Opinion
FSTCV126014866S
07-20-2016
David B. Murray et al. v. Rafael Ostendarp Aparicio
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Donna Nelson Heller, J.
The plaintiffs David B. Murray and Stephanie I. Murray (the Murrays) commenced this action, returnable August 7, 2012, against the defendant Rafael Ostendarp Aparicio (Mr. Aparicio) for a determination of their rights to use a driveway located on Mr. Aparicio's property pursuant to an easement. Mr. Aparicio filed an answer and cross complaint on September 25, 2012 (#103.00). The Murrays responded to the cross complaint on May 12, 2014 (#105.00). On January 23, 2015, Mr. Aparicio, who was representing himself at the time, filed an amended answer and cross complaint (#109.00) against the Murrays, in which he rejected the Murrays' claim that they had an easement and asserted claims for repeated willful trespass, destruction of property, interference, defamation, and intentionally making false and misleading statements to the court. Mr. Aparicio sought injunctive relief to enjoin the Murrays from interfering with his right to use his property, including the driveway, as well as an order permitting him to erect a fence along the common boundary of his property and the Murrays' property.
This action was tried to the court on February 9, 2016. The Murrays represented themselves at the trial. Mr. Aparicio was represented by counsel. At the beginning of the trial, Mr. Aparicio's counsel advised the court on behalf of his client that Mr. Aparicio would stipulate that the Murrays and their guests and invitees could use the driveway easement, as depicted on a certain subdivision plan described more fully below, for purposes of ingress and egress only. In addition, Mr. Aparicio's counsel represented that Mr. Aparicio was withdrawing all of the claims in his cross complaint except a claim for money damages arising from Mr. Murray's removal of a portion of the driveway gate, also discussed more fully below.
The court heard testimony from Mr. Murray and Mr. Aparicio. Mr. Aparicio filed a post-trial memorandum on March 9, 2016 (#125.00). The Murrays submitted a post-trial memorandum on March 15, 2016 (#126.00). The Murrays filed a reply memorandum on March 23, 2016 (#127.00).
It appears that the Murrays first attempted to file their post-trial memorandum, dated March 8, 2016, on March 9, 2016, the day that it was due, but were unsuccessful. The court has accepted their late-filed memorandum.
I
After considering all of the testimony and documentary evidence admitted, and having had the opportunity to observe the witnesses and review the arguments set forth in the parties' post-trial memoranda, the court makes the following findings of fact.
The Murrays and Mr. Aparicio are the owners of adjacent properties on Rowayton Avenue in Norwalk, Connecticut. Mr. Aparicio owns the property located at 202 Rowayton Avenue (the 202 Rowayton Avenue property). The Murrays own the property located at 204 Rowayton Avenue (the 204 Rowayton Avenue property).
The 202 Rowayton Avenue and 204 Rowayton Avenue properties comprised a single parcel until January 14, 1981, when the Norwalk Planning and Zoning Commission approved a subdivision plan prepared for the then-owner, Judith H. Kerr, set forth on Map No. 8961, as filed in the office of the Norwalk town clerk (the 1981 subdivision plan). As reflected on the 1981 subdivision plan, the parcel is divided into two lots: Lot A, which is the 204 Rowayton Avenue property, and Lot B, which is the 202 Rowayton Avenue property. The properties share a common driveway, located on the west side of the 202 Rowayton Avenue property along the boundary with the 204 Rowayton Avenue property. The 1981 subdivision plan expressly provided that Lot A would have a permanent easement to use the existing driveway on Lot B.
The 202 Rowayton Avenue property and the 204 Rowayton Avenue property remained under common ownership for more than thirty years following the subdivision in 1981. Mr. Aparicio owned both properties from 2001 until 2011, when People's United Bank foreclosed on a mortgage encumbering the 204 Rowayton Avenue property and took title by committee deed following a foreclosure sale.
The court has taken judicial notice of the court file in People's United Bank v. Aparicio, Docket No. FST-CV-10-6003413-S (the foreclosure action). The committee deed (#147.00) was dated August 22, 2011. A corrected committee deed (#153.00), reflecting a corrected legal description on Schedule A, was dated November 21, 2012.
