Opinion
FSTCV116008662S
01-15-2016
Eric Simonson v. J. Willson Ropp
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
Nature of the Proceeding
Just over 100 years ago, Robert Frost wrote a poem containing the memorable line, " [g]ood fences make good neighbors." Unfortunately, this longstanding dispute between neighbors would require something more, something different, because the dispute centers on the rights and uses related to a shared/common driveway precluding physical separation by a fence--and if a fence were feasible, the level of distrust and hostility seemingly would prevent the parties from agreeing on its size and location.
Mending Wall (1914).
This matter started with an application for a temporary injunction, filed shortly after the defendants had begun construction of a new home on their recently-purchased property, and that was after the defendants had successfully resisted the plaintiffs' objections to the issuance of land-use approvals needed to get the project underway.
The plaintiffs initially were represented by counsel, but they were self-represented during the actual trial. Trial involved several days of hearings in the spring and early summer of 2015. By agreement of the parties, transcripts of testimony from prior hearings and proceedings were to be treated as testimony of the respective witnesses for purposes of final adjudication of this dispute. The parties filed briefs and reply briefs after the conclusion of the evidentiary phase of the trial.
Facts
The facts necessary for understanding and resolution of this dispute start with the defendants' undertaking of a major construction project on the property they had recently purchased, accessible only through the aforementioned shared driveway, which is located almost entirely (or perhaps entirely) on property owned by the plaintiffs. The adversarial relationship between the parties predated construction, however, as the plaintiffs had taken appeals from land use decisions, preliminary to the defendants' construction project. In all, in addition to this proceeding, there have been a total of six matters (see appendix), five of which were land use appeals taken both before and after commencement of construction. Indeed, this action, originally seeking a temporary injunction, was commenced shortly after construction had commenced and before final land-use approvals were obtained.
One of the many disputes between the parties is the precise (proper) location of the driveway/easement. An early map depicts the approximate location of the driveway as entirely on the property now owned by the plaintiffs; a later map locates the driveway as cutting the corner of a third property, also served by the same common driveway albeit to a much more limited extent.
As previously noted, the plaintiffs own the property across which the common driveway (easement) runs (the parcel being identified in maps and deeds as parcel B), and at this time are self-represented. Defendant Ropp and defendant Dreiss are the owners of an adjacent property (identified in maps and deeds as parcel C), a " rear lot" with no frontage on any public road such that the driveway across the plaintiffs' property is the sole means of access to their property. Defendant Prutting and Company Custom Builders, LLC was the general contractor on the construction project on the defendants' property--demolition of the existing home and construction of a larger home, a project lasting about a year.
In prior proceedings, the defendant owners were collectively referred to as the Ropps. For convenience and consistency, the court will continue using that nomenclature.
Generally, any reference to the " defendants" is intended to be a reference to the Ropps. Any reference to the defendant contractor, and any reference intended to all of the defendants including the defendant contractor, will so state explicitly.
The background facts have been recited in numerous prior decisions and the court adopts a minimally-modified version of the history recited in a previous decision it rendered (in turn, based on an earlier decision of Judge Jennings in this case):
Defendants J. Willson Ropp and Adrienne Dreiss (the " Ropps") are the record owners of property at 364 Hollow Tree Ridge Road, Darien, Connecticut, known as Parcel C, consisting of a 2.488 acres upon which they are constructing a new residence, having demolished the prior residence on the property. The Defendant Prutting and Company Custom Builders, LLC (" Prutting & Co.") is the general contractor engaged by the Ropps to demolish the former home and construct a new home on the site. Plaintiffs Eric Simonson and Barbara Simonson (the " Simonsons") are the record owners of 362 Hollow Ridge Road, Darien Connecticut. Their property, known as Parcel B, upon which their residence is located consists of 5.335 acres which includes fee title to a strip of land upon which there is a paved driveway leading out to Hollow Tree Ridge Road, a public highway of the Town of Darien. The only access from any public highway to Parcel C is via a deeded right of way in favor of the Ropp property over the driveway on the Simonson property.
Historically both Parcel B and Parcel C were part of a single larger parcel owned by William and Eleanor McKinley who subdivided that parcel into three lots in 1959 . . .
The deeded right of way which is the subject of this action was created by the McKinleys when they sold Parcel B to John Lewis Schafner and Dorothey Louise Schafner (predecessors in title to the Simonsons) by a warranty . . . which reserved
. . . an easement and right of way to the Grantors, their heirs and assigns, in common with the Grantees, their heirs and assigns, as an appurtenance to Parcel " C" as shown of the aforementioned map . . .
The Ropps' acquisition deed . . . reflects the foregoing easement and right of way, as Parcel " C" is thereby conveyed to the Ropps [t]ogether with an easement in common with others for purposes of ingress and egress over the driveway on Parcel B . . . reserved as an appurtenance to Parcel C in a deed recorded in Book 267 at Page 258 of the Darien Land Records.
The present action is wholly concerned with disputes between the parties arising out of the demolition of the former Shotts residence and the construction of the new Ropp residence on Parcel " C, " which has been a strained and contentious event between the parties, which started with the Simonsons' appeal of setback variances granted to the Ropps by the Zoning Board of Appeals, which appeal was dismissed . . . See Eric Simonson and Barbara Simonson v. Zoning Board of Appeals of the Town of Darien et al., Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FSTCV10-6003074S (May 6, 2011, Jennings, J.), 2011 Ct.Sup. 10920. In addition to this civil action there is also an appeal by the Simonsons from the issuance of a Zoning Permit to the Ropps by the Darien Zoning Enforcement Officer which was upheld by the Zoning Board of Appeals, still pending in this court as Docket No. FSTCV10-6007454S.
The present action, commenced in April 2011 alleges that the Ropps and Prutting & Co. have trespassed on the Simonson property since February 22, 2011 when the demolition commenced by causing heavy and construction vehicles and machines to be brought to Ropp property via the right of way over the Simonson property, and by using the right of way portion of the Simonson property as a parking and staging area, in violation of Condition 2 of the variance granted to the Ropps.
Condition 2 is claimed to be relevant if not central to the damages claim presently before the court. Condition 2 states:
Due to the fact that the subject property is accessed from Hollow Tree Ridge Road by a driveway which is located on the property of others, and various features including drainage pipes are installed under the driveway, protective measures, such as the use of lower weight capacity trucks, will be necessary to avoid damage to the driveway and its shoulders. Any documented damage to the property of others resulting from the project shall be properly repaired to the satisfaction of Zoning staff prior to the issuance of a certificate of occupancy for the project.
Additional facts will be recited as needed.
Contentions of the Parties
Although the complaint contains only one count, the plaintiffs are asserting is essentially three claims/cause of action: trespass, overburdening of the easement, and violation of a restrictive covenant. Although it does not neatly fit into either a claim of trespass or overburdening, the plaintiffs claim that the violation of Condition 2 comes within the scope of this proceeding.
In land-use proceedings that have become final, the plaintiffs unsuccessfully challenged the failure of zoning officials to compel the defendants to make repairs to the road and drainage structures, under authority of Condition 2, i.e. final approvals/permits were issued without any repairs being required. See, FST CV 125013970S and FST CV 125013971S (appellate review having been exhausted).
The defendants, in turn, in addition to denying the allegations of the plaintiffs' complaint, have asserted six counterclaims, seeking an injunction against interference with their easement rights; requesting a declaratory judgment with respect to their rights to widen the driveway and/or determining the proper location of the easement (to the extent that it is claimed to be legally located, at least in part, other than within the confines of the paved driveway); seeking an order of the court quieting title as to location of the easement and right to use; seeking damages for a claimed private nuisance; and seeking injunctive relief and statutory damages for a claimed erection of a malicious structure.
