Opinion
No. CV 08-5003820-S
December 13, 2010
MEMORANDUM OF DECISION
This case involved a dispute between neighbors over a shared driveway in Scotland, CT. The plaintiffs, Dennis and Daniela Shea, alleged in their lawsuit that they have a right to a right of way, by deed, over the driveway. They complained that their neighbors, the defendants Gary Bissonnette and his wife Sandra Walker, who also share the driveway, have been obstructing and interfering with their right to use and maintain that right of way since August 1, 2008. They sought declaratory and injunctive relief, damages, punitive damages, attorneys fees and costs. During the course of litigation, the Sheas discovered that their claims, in part, were based on a misunderstanding about the width of the right of way. They thought they had a twenty foot wide right of way. In fact, the right of way is not that wide, in most places. They subsequently withdrew their claim as to the twenty foot width. However, they still claimed that the defendants have been interfering with their right to use and maintain the right of way, whatever its width. The court finds that the defendants have not interfered with plaintiffs' rights, and have not caused them injury. Accordingly, judgment shall enter in favor of the defendants on all counts. No attorneys fees or costs shall be assessed against any party.
I
Plaintiffs' complaint alleged three causes of action. Count One alleged that the defendants were obstructing their right to use and maintain their right of way; Count Two alleged that the actions of the defendants caused a cloud on their title and they brought this action to quiet title; Count Three alleged that the actions of the defendants constituted a common-law nuisance. Plaintiffs sought declaratory and injunctive relief, damages, punitive damages, attorneys fees and costs.
The standards applicable to declaratory judgment actions are well-settled. The Superior Court has jurisdiction to declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. General Statutes § 52-29(a). A prerequisite to an action for declaratory judgment is that there be an actual, bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties. Practice Book § 17-55(2); Trubek v. Ullman, 147 Conn. 633, 635, 165 A.2d 158, cert. denied, 367 U.S. 907 (1960). "To be entitled to a declaratory judgment, the plaintiff must have an interest, legal or equitable, by reason of danger of loss or of uncertainty as to . . . [its] rights or other jural relations." (Citation omitted; internal quotation marks omitted.) St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718, 184 A.2d 42 (1962).
The standards for injunctive relief are equally well-settled. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court." (Citations omitted; internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 236, 919 A.2d 421 (2007). "A mandatory injunction is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004).
The remedies of declaratory judgment and injunction are commonly sought to resolve disputes involving the existence of a right of way, and the rights between parties with respect thereto. See, e.g., Gerlt v. South Windsor, 284 Conn. 178, 931 A.2d 907 (2007).
Actions to quiet title are authorized by statute. Bickell v. Moraio, 117 Conn. 176, 187, 167 A. 722 (1933). The applicable statute, General Statutes § 47-31, provides, in pertinent part, as follows:
(a) An action may be brought by any person claiming title to, or any interest in, real . . . property . . . against any person who may claim to own the property . . . or against any person in whom the land records may disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse . . . interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property . . .
(b) The complaint in such action shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest . . .
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(f) The 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.
General Statutes § 47-31
With regard to actions for common-law nuisance, it has been explained:
A common-law private nuisance claim requires that "the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interest involved under the circumstances of each individual case" and "should be [determined] 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." (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002) (adopting basic principles of 4 Restatement [Second], Torts, § 822 [1979]).
"The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . [I]n determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 353. "Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." Id., 362. Whether an interference is unreasonable is a question of fact for the fact finder. Berube v. Nagle, 81 Conn.App. 681, 696, 841 A.2d 724 (2004); see also Pestey v. Cushman, supra, 361.
Boyne v. Town of Glastonbury, 110 Conn.App. 591, 603, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).
II
The parties tried the case to the court. The court heard testimony on October 27 and November 22, 2010. The witnesses were: Joseph Bouchet, land surveyor; Dennis Shea, plaintiff; Daniela Shea, plaintiff; Nathan Aubrey, survey field worker; Channing Huntington, neighbor; Barbara Sykes, plaintiffs' family friend; Michael Kelly Chapman, plaintiffs' family friend; Minh Han, M.D., Dennis Shea's physician; Robert Brautigam, neighbor; Lillian Stone, neighbor; Shaun Rockwell, neighbor; Joseph Savino, neighbor; Gary Bissonnette, defendant; and Sandra Walker, defendant. The court also reviewed 22 exhibits admitted into evidence, consisting of, inter alia, numerous deeds, maps, photographs, correspondence and other records.
