Opinion
No. CV-07-5002667-S
October 28, 2008
MEMORANDUM OF DECISION
This vigorously contested real estate case was tried in this court on May 14, May 15, and May 21, 2008.
In the amended complaint, the plaintiffs, John Simonds and Delaine Simonds, alleged seven separate claims: (1) Action to Enforce Judgment; (2) Action for Contempt; (3) Action to Settle Title; (4) Declaratory Judgment; (5) Interference with Easement Rights; (6) Trespass; and (7) Willful, Wanton and Outrageous Conduct.
The defendants, Stephen Boyd and Rebecca Boyd, filed an Answer dated April 25, 2008, and with nine special defenses: (1) Res Judicata as to Prescriptive Easement; (2) Collateral Estoppel as to Prescriptive Easement; (3) Laches as to Prescriptive Easement; (4) Res Judicata as to Fee Title; (5) Collateral Estoppel as to Fee Title; (6) Marketable Record Title Act; (7) Non-Identity of Parties as to Action to Enforce Judgment; (8) Non-Identity of Parties as to Contempt; and (9) "American Rule" Regarding Attorneys Fees. The Answer also included two counterclaims: (1) Action to Settle Title, and (2) Trespass.
No other abutting property owners were named as defendants or in any way joined in or notified of the action.
A request for a site visit by the Court was withdrawn at the end of the trial.
Post-Trial Briefs were filed by the parties on September 8 and 9, 2008.
While there is considerable overlapping, each of the above claims and defenses will be addressed separately unless otherwise indicated.
Finding of Facts
Based upon the evidence produced at trial, including the reasonable and logical inferences therefrom, and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found. Additional facts will be set forth with respect to the various claims and defenses as necessary in connection with their separate discussion.
The plaintiffs, John Simonds and Delaine Simonds, are the owners of a 61.5-acre parcel of vacant land located in the Town of Voluntown, Connecticut (the "Simonds Property"), which they purchased on June 27, 1985. The Simonds Property is currently being used as a registered tree farm and has been approved as two building lots.
The defendants, Steven Boyd and Rebecca Boyd, are the owners of an adjacent parcel of land to the North of the Simonds land, with a house (the "Boyd Property"), which they purchased on November 21, 2005. The Boyd Property lies between the Simonds Property and a public highway known as Shetucket Turnpike. Neither the Simonds Property nor the Boyd Property has direct frontage on Shetucket Turnpike.
The Simonds Property accesses Shetucket Turnpike via a right of way known as "Woods Road" (also sometimes known as "Cooney Road"), which extends uphill in a southeasterly direction from Shetucket Turnpike to the Simonds Property. That road has also at times been referred to as a cart path, a pathway or a driveway. Simonds established their right to use that right of way in an earlier litigation against the Boyd's predecessors in title. Simonds property also has access to Connecticut Route 138 on the South.
At trial, because of the title situation and for clarity, the parties divided the discussion of Woods Road into three segments: (1) the "Lower Road Segment" running from the Shetucket Turnpike about 720 feet towards the Simonds and Boyd property over and through property not owned by either party to this action; (2) The "Middle Road Segment" owned by the Boyds being that 260-foot portion located between the Lower Road Segment and the Simonds Property and contained within the boundaries of the Boyd Property, and (3) The "Upper Road Segment" which is about 2,000 feet long, extending from the Middle Road Segment through the Simonds property and located entirely within property owned by Simonds. There is no disagreement between the parties or their experts as to the boundaries of their respective properties.
The controversy in this case involves allegations about the use, size, improvement, maintenance or relocation of the portion of "Woods Road" on the Boyd property. There is no controversy between the parties as to the location of the boundary line of the Boyd's property as it adjoins the Woods Road. The parties have devoted considerable evidence and argument to issues relating to that portion of Woods Road, however otherwise it may be described, which is not owned by either of the parties to this litigation.
Multiple deeds, surveys and diagrams have been entered into evidence during the trial to assist the court in the determination of the claims of the parties. Specifically, there are two surveys which are clearly involved in a determination of the issues between the parties. First is a 1977 survey by Richard A. Kinman which shows, among other things, the Boyd property which was to be conveyed to Shaw and the Woods Road lay out from Shetucket Turnpike southeasterly to the property now owned by Simonds. (Plaintiffs' Exhibit 1.) Next is a survey in 1987 by George Dieder which purports to show, among other things, a "gravel roadway" from Shetucket Turnpike to the properties involved in this case. (Plaintiffs' Exhibit 2.)
From 1977 until 2005, the Boyd Property was owned by Raymond Shaw and Shirley Shaw. In 1992, John Simonds and Delaine Simonds brought a legal action against the Shaws in Superior Court, Docket No. CV-92-0523007-S (the "Prior Action"). In that case, Simonds alleged that they held prescriptive easement rights over Woods Road and that the Shaws had illegally excavated the roadbed and taken other actions that obstructed the Simonds' use of the road. The Prior Action resulted in a Report of State Attorney Trial Referee dated November 22, 1994. The Referee Report, which was adopted by the court, concluded that Simonds enjoyed an appurtenant prescriptive easement for access to the Simonds Property on Woods Road over the Shaw's property, with the road being depicted on two surveys identified above that were expressly referenced in the Referee Report: (a) a certain "Map Showing Land of Leslie A. Esther H. Jalkanen dated September 7, 1977," recorded as Map 75 on file with the Voluntown Town Clerk; and (b) a certain "Plan Showing Simonds Subdivision, Property of John Simonds and Delaine Simonds, Route 165, Voluntown, Connecticut, October 1987, Revised March 7, 1988 "recorded as Map 139 on file with the Voluntown Town Clerk. As indicated above, these surveys were admitted into evidence in the present case as Plaintiffs' Exhibit 1 (Survey of Boyd Property, also known as the "Kinman Survey") and Plaintiffs' Exhibit 2 (Survey of Simonds Property, also known as the "Dieter Survey"). These surveys show a traveled roadway that is 10 to 12 feet in width. The Kinman Survey also shows that the traveled portion of the Lower Road Segment is contained within a wider strip of land between the abutters, which strip is not owned by either of the parties to this action. The actual owner of the fee of that strip has not been credibly identified in this case. The Referee Report in Simonds v. Shaw was adopted in the Superior Court by Judgment dated August 14, 1995 (Hendel, J.) (the "Superior Court Judgment"). That Judgment reads, in pertinent part, as follows:
[I]t is adjudged in favor of the Plaintiffs on the plaintiffs' claim of prescriptive easement and for injunctive relief restraining the Defendants from continuing to close, obstruct, or interfere with the right of way and from and in any manner interfering with or attempting to prevent the Plaintiffs [sic] from passing over or using the right of way from their property to the Shetucket Turnpike.
