Opinion
No. FST CV11-6008662S
October 11, 2011
Memorandum of Decision on Plaintiffs' Application for Temporary Injunction (No. 100.35)
Procedural/Factual Background
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-acre rear lot 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 subdivision map as approved by the Darien Planning and Zoning Commission on June 16, 1959 is called "Map Showing Division of Property Now and Formerly Owned by William McKinley, Jr. And Eleanor W. McKinley at Darien, Connecticut, Certified Substantially Correct by Peter B. Myer, Land Surveyor," which map is recorded as Map No 2975 in the Darien Land Records. (Plaintiffs' Ex. 2.) 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 deed of August 10, 1966 recorded in Volume 267, page 258 of the Darien Land Records, (Plaintiffs' Ex. 1) 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 [Map No. 2975 — the 1959 map of subdivision] for the purpose of ingress and egress over the driveway shown on said map running from Hollow Tree Ridge Road to the point where the now existing driveway on Parcel "B" branches off the driveway shown on said map and a similar easement and right of way over the existing driveway which branches off as aforesaid and runs approximately to the boundary line of Parcel "B" and land now or formerly of Howard K. Bartow, et al and then along said boundary line one hundred (100) feet to said Parcel "C."
The Ropps' acquisition deed of April 17, 2009 from their immediate predecessors John P. Shutts and Suzanne F. Shutts, recorded at Volume 1347 page 471 (Plaintiffs' Ex. 5) 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 Shutts 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 in this court several months ago. 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. FSTVV10-6007454S.
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, and by "overburdening the right of way" in that: "a. The vehicles and equipment are substantially larger and heavier than the right of way was intended for; b. The heavy vehicles and equipment have caused substantial damage to the pavement on the right of way, including cracking, crumbling, and creating ruts in the pavement; c. The defendants have blocked the right of way and thereby interfered with the parties' right to use the right of way for their own ingress and egress from their property; and d. The defendants and/or their contractors and subcontractors have tracked mud and debris from the construction site on the Ropp/Dreiss Property onto the Simonson Property," (Complaint, ¶ 19.) Claiming that the foregoing events of trespass have caused and will continue to cause substantial damage for which the plaintiffs have no adequate remedy at law, the plaintiffs ask for compensatory and punitive damages, an award of attorneys fees and expenses, and for "[t]emporary and permanent injunctions restraining the defendants from continuing to close, obstruct, block, overburden, or interfere with the right of way and from in any manner interfering with or attempting to prevent the plaintiff from passing over or using the right of way and from trespassing on any portion of the Simonson Property that is not subject to the right of way."
Condition 2 of the variance granted to the Ropps by the ZBA on November 18, 2009 reads: "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."
The court heard evidence on May 23, May 27, and June 2, 2011 on the plaintiff's application for temporary injunction. The defendants submitted a pre-hearing memorandum on May 23, 2011. Both parties submitted simultaneous post-hearing briefs on June 10, 2011.
Discussion
In deciding whether or not to issue a temporary injunction, the court must consider the following factors:
Irreparable and imminent injury;
Lack of an adequate remedy at law;
Likelihood of success on the merits;
Whether a balancing of the equities favors granting the injunction.
Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). "[I]n exercising its discretion, the court . . . [must] consider and balance the injury complained of with that which will result from interference by injunction . . . The relief granted must be compatible with the equities of the case." (Citation omitted; internal quotation marks omitted.) Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981); see also Marquardt Roche/Meditz Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 421, 812 A.2d 175 (2003). The issuance of a temporary injunction is an "extraordinary measure" that requires the party seeking relief to demonstrate that "there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Karls v. Alexandra Realty Corp., 179 Conn. 390, 402 (1980).
