Opinion
No. CV03-0102009-S
February 9, 2004
MEMORANDUM OF DECISION RE CROSS APPLICATIONS FOR TEMPORARY INJUNCTIONS
The plaintiff and the defendants are next-door neighbors, the owners of adjacent waterfront properties located on Seaside Avenue in Westbrook. For many years, they seemed to be good neighbors, as evidenced, for example by the plaintiffs having allowed the defendants to gain access to their property through his back yard during a period when the defendants were remodeling their home.
This era of good feeling lasted until the defendants began to express interest in utilizing an easement across the northernmost five feet of the plaintiff's property, through which they sought access to a "pent road" that borders the east side of the plaintiff's lot. This distressed the plaintiff who, as a part of his response to this unwelcome development, decided to build a fence along the property line between the two properties, reducing, thereby, the width of the driveway leading to the rear of the defendants' home. This made entrance to and egress from the defendants' property an adventure at best and a hazard at worst, and it also made entrance to and egress from any vehicle parked within that portion of the driveway bounded by the fence a near impossibility.
Before I built a wall I'd ask to know What I was walling in or walling out, And to whom I was like to give offence. — Robert Frost "Mending Wall"
The plaintiff's second response to the defendants' interest in utilizing the easement was to bring this lawsuit, in which he seeks temporary and permanent injunctions barring the defendants from cutting down vegetation and developing the easement as a method of access to the pent road. The defendants filed a counterclaim, seeking, inter alia, temporary injunctions that would 1) block the plaintiff from preventing them from utilizing the easement; and 2) require him to remove the fence, thus restoring normal access through their driveway.
Each of the properties in question is a long narrow lot, with direct frontage on Seaside Avenue on the south and a common boundary line running north from Seaside Avenue. There is a house on each property. The plaintiff gains access to his property through the pent road on the east side of his parcel. The defendants now access their property by way of the driveway that runs along the common boundary between the two properties, but they would like additional access through the pent road via the easement in question.
The northerly five feet of the plaintiff's property is encumbered, as of record, by an easement in favor of the property of the defendants. There is a corresponding five-foot easement in favor of the defendants over the property located just to the north of the plaintiff's land, giving the defendants an easement with a total width of ten feet. Hedges and other vegetation have been growing on the portion of the easement located on the plaintiff's land for many years, and the vegetation is now so dense that vehicular access through the easement is impossible, although it can be traversed on foot, as the defendant Robert Muellner testified that he has done from time to time. A small barn or shed erected by the plaintiff extends very slightly into the area of the easement.
The court held a hearing on the cross applications for temporary injunctions filed by each party. The purpose of a temporary injunction is to preserve the status quo and to protect the parties from immediate and irreparable harm until the rights of the parties can be established upon a full hearing. To grant such a preliminary injunction, the court must find that the moving party will probably be successful on the merits of his or her claim, and it must balance the harms that may be caused to one party or the other as a result of the granting of temporary relief. The court must also find that the injury is irreparable and that there is no adequate remedy at law. See Olcott v. Pendleton, 128 Conn. 292, 295 (1941); Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457 (1985); Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn. Sup. 1, 3 (1977).
"A temporary injunction is a preliminary order of the court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally determined by the court." Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the rights of the parties can be determined after a full hearing on the merits. Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). The plaintiffs, to be entitled to such relief, must show: (1) probable success on the merits of their claim; (2) irreparable harm or loss; and (3) a favorable balancing of the results or harm which may be caused to one party or the other, as well as to the public, by the granting or denying of the temporary relief requested. See Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457-58, 493 A.2d 229 (1985).
Fleet National Bank v. Burke, 45 Conn. Sup. 566, 23 Conn. L. Rptr. 516 (1998).
Based on the evidence presented to the court, the court finds that the plaintiff is not likely to prevail on the merits of his claim. Although the defendants are likely to prevail on both of their claims, the court does not find that they are being irreparably harmed by their present lack of access to the easement, pending resolution of the case on the merits, so their first request for a temporary injunction, relating to the easement, is denied. As to their second request for a temporary injunction, the court finds that they are likely to prevail on their claims of private nuisance and malicious erection of the fence along the common boundary between the two properties, that they are being irreparably harmed by the fence, that they lack an adequate remedy at law, and that a balancing of the potential harms to each party weighs in favor of the defendants.
The plaintiff has alleged that the defendants have abandoned their easement. He testified that he had never seen the defendants use the right of way, but Robert Muellner testified that he had on occasion used the easement to pass on foot from his property to the pent road. The fact that the plaintiff did not witness any of these events does not make Muellner's account of them less credible.