The Superior Court Judgment was later affirmed in its entirety by the Appellate Court in Simonds v. Shaw, 44 Conn.App. 683 (1997) (the "Appellate Court Decision"). In its decision, the Appellate Court held that "the roadway defines the right of way," and "[t]he plaintiffs are entitled to reasonable use of the roadway." Id. at 691. The Appellate Court Decision also held that the easement at issue was "appurtenant," such that the benefit of the easement would pass upon conveyance of the dominant estate and the burden would pass upon conveyance of the servient estate. Id. at 688-89.
On January 24, 1996, Leslie and Ester Jalkanen, owners of the land separating the Shaw land from Shetucket Turnpike, granted to Raymond and Shirley Shaw a permanent and appurtenant easement 20 feet wide. This easement ran from the Shaw land across the Jalkanen property to the Shetucket Turnpike and was recorded in the Voluntown land records at Volume 64 page 420. The easement was not, however, utilized by the Shaws.
After the Prior Action, Simonds continued to make use of Woods Road, consistent with the rights given in the Superior Court Judgment and the Appellate Court Decision. They used Woods Road to access their property approximately 20 times per year. On February 25, 1998, Simonds recorded a notice of the Appellate Court Decision on the Voluntown Land Records within the Shaws' chain of title. Seven years later, when the Shaws had placed their property on the market, the Simonds recorded a second notice on the Land Records within the Shaws' chain of title.
The Second Simonds Notice reads as follows:
We, John and Delaine Simonds and our heirs and assignees, whose property is described in Vol. 48 page 162, in the Voluntown Town Hall, will continue to access our property over Woods Road. We do so in accordance with a judgment of The Superior Court of the State of Connecticut dated April 8, 1997, and filed in Vol. 67 page 213.
This notice is a directive to anyone marketing or purchasing the property located at 186 Shetucket Turnpike, Voluntown, presently owned by Raymond and Shirley Shaw.
Woods Road presently being used for access to 186 Shetucket Turnpike is not within the Shaw's [sic] property description Vol. 43 page 8, nor does the property have a legal right of way over Woods Road as shown on Survey map 75 filed in the Voluntown Town Hall.
The Boyds purchased the Shaw property on November 21, 2005. The Warranty Deed from the Shaws to the Boyds made it clear that the title was "subject to easements . . . as of record." The conveyance carried with it as an appurtenance the easement granted to the Shaws by the Jalkanens to access Shetucket Turnpike.
Prior to purchasing their property, the Boyds reviewed the documents from the Prior Action and understood that they would be legally bound to abide by the terms of the court's orders in the Prior Action. Prior to purchasing their property, the Boyds were shown iron pins that had been set by the Shaws' surveyor, Richard Brennan, to depict the northeastern boundary of the Boyd Property, which was located near the southerly portion of the Lower Road Segment. One of the pins was located near the Boyd house and the other was located at the beginning of a stone wall, near the junction of the Lower Road Segment and the Middle Road Segment, where the roadway enters the woods. Prior to their purchase, the Boyds were also told by their realtor, Jack Wesa, that the Boyd Property did not have deeded access over any portion of Woods Road; rather, the deeded access was over property located between the Boyd Property and Shetucket Turnpike known as the "Jalkanen Property."
During their ownership and up to the time of the trial the Boyds used the Lower Road Segment of Woods Road as their sole access to Shetucket Turnpike. They kept the right of way plowed using the same contractor as their predecessor in title had used. However, no right of way over the Woods Road is specifically mentioned as being granted in either the Shaw or the Boyd deeds.
In early 2006, after the Boyds took up residence on their property, they placed temporary obstructions in the Lower Road Segment of Woods Road. On two occasions, they parked cars in the area of the Woods Road; on one occasion they parked a trailer. There were additional instances of placing wood, construction materials and brush in the road. The obstructions were removed at the request of Mr. Simonds. With these exceptions, the Boyds have not contested the Simonds' prescriptive rights obtained in the Prior Action.
In 2006, Simonds approached the Voluntown Planning and Zoning Commission concerning a possible expansion of his subdivision. The Commission did not seem to be in favor of his application, since he did not have a 25-foot-wide road access to Shetucket Turnpike. Simonds then approached the Boyds about them granting him land to allow him to expand the right of way into a road acceptable to the Commission. The Boyds were not receptive to the request.
Thereafter, the Simonds property was listed for sale without the resubdivision.
On May 28, 2006, a letter was sent by the Simonds to the Boyds and other abutting property owners pertained to a pending resubdivision application before the Voluntown Planning Zoning Commission. In particular, the Simonds were seeking resubdivision of a portion of their land into a 9-acre lot and a 50-acre lot.
The letter indicated that Simonds had a preference for limited development, and requested support for their waiver application.
The Boyds did not respond to the letter of May 28, 2006.
During a conversation with Mr. Simonds in June 2006, the Boyds claimed that Mr. Simonds had no legal right to make any changes to the roadway. In response to the parties' conversation in June 2006, Mr. Simonds undertook planning to physically move portions of the roadway in the Lower Road Segment in a northeasterly direction, away from the Boyd Property so as to eliminate any possible complaint by the Boyds regarding the use of that portion of roadway and to try to avoid conflict.
To make sure that no part of the Lower Road Segment would be located on the Boyd Property, Mr. Simonds identified the boundary line using iron pins pointed out by the Boyds and telephoned Mr. Boyd and asked him to confirm where the Boyds claimed the boundary.