The court finds as follows: The right of way in question runs along a mostly dirt and gravel driveway extending from Hanover Road in Scotland, CT heading east. The driveway presumably existed for a long time on land owned by Sebastian Luberto. It permitted access to the pastures, planting fields and woods. A right of way over the same driveway was created in a 1971 deed when the grantor, Sebastian Luberto, began dividing and selling his property and giving the new owners permission to use the existing driveway. The right of way was described in that 1971 deed from Sebastian Luberto to Rose Kranc as follows: "Together with a right unto the Grantees in common with the Grantor and others over the above mentioned driveway." Deed, Vol. 22, Page 236, Scotland Land Records. The aforementioned driveway was simply described as "the driveway." The right of way was also referenced in a 1971 Grant of Easement from Sebastian Luberto to Michael and Mary Luberto filed in Vol. 22, Page 56 of the Scotland Land Records. That grant of easement only refers to "a driveway located on said Sebastian Luberto's land which is used by the said Michael A. Luberto and Mary S. Luberto." More helpfully, it also refers to a map. The map, however, only shows the first 150 feet, or so, of the driveway from Hanover Road. It shows none of the portions in dispute in this case. Today, the same driveway and right of way are shared by four neighbors who have acquired land in the area: the Sheas, the Bissonnettes, the Stones and the Huntingtons. The Bissonnettes acquired their property in 1982. The start of the subject driveway, as it leaves Hanover Road and heads east, is on the Bissonnettes' property. The deed the Bissonnettes received references that it is subject to the 1971 "grant of easement." Deed, Vol. 27, Page 316, Scotland Land Records. The Sheas purchased their property, which lies, in part, east of the Bissonnettes' property, in 2000. It is mostly pasture, farmland and woods and it is approximately 275 acres in size, lying partly in Scotland, CT and partly in Canterbury, CT. The driveway heads east from Hanover Road, travels over the Bissonnettes' property and then crosses onto the Sheas' property. That the Sheas have a right to use the right of way as it crosses the Bissonnettes' property is not disputed. Their deed granted them land, "Together with a Right of Way over the driveway mentioned in Exception #5 above." Deed, Vol. 47, Page 588, Scotland Land Records. The aforementioned exception, however, merely refers to "a driveway."
With such a puzzling history, and with such an indefinite description of the size and course of the right of way, a dispute was bound to happen. It finally did, shortly after the Sheas acquired their property, fueled by an honest but mistaken understanding by the Sheas that their right of way was twenty feet wide. Indeed other sections of Sheas' deed refers to a "20 foot Right of Way." Shea's lawsuit was filed in November 2008 claiming interference with their purported twenty foot right of way. But, an expert study of the deeds and maps during pre-trial discovery showed that the twenty foot wide right of way mentioned refers to a different right of way. The subject driveway, and therefore the right of way in issue in this case, is not that wide in most places.
The claim to a twenty foot right of way was withdrawn on the first day of trial. The Sheas were permitted to amend their complaint to narrow the issues accordingly.
The width and course of the right of way is now not in material dispute. Although it is not described in precise meets and bounds in the deeds, other evidence can be used to define it. Thus, it has been held that an unspecified right to pass and repass across the land of anther becomes limited and qualified by the ordinary and historical use by which that right is exercised. See, e.g., Simonds v. Shaw, 44 Conn.App. 683, 690-91, 691 A.2d 1102 (1997). Also, it has been held that where a reservation of a right of way is merely described in general terms, later maps may be used to fix the location of the easement if physical evidence supports the depiction on the later-drawn maps. Mastronardi v. Infante, 34 Conn.App. 584, 589-91, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994); Sobaski v. Bernier, Superior Court, judicial district of Tolland, Doc. No. CV 07-5001651 (January 6, 2009, Sferrazza, J.). With this in mind, the court finds, and the parties are not in material dispute with the fact that, the right of way is defined by the existing driveway. Moreover, the existing driveway has not changed since 1971. The parties and witnesses and exhibits depicted it. It is widest at the apron on Hanover Road — about 26 feet wide — and it is about 20 feet wide for the first 150 feet or so over the Bissonnette's property as it passes by Lillian Stone's house. Then, it narrows to about 9 feet wide as it continues to meander east along the southern boundary of the Bissonnettes' property until it reaches the Sheas' property line. There is no need for the court to resolve any dispute as to its location, width and course as there is no longer any material dispute as to its location, width and course. Accordingly, the court finds that there is no cloud on the title that there is no need to quiet the title.
