Opinion
No. CV 03 0197095 S
August 11, 2004
MEMORANDUM OF DECISION
This action arises out of disagreements between the owners of adjacent properties over their rights with respect to several easements and a view restriction. The plaintiff's own and reside at 77 Nearwater Lane in Darien, Connecticut. The defendant owns and resides in an adjacent residence at 87 Nearwater Lane.
The defendant's lot is bounded on the west by the waters of Holly Pond, on the north by the property of Calby (whose address is 75 Nearwater Lane) on the east by the plaintiff's lot, and on the south by a driveway and property owned by the Judge family. The defendant's lot has no frontage on Nearwater Lane and enjoys vehicular and pedestrian access over the Judge driveway.
The Plaintiffs' lot is bounded on the east by Nearwater Lane, on the south by the Judge driveway, on the west by defendant's lot and on the north by the property of Calby. The plaintiffs' lot has no frontage on Holly Pond.
Appurtenant to the defendant's lot is a ten-foot wide utility easement running from Nearwater Lane along the southerly line of the plaintiff's lot to the defendant's lot (the "utility easement"). The defendant's lot is burdened by an easement appurtenant to plaintiff's lot. That easement is a right of way from the plaintiff's lot over the northerly portion of defendant's lot "for access to the waters of Holly Pond (the "access easement"). For most of its length the access easement is ten feet in width. At a point sixty feet from the mean high water line of Holly Pond it begins to broaden to the final width of twenty-five feet at the mean high water line.
A restriction benefiting the plaintiffs' lot and burdening defendant's lot protects the view of "the main body of Holly Pond" from "a point 5 feet above the elevation of the existing floor of the southwest bedroom of the dwelling" located on plaintiffs' lot (the view restriction). CT Page 11232-ii
ISSUES WITH RESPECT TO THE UTILITY EASEMENT
In the first count of their complaint, the plaintiffs claim that defendant's sewer line is located partially outside of the utility easement and trespasses on their property. In the second count they allege that the defendant's water line is also located partially outside the utility easement and constitutes a trespass. The plaintiffs demand an injunction requiring the defendant to remove his utilities from their property outside of the utility easement.
In his first special defense the defendant claims that, to the extent that his utility lines lay outside of the boundaries of the utility easement, he has the right, by virtue of a prescriptive easement, to maintain his utilities in such location. The defendant is, in effect, claiming the existence of separate easement burdening a portion of the plaintiffs' lot lying outside of the utility easement.
In a second special defense, the defendant claims that the utilities were installed in 1976 with the consent or acquiescence of the then owner of the plaintiffs' lot and that the location of the utility easement was thereby modified.
In his seventh counterclaim, the defendant alleges that the plaintiffs have restricted his right of access to the utilities within the utility easement by erecting fences and walls and have threatened interference with his rights by planting trees within the easement, by operating heavy earthmoving equipment over the easement and by proposing to erect a garage or other structures in the easement. The defendant demands a declaratory judgment regarding his rights to the utility easement. In his eighth counterclaim, the defendant demands an injunction prohibiting the plaintiffs from interfering with his rights under the utility easement. The plaintiffs have filed special defenses to these counterclaims claiming: 1) the applicable statute of limitations has run; 2) the defendant acquiesced in some of the plaintiffs' activities; 3) laches; and 4) unclean hands.
The plaintiffs concede the existence of the utility easement as set forth in the parties' deeds, but deny the easement has been relocated by agreement or that the defendant has acquired an easement by prescription. The court is therefore required to determine not only the rights of the parties with respect to the deeded utility easement, but also whether the utility easement has been modified and whether an easement by prescription has been created and, if so, the rights of the parties with respect to that easement. CT Page 11232-ij
ISSUES WITH RESPECT TO THE ACCESS EASEMENT
The plaintiffs and defendant disagree as to the extent of the plaintiffs' rights with respect to the access easement. In the third count of their complaint, the plaintiffs claim that they have the right to: 1) construct a walkway over marshland within the easement; 2) to install a dock in the waters of Holly Pond immediately to the west of the end of the access easement; 3) to pave the upland portion of the access easement; 4) to install electricity, lighting and a water line within the access easement; 5) to store boats, trailers, docks and dock ramps within the access easement; 6) to install a bench within the access easement; 7) to place chairs within the access easement; and 8) to maintain the easement by mowing, weeding, raking, watering and shoveling snow. The plaintiffs demand a declaratory judgment determining whether they may exercise each of these claimed rights.
In their fourth count the plaintiffs claim that the defendant and members of his family have interfered with the exercise of their rights under the access easement. The evidence produced at trial did not support that claim. Consequently, at the conclusion of the plaintiffs' case, the court granted the defendant's motion to dismiss the fourth count pursuant to Practice Book § 15-8.
In their fifth count the plaintiffs demand a declaratory judgment determining that they have the right to maintain a floating dock or mooring in the waters of Holly Pond adjacent to the end of the access easement. The sixth count of the complaint demands an injunction prohibiting the defendant from interfering with the plaintiffs' floating dock or mooring.