Discussion
Repeated exposure to irritants can lead to diametrically opposed outcomes--hypersensitivity or desensitization. This case involves an almost endless stream of events and conduct that to a casual observer might seem to be properly characterized as irritants, but that either due to hypersensitivity or perspective, the parties view as actionable tortious conduct.
The court is mindful of the frequency with which physicians describe the pain of their patients as mild or moderate " discomfort." Thus, the court is well-aware of the contextual and subjective nature of pain and irritants.
As something of a preliminary matter, the court would like to address--dispense with--certain arguments made by the plaintiffs. On a number of occasions, they note the lack of active participation in the trial by the defendant contractor. For example, at page 15 of their brief (#167.00), they state:
As noted above, no representative of Defendant Prutting testified during the six-day trial, and the only evidence presented by the Defendants relating to Prutting was testimony taken in 2011, only about a quarter of the way through the Ropps' project (and therefore not probative of anything occurring after that date). Leaving aside the Ropp defendants, Prutting, a defendant in this action, basically did not even mount a defense to claim to trespass and overburdening of the easement. Judgment is required against Prutting regardless of whether judgment is found against the Ropps generally.
At all times, the defendant contractor (Prutting) was represented by counsel and counsel was in attendance throughout the proceedings. (The same attorney represented the contractor and the Ropps.) Therefore, the plaintiffs cannot contend that something akin to a default would be appropriate, as presence of counsel is all that was required in a technical sense. To the extent that the plaintiffs may be suggesting that some kind of inference should be drawn, in the sense of the statutory replacement for a Secondino inference; see, General Statutes § 52-216c; that statute has been interpreted as requiring not only proof of availability of the witness, but also advance notice to the adverse party, Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 366-68, 805 A.2d 130 (2002), and the court does not recall any offer concerning availability of any particular witness from Prutting (or even that it is still an operating entity) and the court does not recall any notice to the defendants that an inference was going to be sought.
Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).
The overarching applicable principle, of course, is that a defendant can rely on the weakness or perceived weakness of a plaintiff's case and has no obligation to offer any evidence, doing so at its peril. Accordingly, while the court is well aware of the absence of any evidence specifically being offered on behalf of the contractor (other than the evidence adopted from earlier proceedings), the court declines the invitation to deem that qualified failure to be noteworthy in itself.
Again, that is not to say that there was no evidence from/on behalf of the contractor. Testimony from the contractor's principal, from a hearing on the request for a temporary injunction, was considered by agreement of the parties. The testimony including references to having given drivers involved in this project explicit instructions to take special care to stay on the paved surface of the driveway.
I. THE PLAINTIFFS' CLAIMS
The first two claims of the plaintiffs are somewhat complementary. The claimed excessive use of the common driveway during construction resulted in what is asserted to have been an overburdening of the easement, and to the extent that the users of that driveway (again, primarily during construction) may have departed or strayed from the paved surface, there is a claim of trespass resulting in physical damage to the " shoulders" of the driveway and adjacent structures and trees. More particularly, the claim is that many of the construction-related vehicles, substantially wider than typical cars and pickup trucks, did not or could not stay on the paved surface exclusively, thereby leaving tread-marks and associated damage in the earth--and associated vegetation and markers--along the edges of the paved surface. The claim is that some of these vehicles occasionally struck and marked trees, damaged a stone wall, struck so-called speed gates, etc.
The defendants claimed, and the court has accepted, that efforts were made, when possible, to utilize smaller trucks--not always possible and inferentially at greater expense.
The plaintiffs correctly cite City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931 A.2d 237 (2007) as recent authority relating to the burden of proof with respect to a claim of trespass, and state that " there is no requirement under Connecticut law that the party have a specific intent to trespass, only that such person acted with knowledge that his actions would result in entry onto the land of another."
The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury . . . [I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land. The intent required is the intent to enter the land in question . . . (Internal quotation marks and citation, omitted.) Caciopoli v. Lebowitz, 131 Conn.App. 306, 320, 26 A.3d 136 (2011) aff'd, 309 Conn. 62, 68 A.3d 1150 (2013).
To be sure, if enough trucks traverse the driveway, the likelihood that one or more might leave the paved surface becomes highly probable, but the focus for trespass is on the intent of each driver as potential trespasser. The plaintiffs have cited no authority for a statistical approach, that there can be liability for trespass based on the likelihood of some invasions of the plaintiffs' property without regard to specific intent of individual actors (putting aside that those occasional invasions themselves likely were unintentional).
The alternative, that every driver whose vehicle left the paved driveway even minimally, knew what he/she was doing and therefore was acting intentionally, is untenable, since it does not allow for unintentional departures or the distinction between intentional acts with unintended consequences and intentional acts with intended consequences. (Drivers on a highway may drift into an adjacent lane or may intentionally change lanes, but they do not (usually) intend to collide with another vehicle in the destination lane.) There was evidence that efforts were made to reinforce the need for drivers to try to stay on the paved surface of the driveway.
Certainly, the plaintiffs did present evidence of some level of vehicles straying from the paved surface of the driveway, and indeed the court would have found it highly surprising if no construction vehicles ever did so, particularly since there was evidence of required backing of vehicles on a driveway that was hundreds of feet long, and included curves and inclines, compounded by the generally modest width of the driveway (approximately 10 feet or so). This of course assumes that the extent of the easement (right of use) was coextensive with (and limited to) the paved driveway, and there was at least some level of contention on that point, but subject to further discussion of that issue as raised by the defendants, the court accepts as proven that there was some technical level of vehicular departure from the paved surface of the driveway by the defendants and/or their invitees, albeit without any proof of the requisite intent. (Not to belabor the point, departure without the requisite mental state (intent) does not satisfy the requirement for trespass.) See, also, Exhibit 14, showing a large truck that has departed from the paved area, with wheels on the shoulder but seemingly to avoid coming too close to a vehicle that either just turned off the driveway or is parked close to the edge of the commonly-used surface of the driveway.
The evidence was clear that the plaintiffs insisted that they would not allow vehicles to pass each other by using the unpaved areas or the paved area adjacent to their home (not part of the easement/driveway); therefore, if 2 vehicles met anywhere in the middle of the length of the driveway, one or the other would have to back up, potentially hundreds of feet.
The defendants contend that the actual right of way is in a somewhat different location than simply following the existing driveway and is or should be wider; and there was some testimony that the map showing the driveway was subject to a +/- variability of up to a foot.
Again, there is an overlay of uncertainty (lack of proof) as to whether any particular driver was aware of the actual or claimed limits of the easement/right of way such that there was (would have been) an understanding of a requirement (rather than just desirability) of staying on the paved surface of the driveway--especially when faced with the impossibility of two vehicles passing in opposite directions, with the options being one vehicle backing up or one vehicle leaving the paved surface.
The court's reference to invitees is intentional, and identifies a point that is left unaddressed by the plaintiffs. The plaintiffs would apparently like to attribute tort-responsibility to the Ropps and the defendant contractor, but there was no specificity of evidence with respect to whether trucks that departed or strayed from the paved surface (or for that matter, allegedly overburdened the easement, to be discussed below) belonged to the contractor itself or were trucks belonging to various subcontractors; and if the latter, there is no legal rationale for how or why the Ropps or the contractor would or might be liable for the alleged trespass of subcontractors (putting aside Condition 2 for the moment). For example, the truck shown in Exhibit 14 appears to be a cement mixer, and the court does not have a basis to believe that general contractors in general, or defendant Prutting in particular, maintained its own cement mixer(s) rather than relying on others to provide cement on an as-needed basis.