In late summer 2006, Mr. Simonds engaged two contractors, Steve Balfour and Lon Ackley, to perform the relocation work on the Lower Road Segment of the Woods Road. No party to this action owns the fee to that segment of the right of way. Due to the slope of the embankment near the Lower Road Segment, the only way to move the road away from the Boyd Property was to perform some excavation which actually cut away some soil on the opposite side of the right of way from the Boyd property. The work at that time also raised the level of some portion of the right of way in that area. The contractors did not do anything directly on the Boyds' property during the excavation, but the disruptive results of the work were clearly visible from their property. The Boyds called the state police when the contractors came. The police came to the site and determined that no action needed to be taken.
In conjunction with the work on the Lower Road Segment, Mr. Simonds intended to have his contractors perform maintenance work on the Middle Road Segment, which was on the Boyds' property, where the road had become matted down with organic material from the pine trees in the woods. Mr. Simonds had directed the contractors to remove the organic debris with an excavator and lay down fresh gravel in the Middle Road Segment, but he postponed this portion of the project because of Mrs. Boyd's complaining to the state police. Prior to the police arriving at the site, the only work that was done on the Boyds' property in the Middle Road Segment was the removal of a small tree, 12 to 14 inches in diameter, which was encroaching on the roadway and making the roadway difficult for passage in that area.
A couple of days after the incident with the state police, the Boyds used equipment to place large boulders along the sides of the right of way. They also placed a large log in the Middle Road Segment blocking the roadway. This resulted in another confrontation, after which the Boyds helped Mr. Simonds remove the log. Complete photographs document the contractor's activities and the location of the boulders.
After the incident with the state police and the situation regarding the boulders and the log, Mr. Simonds hired a surveyor, Eric Seitz, to remark the boundary between the Boyd Property and the Lower Road Segment. Mr. Simonds then restrung his string line based on the surveyed property line, which the Boyds acknowledged was the correct line. After the Seitz boundary stakeout, Mr. Simonds hired another contractor, D'Arcy Cleveland, to come in with a small excavator and smooth out the Lower Road Segment and clean up the embankment in the area that had been previously excavated or cut. When he arrived to do his work the police were again called. Again the police determined that no action was called for. At no time did Mr. Simonds or his contractors place any gravel or other material on the Lower Road Segment or Middle Road Segment, nor did they widen the roadway, but, as indicated above, a cut was made in the side of the road away from the Boyd property and the level of the road bed was slightly altered. The result at the time was unsightly. Eric Seitz, a licensed land surveyor, surveyed the Lower Road Segment and confirmed that the roadbed was still 10 to 12 feet in width and that the Simonds' contractors had located the Lower Road Segment completely off the Boyd Property. This was shown on a so-called "Boundary Stakeout Survey" prepared by Mr. Seitz. (Plaintiffs' Exhibit 29.)
In January 2007, Mr. Simonds and his contractor, Mr. Cleveland, returned to the site, again with the intention of performing work on the Middle Road Segment as well as the Upper Road Segment. On the Upper Road Segment on the Simonds land, Mr. Cleveland removed organic debris and laid gravel without widening the roadbed. On that day, someone called the police.
As a result of the Boyds' request, Mr. Simonds did not perform the intended maintenance work on the Middle Road Segment on the Boyd property, which was planned to have included the removal of the organic debris as well as the removal of at least one more tree.
By letter dated January 5, 2007, the Boyds, through their counsel, continued to maintain their position that the Simonds were prohibited from performing any work on Woods Road.
Shortly after receiving this letter, Simonds initiated the present lawsuit. The first Complaint filed did not claim any deeded rights to the right of way but only those proscriptive rights awarded by the previous litigation. In a later Amended Complaint, which is the present operative pleading, Simonds has made claims to "deeded rights" to the right of way for the first time in their relationship with the Boyds.
Law
In this case, as in all civil cases, the plaintiff has the burden of proof with respect to the allegations of the complaint. Northrop v. Allstate Insurance Co., 247 Conn. 242 (1998). The burden of proving the special defenses and counterclaim lies with the defendant. Selvaggi v. Miron, 60 Conn.App. 600 (2000); Hernandez v. Dawson, 109 Conn.App. 639 (2008).
The Supreme Court in the case of Somers v. LeVasseur, 230 Conn. 560 (1994) said:
"It is an `elementary rule that whenever the existence of any fact is necessary in order that a party may make out of his case . . . the burden is on such party to show the existence of such fact.' Nikitiuk v. Pishtey, 153 Conn. 545, 552, 219 A.2d 225 (1966); see also C. McCormick, Evidence (3d Ed. 1984) § 337. This rule is derived from the traditional principle that in a civil case `[t]he general burden of proof rests upon the plaintiff . . .' Silva v. Hartford, 141 Conn. 126, 129, 104 A.2d 210 (1954)." Eichman v. J J Building Co., 216 Conn. 443, 451, 582 A.2d 182 (1990).
A person who purchases real property that is the subject of a court judgment is considered in "privity" with the previous owner and is therefore bound by the terms of that judgment. Labow v. Rubin, 95 Conn.App. 454, 462 n. 5, cert. denied, 280 Conn. 933 (2006). Under certain circumstances, the Superior Court has inherent power and continuing jurisdiction "to fashion a remedy appropriate to the vindication of a prior . . . judgment" as between the parties to that judgment. Avalonbay Communities, Inc. v. Plan and Zoning Commission of the Town of Orange, 260 Conn. 232, 239 (2002) (quoting Connecticut Pharmaceutical Ass'n., Inc. v. Milano, 191 Conn. 555, 563, 468 A.2d 1230 (1983)). That inherent equitable power to enforce prior judgments exists independently of its contempt power and is not limited in time. Id. at 240-42. As part of this same equitable power, the Superior Court also has the continuing authority as between the parties to clarify a prior judgment at any time. Avalonbay, supra, at 246.