The plaintiff's seventh count demands an injunction requiring the defendant to remove a gate he constructed on his lot within the access easement. In their eighth count the plaintiffs allege that the defendant has threatened to construct a dock on his lot within or adjacent to the access easement. They claim that such a dock would interfere with their use of the access easement and demand an injunction prohibiting the defendant from constructing such a dock.
The defendant denies that the access easement provides the plaintiffs with any rights other than to pass over the easement to the waters of Holly Pond. In his first counterclaim he demands a declaratory judgment determining the rights of the parties with respect to the access easement. In his second counterclaim the defendant claims that the plaintiffs have overburdened the easement by threatening to erect CT Page 11232-ik improvements within the easement, by using the easement as a children's play area, by installing stepping stones and flower beds within the easement and by mowing, watering and landscaping the easement. The plaintiffs have filed special defenses to the first two counterclaims alleging that: 1) the statute of limitations has run with respect to the acts of the plaintiffs; 2) that the defendant had acquiesced in certain activities conducted by the plaintiffs within the easement; and 3) that the defendant had unclean hands.
In his third counterclaim the defendant claims that the plaintiffs have trespassed upon his property by installing and maintaining the floating dock or mooring within the area of Holly Pond subject to the defendant's littoral rights and by entering onto his property outside the area of the access easement. In his fourth counterclaim the defendant claims that the plaintiffs' floating dock or mooring constitutes a nuisance. He demands an injunction requiring the removal of the dock. The plaintiffs filed special defenses alleging that the dock was located in waters owned by the state of Connecticut, that the placement of the dock was a permissible use under the access easement, and that the statute of limitations had run.
In his fifth counterclaim the defendant claims that the plaintiffs have slandered his title by misrepresenting to the Town of Darien and the State of Connecticut that they enjoy littoral rights in Holly Pond and by filing a notice of lis pendens to be filed on the Darien Land Records in violation of General Statutes § 47-33j. He demands damages. As a special defense the plaintiffs allege that any communication with the Town or the State was privileged.
In the sixth counterclaim the defendant demands an injunction barring the plaintiffs from taking actions within the access easement and the waters of Holly Pond subject to the defendant's littoral rights which exceed the rights granted to them.
ISSUES WITH RESPECT TO THE VIEW RESTRICTION
The ninth count of plaintiffs' complaint requests a judgment declaring the rights of the parties with respect to the view restriction. The plaintiffs' residence is two stories tall. The master bedroom is situated in the southwest portion of the house on the second floor. The room immediately below the master bedroom is used as a bedroom. The plaintiffs claim that the view restriction protects the view from the first floor bedroom. The plaintiffs also claim the right to enter on to the defendant's property to "ensure compliance" with the view restriction. The tenth count of the plaintiffs' complaint requests an injunction CT Page 11232-il prohibiting the defendant from interfering with the plaintiffs' rights under the view restriction by expanding his residence, installing landscaping or placing structures within the area of his property covered by the view restriction. The plaintiffs further demand that the court order a revision of the parties' deeds to include a new description of the sight line as determined by a surveyor without reference to the existing dwelling on the plaintiffs' lot.
The defendant disagrees with the plaintiffs' assertions and claims that the view restriction protects only the view from the master bedroom on the second floor of plaintiffs' dwelling. He further disputes that the view restriction permits the plaintiffs to enter his property for any purpose.
BACKGROUND
The evidence presented by the parties establishes the following facts. Holly Pond is a body of salt water forming a part of Long Island Sound located between the City of Stamford and the Town of Darien. In the early part of the twentieth century a dam was erected across the outlet where the pond empties into the sound. The dam prevents the waters of the pond from completely draining into Long Island Sound at low tide. However, the dam does not inhibit the waters of Long Island Sound from entering the pond as the tide rises. Accordingly, the level of Holly Pond is still subject to tidal variations. At low tide the level of the water in the pond is two feet above the National Geodetic Vertical datum of 1929 (the standard reference elevation for the area). At mean high tide the level of the water is 4.2 feet above the same datum. Although the pond is shallow it is used for boating to some extent.
Holly Pond is irregularly shaped. The defendant's property is situated on a cove consisting of several lobes on the eastern shore of the pond. From the defendant's property main body of Holly Pond is visible through the channel connecting the cove to the main body and, to some extent, over the low lying land of the peninsulas forming the cove. Except as blocked by the defendant's residence and trees, the plaintiffs enjoy a similar (albeit, more distant) view of the main body of the pond from the area of their residence.
In front of the defendant's lot, the area of the foreshore is very gently sloped and its approximately eighty feet in width. That area is largely covered with tussocks of tidal marsh grasses and, although firm, is somewhat uneven in contour.
"Foreshore" is the portion of the shore between the high water mark and the low water mark. McCullough v. Waterfront Park Assn, Inc., 32 Conn.App. 746, 751, 630 A.2d 1372 (1993).