Abandonment is a question of fact for the trier.
Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law. The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement. Mere nonuser of an easement created by deed, however long continued, is insufficient to establish abandonment. There must also be some conduct on the part of the owner of the servient estate adverse to and inconsistent with the existence of the easement and continuing for the statutory period, or the nonuser must be accompanied by unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it.
Richardson v. Tumbridge, 111 Conn. 90 (1930).
Lapse of time and nonuser are competent evidence of an intent to abandon, and as such may be entitled to great weight when considered with other circumstances; Derby v. Ailing, 40 Conn. 410, 436; New York, N.H. H.R. Co. v. Cella, 88 Conn. 515, 522, 91 A. 972. Mere nonuser alone, however, does not constitute abandonment.
Th[e] long-continued nonuser by the owners of the dominant tract of the easement of way created by grant d[oes] not extinguish it. As to the absence of a duty on the part of the owner of the dominant tract to use a way in order to maintain title to it, the law has been stated as follows: "`A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land and it is no more necessary that he should make use of it [the easement] to maintain his title than it is that he should actually occupy or cultivate the land. Hence his title is not affected by nonuser, and unless there is shown against him . . . loss of title in some of the ways recognized by law, he may rely on the existence of his property with full assurance that when occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired.'" Adams v. Hodgkins, 109 Me. 361, 366, 84 A. 530. See also Arnold v. Stevens, 41 Mass. (24 Pick.) 106; Seaman v. Vawdrey, 16 Ves. Jr. 390.
If conformity to the laws as thus stated, it is uniformly held that an easement created by grant cannot be lost by mere nonuser. Mason v. Horton, 67 Vt. 266, 31 A. 291. In Jones on Easements (Ed. 1998) §§ 863, the law is stated as follows: "Mere nonuser of an easement created by deed, however long continued, does not create an abandonment" of an easement, hence does not extinguish the easement.
American Brass Co. v. Serra, 104 Conn. 139, 145 (1926). See also Byard v. Hoelseher, 112 Conn. 5 (1930) (No abandonment despite growth of trees, brush, and weeds, use of alternate route and erection of buildings on easement by owner of servient estate). The court concludes that in this case, the plaintiff has not proved that the defendants have abandoned the easement.
The plaintiff also claims that the defendants have lost their easement to adverse possession. He points to his claim of nonuser by the defendants, in the context of the long-existing vegetation and his shed's encroachment upon the right of way, to support his claim that the easement has been extinguished. New York, N.H. H.R. Co. v. Cella, 86 Conn. 275, 279, 85 A. 521. Adverse possession does not require a "physical eviction, but a possession attended by such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits. It is enough if the disseizor enters into and holds possession of the land as if it was his own." (Citations omitted.) Miller v. State, 121 Conn. 43, 48 (1936).
To prove adverse possession, the plaintiff must show an uninterrupted, open, visible and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner over a continuous period of 15 years. "The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Huntington v. Whaley, 29 Conn. 391." See also Marquis v. Drost, 155 Conn. 327, 330, 231 A.2d 527; Barrs v. Zukowski, 148 Conn. 158, 165, Page 518. The doctrine of adverse possession is to be taken strictly and in the final analysis whether possession is adverse is a question of fact for the trier. Roche v. Fairfield, 186 Conn. 490.
It is an essential requirement of adverse possession that the possession, if it existed, was open and notorious in the sense of being something that is commonly known. The record owner is entitled to have actual knowledge that a claim contrary to his ownership is being asserted or that a foundation is being laid for a finding of constructive notice. Robinson v. Myers, supra. The purpose of this requirement is to give the record owner an opportunity to assert his own rights. The activity by the plaintiff in this case, the construction of a shed, one tiny portion of which happened to extend into the area of the easement, does not rise to the level of ouster or hostile use or a showing of a claim of right superior to the defendants' claim of ownership of the easement.
An express reservation of easement may be lost by prescription. "[I]f the servient owner . . . should by adverse acts lasting through the prescriptive period obstruct the dominant owner's enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement."(fn1) American Brass Co. v. Serra, 104 Conn. 139, 146, 132 A. 565 (1926); Schroeder v. Taylor, 104 Conn. 596, 605, 134 A.63 (1926); 28 C.J.S., Easements §§ 53, 63; 2 Thompson, Real Property § 445 . . .
Russo v. Terek, Conn. App. 252, 255 (1986).
"The owners of the servient tract have by law all the rights and benefits of ownership consistent with the existence of the easement, and the exercise of such rights is not an adverse or hostile act which gives the owner of the dominant tract a right of action therefor." American Brass Co. v. Serra, 104 Conn. 139, 150 (1926).