The scope of a prescriptive easement has been reviewed by our Supreme Court. Kuras v. Kope, 205 Conn. 332 (1987), is a case whose facts bear a resemblance to the present case. In Kuras, there was a prior Superior Court judgment in which the Kopes' predecessors in title had established a prescriptive access easement over a dirt road on the Kurases' property. Subsequent to the judgment, the Kopes purchased the dominant estate and sought to make repairs and improvements to the road, including grading, graveling, and paving. They also sought to construct a bridge and install underground utilities. In response, the Kurases brought a new legal action, arguing that a beneficiary of a prescriptive easement is prohibited from making any changes. The trial court agreed. On appeal, however, the Supreme Court held that the trial court's decision was clearly erroneous in that it failed to recognize the right of a dominant estate holder to maintain and alter a roadway at his convenience, as long as he does not unreasonably increase the burden on the servient estate. In that case, the court said:
"It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it." Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements § 415; 5 Restatement, Property §§ 477, 478. "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." Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699; see Aksomitas v. South End Realty Co., supra. "Ordinarily when [judicial] opinions speak of the `use' of an easement, it arises in right of way cases. Thus, `use' frequently involves the amount of traffic over the easement or alterations to the land to make it passable." Center Drive-In Theatre, Inc. v. Derby, supra. This is not to overlook, however, that "[t]he owner of an easement has all rights incident or necessary to its proper enjoyment, [although] nothing more." Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983); Center Drive-In Theatre, Inc. v. Derby, supra, 464; see 25 Am.Jur.2d, Easements and Licenses § 72; 5 Restatement, Property § 486. With reference to the owner of a prescriptive right of way over the farm of the other party, 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." Nichols v. Peck, 70 Conn. 439, 441, 39 A. 803 (1898). We have said that "[t]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both. 2 Thompson, Real Property (1980 Replacement) § 427." Peterson v. Oxford, supra. One treatise points out that the "scope" of an easement "is what its holder may do with it, the purposes for which it may be used." R. Cunningham, W. Stoebuck D. Whitman, The Law of Property (1984) § 8.9, p. 458.
Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, "the use made during the prescriptive period does not fix the scope of the easement eternally." (Emphasis added.) Glenn v. Poole, 12 Mass.App. 292, 293, 423 N.E.2d 1030 (1981). One commentator in this field states that "[i]f it [the above announced rule] were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right of way, for instance, would, as has been judicially remarked . . . be available for use only by the people and the vehicles which have passed during the prescriptive period. But the rule is not applied with absolute strictness." 4 H. Tiffany, Real Property (3d Ed.) § 1208, p. 1039; see Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148 (1946); Cowling v. Higgenson, 4 Mees W 245 per Parke B (1838); 2 American Law of Property § 8.68. Another authority has said: "Since, however, no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation." 3 R. Powell, Real Property (1987 Rev.) ¶ 416, pp. 34-204-05.
The right of way in the case before us is an easement appurtenant, which, by definition is one created to serve a dominant parcel of land. 3 R. Powell, supra, ¶ 418, p. 34-215, ¶ 405, p. 34-19. Because the owner of a prescriptive easement may repair it and do whatever is reasonably necessary to make it suitable and convenient for his use; Nichols v. Peck, supra; it is reasonable to assume that both dominant and servient owners would anticipate, as in this case, that an established right of way for ingress and egress to a single-family residence may give rise to the necessity of improvements in that easement to render it of genuine benefit to the owner of the dominant tenement. See 2 American Law of Property § 8.69, p. 281; see also 5 Restatement, Property §§ 478, 479.
This rule is a foreseeable corollary of the proposition that the prescriptive right established is to continue to do the things the doing of which resulted in the creation of the easement. See 2 American Law of Property § 8.68, p. 280. In a word, legal contemplation in this context anticipates "evolutionary but not revolutionary changes." See generally R. Cunningham, W. Stoebuck D. Whitman, supra, § 8.9, p. 459; 5 Restatement, Property § 479.
The desire and need for improvements in such a prescriptive easement for ingress and egress emerges from the evolution of the dominant parcel. The nature and scope of such improvements, however, cannot be fully foretold. Acknowledging that the interests and rights of both the dominant and servient tenements often conflict, the problem arises of how present needs may be justified under a prescriptive right that apparently met the needs of another day. This brings into focus the proposition that the use and improvement of this prescriptive easement must not unreasonably burden the servient tenement that is already burdened with the easement. Peterson v. Oxford, supra, 745; Center Drive-In Theatre, Inc. v. Derby, supra, 465; see 5 Restatement, Property § 480, p. 3004; 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699; 4 H. Tiffany, supra, § 1209. Nevertheless, although the making of repairs and improvements necessary to the effective enjoyment of a prescriptive easement is incidental to the easement, repairs and improvements, and "particularly the latter," will not be permitted if they will unreasonably increase the burden on the servient tenement. 5 Restatement, Property § 480, p. 3006; see 25 Am.Jur. 2d, Easements and Licenses §§ 84 through 87.
It therefore appears that one who has a prescriptive easement has the privilege to do such acts as are reasonably necessary to make effective his enjoyment of the easement unless the burden on the servient tenement is thereby increased. Nichols v. Peck, supra; 5 Restatement, Property § 480. A right of way for ingress and egress by prescription is more than a mere right for ingress and egress; it involves those sensitive rights of use and enjoyment of that easement that render it genuinely passable without unreasonably burdening the servient tenement. The problem of the extent of the dominant owner's privilege in this context is largely a question of fact depending on the extent and nature of the lawful use of the easement. See Nichols v. Peck, supra, 441; Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967); Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977); Guillet v. Livernois, 297 Mass. 337, 8 N.E.2d 921 (1937); Mumrow v. Riddle, 67 Mich.App. 693, 242 N.W.2d 489 (1976); Martin v. Norris Public Power District, 175 Neb. 815, 124 N.W.2d 221 (1963); 5 Restatement, Property §§ 478, 479; R. Cunningham, W. Stoebuck D. Whitman, supra, § 8.9; 112 A.L.R. 1300; 25 Am.Jur.2d, Easements and Licenses § 86.