There has been no attempt to explain how the Ropps would be responsible for torts--especially intentional torts--committed by their general contractor or that contractor's subcontractors, and no explanation as to how the contractor would be similarly responsible for the conduct of its subcontractors. Trespassory conduct does not appear to implicate the concept of a non-delegable duty, and Connecticut courts have rejected the concept of imputed or vicarious liability for the tortious conduct of an " apparent agent" (Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015); L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012)). In other words, the plaintiffs have provided no analysis or framework for the concept that the Ropps are or could be liable for trespass committed by the general contractor's subcontractors (or that the contractor would be liable for trespass by its subcontractors), and there was no proof as to whose trucks allegedly committed the trespasses at issue. As if the situation were not already sufficiently muddled, again, there is also the confounding factor of trucks whose presence on the driveway may have been for the benefit of the plaintiffs rather than the defendants.
As noted elsewhere in this decision, there was at least one reported/documented instance of a truck called by/for the plaintiffs having engaged in some of the conduct more generally attributed to the Ropps and their contractor.
Further, to the extent that the plaintiffs have requested injunctive relief with respect to the alleged trespassory conduct, no meaningful relief can be afforded at this time. Construction activities were the primary source of the claimed trespass events, but such activities have long since concluded and there is no evidence or even suggestion that a repetition of such a major undertaking is likely to occur in the foreseeable future. Conversely, the court sees no value in issuing an order seeking to prevent the defendants and their invitees from occasionally and inadvertently departing from the paved driveway and onto the plaintiffs' non-easement property. (Should the court issue an order that they need to be more careful?) There has been no suggestion, and certainly no proof, that the conduct was truly intentional (see discussion of intent, above), or is likely to be intentional in the future--the conduct appears to be generally inadvertent. The court perceives an inordinate level of futility in ordering people--including unnamed invitees who are not parties--not to engage in inadvertent conduct of this nature. In theory, the court could order the defendants to instruct their invitees to stay on the paved driveway, but the utility of such an order would be highly questionable. If an invitee were to drive a vehicle partially off the paved surface (whether inadvertently or not), what would be the remedy--would there need to be a preliminary interrogation as to whether the driver was suitably warned by the defendants?
The other driveway-usage-related claim of the plaintiffs is that the defendants overburdened the easement, particularly the construction activities that involved almost countless trips of heavy vehicles across the plaintiffs' property (mostly on the driveway but occasionally straying off) to and from the defendants' property. The claim is that the defendants are responsible for damage alongside the driveway as well as accelerated deterioration of the driveway itself.
The hallmark of whether an easement is overburdened is reasonableness. Martin Drive Corp. v. Thorsen, 66 Conn.App. 766, 786 A.2d 484 (2001). Reasonableness, in turn, includes consideration of the scope of use intended by the grant of the easement; in Martin Drive, the Appellate Court reversed the trial court decision, determining that adding a second building lot to the dominant estate that could use an easement of access did not constitute an unreasonable use (overburdening) of that easement, under the circumstances.
The court cannot conclude that the defendants overburdened the easement by virtue of their construction of their home on the property constituting the dominant estate for this easement. Although it was a significant undertaking, lasting something on the order of a year, the conduct still was essentially of a transient nature--claims of overburdening usually involve conduct that is intended to continue into the indefinite future, e.g., subdivision of a parcel as claimed in Martin Drive, conversion of a property to a commercial activity, substantially increased commercial activity due to a change in the type of use, etc. While perhaps more concentrated than a sequence of additions and remodeling projects, the aggregate effect over time would be little different. Particularly since there is no claim that the usage did not revert to something comparable to the level of activity existing prior to the reconstruction of the home, the court cannot conclude that the defendants overburdened the easement in any actionable sense.
To the extent that the plaintiffs rely on the construction of a new home as not being within the contemplation of the parties at the time of creation of the right of passage over the driveway, the court must disagree. Map 2975 (Exhibit 2) is the subdivision map whereby parcel/lot C was created, and at that time, there was no home existing on that lot/parcel (at least as reflected by that map). Necessarily, then, it was contemplated that a building would be constructed and that construction vehicles would pass and re-pass along the driveway. An infrequent but intense use of that nature, then, was contemplated, and the court does not find that such activities every 50 years or so (the subdivision map is dated 1959) constitutes overburdening of the easement.
As further confirmation, parcel A is also shown on the map, and there is an indication of " building not shown" reflecting the existence of a building that is not actually depicted. There is no comparable legend with respect to parcel C.
Other infrequent but intense usage of the driveway might foreseeably arise, and would be highly unlikely to be deemed overburdening of the easement: if there were a fire requiring multiple oversized emergency vehicles to gain access and/or if there were extensive fire damage requiring major reconstruction activities.
One of the primary claims of the plaintiffs is that there had been accelerated deterioration of the driveway (the paving) due to the construction activities on defendants' property. They seek to recover compensation for the claimed resulting damage to the pavement. There are at least two major problems with that claim. First, the rationale for such a claimed element of damage seemingly would have to be the claimed overburdening of the easement, a claim which the court has rejected. The court also finds that the plaintiffs did not prove, with any degree of reasonable certainty (preponderance of the evidence) the extent (if any) of damage caused by such activities. (In a complementary sense, that failure also applies to the claimed trespasses.) The pavement was not claimed (or proved) to have been new and without flaws, prior to these construction activities. Conversely, the plaintiffs are seeking the cost of full replacement of the driveway, notwithstanding the proper measure of damages being the diminution in value caused by any tortious conduct, i.e. compensation for the damage caused by the claimed overburdening rather than years of accumulated use, compounded by seasonally varying weather such as freeze-thaw cycles, damage from salt, erosion from normal rain runoff, lack of structural support for the edges (e.g., curbing), etc. And, all of this is against a backdrop of the defendants already being responsible for half of the maintenance costs, pursuant to the title documents (see, Schedule A to the deed to defendants (Exhibit 5), reciting the existence of a maintenance agreement relating to the driveway/easement, and Exhibit 1, reciting the fifty-fifty sharing of maintenance costs).
The court also must note that the plaintiffs refused to allow the defendants to undertake repairs, because they wanted repairs to be within their control and/or as part of a global resolution of all of their claims. See, e.g., Exhibit X, rejecting proposal concerning repaving because it was not part of a global satisfaction of the plaintiffs' claims.
Switching attention to Condition 2, which also involved claimed damages caused by the construction activities: The court finds it remarkable that the plaintiffs, with emphasis on the claimed obligation under Condition 2, state (at page 20 of their brief) that Mr. Keating's testimony was inconclusive and not worthy of belief.
As Darien Zoning Enforcement Officer, Mr. Keating inspected the driveway after project completion. He admitted that he did not carefully survey, or even take much notice, of the condition of the driveway before the project commenced, so he had nothing to [compare] the final condition to. He is not an expert witness and only his direct observations, scant as they are, can be admitted into evidence not his conclusion that the project caused no damages.
The same can be said of Mr. Keating's subordinate, Mr. Woodside, upon whom the plaintiffs rely, and upon whom the plaintiffs ask the court to rely, subject to the additional observation that while Mr. Keating clearly was attempting to determine compliance with Condition 2, and therefore necessarily attempting to discern new damage actually due to construction-related activities, Mr. Woodside appears to have catalogued all conditions potentially subject to characterization as damage from construction activities. That distinction is confirmed by Exhibit 33, an email from Mr. Woodside to Mr. Simonson, in which he states:
I did the best I could recording a list of damaged things on your property Mr. Simonson. And I forwarded them to Dave [Keating] who I understand is still evaluating my information among other considerations, which are rather complicated. Just you know I tried to be neutral and fair, as well as comprehensive and careful to report all the items I thought could reasonably have resulted from the recent Ropp construction activities versus normal wear and tear. (Emphasis added.)
" [C]ould reasonably have resulted" is broader than " resulted" or " did result." Of course, without any credible or reliable baseline information (" before" conditions), there was and is no way for Mr. Woodside or Mr. Keating or the court to make any determination, with any level of confidence (sufficient for a preponderance of the evidence standard), as to the extent of damage actually caused by construction vehicles.