The Murrays acquired title to the 204 Rowayton Avenue property from People's United Bank by quitclaim deed on or about April 2, 2012. Mr. Aparicio's ownership of the 202 Rowayton Avenue property has remained unchanged since he purchased the property in 2001.
The Murrays state in their complaint that they acquired the 204 Rowayton Avenue property on March 21, 2012. Mr. Murray testified at trial that he believed they signed a sales agreement on April 2, 2012, though he could be mistaken. He said that they purchased the 204 Rowayton Avenue property somewhere in that two-week range.
At some point prior to Mr. Aparicio's acquisition of the 202 Rowayton Avenue and 204 Rowayton Avenue properties in 2001, a gate was installed across the common driveway. The gate consisted of two posts, one on either side of the driveway, and two fence-like sections that swung from hinges on their respective posts to meet in the middle of the driveway, where they were secured by a latch and a metal rod that went into the ground. The gate was intact in April 2012, when the Murrays purchased the 204 Rowayton Avenue property.
The Murrays moved into the house on the 204 Rowayton Avenue property in April 2012. It soon became clear to them that they and Mr. Aparicio would not have a good relationship. Mr. Aparicio's brother, Roberto Aparicio, was residing in the house on the 202 Rowayton Avenue property at the time. Mr. Aparicio's brother closed the gate periodically, at Mr. Aparicio's request and to the Murrays' dismay. Mr. Aparicio also asked the Murrays to close the gate in order to protect the 202 Rowayton Avenue property. The Murrays maintained that Mr. Aparicio and his brother were closing the gate to prevent their access to the driveway and interfere with their easement. The gate, the common driveway, and related parking disputes became the focal point of the parties' interaction, culminating in visits by Mr. Murray and Mr. Aparicio to the Norwalk police department on the morning of October 10, 2012.
Mr. Aparicio testified that while he was the owner of the 202 Rowayton Avenue and 204 Rowayton Avenue properties, he closed the gate to prevent inappropriate entry and to protect both properties.
Following the discussion at the Norwalk police department, Mr. Murray returned home and removed the section of the gate (the west gate section) that was attached to the post on the west side of the driveway (the west post). He testified that he did so in order to avoid further confrontation. He did not tell Mr. Aparicio that he intended to remove the west gate section before doing so. Mr. Murray kept the west gate section in his house for a while and then disposed of it at the town dump. The west post remains on the west side of the driveway.
II
Mr. Aparicio's claims in this action relate to Mr. Murray's removal of the west gate section from the west post. Accordingly to Mr. Aparicio, the gate belonged to him, and Mr. Murray had no right to remove the west gate section and throw it away. Mr. Aparicio seeks monetary damages in the amount of $2, 750, representing the full cost of constructing and installing a new gate.
The Murrays contend that they own the west post because it is on the 204 Rowayton Avenue property. They also claim that the west gate section belonged to them because it was attached to the west post; thus, Mr. Murray was entitled to remove the west gate section and dispose of it. Mr. Aparicio disputes the Murrays' position and maintains that the west post is on the boundary line between the properties, with some of it on the 204 Rowayton Avenue property and the rest of it on the 202 Rowayton Avenue property, and the gate belonged to him.
Neither Mr. Aparicio nor the Murrays offered the testimony of a surveyor as to the precise location of the west post--specifically, whether it is completely on the 204 Rowayton Avenue property or whether it is on the boundary line between the 202 Rowayton Avenue property and the 204 Rowayton Avenue property, straddling both properties. No survey showing the west post's precise location was introduced at trial, although both Mr. Aparicio and Mr. Murray testified that they had had surveys done. There was no evidence other than the parties' photographs of the west post, showing surveyors' pins and marking sticks, and the witnesses' testimony regarding their respective surveys.
With respect to Mr. Aparicio's contention that the west gate section was his property because he owns the gate, the court finds that Mr. Aparicio has not sustained his burden of proof. As a result of where the gate posts were placed initially, the gate at issue here is a fixture on both the 202 Rowayton Avenue and the 204 Rowayton Avenue properties--perhaps inadvertently installed that way by the joint owner, but a fixture on both properties nonetheless. The east post, with the attached east gate, remains a fixture on the 202 Rowayton Avenue property, and the west post, now missing the west gate section, is a fixture on the 204 Rowayton Avenue property.