A. Likelihood of Success on the Merits
"The essentials for an action of 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." Avery v. Spicer, 90 Conn. 576, 579 (1916); Boyne v. Town of Glastonbury, 110 Conn.App. 591, 601, cert. denied, 289 Conn. 947 (2008). Plaintiff's position is that any excursion, however slight, from the paved driveway as it presently exists on their property is an actionable trespass. The court notes that there is a threshold problem with defining the deeded right of way as bounded exactly by the edges of the present driveway. A close reading of the deed creating the right of way shows that there were actually two rights of way created when Parcel B was sold by the McKinleys to the Schafners in 1966. (Ex. 1.) The majority of the right of way from Hollow Ridge Tree Road to Parcel C is that part from the highway "to the point where the now existing driveway on Parcel "B" branches off the driveway shown on said map [No. 2975 — the 1959 map of subdivision]." By using the 1"' 50 ft. scale of Map No. 2975 the court finds that the right of way from Hollow Tree Ridge Road to the "branch off" is approximately 700 feet in length. That portion of the right of way is strictly defined by Map. No 2975. The deed (Ex. 1) defines that part of the right of way as being "over the driveway . . . as shown on said map" (emphasis added) which clearly refers only to Map No. 2975. The remaining part of the right of way, approximately 100 feet running from the point of branch off to the Parcel C boundary is defined as ". . . a similar easement and right of way over the existing driveway which branches off as aforesaid . . ." (Emphasis added.) The "existing driveway" can only refer to the driveway over that 100-foot span as it existed on August 10, 1966 when the McKinleys sold Parcel B and Exhibit 1 became effective. A comparison of the 1979 Map No. 2975 (Ex. 2) with the maps of the driveway as the plaintiffs claim it existed in 1966, and presently (Exhibits 3 and 7) shows clearly that the easement of 700 feet or so between Hollow Ridge Road and the point of branch off is not identically located. There are more than minimal differences between Exhibit 2, on the one hand, and Exhibits 3 and 7 on the other. For instance, in the claimed 1966 (and present) location (Ex. 3 Ex 7) there is a clear encroachment of the entire width of the driveway across a corner of Parcel A. In the 1959 subdivision map (Ex. 1) the driveway is located entirely in Parcel B. The northward curve of the driveway as one proceeds east from Hollow Tree Ridge Road is noticeably more pronounced in Map. No. 2975 (Ex. 2) than the gentler curve shown on plaintiffs' maps (Ex. 3 and 7). The apparent uniform width of the driveway on Map No. 2975 scales out to approximately 12.5 feet except for a noticeably wider spot opposite the residence on Parcel B. The 1966 sketch by Peter Myer (Ex. 3) lists no widths, but the 2011 map by Redniss Mead (Ex. 7) which is supposedly based at least in part on a review of Exhibit 3 shows widths of 9.6,' 11.1,' 11.4,' 10.6' and 10.7' with not one but two wided-out spots near the parcel B residence. Discrepancies such as this discredit the plaintiffs'"knife edge" concept that the boundaries of the right of way (especially the larger 700-foot segment which is strictly defined by Map No. 2975) are exactly the same as the boundaries of the present paved driveway. Plaintiffs have not adequately explained these discrepancy by the evidence brought forth at the hearing. Since many of the claims of trespass involve slight excursions (most of them little more than the width of a single truck tire) the court finds that the plaintiffs have not shown likelihood of success on the merits of their claims of trespass on the larger segment of the right of way. "A temporary injunction . . . should not be granted where, among other things, the plaintiffs legal rights are not clear." Taylor v. Hoffman Fuel, Inc., Superior Court, Judicial District of Tolland, Docket No. CV04-4000390S, (September 22, 2005, Scholl, J.), 40 Conn. L. Rptr 49. The plaintiffs are trying to interject precision into a situation that defies precision.
The court is not concerned with plaintiffs' claims that actions of the defendants have violated Condition No. 2 of the Ropps' variance. Any such claims should be addressed to the ZBA which has indicated that it will withhold a final certificate of occupancy for the Ropp project if any of its conditions are violated, and plaintiffs have the options of requesting a cease and desist order or opposing the issuance of a c/o if they believe that Condition No. 2 was not satisfied. The only issue pleaded in this case is legal trespass, and the plaintiffs' request for injunction against continuing trespass. See Simko v. Ervin, 234 Conn. 498, 503 (1995) (Superior court lacked jurisdiction to enjoin violation of a condition of a variance because plaintiffs failed to exhaust administrative remedy by appealing to the ZBA the zoning enforcement officer's denial of their request for a cease desist order).
This 100-foot segment is labeled on Map No. 2975 (Ex. 1) as "Approximate Proposed Extension of Driveway."