As noted earlier, the plaintiffs were unsuccessful before the Darien land use authorities in establishing non-compliance with Condition 2. Notwithstanding that failure, they did not meaningfully supplement their proof of damage before this court, either by establishing the pre-construction condition of the driveway and drainage structures or by attempting to identify the extent of deterioration of the paving claimed to have resulted with greater precision (and especially the dollar value of that accelerated deterioration).
Further, to the extent that the plaintiffs have requested injunctive relief with respect to the alleged overburdening, as noted earlier, no meaningful injunctive relief can be afforded at this time. Construction activities have long since concluded and there is no evidence or even suggestion that a repetition of such a major undertaking is likely to occur in the foreseeable future.
The court previously referred to Mr. Keating and Mr. Woodside, officials of the Town of Darien Involved in land-use enforcement, whose involvement came about because of Condition 2. Invoking his superior position, Mr. Keating had concluded that there was no proof of any damage that needed to be repaired, under Condition 2, as a precondition to the issuance of final zoning approvals. The plaintiffs claim that that determination is not inherently binding on the court, and the court notes the absence of any analysis suggesting that the observations and determination by Mr. Keating were binding on the court (as collateral estoppel or in some similar sense). Conversely, however, there is a question as to whether Condition 2 can or did survive the final land-use approvals, particularly since satisfaction of Condition 2 was identified as a precondition to final approval.
The court need not attempt to resolve any of those technical issues for the simple reason that, as discussed earlier, it finds that the plaintiffs have failed to prove any material damage to the driveway or surrounding property, attributable to the construction project. While photographs demonstrate the existence of tire tracks or other indicia of equipment (tread-marks) immediately adjacent to the pavement portion of the driveway, the photographs seem to indicate that those marks are seasonal, particularly present during and immediately after snow accumulations (winter into early spring). The defendants correctly note that photographs indicate that there is a rebound effect in growing seasons such that there is limited evidence of any long-term impact. Further, the existence of snow-related " damage" along the shoulders of the paved surface, potentially implicates the plaintiffs themselves--there was evidence that plaintiffs did not clear the snow from the entire width of the driveway, which necessarily would leave any operator of a motor vehicle guessing as to the precise limits of the driveway. In other words, it would be difficult if not impossible to discern, while driving along the partially-cleared driveway, whether the partially cleared path was down the center of the driveway, to the left of center of the driveway, or to the right of center of the driveway, almost inviting vehicles to leave the paved surface. Still further, the plaintiffs did not persuasively refute evidence that at least for some of the larger vehicles, the defendants (after initial complaints) used wooden boards and other measures to minimize if not eliminate the possibility of such departures from the paved surface and/or damage to the pavement.
For example, Exhibit 8 seems to show such an asymmetry in the clearing of snow, with snow seemingly cleared from the pavement and some of the unpaved area on the left side, while some of the paved area along the right side of the driveway apparently was not cleared of snow. That raises the further question of whether the tire tracks visible along the left side of the driveway, as shown in that photograph, may have been left by the snowplow operator.
See, also, Exhibit 45, in which there is a reported observation of damage apparently caused by a truck summoned by or for the plaintiffs. In other words, a further confounding factor was damage that was caused by vehicles on the premises for the benefit of the plaintiffs.
Again, the court rejects the notion that inadvertent and occasional departures from the paved surface of the driveway automatically qualify as repeated trespasses. To the extent that Condition 2 referred to " documented damage" as the predicate for an obligation to undertake repairs, the at-most minimal damage to the areas immediately adjacent to the paved driveway could not be properly characterized as such--the damage (if any) was not documented and not susceptible to valuation or meaningful repair.
For context, the plaintiffs' expert, Mr. Redniss, testified via transcript that the width of the driveway was less than what generally is deemed acceptable today, even for a driveway that does not require formal town acceptance. Are the plaintiffs claiming that if a fire truck had to respond to an emergency and because of the width of the vehicle, at times left the paved surface of the driveway, the local fire department or the driver would be subject to a viable claim of trespass? And to the extent that Mr. Redniss testified to some limited (possible if not probable) variability between the location of the driveway and its depiction on post-Exhibit 2 documents--plus or minus half-a-foot or a foot--the shoulders of the paved driveway might at least partially be within the intended/described right of way.
The court cannot help but make a more general observation about the imprecision of the parameters of the driveway and how that impacts this case. The deeds reciting the right of passage do not specify metes and bounds, or a particular width of the easement. There are references to a driveway as shown on maps, but the maps reflect self-identified approximate locations and there does not appear to have been an attempt to establish defined parameters for the easement. The maps themselves are inconsistent. The court declines to convert persistent imprecision into the legal equivalent of a high-wire act--absolutely no margin for error. Over-sized vehicles are allowed on public roads as a matter of necessity, and if some vehicles needed for the construction of the new home were too wide for this driveway, the court declines to interpret such analogous necessity as a form of trespass. The defendants were entitled to reasonable access to their property over the driveway, and that encompasses oversized vehicles if necessary.
The court finds credible the testimony that efforts were made to use smaller vehicles, when possible.
Finally, the defendants are claimed to have violated a restrictive covenant in their deed, with a portion of their newly-constructed home allegedly too close to a property boundary line. The plaintiffs offered no credible evidence of any damages that might flow from the claimed violation of the restrictive covenant, leaving only the prospect of injunctive relief should the court find such a violation to exist.
There are two components to this claim. First, there is a claim that the roof overhang infringes on the 30-foot setback required by the restrictive covenant. Second, there is a set of external stairs that also is claimed to intrude upon the deed-based required setback. Refining their position, the plaintiffs claim that the 30-foot setback requirement, as established by the chain of title, requires consideration only of the original parcel C dimensions, and does not allow for consideration of the additional area acquired by the defendants, presumably in an effort to eliminate or minimize any claim of violation of the restrictive covenants. (The plaintiffs do not appear to claim, and the proof would not support, a claim that there is any encroachment based on the actual property lines currently existing, rather than based on reference to the original subdivision-based property lines.)
The court has considered a number of factors that might need to be considered in order to resolve this issue. Initially, the court considered whether the restriction applied only to the footprint of the building itself, analogous to the situation in Doyen v. Essex Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478 (2002), wherein the court held that the overhang of a roof did not constitute an increment to the non-conformity of a nonconforming building, i.e. an increased overhang was not characterized as an impermissible increase in the pre-existing nonconformity of the structure.
The explicit language of the restrictive covenant facially raises a question concerning the availability of such an approach: " [N]o dwelling house or any part thereof or projection therefrom shall be erected or maintained nearer than thirty (30) feet to any boundary line of said premises." (Exhibit 35.) The restriction applies not only to the building itself but also to any " projection therefrom, " which facially might preclude any effort to distinguish between the building (and its footprint), and the projection of the roof beyond that footprint.
The court is not satisfied that that was the actual intent. The court believes that the reference to " projection therefrom" is intended to encompass porches, verandas, bay windows, decks, and other such features of the premises that extend/project from the footprint of the building.
The situation with respect to the steps is especially problematic as a practical matter. Homes built into the side of a hill often have a walkway from the street or driveway and the walkway often contains steps at the beginning or in the middle of the walkway in an effort to bring the approach up to the grade/level of the house (with the alternative being a moderately steep incline in the walkway). The court rejects the notion that this particular provision would prevent steps immediately adjacent to the house from extending into that 30-foot zone, but would not bar steps in a walkway further from the house. To put it another way, the court does not believe that this provision had any intent to address accessways to the house and/or steps leading up to the house. (Indeed, if the steps were deemed an impermissible extension, why wouldn't an inclined (paved) walkway be treated similarly, with or without steps?)
The court also rejects the interpretation proffered by the plaintiff that the original subdivision property lines control the measurement of the 30-foot distances, without regard to any changes that may have occurred. (Again, there does not appear to be any claim that if the proper reference is the actual/current boundary of the defendants' property, there is no intrusion into the 30-foot setback required by the restrictive covenant.) Under the plaintiffs' theory, if someone were to purchase two adjacent lots that are subject to this restrictive covenant, the merged lot would still be subject to the 30-foot setback from the no-longer-existing property line that previously had separated those adjacent lots, i.e. it would be impossible to build a house " in the middle" of the combined lot.