Kuras, 205 Conn. at 341-45.
Kuras v. Kope was quoted with favor by the Appellate Court in Simonds v. Shaw, 44 Conn.App. 683 at 691 (Plaintiffs' Exhibit 11); and, more recently, by the Supreme Court in Smith v. Muellner, 283 Conn. 510, 525 n. 14 (2007). In Muellner, the Court also made clear that a person who possesses prescriptive easement rights has the right to cut down trees if they are "in the line of the way and it is necessary for the dominant owner to cut them down and remove them." Id. at 525 n. 14 (Internal quotations omitted.) In Beneduci v. Valadares, 73 Conn.App. 795, 804 n. 5 (2002), the Appellate Court permitted the owner of the dominant estate to add gravel and grade a 800-foot-long right of way under the circumstances of that case.
In 1994, our Supreme Court in the case of Somers v. LeVasseur, 230 Conn. 560, 564 (1994) said:
"We have recently reviewed the standard for determining when a proposed enlargement of a prescriptive right of way is permissible. "`It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it.' Hawley v. McCabe, 117 Conn. 558, 560, 169 A.2d 192 (1933); see New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 640-41, 136 A.2d 742 (1957); Aksomitas v. South End Realty Co., 136 Conn. 277, 281, 70 A.2d 552 (1949); L. Jones, Easements § 415; 5 Restatement, Property §§ 477, 478. "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." Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974), quoting 2 G. Thompson, Real Property (1961 Replacement) § 427, p. 699 . . ." (Citations omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987). "[A]lthough the making of repairs and improvements necessary to the effective enjoyment of a prescriptive easement is incidental to the easement, repairs and improvements, and `particularly the latter,' will not be permitted if they will unreasonably increase the burden on the servient tenement." Id., 344. The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous. Id., 345. Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983)."
"To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt." Rocque v. Design Land Developers of Milford, Inc., 82 Conn.App. 361, 370 (2004).
Civil contempt involves the wilful failure to comply with a court order by one against whom the order was entered. In re Daniel C., 63 Conn.App. 339, 369 (2001). No case has been cited or found which held a party in contempt of court for violating a court order originally entered against another party or a prior owner of the property.
Section 47-31 of the General Statutes reads in part as follows:
Sec. 47-31. Action to settle or claim interest in real property or personal property. (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property . . .
That statute also provides detailed provisions dealing with notice to or service for defendants whose identity is not known to the plaintiff so that their interests may be determined.
Section 47-361 of the General Statutes provides:
"Type of estate deemed to be included in conveyance. In any conveyance of real property all rights, privileges and appurtenances belonging or appertaining to the granted or released estate are included in the conveyance, unless expressly stated otherwise in the conveyance and it is unnecessary to enumerate or mention them either generally or specifically."
This generally conforms to the law prior to the statute. See Dunn Bros, Inc. v. Lesnewsky, 164 Conn. 331 (1973); Powell on Real Property, Sec. 34.15, Dominant Parcel Owner's Successor Acquires Easement Appurtenant.
The Dunn Bros, Inc. case also provides:
"The question of whether an easement runs with the land or is merely personal "is to be resolved by seeking the intent of the parties as expressed in the deed, and this intent is to be ascertained by reading the words of the deed in the light of the attendant circumstances." Birdsey v. Kosienski, 140 Conn. 403, 410, 101 A.2d 274. While it is true that the absence of the words inheritance may create a presumption that the easement was intended to be in gross; Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596; that presumption will be defeated if, "from all the surrounding circumstances, it appears that . . . [to create a permanent easement] was the intention of the parties. Knowlton v. New York, N.H. H.R. Co., 72 Conn. 188, 192, 44 A. 8; Chappell v. New York, N.H. H.R. Co, 62 Conn. 195, 203, 24 A. 997." Birdsey v. Kosienski, supra.
This court has noted circumstances that may negate the force of the presumption. If the easement serves to enhance the value of the dominant estate, rather than merely to further the convenience of the grantor, the easement is generally considered to have been intended to be appurtenant. Birdsey v. Kosienski, supra, 411; Carlson v. Libby, 137 Conn. 362, 367, 77 A.2d 332; Chappell v. New York, N.H. H.R. Co., supra, 204-6; Randall v. Latham, 36 Conn. 48, 53-54." Dunn Bros., Inc. v. Lesnewsky, supra, 335.
"A plaintiff can recover only by proving that he himself is entitled to prevail on the cause of action alleged. It is not enough to prove that some other person, not a party to the case, would be entitled to recover on that cause of action." CAS Construction Co., Inc. v. East Hartford, 82 Conn.App. 543, 558, 845 A.2d 466 (2004).
"A reference to a map in a deed, for a more particular description, incorporates the map into the deed as fully and effectively as if copied therein." (Internal quotations omitted.) Schwartz v. Murphy, 74 Conn.App. 286, 291, 812 A.2d 87 (2002). "The identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed . . ." Id., 293. In accordance with the foregoing rules, "the general description in the text of the deed must yield to the more specific description in the survey map incorporated into the deed by explicit reference thereto." Id.
"Where the description of the land which is conveyed by a deed is ambiguous, the court must attempt to ascertain what it was that the parties intended to convey . . . The question is not what the parties actually mean to say, but what is the meaning of what they have said." Faiola v. Faiola, 156 Conn. 12, 17 (1968).
In the case of Gemmell v. Lee, 42 Conn.App. 682 (1996) the court said:
"It is axiomatic that an action to determine title to real estate must include all parties in interest. See General Statutes § 47-31(b); Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981)." Cardillo v. Cardillo, supra, 27 Conn.App. 212-13. Here, the plaintiffs' claim for relief called for a full determination of the rights of the parties in the land and requested the court to enter a decree that the plaintiffs had a right of way over the fee owned, in part, by Gracy. Because Gracy was not named as a party to the action, it was not possible for the court fully to determine the plaintiffs' right to the disputed right of way. As a person whose interests in real estate would be affected by the relief sought, Mary Gracy was an indispensable party. See Goodman v. Bank of Boston Connecticut, 27 Conn.App. 333, 341, 606 A.2d 994 (1992). We conclude, therefore, that the trial court should not have endeavored to determine the rights of the parties and settle the disputes regarding the title to the land in the absence of Gracy. Id., 685.