Our Supreme Court has long held that fences are fixtures to real property. Fairman's Appeal from Probate, 30 Conn. 205, 209 (1861); Baldwin v. Breed, 16 Conn. 60, 69 (1843).
The court concludes that when the Murrays purchased the 204 Rowayton Avenue property, they acquired all fixtures and improvements thereon, including at least a portion of the west post, if not the whole post, and the attached west gate section. Therefore, the entire gate did not belong to Mr. Aparicio. This does not, however, dispose of Mr. Aparicio's claim for damages arising from the loss of the west gate section, to which the court will now turn.
III
Apart from Mr. Aparicio's testimony that the gate was in existence when he acquired the 202 Rowayton Avenue and 204 Rowayton Avenue properties in 2001, no evidence was offered as to when the gate was installed and/or whether its installation predated the 1981 subdivision of the parcel into two lots. What is clear from the evidence, however, is that the gate was installed when both properties were under common ownership and shared the driveway--either because they were part of one parcel or because they were held by the same owner--thus suggesting an intent on the part of the owner at that time that both properties should benefit from the gate as they benefitted from the common usage of the driveway. The question is whether that intended benefit resulted in each of the subsequent owners of the properties having an interest in the gate that would preclude one from acting unilaterally at the expense of the other.
Had Mr. Aparicio installed the gate across the driveway after the Murrays purchased the 204 Rowayton Avenue property, his placing the west post on the boundary would be considered a trespass. While a division fence, which is a fence dividing two adjoining properties, is owned jointly by the respective property owners pursuant to General Statutes § § 47-43 through 47-56, a post placed by one property owner on the boundary between the properties for a front fence--i.e., a fence that would run between one of the properties and the road--is a trespass. See Hubbell v. Peck, 15 Conn. 133, 135-36 (1842). Such is not the case, however, where the two properties were under joint ownership when the gate was installed, as one cannot trespass on one's own real property. See TRESPASS, Black's Law Dictionary (10th ed. 2014) (defining " trespass" as " [a]n unlawful act committed against the person or property of another; esp., wrongful entry on another's real property").
The court is not aware of any reported decisions in this or any other jurisdiction that are squarely on point, but it finds guidance in the Restatement (Third) of Property (Servitudes), discussed with approval by our Supreme Court in Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829-32, 717 A.2d 1232 (1998). Section 2.12 of the Restatement (Third) is particularly applicable here, providing in pertinent part that " [u]nless a contrary intent is expressed or implied, the circumstance that prior to a conveyance severing the ownership of land into two or more parts, a use was made of one part for the benefit of another, implies that a servitude was created to continue the prior use if, at the time of the severance, the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use." Restatement (Third) of Property (Servitudes) § 2.12 (2000).
During the time that the 202 Rowayton Avenue property and the 204 Rowayton Avenue property were under common ownership, the gate across the driveway easement was placed partially on one lot and partially on the other--in other words, a " use was made of one part for the benefit of another, " and vice versa--and the two gate sections were designed to come together in the middle of the driveway in order for the gate to serve its intended purpose. When the foreclosure sale to People's United Bank and the Murrays' subsequent acquisition of the 204 Rowayton Avenue property occurred, " the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use" --and, in fact, the conveyance did not terminate the prior use. Accordingly, a servitude was created at the time the gate was installed to continue that use after the properties ceased to be held by the same owner.
Section 2.12 of the Restatement (Third) further provides that " [t]he following factors tend to establish that the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use: (1) the prior use was not merely temporary or casual, and (2) continuance of the prior use was reasonably necessary to enjoyment of the parcel, estate, or interest previously benefited by the use, and (3) existence of the prior use was apparent or known to the parties, or (4) the prior use was for underground utilities serving either parcel."
When Mr. Murray removed the west gate section and took it to the town dump, thus rendering the gate essentially useless, Mr. Murray interfered with Mr. Aparicio's implied right to continue to close the gate across the driveway easement to protect the 202 Rowayton Avenue property. Mr. Murray defended his removal of the west gate section as a necessary step to avoid further confrontation with Mr. Aparicio. Whether Mr. Murray's removal of the west gate section was justified under the circumstances is discussed next.