The court is required to interpret the covenant in a reasonable manner, and as narrowly as is practicable.
When presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless . . . the defendant can show that enforcement would be inequitable. Castonguay v. Plourde, 46 Conn.App. 251, 268, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). A restrictive covenant must be narrowly construed and ought not to be extended by implication . . . Moreover, if the covenant's language is ambiguous, it should be construed against rather than in favor of the covenant. (Citation omitted; internal quotation marks omitted.) Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d 1078 (2006).Carriage Drive E., LLC v. Ritchie, No. NNHCV136038364S, 2015 WL 3974309, at *2 (internal quotation marks, omitted).
For purposes of the restrictive covenant, the defendants' " premises" include any additional areas that have been merged into their lot, and the court sees no logical basis for excluding consideration of those supplemental areas in determining compliance with the covenant. Based on the current lot dimensions, there is no violation, no extension of the property into the 30-foot setback required by the chain of title.
Even if the court is wrong in the foregoing analyses i.e. that the intent was to prohibit such technical projections and to limit consideration to the property lines existing at the time of the subdivision, the court nonetheless still believes it would be inappropriate to afford the plaintiffs any relief.
The purpose for restrictive covenants and the enforcement thereof is to allow for implementation of a common development plan. In this case, we are dealing with a provision requiring a minimum setback of 30 feet from any/all boundary line of the property. That purpose is no longer being served, at least with respect to setback requirements. It is not clear from the record whether the original imposition of this restrictive covenant predates zoning in Darien, but the record is clear that current zoning requirements in Darien would require a greater-than 30-foot setback. Exhibit 37 indicates that this property is located in an R-2 zone, and the application that is Exhibit 37 requested a variance from the 50-foot setback otherwise required. Section 406 of the Darien zoning regulations provides that the minimum side yard distance from the property line is 35 feet, with a minimum front and rear yard distance of 50 feet from the property line. Clearly, then, the zoning regulation relating to setbacks and side yards imposes a greater restriction than is set forth in the restrictive covenant. Accordingly, the existing zoning regulations are more restrictive than the restrictive covenant claimed to apply here such that absent hardship situations, zoning regulations rather than the restrictive covenant control. The net effect is that the restrictive covenant no longer has any meaningful function with respect to controlling development and ensuring uniformity within a development, at least with respect to mandated distances of the building from the property line.
According to Exhibit 35, the original restrictive covenant had been set forth in earlier deeds that have been recorded in 1924. Zoning regulations appear to have been adopted in Darien for the first time in 1925; see, http://darienct.gov/filestorage/104/114/558/2015_ZoneRegs_Inside_Cover.pdf.
Related is the inflexibility of blind adherence to the restrictive covenant, when there is a tribunal (the ZBA) capable of adjudicating claimed hardships that might warrant modest departures from strict application of setback-type rules. That is precisely what the Zoning Board of Appeals has done in this case.
Further, and especially to the extent that an injunction requires determination of equities, the court cannot help but note that the restrictive covenant was created long ago, not only probably before zoning (see footnote 21) but also, of particular concern to this case, prior to other aspects of land-use regulation, especially wetlands regulations. When the restrictive covenant first was drafted in the 1920s, and when the most recent subdivision occurred in the 1950s, modern regulation of activities in wetlands areas (and the areas around wetlands) did not exist. (" [A]n inland wetlands agency has statutory authority to regulate activities 'around wetlands or watercourses' if those activities 'are likely to impact or affect wetlands or watercourses.'" AvalonBay Communities, Inc. v. Inland Wetlands & Watercourses Agency of Town of Stratford, 130 Conn.App. 69, 76-77, 23 A.3d 37 (2011).) Thus, the historical ability to put a house anywhere on the lot (subject only to the 30-foot restrictive covenant) is severely curtailed by the presence of a pond on a portion of the defendants' property and the associated regulation of activities on or affecting wetlands. Thus, according to the recitation in the application for the variance (Exhibit 37), " [t]he majority of the Property is wetlands and includes a pond and watercourse."
Further, this portion of the analysis only comes into play if the court were wrong in concluding that the areas added to the lot by the defendants cannot be considered in determining technical compliance with the restrictive covenant. The existence of those increments, however, such that the projections no longer are within 30 feet of the modified property line, is a compelling factor with respect to equity. Under the circumstances, it probably would be an abuse of discretion to grant an injunction, when the alleged projections do not, as a practical matter, extend within 30 feet of any existing (functional) property line, and it is only the hypertechnical use of the no-longer-existing property line that would allow for a claim of violation of the restrictive covenant.
Accordingly, the court concludes that the plaintiffs have not established a violation of the restrictive covenant relating to distance from property lines, and even if such a violation were proven, it would be contrary to equity to issue any injunctive relief.
II. THE DEFENDANTS' CLAIMS
First Count
The defendants' first counterclaim seeks an injunction against interference with their easement rights. " A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." Haggerty v. Parniewski, 11 Conn.App. 37, 39, 525 A.2d 984 (1987).
What the court observed earlier about irritations is equally applicable here. Perhaps intentionally, the conduct of the plaintiffs about which the defendants complain rarely if ever crossed the line into overt interference with the defendants' ability to access their property, i.e. to drive the length of the driveway to and from their home (and the same with respect to invitees of the defendants). Placing speed gates, flower pots or other portable items adjacent to the easement area might force the defendants to be more careful in navigating along the driveway so as to avoid hitting such items--but that was the precise intent. " Good neighbors" might be understanding and tolerant of the likelihood that drivers accessing the property at the far end of the driveway (defendants' home) might occasionally stray from the driveway, but plaintiffs were under no obligation to be " understanding." " Good neighbors" might be tolerant of incidents such as when Ms. Dreiss briefly stopped her vehicle on the driveway in order to look for the damage to or along the driveway as claimed by plaintiffs without eliciting warnings from the plaintiffs about her lack of authority to stop/park her vehicle in such a manner, but again, the court cannot mandate such civility or courtesies, and stopping/parking a vehicle on the traveled portion of the easement is at least arguably objectionable. (See, Exhibit V.)
The petty flavor of much of the complaints of the plaintiffs is exemplified by email messages in Exhibit Z, describing a situation where the plaintiffs initially complained to the defendants about a tree-trimming truck parked on the driveway (inferentially beyond the plaintiffs' home and without any suggestion that it was blocking access to the plaintiffs' home)--a follow-up message revealed that it was unobjectionable for the truck to be parked there because it subsequently had been discovered to be a utility company truck. In other words, the problem was not damage caused by the truck or the truck's blocking access--the complaint was solely based on the mistaken belief that it was someone there as an invitee of the defendants. If there had been any access issues, they would have affected access to the defendants' property, not the plaintiffs.' (The concern about cutting of the plaintiffs' trees, while at least theoretically possible, seems to have been also somewhat gratuitous.)
Just as the court has expressed a reluctance to condemn isolated and unintentional departures from the driveway (claimed by plaintiffs to be acts of trespass), the possibility if not likelihood that at least some of the time, items intended to be placed near the border of the driveway might encroach to some limited extent, does not warrant issuance of injunctive relief. The court appreciates that there is a distinction between the unintentional " trespasslike" events identified by the plaintiffs, and the somewhat more intentional conduct of the plaintiffs about which the defendants complain--the plaintiffs are generally complaining about truly unintentional conduct that occurs due to the limited width and other contours of the driveway, whereas the defendants complain about intentional conduct of the plaintiffs where there is an inferred intent to place objects as close as possible to the boundary. In this regard, the court also notes that much of this activity occurs in the area where the paved surface widens to allow for a branching off towards the plaintiffs' property, such that the boundaries of the easement/driveway are poorly defined, and there reasonably can be a perceived need to better define the limits of the paved surface intended for access to the defendants' property.