Conclusions I. First Count of the Complaint: Enforce Judgment
In this count, the plaintiffs claim to have established that the defendants have interfered with their alleged rights to utilize a prescriptive easement obtained in the Prior Action over the defendants' land. In fact, the plaintiffs have also alleged that the Prior Action gave them a prescriptive right of way over the Woods Road in the Lower Road Segment which is not owned by the defendants. In this regard, the court finds the plaintiffs to be overreaching. The Prior Action does not and could not have established rights of the plaintiffs in the Lower Road Segment since the owners of that land, which would have been the servient estate, (whoever they are) were not parties to that action, just as they are not parties to this action and received no notice of the claims of the plaintiffs. Read properly, as it must be, the Prior Action gives prescriptive rights to the plaintiffs only over a right of way on and over the Shaw property (now owned by these defendants) because they were the only defendants in that case.
The plaintiffs have not sustained their burden of proof with respect to any of the alleged interference with their prescriptive rights with the exception of the fact that the defendants did prevent the plaintiffs from maintaining the right of way through the Boyd land. The other incidental, temporary problems identified in connection with the use of the Middle Road Segment of the Woods Road do not rise to the level required for the court to grant the requested relief. This is especially true since the Boyds have acknowledged the rights of the plaintiffs acquired by the Prior Action and only dispute those rights claimed with respect to maintenance hereafter discussed.
With respect to the plaintiff's right to maintain the right of way acquired by prescription in the Prior Action on the Boyds' property, the court notes the Supreme Court's analysis in the Kuras case, supra, and finds that such maintenance as is suggested by that case would both be reasonable and place as little burden on the servient estate as the nature of the easement and its purpose will permit. This land is in a corner of the Boyds' property which is wooded and quite distant from their residence. The photographic evidence does not show the area subject to the easement to be heavily used.
Applying that law to this case, the court finds and concludes that the rights of the plaintiff in connection with their use of the prescriptive easement include the right to grade the roadway which is 10 feet wide, remove debris, cut trees and brush which obstruct travel and add gravel to make it conveniently passable by vehicle for its length through the Boyd property. Such maintenance is considered by the court to constitute a "reasonable use of the roadway" as determined in the Prior Action. This order does not, however, include a right to widen or relocate the roadway. The fact that the right of way has been found to be 10 feet wide as it goes through the Boyd's property does not mean that the owners of the servient estate can use large boulders and trees to make it into a tunnel through their woods. The term "reasonable use" must be given some meaning. In this case, under the circumstances here, this means there must be allowed to exist a 2-or 3-foot area on both sides of the actual roadbed sufficiently free from brush, trees and boulders to allow for safe and reasonable passage by a vehicle traveling to and from the Simonds' property. This does not mean that such safe area may be graded or graveled so as to widen the right of way, but it should allow passage without danger to life and property.
No order is entered with regard to the Lower Road Segment, extending from the Boyd property to Shetucket Turnpike, since the owners of the fee to the land through which that road runs, whoever they are, are not parties to this action.
In furtherance of the above order, the court will find the issues for the plaintiffs and enjoin the defendants, their successors and assigns, from interfering with the plaintiffs' rights to the use and maintenance of the Woods Road through their property as described above.
The court does not find that the plaintiffs have sustained their burden of proof with respect to a claim for monetary damages with regard to this count of the complaint and finds the issue of damages for the defendants.
II. Second Count: Contempt
In this count of the complaint, the plaintiffs allege that a violation of the Prior Action constitutes a "civil contempt." The plaintiffs, in their brief, call attention to alleged dishonesty of the defendants or one of them and allege that such evidence aids in their claim. The defendants, in their brief, claim that there was no evidence of a wilful disobedience of a court order. Also, the defendants argue that since the order, if it was an order, was against Shaw, there could be no contempt found with respect to a nonparty. The defendants do not claim that the Prior Action does not affect their land by imposing an easement by prescription, merely that contempt is not appropriate to enforce it against a nonparty.
The court finds that there was no wilful violation of the Prior Action. Any conflict between the parties is found to be the result of an honest disagreement as to the proper interpretation of the effect of the Prior Action. Both parties were represented by counsel and had the advice of counsel with respect to the same. As the plaintiffs pointed out, Mrs. Boyd was employed by an attorney. The lawyers disagreed as to the respective right of the parties. It should be said here, that the language of the decisions cited by the defendants and also found in the Prior Action, as interpreted by the defendants, could have caused the disagreement. The defendants seem to claim that the phase "the use establishes and limits the rights" means that a prescriptive easement is "frozen in time" by its prior use. However, whatever may be said about the clarity of such language, our Supreme Court in the Kuras case, referred to above, has made it eminently clear that is not the case. Change is contemplated. The use of the terms evolution and not revolution should be given meaning here.
Under these circumstances, no wilful violation of the prior court orders are found to exist. The issues are found for the defendants with respect to the second count of the complaint.
III. Third Count: Action to Settle Title Under § 47-31
In the third count of the complaint, the plaintiffs allege that in addition to a prescriptive right of way over the Boyd property established in the Prior Action, they enjoy an express or implied appurtenant easement over Woods Road by virtue of two recorded deeds one dated November 28, 1840, from Lilibridge to Martin Bitgood and one in 1841 from Lilibridge to Caleb Barber. They claim specifically in the brief that the 1840 deed created an easement over what was called a "driftway" in favor of the Simonds' predecessor in title over the so-called Middle Road Segment (Boyd Property) and the 1841 deed, by way of a "reservation" created an easement described as a "cart path" over the Lower Road Segment in favor of the Simonds' predecessor in title. The plaintiffs, in this count of their complaint, request the court to quiet and settle title regarding fee and easement rights of both parties with respect to these claims. This is duplicative of the claims made by the defendant in Count One of the Counterclaim. While the complaint alleges that the Boyds do not own the fee to the area covered by the Middle Road Segment, no evidence was offered to support that claim and, at the trial, the plaintiffs did not advance the claim.