Nevertheless, the Sheas continue to claim, in the operative amended complaint, that the Bissonnettes have interfered with their right of way, whatever its size, since August 1, 2008. In fact, nothing happened on August 1, 2008. The Sheas, apparently, were also mistaken about the time of the events of which they were complaining. They sought permission to amend their complaint to permit them to sue over other occasions of interference with their rights occurring at "various times." That request was denied as it would be unfair to expand the scope of the litigation at such a late date. The Sheas, however, were permitted to testify about other events occurring at other times for, inter alia, context. The court finds that those other events at other times fail to prove an interference with their property rights. In particular, the Sheas argued that the Bissonnettes blocked their right of way with boulders and telephone poles in 2005. The court finds that there was no proof as to who owned the material or who put it there or where they were located. They complained that the Bissonnettes blocked their access with a Winnebago in 2008. The court finds that in that incident, the Bissonnettes failed to completely pull their Winnebago off the right of way into their parking space for it when they arrived home from a trip at 2:30 in the morning in 2005, not 2008. Moreover, the bumper extended only part way into the right of way, but did not block it. They planned to complete the parking in the morning in the light when they could see. They were awoken by State Police, who had been called on a complaint filed by the Sheas. The Bissonnettes moved the Winnebago as requested. The court finds that this event does not constitute obstruction. The Sheas also complained that the Bissonnettes parked their boats in a narrow part of the right of way, hampering access. On this point the court finds that the boats were parked near the right of way, but did not block the right of way. The Sheas complained that in December 2008, at a meeting with Mrs. Walker when Mr. Bissonnette was away, the Sheas asked Mrs. Walker to move a pile of firewood and a boulder from the area of the right of way. The firewood was not on the right of way, but she agreed to move it. She said she could not move the boulder as it was too heavy. Mr. Shea said he would move it with his equipment, but never did. The boulder is not blocking the right of way. The court finds no evidence of obstruction here, either.
In other incidents Dennis Shea complained that Gary Bissonnette interfered with his right to maintain the right of way by harassment. However, the court finds that the incidents did not amount to interference. Those incidents occurred when Shea was harvesting rocks from the right of way to sell them, leaving holes in the right of way. Bissonnette complained, with justification. Another time, Shea uprooted a prize birch tree from Bissonnette's yard. The tree was not in the right of way. Bissonnette complained, with justification. Another time, Shea was cutting trees that fell into Bissonnette's property and on top of his newly groomed driveway. Bissonnette complained, with justification. In other incidents, Bissonnette complained when he found Shea working on Bissonnette's land. Bissonnette complained, with justification.
That the Sheas have a right to reasonable use and enjoyment of the right of way cannot be doubted. See Lichteig v. Churinetz, 9 Conn.App. 406, 410, 519 A.2d 99 (1986). They can also maintain it. "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." Nicholas v. Peck, 70 Conn. 439, 441, 39 A. 803 (1898); see also Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987). The Bissonnettes do not dispute the right of the Sheas to use and maintain the right of way. Under the facts established at the trial in this case, the court finds that the Bissonnettes are not obstructing or interfering with the Sheas' right to use and maintain the right of way and are not causing a nuisance.
Dennis Shea complained that Gary Bissonnette's angry confrontations have caused him emotional distress and medical injury. On this point, Shea's doctor confirmed that Shea has a history of high blood pressure that escalated in October 2009. Based on Shea's explanation, the doctor attributed the health deterioration to stress caused by Gary Bissonnette. The court is not persuaded. Shea testified that he has had no trouble with using the right of way since the start of the lawsuit in November 2008. His blood pressure problem started a year later. No causal connection between the conduct of the Bissonnettes and Shea's health problem was proved.
That there is a personality conflict between the parties is not doubted. Angry words have been exchanged. While neither side is blameless, Bissonnette is not the only neighbor complaining about Dennis Shea. One neighbor complained that he discovered that Dennis Shea took 180 feet of that neighbor's stone wall without permission and presumably sold it. When the neighbor complained, Shea responded with indifference and did not compensate the neighbor for the loss. Another neighbor said that Shea left a dead goat in front of that neighbor's house. When the neighbor complained, Shea responded with indifference and left the stinking carcass in plain view, in a spot he declared to be his "compost pile." When Gary Bissonnette attempted to mark out the course of the right of way with poles to help resolve this case, a dead goat's skull appeared impaled on one of the poles. If Dennis Shea is feeling harassed, some of his actions have brought it upon himself.
In conclusion, the court finds that the plaintiffs have not shown justification for the relief sought on any of the courts in the complaint as amended.
III
Both sides ask the court to award them attorneys fees and costs for the litigation misconduct of the other side, or as part of equitable relief or under other claims in the case. Based on the record developed at trial, the court finds no justification for the requests and, so, no attorneys fees or costs so requested will be awarded to either side.
IV
For all of the above stated reasons, the court orders that judgment be rendered in favor of the defendants, Gary Bissonnette and Sandra Walker, and against the plaintiffs, Dennis and Daniela Shea, on all counts.