Addressing the specific claims set forth in the counterclaim:
a. Walking in front of cars to block their use of the right of way--the court finds that the defendants have not proven that this was a recurring problem, particularly to the extent that the claim implies an intent to obstruct regular flow of traffic. Cautioning construction vehicles (historical in nature?) to stay on the paved driveway, etc., would not have been a wholly unreasonable act. b. Placing temporary fencing within the right of way the temporary fencing (speed gates) was not proven to have been generally within the limits of the easement/driveway; this is one of the objects that may occasionally have been located " too close to" (crossing over) the boundary for the easement/driveway, but not as a pattern warranting injunctive relief. c. Placing large stones and stakes within the right of way--the court finds that the plaintiffs were not proven to have placed " large stones" within the traveled portion of the easement/driveway. The so-called stakes were markers placed in the unpaved area bordering the driveway, and even if they may have been technically within the easement (itself, not proven), they did not unreasonably interfere with travel. (For modest snow-cover, they likely facilitated determination of the boundaries of the driveway.) d. Parking cars within the Deeded Right of Way--there was scant if any evidence of this being an ongoing problem, if it occurred at all. e. Allowing invitees to the Simonson Property to block the Deeded Right of Way with their vehicle--to the extent that this is intended to be somehow distinct from (d), the same observation applies--there was scant if any evidence of this being an ongoing problem, if it occurred at all. The absence of a clear demarcation between the paved area servicing only the plaintiffs, and the driveway serving both of the plaintiffs and defendants, inherently makes any such incident equivocal and probably inadvertent at worst.
Although written over 150 years ago, in a legal environment dramatically unlike the one existing today, the words of the Connecticut Supreme Court still ring true with reference to this case and the competing claims for injunctive relief:
And we take this occasion to say, that writs of injunction are not to be granted for every trifling cause, nor made substitutes for every action of trespass or ejectment. When wisely and cautiously granted, they may be rendered highly beneficial; but they are not to be so used as to impose harsh and oppressive restraints upon the liberties of the people, and thereby rendered odious in public estimation. They ought not to be issued, except for the prevention of great and irreparable mischief, and, in the language of our present statute, in cases only, in which adequate relief can not be had in the ordinary course of law. Whittlesey v. Hartford, P.& F.R. Co., 23 Conn. 421, 433 (1855).
Accordingly, the court finds that the defendants have not established a right to injunctive relief.
Second Count
The defendants next request a declaratory judgment with respect to their rights to widen the driveway, claiming that they are entitled to a " passing area" as shown on Map 2975 (Exhibit 2), that the current location of the driveway is different than as set forth on that map, that the driveway is not as wide (in some locations) as shown on that map, etc.
Preliminarily, the court rejects the plaintiffs' contention that these claims should be discounted because they arose only after litigation was commenced, implying that the timing makes these claims inherently suspect. It is not clear whether " naive" is the proper term, but the reality of litigation is that in disturbing the status quo ante, a plaintiff invites the other side to reexamine all of the facts and assumptions that previously had been operative. Thus, in a breach of contract case, once a dispute erupts, it is not uncommon for issues to be raised as to the validity of the contract, prior breaches, etc.; see, e.g., Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 249, 618 A.2d 506 (1992). By commencing this litigation, the plaintiffs invited scrutiny of all aspects of the relationship between the parties, and the court will not presume any lack of good faith or otherwise impugn the motives of the defendants, by virtue of the timing of these claims.
Mr. Simonson, who took the lead in presenting the plaintiffs' case, is a non-Connecticut, non-litigation attorney.
All of the claims for declaratory relief are premised on the depiction of the driveway/easement on Map 2975. The court has two major problems with accepting the depiction of the driveway/easement on that map as signifying legal rights, as claimed by defendants.
While " oxymoron" may not be the proper term, it at least approximates the court's concern about reliance on something described as an " approximate location" on a surveyor's map. Presumptively, anything shown on a surveyor's map is intended to be shown accurately, i.e. showing things where they actually are. An approximate location, however, suggests a far lesser level of confidence in accuracy--if confidence and accuracy are even words that can be used in this context. The fact that dotted lines are used to identify the boundaries of the driveway--and dotted lines are also used to show the approximate location of a proposed extension of the driveway--strongly suggests that there is no intent to imply any level of accuracy whatsoever (perhaps the very reason for use of dotted lines rather than solid lines as used everywhere else on the map). There is no way of knowing whether the approximate location was anything more than a freehand drawing--there are no distances or other indicia that anything related to the driveway was measured at any point (other than perhaps where the driveway intersects the public road, Hollow Tree Ridge Road).
Additionally, the claimed passing area is a widening (of dotted lines) existing precisely at the location of an indicated accessway specifically for the property on parcel B (what is now the plaintiffs' property)--what loosely might be referred to as a widening in the area of the driveway specifically for that property. While the defendants may, out of self-interest describe it as an intended passing area, the court thinks it far more likely to be intended for use solely in conjunction with access to the plaintiffs' property, facilitating vehicles backing into or backing out of the driveway to the structure then located on what is now plaintiffs' property. That is reinforced by the recognition that at the time the map was prepared, the northerly boundary of that widened area was probably the end of the driveway--beyond that widened area is the approximate location for the beginning of the proposed extension of the driveway. There is nothing to indicate that the map depicted an intention of widening the then-existing driveway/paved area to facilitate passing, or intended to show the use of the existing widening for purposes of as-yet-unneeded passing--as opposed to identifying a widened area at the then-end of the driveway, serving only the then-existing structure on parcel B.
Further, the court does not recall any evidence--and certainly there was no credible evidence--that the driveway has ever been materially relocated. There was testimony (via transcript) from Mr. Redniss concerning a possible discrepancy of ± 1 foot or less relating to location/width of the driveway, but that was mostly with reference to possible variance between documentation and actual location and measurements, rather than any observed or detected physical movement of the driveway. To the extent that the existing driveway might be characterized as a monument, it would be entitled to priority over the inherently imprecise " approximate location" as depicted on a map, particularly when the issue is the driveway itself and there is no reason to believe it has moved (been moved). (" [W]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances." (Internal quotation marks and citation, omitted.) Rocamora v. Heaney, 144 Conn.App. 658, 667, 74 A.3d 457 (2013).)
The court finds there to be no basis for reliance on Map 2975 as authoritative with respect to location or dimensions of the driveway/easement; as such reliance is a precondition for this claim, the court necessarily finds no basis for the declaratory relief sought.
Third Count
The defendants next seek relief in the nature of an action to quiet title. As discussed in the immediately-preceding section, the court has concluded that there is no material uncertainty as to the location of the driveway and there is no merit to the claim that there is or should be a passing area. There is no uncertainty as to the rights of the plaintiffs and defendants with respect to the driveway. There may be some modest uncertainty as to the precise dimensions of the driveway, but the defendants have not established a basis for the court to declare rights with greater precision; as discussed in the preceding section, the court finds Map 2975 to be inherently unreliable, and no alternate (credible) source of information for a determination of rights has been identified.
To the extent that the defendants try to insert concern about access of emergency vehicles such as fire trucks into the picture (¶ 32 of the third count of the amended counterclaim), that is not a title issue, nor is the potential obstruction of the easement by " slow" or " go slow" signs, speed gates, etc. matters of title (or otherwise addressable by action to quiet title), in the absence of any claim by the plaintiffs that the defendants do not have the right to use the driveway for access and egress. (The claim of obstruction is discussed in connection with the first counterclaim, above.)
The court thinks it highly unlikely that emergency equipment will be concerned about a plastic speed gate or a goose sculpture being too close to the easement, or on the edge of the easement, in the event of an emergency call.