The defendants claim that the allegations of the complaint are deficient in that they do not allege title in the plaintiffs with respect to the claims and, further, that, in any event, even if their claim is considered, the evidence does not support the claim that a "driftway" is any more than a "cart path" or "pathway," thus depriving the plaintiffs of their attempt to widen the travel portion of the right of way (Woods Road) through the Middle Road Segment (Boyd's property).
Both parties' title expert witnesses acknowledge the existence of those early deeds, but there was disagreement as to whether the deeds were actually in the Simonds' chain of title. The court finds that the plaintiffs have not sustained their burden of proof with respect to the claims relating to those deeds, but, in any event, no orders will be entered with respect to the Lower Road Segment because the owners of the fee to that area of Woods Road, whoever they are, are not parties to this action.
Moreover, the court also finds that whatever rights the Simonds might have acquired by either of these deeds, if any, would not enlarge the rights given to them by prescription in the Prior Action.
The issues are therefor found for the defendants on this count.
Both parties have requested the court to enter orders or determine rights with respect to the Lower Road Segment which runs from the Boyds' property to Shetucket Turnpike. During the trial both parties offered extensive evidence by way of expert testimony, deeds, surveys and photographs about the use, disruption, expansion and rights to use that area of Woods Road outside the boundaries of the Boyd property.
No rights are determined here with respect to what rights the plaintiffs may have, if any, to widen, grade or relocate that section of Woods Road outside the boundaries of the Boyds' property.
Similarly, no rights are determined here with respect to what rights, if any, the Boyds have to the continued use of the Lower Road Segment of Woods Road to access Shetucket Turnpike. This conclusion is reached because, as already indicated, the court is without jurisdiction to determine the rights in that land without the owners of that land having been made parties to this action. Gemmell v. Lee, 42 Conn.App. 682 (1996).
IV. Fourth Count (Declaratory Judgment)
The plaintiffs have repeated their claims advanced in the prior counts of the complaint as to the location, use, maintenance and improvement rights of the Woods Road as well as the "physical location of fee . . ." rights.
"The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between parties." Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995). Although it is a statutory action, "the trial court may, in determining the rights of the parties, properly consider equitable principles in rendering its judgment." Middlebury v. Steinman, 189 Conn. 710, 715 (1983) (citation omitted). "The mere fact that a party sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof by choosing the procedure of such an action . . ." Scott v. General Iron Welding Co., 171 Conn. 132, 139 (1976). The burden of proof remains with the plaintiff.
There was no evidence at the trial suggesting that there was a question of the boundaries of the respective parties with respect to the "fee" ownership of the land, notwithstanding the broad allegations of the complaint. The plaintiffs gain no special advantage by framing the questions as a claim for a declaratory judgment and the court need not elaborate further with respect to the rights found in the preceding counts. The rights of the parties to Woods Road has been determined with respect to the First Count. The issues are found for the defendants with respect to this count.
V. Fifth Count: Interference with Easement Rights
In this count of the plaintiffs' complaint, it is alleged that the actions of the defendants constitute "an unlawful interference" with the plaintiffs' easement rights creating irreparable harm "for with there may be no adequate remedy at law."
These separate allegations do not enlarge the plaintiffs' rights to relief provided from any of the earlier counts of the complaint. The facts do establish that there were occasional temporary or partial acts of the defendants which had the effect of interference with the plaintiffs' rights to the use of their prescriptive easement, but the evidence also established that the defendants have acknowledged and agreed that the Prior Action gives the plaintiffs certain right of passage, further clarified above, with which they do not intend to interfere.
The court finds on the basis of the evidence that the plaintiffs have not sustained their burden of proof with respect to the claims made in this count of the complaint and declines to enlarge upon the order entered above in regard to the first count of the complaint. The issues are thus found for the defendants on this count.
Sixth Count: Trespass
In this count, the plaintiffs allege that an interference with their easement rights by the defendants constitutes a trespass and seeks damages.
One of the essentials of an action for trespass are that the plaintiff have a possessory interest in the land. See, Avery v. Spicer, 90 Conn. 576 (1916); McCullough v. Waterfront Park Ass'n., 32 Conn.App. 746 (1993).
In this case, the evidence does not establish that the plaintiffs have a possessory interest in the land owned by the Boyds, being where the Middle Road Segment of Woods Road is located. They have an easement or right of way which is not a possessory right.
The plaintiffs, in their brief, have withdrawn their claims made in this count.
Seventh Count: Wanton, Willful and Outrageous Conduct
The plaintiffs rely on the evidence of occasional temporary obstructions which have been established and discussed above to claim the benefits of this separate claim, which might under some circumstances justify the award of attorneys fees.
However, the court finds there was no evidence of willful, wanton or outrageous conduct on the part of the Boyds, but, on the contrary, an honest disagreement as the rights and limits granted the plaintiffs by the Prior Action and the law relating to the same. For that reason, the plaintiffs' claims in the seventh count must fail and the issues are found for the defendants on this count of the complaint.
DEFENDANTS' SPECIAL DEFENSES I. First Special Defense: Res Judicata II. Second Special Defense: Collateral Estoppel
The defendants have joined the argument as to these first two special defenses because they are interrelated. Essentially, the defendants claim that because of the decision in the Prior Action between the plaintiffs and the Shaws (Boyds' predecessors in title) this action as to the scope of the prescriptive easement is barred. Reference was made to an alleged "two bites at the apple."
In the case of Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn.App. 616 (2006) our Appellate Court set forth the law as follows: "The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401, 546 A.2d 284 (1988), aff'd 211 Conn. 67, 557 A.2d 540 (1989). "[T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim." (Emphasis added; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 191, 680 A.2d 1243 (1996). Accordingly, the salient inquiry is whether the present matter involves the same claim that was litigated in the prior action.
"Res judicata . . . prevents a litigant from reasserting a claim that has already been decided on the merits." (Internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 723, 716 A.2d 922 (1998).