Plaintiffs' expert surveyor witness Raymond Redniss testified that his 2011 survey map (Ex. 7) and the 1966 Peter Myer unrecorded map (Ex. 3) show the driveway in substantially the same location. There was no testimony, however, that those maps show the driveway in the same location as the recorded Map 2975 (Ex. 2) which legally defines by far the greater part of the right of way.
Furthermore, there has been no evidence that any of the damage claimed to the driveway or right of way was caused "intentionally" by the defendants. Mr. Alan Ridgeway of defendant Prutting Co. testified that he was on site almost every day supervising the Prutting employees, subcontractors and suppliers coming onto the site. He testified that he never instructed any driver to drive off the paved area of the driveway, but, to the contrary, instructed all subcontractors and vendors making deliveries to drive very slowly and stay on the paved areas, which was especially difficult to do in the winter months when the driveway was only plowed one plow width with the pavement edges not always visible. If two trucks happened to meet going in opposite directions on the driveway, the standing instructions were that one of them would have to back up to one end or the other rather than try to pass each other on the driveway. On some occasions he arranged for larger trailer trucks to offload their cargo onto smaller vehicles out on the highway, and the smaller vehicles would bring the materials over the driveway to the job. If that was not possible, Mr. Redniss would walk in front of the larger trucks down the entire length of the driveway, guiding them so as to avoid as much as possible any excursions from the pavement. When it was necessary for tracked vehicles to come onto the site, he would have wooden planks laid down in front of the tracks for the entire trip down the driveway, to protect the pavement.
As will be discussed, plaintiffs have shown that some vehicles did make tracks on the areas beside the driveway off the pavement, but there is no evidence whatsoever that such excursions were caused intentionally or were anything other than accidental.
For these reasons the court finds that plaintiffs have not made the requisite showing on probability of success on the merits.
B. Irreparable Harm
An irreparable injury is an injury that "is of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any pecuniary standard . . ." Connecticut Association of Clinical Laboratories v. Blue Cross, Inc., 31 Conn.Sup. 110, 113 (1973). "Whether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 402 (1983).
The plaintiffs have not alleged irreparable harm anywhere in their verified complaint. Nor have they argued in their brief that any of the harm or damage they have shown is irreparable. They claim that the evidence shows that the defendants have trespassed by: (a) operating construction equipment and vehicles on portions of the Simonson property outside the lateral limits of the paved driveway; (b) parking construction equipment and vehicles on portions of the paved driveway located on the Simonson property, and parking construction equipment and vehicles outside the lateral limits of the paved driveway and on the Simonson's parking area that is not subject to the easement and right of way; and (c) blocking the driveway. (Plaintiff's Brief, p. 11.) The plaintiffs have shown by multiple photographs that construction vehicles in the period of winter into spring of 2011 did go slightly off the paved area of the driveway on occasions, leaving tire tracks in the snow or mud on either side of the pavement. They have also shown some ruts in the pavement itself presumably caused by construction vehicles, although there was testimony that the current pavement was installed about ten years ago and has not since then been sealed or repaved. Some of the photographs claimed to show pavement damage do not seem to the court inconsistent with pavement that has gone through the freeze, thaw, and refreeze cycle of ten Connecticut winters. Nonetheless there is at least some pavement damage which the court attributes to defendants' vehicles. There was also some damage to a catch basin at the side of the pavement which the court finds to have been caused by a construction vehicle. But there is no showing that any of this damage is irreparable. If the coming of spring and a full summer of vegetation growth has not eradicated the track marks on either side of the pavement, the court finds that damage to be totally repairable by landscaping work, and the catch basin can be repaired by a drainage contractor. If by no other way, the pavement damage can be repaired by full or partial repaving. The court further finds that both the Ropp defendants and Prutting Co. have offered to repair that damage, but have not been allowed by the plaintiffs to do so.