To the extent that there is any claimed imprecision in the boundaries of the driveway, the court is taking that into account in its rulings on various claims. The defendants, however, have not identified any reliable basis for adjusting or declaring the boundaries of the driveway in any material way. Accordingly, the defendants are not entitled to relief under this count.
Fourth Count
The defendants next claim that the conduct of the plaintiffs constitutes a private nuisance. Again, to the extent that the defendants point to conduct allegedly actually interfering with their ability to traverse the driveway, that has been addressed earlier in this decision. Generally if perhaps not scrupulously, the plaintiffs have attempted to place items that the defendants characterize as obstructions, on non-easement/driveway property owned by the plaintiffs. The concentration of the items approaching and near their own property (flower pot, plastic goose, speed gates, etc.), while perhaps intended to affect the defendants and their invitees primarily, also would affect the plaintiffs and their invitees--presumably explaining why there are no home-made signs in that area. If the items are perceived as eyesores, then they affect the plaintiffs equally. In essence, then, the court declines to treat these arguably-aesthetically-objectionable items as nuisances.
The defendants claim that much of this conduct was/is intended to annoy and harass the defendants, and there certainly was more than ample evidence from which an intent to annoy could be inferred. As noted immediately above, to the extent that some of the items at or below the access to the plaintiffs' property also necessarily affected the plaintiffs, that somewhat undercuts the nuisance quality. The same cannot be said for the " signs" beyond the turnoff for the plaintiffs' home.
Painting " slow" or " go slow" on garbage cans, and placing them alongside the driveway, hardly was intended to enhance the value of either property, particularly when located beyond the turnoff for the plaintiffs' property such that only visitors to the defendants' property would see them--and then, only after the entering drivers had passed the plaintiffs' property. If there were a more general (legitimate!) concern that vehicles needed to be driven at a reasonable speed on the driveway, such signs would be most appropriate close to the public road, such that all drivers as they entered the driveway would be properly alerted, and alerted long before they got to the plaintiffs' home. (Or are the plaintiffs suggesting that none of their visitors needed extra speed warnings, only visitors to the defendants were in such need, and then, only as and after they passed the plaintiffs' home?)
Likewise, crudely painting a similar message on the pavement, again, beyond the turnoff for the plaintiff's property, hardly can be mistaken for a polite neighborly reminder of the need for consideration for other users of the driveway, and again would do nothing to provide a warning to drivers other than visitors to the defendants' property (i.e. located at a point where it is too late to be of much value--unless there was a known problem with people accelerating only on that last 100-150 feet or so of the common driveway). Necessarily, there would be more traffic along the portion of the driveway servicing both properties, but no such " home-made" signs or warnings were posted along that section of the driveway. There was some limited effort to have more polished cautions about speed, approaching and at the turnoff for the plaintiffs' property, e.g., a " statue" of a boy holding a cautionary warning (Exhibit I), but the extra warnings beyond the turnoff to their home, and especially the crudeness of the manner of presentation, suggest that speed was not really the concern.
There also were " no trespassing" signs, seemingly of a quality that one would find in a hardware store, i.e. not painted on garbage cans or on the pavement, but again, all located beyond the plaintiffs' home. Again, if intended for drivers of vehicles, the signs would be of limited value given their location beyond the plaintiffs' home. Out of context, the signs might seem at least minimally appropriate for the wooded area in which they were posted; in context, they appear to be further if milder means of annoyance.
In sum, there can be no question--the intent of these crude if not juvenile signs was to annoy the defendants and their visitors. The far more difficult question is whether the conduct crosses the line into actionable private nuisance.
The defendants have identified cases that recognize analogous quality-of-life intrusions as potentially actionable.
A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . 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 . . . The essence of a private nuisance is an interference with the use and enjoyment of land. (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
In Pestey, the court formulated the following standard for a private nuisance: " [A] plaintiff must show 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 . . . (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the factfinder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the factfinder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.
The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable . . . Berube v. Nagle, 81 Conn.App. 681, 694-96, 841 A.2d 724 (2004).
Applying the framework set forth in Berube does not point in a consistent direction. As with much about this case, the irritants present here are not major interferences with the ability to enjoy their property, particularly given the space-time limitations--the direct annoyance is only for the time driving on the driveway between the plaintiffs' home (where the paved area is widened) and the defendants' property line--according to Exhibit G, a distance of approximately 150 feet. At a relatively modest 15 miles per hour, that distance is traversed in under 7 seconds (and only a second would be needed to pass the garbage cans). From the defendants' perspective, however, the plaintiffs are requiring the defendants to run a gauntlet of visually intrusive and intentionally annoying signs, every time they come to or depart their home. (The painted garbage cans and painted roadway are minimally, if at all, visible from the defendants' home, such that there is no persistent interference with the defendants' ability to enjoy their home.)
On the public-street-side of the plaintiffs' home, there were no " home-made" speed signs or no-trespassing signs or claimed piles of debris, and most of the other items (speed gates, etc.) that were placed near the driveway were in the area of the widening of the pavement.
15 miles per hour = 22 feet per second.
The claimed accumulation of debris/trash includes garbage cans, and is located (in photographs, at least) near a portable toilet and a shed. There are no-trespassing and no-dumping signs (not home-made) on some trees, also well beyond the plaintiffs' home. Independent of the home-made speed signs and the efforts to put items as close to the pavement as possible, they would be relatively innocuous, but in context, they are consistent with the pattern of concentrated efforts to engage in likely-annoying conduct immediately adjacent to the driveway but overwhelmingly beyond the plaintiffs' own house.
Although these items are consistent with the intent to annoy, the objective reasonableness is a closer call. The shed and portable toilet are consistent with claims of ongoing activities in the area, and the presumed need for periodic servicing of the toilet suggest a location in some proximity to a drivable means of access. The shed-type structure does not appear to be especially offensive in terms of presence or purpose, and it is not unreasonable to have a shed, especially in some proximity to the pond. As to the signs on the trees (" no dumping" and " no trespassing"), while there might be a question as to why there is no concern about dumping or trespassing along the stretch of driveway between Hollow Tree Ridge Road and the plaintiffs' home, the greater remoteness from the road, and the almost forest-like quality of the area, makes it not unreasonable to have such signs. Similarly, the efforts to use flower pots or a plastic goose or speed gates to control speed of vehicles in the vicinity of their home (and where the driveway widens) cannot be characterized as unreasonable to the point of being actionable in a nuisance sense (although the likelihood of annoying the defendants may well have been perceived to be a bonus).
The benchmark is reasonableness, and the court cannot conclude that these ongoing efforts to annoy and irritate the defendants, through use of " slow" painted on garbage cans and on the road, serve a reasonable purpose. The raison d'etre for painting " slow" on garbage cans and on the driveway itself, placed in a location where cautions would be of minimal value--was annoyance.
A claim of private nuisance requires that a plaintiff prove three elements: (1) there was an invasion of the plaintiff's use and enjoyment of her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless. Radosavljevic v. 175 Realty, LLC, No. CV065001303S, 2006 WL 2948272, at *2 .
There is no real question: the creation of the " home-made signs" was intentional and their creation was intended to annoy and harass the defendants--and there was no possible element of reasonableness for the plaintiffs to have done so.
Indeed, from one perspective, the painted garbage cans and " slow" painted on the surface of the driveway could almost be discounted as misguided juvenile-type conduct, albeit still with the purpose of annoying the neighbors. Further, the court also must recognize the need for some threshold beyond de minimis interference with enjoyment of property, especially when there is no improper use of property by the allegedly offending owner. Thus, if a residential property borders a commercial or industrial zone, the proximity of unsightly commercial or industrial buildings or signs would be unlikely to be subject to characterization as a nuisance. (Piles of junk, beyond a certain point, can rise to the level of land-use violations and/or urban blight.)