The defendants claim that the claims made in the plaintiffs' complaint, or some of them that relate to the scope of the use of the right of way, could have been raised in the Prior Action.
In that regard, the case of Gaynor v. Payne, 261 Conn. 585 (2002) is cited for the law supporting the claim.
The plaintiffs do not dispute the existence of the law but instead argue that their present claims are not seeking to alter the "scope" of the prescriptive easement given in the Prior Action. The plaintiffs claim that they always had the rights they are claiming herein and are here to "vindicate" those rights, not to enlarge them.
The court, based upon the evidence and the law, is more persuaded by the plaintiffs' argument, particularly because of the court's rulings as to the plaintiffs' claims in their complaint. The law provided the rights for maintenance of a prescriptive right of way at the time of the Prior Action. This court has not enlarged those rights given in the Prior Action.
The defendants have not sustained their burden of proof with respect to the first and second special defenses. The court finds for the plaintiffs with respect to the same.
III. Third Special Defense: Laches
In this special defense, the defendants claim the plaintiff's attempt to "expand" their prescriptive easement is barred by the doctrine of laches.
In their brief, the defendants set forth an exhaustive and thorough statement of the law of laches. The plaintiffs again do not appear to disagree with respect to the law.
This claim of the defendants must fail for two reasons: First, the court does not find from the evidence that there was any unreasonable or inexcusable delay by the plaintiffs in the prosecuting of their claims. It is true that no mention of a deeded easement was made at various times during the period in question here, but since this court has found that such deeded easement, even if it exists, does not enlarge the plaintiffs' rights (either with respect to the size or the maintenance rights of the prescriptive easement granted in the Prior Action), it is hard to see how the defendants can be disadvantaged by what delay did, in fact, exist.
Second, no "expansion" of the scope of the prescriptive easement has been granted by the decisions of the court in this case.
The court finds that the defendants have not sustained their burden of proof with respect to this claim and the issues are found for the plaintiffs on the third special defense
IV. Fourth Special Defense: Res Judicata as to fee title V. Fifth Special Defense: Collateral Estoppel as to fee title
The defendants have joined the claims with respect to these two special defenses. The evidence at trial failed to support any claimed "dispute" as to either the "fee title" of the plaintiffs or the defendants. There was no dispute as to the boundaries of the property of the parties. The claims of the defendants in these two special defenses are moot.
VI. Sixth Special Defense: Marketable Record Title Act
The defendants have established by the evidence that they possess a marketable record title to the Middle Road Segment.
The Boyds are alleging that this Act, the pertinent parts of which they set forth on page 34 of their brief, has the effect of extinguishing any easement rights not found in the Prior Action. Because this court has not found in this case any easement rights in favor of the plaintiffs not derived from the Prior Action this claim is moot. Even if it were somehow interpreted that this decision does, in fact, change or enlarge the easement rights established by the Prior Action, the exception to the Act dealing with an existing physical facility (the roadway) is so broad as to defeat the defendants' claim. C.G.S. § 47-33h(1).
The issues on this count are found for the plaintiffs.
VII. Seventh Special Defense: Lack of Jurisdiction as to Count One
The defendants' seventh special defense, although somewhat unclear to the court, seems to suggest that this court is without jurisdiction to enforce the judgment in the Prior Action against the Boyds since they were not parties to the action. In fact, the first count is an in rem proceeding, not an in personam proceeding. It relates to the defendants' land and the rights appurtenant to the plaintiffs' land.
The cases cited by the defendants do not support their claim. The case of Waterbury v. Washington, 260 Conn. 506 (2002), deals with the right to take water and the claimed interference with riparian rights. The case of Horowitz v. F.E. Spencer Co., 132 Conn. 373, (1945), deals only with the requirements to establish a prescriptive right to the corner of a building. The case of Hawley v. McCabe, 117 Conn. 558 (1933), also cited by the defendants does not discuss jurisdiction by only the limitation of use of a right of way.
The plaintiffs argue that the judgment in the Prior Action is enforceable against the Shaws' successors in interest just as it would be against the Simonds' successors in interest.
The court agrees with the plaintiffs. The issues are found for the plaintiffs on the seventh special defense.
VIII. Eighth Special Defense: Contempt Against Non-Parties
The claims on this special defense are essentially the same as the defenses offered by the defendants with respect to the second count of the complaint. The court has not found a contempt to have been established. The issues in this special defense are moot.
IX. Ninth Special Defense: Attorneys Fees
The claims made in this special defense are essentially the same as the defenses offered by the defendants to the Seventh Count of the Complaint. Since no order of attorneys fees has been made by this court, the claims of the defendants are moot.
DEFENDANTS' COUNTERCLAIMS I. Counterclaim, Count One; Action to Settle Title
This counterclaim is duplicative of the claims made and argued with respect to the plaintiffs' third count of the complaint. It would serve no purpose to repeat the findings of the court with respect to the same. Suffice it to say that at trial there was no evidence of a dispute with respect to the boundaries of the fee titles of either of the parties. The rights of the parties with respect to the plaintiffs' right of way over the defendants' property have been enumerated in connection with the decision on the first count of the plaintiffs' complaint. Despite the plethora of evidence as to the activities relating to the Lower Road Segment as indicated above no jurisdiction exists to assist the parties in that regard in this case.
II. Counterclaim, Count Two: Trespass
In this count of the counterclaim the defendant claims that the evidence established that the plaintiffs trespassed on their land. The law relating to trespass is set forth above.
The court finds no credible evidence that the plaintiffs or anyone acting for them or under their control trespassed on the defendants' land except for the cutting of a tree. That cutting was a trespass.
A portion of a tree was put in evidence. However, there was no credible evidence as to the value of the tree.
"To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the . . . loss . . ." Bhatia v. Debek, 287 Conn. 397, 419 (2008).
Applying the law to the facts, the court finds the issues for the defendants as against the plaintiff as to Count Two of the Counterclaim and awards nominal damages of $10.00. See Richey v. Main Street Stafford, LLC, 110 Conn.App. 209 (2008).
Judgment may enter as above with no award of costs to either party.