The plaintiff's limited use of the land, evidenced by building a shed that slightly encroached on the easement, during the period when the defendants did not attempt to make significant use of the easement, is not adverse. "[W]here an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence his land and such use will not be deemed adverse to the existence of the easement until such time as (1) the need for the right of way arises, (2) a demand is made by the owner of the dominant tenement that the easement be opened and (3) the owner of the servient tenement refuses to do so." Castle Associates v. Schwartz, 63 App.Div.2d 481, 487, 407 N.Y.Supp.2d 717, 723 (1978). See, also, American Brass Co., supra.
Nor is the mere planting of trees or hedges on the easement sufficient to constitute adverse use. "[W]here the easement was created, but no occasion has arisen for its use, the owner of the servient tenement may plant trees, erect a fence, etc. and such use will not be deemed to be adverse . . . until the need to use the easement arises, etc. We think this rule makes sense in light of the well established rule that the owner of the servient estate is entitled to use his land, even though encumbered by an easement, for any purpose not inconsistent with the purposes reserved in the easement." Kolouch v. Kramer, 120 Idaho 65 (1991).
The plaintiff has not shown that he is likely to prevail on his claims that either the defendants have abandoned their easement or that the plaintiff has acquired that easement by adverse possession. Conversely, the defendants have shown a likelihood that they will prevail on this issue, but, under all the circumstances, they have not shown that they would be irreparably harmed by having to wait until the entire action is resolved, nor have they shown a lack of an adequate remedy of law, which might include damages for whatever brief period of time they were required to continue to live without such access. Accordingly, the plaintiff's request for a preliminary injunction is denied, and the defendants' request for a preliminary injunction enjoining the plaintiff from preventing them from moving forward with their plans to cut down the vegetation and/or remove the shed in order to gain vehicular access to the pent road is also denied.
In their counterclaim, the defendants also seek injunctive relief requiring the plaintiff to remove the fence that he had erected on the plaintiff's side of the property line between the two lots, thereby constricting vehicular access to the rear of their property. In part they base this claim for relief on their contention that the entire area between the two houses has become the property of the defendants through adverse possession, based on a mistaken belief by both the plaintiff and the defendants that the entire area of the driveway belonged to the defendants. Because the defendants acquired the property in 1994, and because there was no testimony by the former owners as to whether they claimed title to the entire driveway, the defendants cannot prove adverse possession for the required 15-year period.
The defendants also allege, however, that the plaintiff has created a private nuisance by his erection of the fence along the defendants' driveway. Our Supreme Court has adopted the Restatement's view of the elements of private nuisance: (1) an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct as the proximate cause of the invasion; and (3) the invasion as either intentional and unreasonable, or unintentional but negligent or reckless. See, 4 Restatement (Second), supra, §§ 822. Pestey v. Cushman, 259 Conn. 345 (2002).
[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 reasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder 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 of 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 fact finder 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.
Pestey v. Cushman, 259 Conn. at 361 (Internal citations omitted).
The evidence establishes that the plaintiff's erection of the fence was motivated primarily, if not solely, by the defendants' insistence on pursuing their intention to clear the easement so as to provide them with what would have been an alternative method of access to their property. The plaintiff's fence restricts access to the defendants' property and unreasonably interferes with their use of that portion of their property in light of its use as a driveway.
Connecticut General Statutes § 52-480 provides: "An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same." The statute describes the present situation precisely, and the court finds that the defendants are likely to prevail on this claim at trial. The location presents a difficult and potentially hazardous situation to the defendants that could cause irreparable harm and for which there is no adequate remedy at law. If the court is wrong, and the plaintiff prevails, he can re-erect the fence. If the court does not require removal of the fence, however, the defendants face the risk of not being able to provide emergency access to the rear of their home and also run some added risk in dealing with access to Seaside Avenue. Balancing the various harms that could be caused by granting or not granting injunctive relief at this time, that balance clearly favors the defendants.
In summary, the cross-applications for temporary injunctions dealing with the easement are both denied. The defendants' application for a temporary injunction requiring the removal of the fence along the driveway is granted. Having thus dealt with the issues presented to it, however, the court feels compelled to observe that in light of the evidence of the healthy neighborly relationship that preceded these difficulties, and in light of the extent to which the further deterioration of that relationship will likely be exacerbated by continuing this litigation, the parties should give serious consideration to mediating their dispute. A variety of satisfactory compromises readily suggest themselves, and the parties would be well served by pursuing them, rather than each other.
Jonathan E. Silbert, Judge.