The parking of a truck on the Simonson parking area occurred when a truck bringing portable toilets to the Ropp construction site briefly parked there because he was not certain where to make his delivery and was not aware that the parking area was not part of the right of way. The truck proceeded to the Ropp site after a brief while, but was photographed while parked in the Simonson parking area. (Pl. Ex 17.) The blockage of the driveway occurred when a cement truck making a delivery to the site broke down shortly after entering the driveway from Hollow Tree Ridge Road, in the area opposite the residence for Parcel A owned by Joshua Ginnella. At that same time, while the truck was awaiting repairs, Mrs. Simonson wanted to pass by in her car to get out to Hollow Tree Ridge Road, but could not get by on the driveway without leaving the pavement. But the court finds that Prutting Co. had secured the permission of Mr. Ginella for construction and other vehicles to detour through parcel A's semi-circular driveway to get around the cement truck. Although several other vehicles used the detour, Mrs. Simonson refused to do so when offered the opportunity. The court finds that neither the parking of the truck on the Simonson parking area nor the breakdown of the cement truck on the driveway near parcel A caused any irreparable harm to the plaintiffs.
C. Adequate Remedy at Law
The court finds plaintiffs' claimed damages are compensable by money damages for which the plaintiffs have an adequate remedy at law in the form of the compensable damages they seek in this case. All of the alleged damages are claimed to have occurred starting early in 2011, and there seems to be no risk that the statute of limitations will bar any remedy at law before the construction of the Ropp house is completed.
Plaintiffs cite "[t]he general rule . . . that injunctions are liberally granted in cases of continuing trespass." Pender v. Matranga, Superior Court, Judicial District of Danbury, Docket Nos. 319129 and 319038 (August 9, 1995, Riefberg, J.) This rule exists for two basic, but related, reasons: (1) a continuing or repeated trespass, such as an encroachment on one's land, is an ongoing harm to the landowner and (2) injunctive relief is logistically superior to forcing the plaintiff to come to court multiple times to collect money damages. Berlin v. Olson, 183 Conn. 337, 342-43 (1981). This rule was applied in DPF Financial Holdings, LLC v. Lyons, et al, Superior Court, Judicial District of Windham, Docket No. WWM CV08-4007816S (December 1, 2008, Dos Santos, J.), 2008 WL 5481218, reversed on other grounds, 129 Conn.App. 380 (June 14, 2011), cited by plaintiffs, where the court relied on the continuing trespass doctrine in enjoining the defendant adjoining landowner from further trespasses even though the plaintiff would have had a remedy at law by suing repeatedly for money damages. In that case the defendant had engaged in a series of deliberate trespasses such as building a fence on the plaintiff's land, removing loam from the plaintiff's land and replacing it with low quality soil and animal remains, removing an erosion berm from the plaintiff's land, and depositing animal remains and bones on the plaintiff's land. The situation in this case is much different. Defendants have not erected any permanent or physical structures on plaintiff's land, nor are the defendant's activities of the type to continue indefinitely. As soon as the Ropp's new home is completed, all construction vehicles will cease operation on the driveway. Nor have the defendants here, unlike in the PDF v. Lyons case, exhibited any callous disregard of property rights such that continuing trespasses are almost certain to continue if not restrained. As previously indicated the defendant Prutting Co. has taken great care to try to avoid departures from the narrow paved driveway. This is not a case for the application of the continuing trespass doctrine.
D. Balancing of the Equities CT Page 21269
The issue here is whether or not the harm likely to be suffered by the plaintiffs absent a temporary injunction is greater than that will result from the interference with defendants' activities occasioned by the requested injunction. The court concludes from the evidence presented that the harm which a temporary injunction would cause to the defendants is greater than the harm likely to be suffered by the plaintiffs if there is no temporary injunction. Other than the one brief episode where the cement truck broke down and access was blocked except by taking a short detour which Mrs. Simonson elected not to use, there has been no loss of use of the driveway. Nor has there been any need to go around barriers or drive over unpaved ground. The effect of defendant's activities upon the use of the driveway has been not unlike the experience that all drivers experience daily at construction sites on the public highways. The claims of damage are primarily aesthetic, consisting of ruts in the pavement and tracks in the mud beside the driveway and one depressed storm drain, all of which can be remedied as soon as the construction job is completed. If an injunction were to issue at this point, however, as Mr. Ridgeway testified, all construction on the Ropps' partially constructed new home would have to cease. The Ropps would have to continue living indefinitely in their current temporary rented home. The Ropps would continue to be liable to Prutting Co. for management fees Workers would still have to be paid. Equipment rentals would continue to accrue and subcontracts would have to be terminated. The balance of the equities clearly favors the defendants.
Conclusion
For all the foregoing reasons the plaintiffs' application for a temporary injunction is denied.