the plaintiffs having failed to sustain their burden of proof with regard to the same and the defendant EAP's fifth special defense having been proven. Whatever rights the plaintiffs may have, if any, from the relocation of the mooring poles with permits in 2007 by the harbormaster are not at issue in the first count of the first amended complaint.
Although there was evidence, including photographs, of some activity in the dry-land portion of the Triangle, the plaintiffs have not sustained the burden of proof as to prescriptive rights to any portion of the Triangle not utilized as the walkway identified above.
III. DODD CLAIMS
In the first count of their cross claim, the Dodds allege a right to a quiet title to the parcel of land referred to as the Triangle, which is shown on a survey prepared for Mr. Pasqualini (Defendant's Exhibit 1) as property now or formerly owned by Steven and Marion Dodd with reference to Volume 423 Page 234. The Dodds claim an unbroken chain of title to the Triangle.
General Statutes § 47-31(f) provides that in a quiet title action "[t]he court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property." "The prevailing party must prove its title or interest in the disputed property by a preponderance of the evidence." (Citation omitted.) Remington Investments, Inc. v. National Properties, Inc., 49 Conn.App. 789, 797 (1998).
The Marketable Record Title Act ("Act"), C.G.S. § 47-33b, et seq., provides that certain interests in land are extinguished by an unbroken forty-year chain of title.
We have previously stated that the purpose of the act is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction.
Marketable record title is defined as "a title of record which operates to extinguish such interests and claims existing prior to the effective date of the root of title, as are stated in section 47-33e . . ." General Statutes § 47-33b(a). In order to establish marketable record title, a person with the legal capacity of owning land in this state must be able to show an unbroken chain of title to an interest in the land for forty years or more. See General Statutes § 47-33c . . . A person with marketable record title takes the land "free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title." General Statutes § 47-33e . . . The act defines "`[r]oot of title' [as] that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded . . ." C.G.S. § 47-33b(e) . . .
(Citations, footnotes and internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 807-08 (2006).
A complete chain of title to the Dodd parcel is set forth in Exhibit A-6 and copies of each deed in the chain are in evidence. (Exhibits A-7 through A-20.) Title to Lots 455, 456, 457, 459 and 460 is not in dispute in this case.
The evidence is found to establish that the Triangle (together with Lots 455, 456, 457 and 458) was originally conveyed by the Estate of Fannie Noyes Lord to the Dodds' predecessors, Robert and Isabelle Marchand by administrator's deed dated August 18, 1955. (Exhibit A-9, the "1955 Lord Deed") The 1955 Lord Deed described the Triangle as Lot "467(1), on Midway" as shown on the 1927 Perry Plan (Exhibit A-9). This description is ambiguous because the 1927 Perry Plan does not show a "Lot 467(1) on Midway." It is found that this ambiguity in this legal description is irrelevant since the Dodds'"root of title" is a later deed with a clear legal description conveying the Triangle.
It is also found that the Marchands understood that they had acquired the Triangle via the 1955 Lord Deed because when they conveyed the Triangle (together with Lots 458, 459 and 460) out to Ignezio and Italia Cerasoli in 1959, they clearly described the Triangle and recited that the property was "part of the premises conveyed to within Grantors by deed recorded in Volume 106, page 540 of said Land Records." (Exhibit A-10.) The 1959 Marchand Deed described the Triangle unambiguously as follows:
a certain lot on said plat [the 1927 Perry Plan] not being numbered but bounded and described as follows, to wit: Bounded on the north by Lots No. 456, 457, 458, 459 and part of 460; on the east by Lots No. 463, 464, 464 1/2, 465 and 466; on the south by Midway; on the west by part of Lot No. 455. ("Marchand Description.")
The "Marchand Description" provides an unambiguous description of the Triangle by using Midway and the numbered lots surrounding the Triangle and better reflects how the Triangle is shown on the 1927 Perry Plan. All the remaining deeds in the Dodd chain of title use the unambiguous Marchand description to convey the Triangle.
Also using the Marchand description, the Cerasolis conveyed the Triangle to Robert and Carol Allen in 1964. (Exhibit A-11.) This deed also recites that the Cerasolis intended to convey all the premises they had received from the Marchands. This deed is found to be the Dodds'"root of title" since it is the first deed recorded "not less than forty years at the time the marketability is to be determined." C.G.S. § 47-33c.
The basis of EAPWJP's claim of title to the Triangle is 1987 Administrator's Deed from the Estate of Fannie Noyes Lord to Eunice Pasqualini. (Exhibit B-47, "1987 Administrator's Deed.") However, it is found that the 1987 Administrator's Deed is void and invalid as to the Triangle for a number of reasons.
Most significantly, the 1987 Administrator's Deed is not valid to convey the Triangle because the Estate of Fannie Noyes Lord no longer owned the Triangle after it was conveyed out by the 1955 Lord Deed. "[O]ne cannot convey a greater interest than one owns." (Citation omitted.) Il Giardino, LLC v. The Belle Haven Land Co., 254 Conn 502, 527 (2000).