While the court is reluctant to be seen as ignoring or giving approval to the plaintiffs' conduct in this regard, the court ultimately comes down on the side of the conduct/" signs" not constituting an actionable private nuisance. Perhaps the tipping factor is the communicative quality of the objectionable acts/objects. The presence of a few garbage cans near the side of the driveway would be difficult to characterize as an actionable nuisance, absent painting of words on them. Similarly, it is the painting of one or more words on the pavement of the driveway that is objectionable. While the act and manner of painting the words could be perceived as the focus of attention, the actual meaning of the words and their presentation is more akin to " we don't like you" or some variation thereof.
It is highly doubtful that if there were professional-quality signs relating to speed posted along the driveway (even beyond the turnoff for the plaintiffs' home), a credible claim of nuisance could be made. Similarly, if there was a crudely-painted " welcome" on the garbage cans and/or driveway, it is doubtful that the defendants would complain of nuisance (or be able to make a persuasive claim of intent to annoy, assuming there was no reason to doubt the sincerity of the message). Here, the court believes it to be essentially impossible to separate the sign and sign-related conduct from the content--literal and implied--with respect to the defendants' claim of interference with enjoyment of their property. The court must recognize the need to make such a distinction, State v. Nowacki, 155 Conn.App. 758, 780-84, 111 A.3d 911 (2015), as the court must avoid engaging in sanctioning a party for communication content.
To summarize: the only items that possibly could constitute a nuisance are the painted garbage cans and the painting on the driveway itself. The court is satisfied that they were intended for the purpose of annoyance/harassment and serve a negligible (if any) purpose. The question of whether they substantially interfere with the defendants' enjoyment of their property is a very close call--the requirement of substantial interference requires teasing out this situation from the pervasive hostility that exists, and it is highly questionable whether that element is satisfied. (The absence of any apparent embarrassment on the part of the plaintiffs in defending these " signs" confirms the pervasiveness of their attitude towards their neighbors.) Viewed globally, the concern about message versus method simply tips the balance against a finding of actionable nuisance.
Again, while the court has no reservations that the garbage can messages and the painted message on the driveway were intended to harass and annoy, the court cannot, under these circumstances, find that the defendants have proven the existence of an actionable private nuisance.
Fifth and Sixth Counts
The defendants next contend that " [t]he Simonsons maliciously directed the installation of temporary fencing, large stones and stakes and piles of refuse adjacent to the Paved Driveway and ceramic pots and ornamental figures within the Paved Driveway with the intent of annoying the Ropps and preventing the Ropps' quiet enjoyment of their own property and their Deeded Right of Way, " and that such activities constituted malicious erection of structures in violation of General Statutes § § 52-480 and 52-570. In the fifth count, the defendants seek an injunction, and in the sixth count, they seek compensatory damages.
Much of these claims has already been addressed in other contexts, and will not be repeated in any detail. The claimed obstructions were placed near but seemingly not intentionally on the driveway itself. In the area of the turnoff to the plaintiffs' property, where the paving widens, the precise location of the easement/driveway is less certain, but conversely, there would seem to be more justification for the plaintiffs to attempt to separate/identify the boundaries of the driveway from their own non-servient property in an area where the dividing line was not readily apparent.
Further, the court finds that none of the items claimed to be structures were proven to be structures, or can be presumptively characterized as structures. A frame of reference can be found in the Darien zoning regulations, where the term " structure" is defined in § 210:
Structure: Anything constructed, installed, placed or erected on a site, the use of which requires location on the ground or attachment to something having location on the ground. As used in these Regulations, structures shall be deemed to include, but not be limited to, buildings, swimming pools, tennis courts, towers, paddle or platform tennis courts, docks, balconies, open entries, porches, decks, handicap ramps, signs, permanent awnings, a gas or liquid storage tank that is principally above ground, ground mounted antennas, ground mounted solar panels and satellite dishes and fences or walls more than six feet in height, other than retaining walls.
While the definition is extraordinarily broad, the commonality is that all of the examples identified in this definition require some form of semi-permanent if not permanent location, as opposed to being inherently mobile. None of the claimed " structures" have any permanent or semi-permanent location, but can be and were moved with some level of frequency. (Indeed, there was some evidence relating to the defendants and/or operators of trucks during construction of their home having moved some of the claimed obstructions.)
Temporary fencing--what the defendants call temporary fencing were relatively small freestanding sections of fence (often referred to as speed gates), intended to be mobile, and as shown in some of the photographs, especially Exhibit I, they not only had a base so that each section could stand in a vertical position otherwise unsupported, but also had wheels or casters on the bottom to facilitate movement.
Large stones--while stone walls may be structures for some purposes, is not clear how individual stones might be so characterized. To the extent that any stones were placed in areas near the driveway, those stones were sufficiently mobile that the plaintiffs could move them to those locations. (Exhibit D shows the presence of some stones near the driveway, but most of them are set away from the driveway, and the fact that there are a number of stones essentially in a pile suggests that the stones were in that area for reasons unrelated to a desire to annoy or harass the defendants.)
Stakes--as discussed earlier, there are a number of stakes that were placed immediately adjacent to--but off--the paved surface, seemingly as markers delineating the edges of the driveway. See, e.g., Exhibit 13. Aside from their inherent mobility (presumably, they can be inserted into or removed from the ground by hand), they are sufficiently insubstantial that they would have no real adverse effect on anyone trying to drive on the driveway. They also seem to serve a valid purpose, making the edges of the pavement more readily determinable. (Their insubstantiality is reflected by the fact that the plaintiffs complained that the defendants and their invitees frequently knocked over or destroyed those markers.)
Piles of refuse adjacent to the Paved Driveway--the court is reluctant to dignify this contention with a discussion, however brief. A few garbage cans, a few plastic pails, some wood debris, etc., scattered around an area rather than piled in a mound or meaningfully assembled, do not constitute a structure.
Ceramic pots and ornamental figures--Exhibit H shows such items, possibly situated into the easement area (but again, this is in a widened area of pavement where it is more difficult to discern the limits/width of the driveway/easement). The court sees no point in explaining why it does not believe that these items can be characterized as maliciously-erected structures (or structures). Nothing is affixed to the ground, nothing is even semi-permanent; the defendants are complaining about small to moderate sized objects that have been placed near the easement boundaries, and the court declines to trivialize the concept of a malicious structure to this extent.
Accordingly, the court sees no merit in the claim that the defendants were injured by the erection of malicious structures. The court cannot conclude that these items were structures, or that any of them were erected. Absent structures and erection of structures, the mental state of the plaintiffs in placing these items where they were situated at various times need not be reached. The defendants are neither entitled to injunctive relief nor damages under a theory of malicious erection of structures.
Again, to the extent that there was a purpose for placing some of these items near the boundaries of the easement in the vicinity of the plaintiffs' home, that is a significant factor; and the court cannot ignore the fact that if they were eyesores, the proximity to the plaintiffs' own property means that they were eyesores for them, as well. The court declines the implicit request to adjudicate aesthetics.
Conclusion
This lawsuit is but part of a dispute that has been going on for almost 5 years, with multiple legal proceedings. The court suspects that this may be more about principle than money--and certainly the outcome suggests the folly of anyone having counted their money before this decision was issued.
There is some current discussion in media about a concept referred to as micro-aggressions--by analogy, the court believes that this case may be characterized as one involving claimed or actual micro-torts. With the exception of the claim that the easement is actually wider or in a different location than the current driveway, both sides are complaining about a large number of relatively minor incidents. To mix metaphors, the court understands the notion of a death by a thousand cuts, but the parties have allowed these individually minor-to-modest problems to assume a disproportionate role in their lives.
The court concludes that the plaintiffs have not proven any of their claims and therefore judgment enters in favor of the defendants on all of the plaintiffs' claims. The defendants have not proven their counterclaims, and therefore judgment enters in favor of the plaintiffs with respect to the defendants' counterclaims.