IV
As noted above, this action began in 2012 as a dispute between the parties over an easement in favor of the 204 Rowayton Avenue property, owned by the Murrays, to use the driveway located on the 202 Rowayton Avenue property, owned by Mr. Aparicio. Although the driveway easement issue was resolved by a stipulation at the beginning of the trial, it is still germane because Mr. Murray cited his desire to prevent further escalation of the parties' dispute as the reason why he removed the west gate section. The dispute arose because the Murrays objected to Mr. Aparicio's closing the gate across the driveway. In their view, Mr. Aparicio was doing so to deliberately impede their access to the driveway pursuant to the easement.
" It is well settled that [a]n easement creates a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." (Citation omitted; internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 660, 923 A.2d 709 (2007). " The fact that [a party] has never owned the fee to any part of the land covered by the [easement] does not militate against his right to keep it free from obstructions. Any structure which could not properly be placed thereon, and which constituted an obstruction to his free and full use . . . [and] his rightful enjoyment of the easement, would be removable by him as a nuisance." (Citation omitted.) Blanchard v. Maxson, 84 Conn. 429, 435-36, 80 A. 206 (1911).
" The easement holder has all the rights necessary to its enjoyment, but nothing more . . . and what constitutes a reasonable use is a question of fact to be determined on a case by case basis, considering all the relevant circumstances." (Citation omitted.) Orchard Place Associates, LLC v. Briggs, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV-01-0182302-S (Feb. 22, 2002, Adams, J.) (31 Conn.L.Rptr. 465, ). " Except as limited by the terms of the servitude . . . the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude." (Citations omitted; internal quotation marks omitted.) Zirinsky v. Carnegie Hill Capital Asset Management, LLC, 139 Conn.App. 706, 713, 58 A.3d 284 (2012). See also Kelly v. Ivler, 187 Conn. 31, 48-49, 450 A.2d 817 (1982) (fence that slightly encroached on easement did not materially interfere with use of easement by owners of dominant estate); Orchard Place Associates, LLC v. Briggs, supra, Superior Court, Docket No. CV-01-0182302-S, (installation of gate not unreasonable use of servient estate provided that means to unlock and open gate " conveniently and always available" to easement holder); Hoffman v. Bennett, Superior Court, judicial district of Tolland, Docket No. 43216-S (July 7, 1992, Klaczak, J.) () (unlocked gates installed on rights-of-way did not unreasonably interfere with use).
The gate at issue here did not unreasonably interfere with the Murrays' use of the driveway pursuant to the easement. There was no lock on the gate. When the gate was closed, it could be opened by simply lifting a latch. While the gate apparently was the catalyst for the parties' less-than-cordial relationship, the gate did not so obstruct the driveway that Mr. Murray, as an owner of the dominant estate, was entitled to remove a section of the gate in order to preserve his rights under the driveway easement.
Mr. Murray was not justified in removing the west gate section and disposing of it at the town dump. Accordingly, the court finds in favor of Mr. Aparicio and against the Murrays on the cross complaint.
V
Mr. Aparicio is seeking monetary damages in the amount of $2, 750, based on an estimate of the total cost to replace the entire gate. " It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed, they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citation omitted; internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 549, 39 A.3d 1207 (2012). Although Mr. Aparicio did not offer any evidence as to the cost of replacing part of the gate, the court has calculated that cost by dividing Mr. Aparicio's claim for damages in half.
The court awards damages to Mr. Aparicio on the cross complaint in the amount of $1, 375, representing the cost of replacing the west side of the gate. Mr. Aparicio shall install the new west gate post and west gate section on the east side of the boundary line between the 202 Rowayton Avenue property and the 204 Rowayton Avenue property--i.e., on the 202 Rowayton Avenue property.
VI
Accordingly, judgment shall enter in favor of the defendant Rafael Ostendarp Aparicio and against the plaintiffs David B. Murray and Stephanie I. Murray on the cross complaint (#109.00) in the amount of $1, 375.