Also, the 1987 Administrator's Deed is not effective to convey the Triangle pursuant to C.G.S. § 47-21 because the evidence shows that the grantor of the 1987 deed, i.e., the Estate of Fannie Noyes Lord, had been ousted of possession at the time of the deed.
Section 47-21 provides that "[a]ny conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void." The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property . . . Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession . . .
Ouster which will render a grantor's deed void under this statute is the same which is required to establish adverse possession . . . [T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner . . .
(Citations and internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 622-23, cert. denied, CT Page 10292 256 Conn. 919 (2001).
For all those reasons, judgment will enter for a quiet title to the Triangle in favor of the Dodds on the first count of their cross claim against EAPWJP.
In the second count of their cross claim, the Dodds are, in essence, making the same claim as the plaintiffs for a prescriptive easement over the property of EAPWJP. The Dodds claim an appurtenant, prescriptive easement across a pedestrian pathway to White Beach as well as the right to use White Beach for recreational purposes The pathway is shown along with the rest of the disputed property on a 1981 aerial photograph taken by the DEP. (Exhibit A-4.)
The burden of proof is on the party claiming the easement to establish all the facts proving its existence. Branch v. Occhionero, 239 Conn. 199, 905 (1996). The elements of a prescriptive easement must be proven by a fair preponderance of the evidence. Schulz v. Syvertsen, 219 Conn. 81, 91-92 (1991).
"The determination of the scope of a prescriptive easement is a question of fact . . . [W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it . . ." (Citations omitted; internal quotation marks omitted.) Hoffman Fuel Company of Danbury v. Elliott, 68 Conn.App. 272, 283 (2002). "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 . . ." (Citations omitted; internal quotation marks omitted.) Id. "[O]ne who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party's enjoyment of the easement unless it unreasonably increases the burden on the servient tenement." (Citations omitted; internal quotation marks omitted.) Id.
"`A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty.' Kaiko v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981)." Kelley v. Tomas, 66 Conn.App. 146, 167 (2001). "[W]hen an easement is not specifically defined, the rule is that the easement be only such as is reasonably necessary and convenient for the purpose for which it was created." (Citations and internal quotation marks omitted.) Beneduci v. Valadares, 73 Conn.App. 795, 803 (2002). In Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 171 (1983), the court held that an aerial assessor's map, photographs of various sections of the road and testimony giving various estimates of its width provided a sufficient basis for the court to determine the width of the easement.
William Pasqualini, Sr. testified that prior to 2006, he never objected to nor gave permission to any of these parties in connection with using either the pathway or White Beach. He further testified that use of the pathway continued after the wooden boardwalk was removed in 2007.
It is found that the Dodds have met their burden of proving that they have on behalf of themselves, their heirs and assigns, an appurtenant prescriptive easement to a walkway leading to White Beach as well as an appurtenant, prescriptive easement to use both White Beach and the "primary use area" lying within the southerly 30 feet of Lots 10 and 11 as shown on the 1927 Perry Plan. The evidence has demonstrated that the Dodd's use, coupled with that of their predecessors, the Falcones. has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.
EAPWJP's first special defense to the Dodd cross claim alleges that the Dodds' use of the pathway was with the permission and consent of EAPWJP. This defense will fail because there was no credible evidence to support it.
EAPWJP's second special defense alleges that EAPWJP removed a boardwalk from the pathway and that the structure had damaged tidal wetlands on EAPWJP's Beach Parcels and was not authorized by the DEP. There was considerable evidence referred to in the EAPWJP brief as to the DEP statutes and the evidence relating to the wooden boardwalk, that is the wooden structure over some limited area of the walkway. These allegations, even if proved, however, would not prevent the prescriptive easement from coming into existence with respect to the walkway itself and is thus found not to be a defense to the Dodd claim in that regard.
Judgment may enter on the second count of the cross claim in favor of the Dodds, their heirs and assigns, for a prescriptive easement appurtenant to the lots owned by them to cross the land of EAPWJP for access to the White Beach. The scope, description, use and location is determined as set forth above with respect to the plaintiffs' prescriptive easement.
In the third count of the cross claim, the Dodds allege an implied easement over the "paper street" known as Midway and over the White Beach. The 1927 Perry Plan is found to show "White Beach" and "Midway" as areas naturally to be expected to be for common use and enjoyment of lot owners. As such, an implied easement is found to exist over them in favor of the Dodds whose title documents refer to that map or plan.
In Connecticut, it is well settled that a map may create an implied easement . . ."A description of the land conveyed that refers to a plat or map showing streets, ways, parks, open space, beaches, or other areas for common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses." (Emphasis added.) 1 Restatement (Third), Property, Servitudes § 2.13, p. 172 (2000).
(Emphasis added, citations omitted.) McBurney v. Cirillo, 276 Conn. 782, 802-03 (2006). Based on the law and the facts found, judgment will enter in favor of the Dodds on the third count of their cross claim as against EAPWJP giving them, their heirs and assigns, an implied easement for the use of the land designated as "White Beach" and "Midway" on the 1927 Perry Plan, appurtenant to the lots owned by them. The scope of the easements will be consistent with the implications of their respective designations on the said Plan: the "White Beach" will be for uses normally associated with beaches, swimming, sun bathing and related activities. The "Midway" area may be used for travel.
IV. EAPWJP'S COUNTERCLAIM AND CROSS-COUNTERCLAIM — TRESPASS
EAPWJP's counterclaim against the plaintiffs and cross-counterclaim against the Dodds' rely on the same basis. The claims sound in trespass and pertains to the use of the pathway to White Beach and, as to those plaintiffs who maintain mooring poles, the use of those poles adjoining the EAPWJP beach property. EAPWJP also claims that certain tidal wetlands on its property were damaged by the placement of the wooden walkway which has since been removed.
EAPWJP argues in its brief that "In Connecticut, the public, whose representative is the state, is the owner of the soil between high and low-water mark upon navigable water where the tide ebbs and flows. The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and of using it for any purpose which does not interfere with the navigation. He also has the right of access by water to and from his upland." McGibney v. Waucoma Yacht Club, Inc., 149 Conn. 560, 563 (1962). See also, Stefanoni v. Duncan, 282 Conn. 79 (2007). Littoral rights can, under the appropriate circumstances, be protected from encroachment by an action in trespass. McCullough v. Waterfront Park Association, 32 Conn.App. 746, (1993).
In Connecticut, the essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. Boyne v. Glastonbury, 110 Conn.App. 591, 601, cert. denied, 289 Conn. 947 (2008).
The Dodds argue that, given the existence of the easement for a walkway, the principles set forth in § 4.10 of the Restatement (Third) of Property, Servitudes apply. "Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, § 4.10 permits the beneficiary of an easement to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose." Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 637 (2005).
It is found that EAPWJP has produced no credible evidence that any damages that may have been suffered were unreasonable, given the scope and purpose of the easement found to exist by prescription over the walkway.
"With reference to the owner of a prescriptive right-of-way . . . long ago we said: The owner of the right of way may repair it, and do whatever is reasonably necessary to make it suitable and convenient for his use." (Citation and internal quotation marks omitted.) Kuras v. Kope, supra, 205 Conn. 342. Here, the walkway, has been in place since 1962. As set forth above, the Dodds and the plaintiffs have acquired the prescriptive right to maintain a walkway to White Beach. Whether that right may be regulated by Connecticut Department of Environmental Protection or other governmental agencies is not determined here.
With respect to the claim that the maintenance of the present permitted mooring poles constitutes a trespass on the littoral rights with respect to the waters off White Beach, the defendant EAPWJP has not sustained their burden of proof. The original mooring poles have been removed from the EAPWJP land and located below the high water mark and the new poles have been given permits by the harbormaster. Whatever the rights are as between the harbormaster and EAPWJP are not determined here.
V. EAPWJP'S COUNTERCLAIM — NUISANCE
The second count of the counterclaim against the plaintiffs alleges a public or private nuisance resulting from the mooring poles maintained by some of them. This claim is not made against the Dodds.
A difference exists between a public nuisance and a private nuisance. "Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . ." Ganim v. Smith Wesson Corp., 258 Conn. 313, 369 (2001). (Citations and internal quotation marks omitted.) It is found that there was no credible evidence that the lands owned by EAP and subject to plaintiff's claims of prescriptive easements were used by the general public. That claim, that the activities of plaintiffs in maintaining and using the mooring poles, are a public nuisance must fail.
In Pestey v. Cushman, 259 Conn. 345 (2002), our Supreme Court set forth the elements a party must prove to prevail in a private nuisance action. "The proper focus of a private nuisance claim for damages, therefore, is whether a defendant's conduct, i.e., his or her property, causes an unreasonable interference with the plaintiffs' use and enjoyment of his or her property." Petsey, supra, p. 360. EAP alleges in the second count of the counterclaim the mooring poles "have a natural tendency to create danger and inflict injury on persons using the beach front water."
The court finds no credible evidence that can support this allegation. There was no evidence of injuries in the past although the court finds such poles to have been in use from before 1968. The evidence did show that there are now eleven (11) poles seaward of the high tide mark in front of EAP's property, but only four (4) are owned by plaintiffs (Kooken does not claim a mooring pole). How removal of plaintiffs' four (4) poles would alleviate the perceived injury to persons using the beach is not explained. There can be no doubt that the mooring poles could interfere with some types of activities that might be contemplated to be associated with beach-front land.
The determination of whether the interference is unreasonable, however, should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable." Petsey, supra, p. 361. Here, the court finds no credible evidence that EAP's enjoyment of its property is constricted because of the plaintiffs' existing permitted four mooring poles. The maintenance and use by plaintiff's seaward of the high tide mark is found not to be an unreasonable interference with EAP's use and enjoyment of its property.
Because EAPWJP has failed to prove that a trespass occurred judgment will enter in favor of the plaintiffs and the Dodds on EAPWJP's trespass claims in the counterclaim and cross-counterclaim.
Based on the above analysis and applying the law to the facts found, judgment will enter in favor of the plaintiffs on the second count of the EAPWJP's counterclaim for nuisance.
Judgment may enter accordingly without cost to any party.