In 1972 Elizabeth Wall was owner of property then known as 77 Nearwater CT Page 11232-im Lane. The property then consisted of the residence now owned by plaintiff situated on a narrow lot approximately five hundred twenty-five feet long by eighty-two feet wide. The lot was bounded on the east by Nearwater Lane, on the south by property of Margaret Weed Gioseffi, on the west by the waters of Holly Pond, and on the north by property now owned by Calby. On June 27, 1972, Elizabeth Wall purchased the Gioseffi property taking title in her name and in the name of her attorney, David S. Maclay, as trustee. The Gioseffi property was also a narrow lot approximately five hundred eighty feet long by seventy-six feet wide. That lot was bounded on the east by Nearwater Lane, on the south by a private road and property now owed by Judge, on the west partially by the waters of Holly Pond and by other property and on the north by the property of Elizabeth Wall.
In 1974, through a series of quit claim deeds prepared by attorney Maclay, Elizabeth Wall and David S. Maclay, as trustee, transferred portions of the former Wall and Gioseffi properties among themselves. After the exchange of deeds Elizabeth Wall owned the lot now owned by the plaintiffs while Elizabeth Wall and David S. Maclay, trustee, owned the lot now owned by the defendant. These deeds created both the utility easement and the access easement.
"Together with an easement appurtenant to the Releasees' property for water, power, telephone, sewer and similar utilities, together with a right of access for maintenance and repair purposes, along the southerly 10 feet of the land shown as being the property of Elizabeth S. Wall on said map (Map No. 3915 in the Darien Land Records)."
"Reserving, however, an easement of way appurtenant to the property of the Releasor running along the northerly boundary of the demised premises 10 feet in width until it reaches a point 60 feet from the mean high water line of Holly Pond at which point it starts widening to a maximum width of 25 feet at said mean high water line, said easement being for access to the waters of Holly Pond, all as shown on said map CT Page 11232-jo (Map No. 3915 in the Darien Land Records)."
In late 1975, Elizabeth S. Wall and David S. Maclay, trustee sold the lot now owned by the defendant to Doris and Barton Proctor. The deed conveying the lot was prepared by attorney Maclay. It described the property as shown on Map No. 3915 recorded on the Darien Land Records. At that time Elizabeth S. Wall was still the sole owner of the lot presently owned by the plaintiffs. The warranty deed to Proctor included the utility easement as an appurtenance and noted that it was subject to the access easement. Map No. 3915 depicted the property now owned by the plaintiffs, the property now owned by the defendant, the location of the utility easement and the location of the access easement. The map also contained a notion showing that all of the defendant's property within one hundred feet of the mean high water line was a "Restricted Area (under Section 486.2 Darien Zoning Regulations)." The deed to the Proctors also contained the following reservation creating the view restriction:
Subject to the restriction that as viewed from a point 5 feet above the elevation of the existing floor of the southwest bedroom of the dwelling located on land of the grantors adjoining the above described premises, the view of the water of the main body of Holly Pond shall not be significantly obstructed by any vegetation or structure (other than an open wire CT Page 11232-in fence) at any point within an area 50 feet wide, running along the full length of the northerly boundary of said premise hereby conveyed.
The court notes that of the two grantors (Wall and Maclay) only Elizabeth S. Wall actually owned adjoining land This minor discrepancy does not obscure the obvious intention of the deed, at least with respect to the identification of the premises to be benefited by the view restriction.
The deed further recited that the property was conveyed "together with riparian and littoral rights in the land lying below the mean high water mark of Holly Pond." After this conveyance Elizabeth S. Wall retained no interest in any property bordering Holly Pond and possessed no riparian or littoral rights with respect to the waters of Holly Pond.
The Proctors erected a residence on their property and installed underground sewer, water and electric lines from Nearwater Lane to their property through the Wall property, a distance of approximately two hundred sixty feet. At Nearwater Lane the utility lines were located within the ten-foot wide deeded utility easement. However, approximately one hundred twenty feet from Nearwater Lane the route of the utility line left the easement and continued though the Wall property to the Proctors' property. At the property line, the route of the utility lines was approximately twenty-five feet north of the northerly boundary of the utility easement.
After installation of the Proctors' utility lines the presence of the lines was evidenced above the ground by four sewer cleanouts, one manhole, and an electrical box. The manhole, one of the cleanouts and the electrical box were located within the utility easement. One of the cleanouts was located in the Proctors' lot. Two of the cleanouts were located on the Wall property outside of the bounds of the utility easement. One of these cleanouts was within five feet of the northerly boundary of the easement and the other was ten to fifteen feet north of the easement boundary. Each of the cleanouts were vertical metal pipes six inches in diameter capped with covers and rising approximately eighteen inches to two feet above ground level.
At the time of the installation of the Proctor utilities, plans were filed in the Darien Building Department showing that the underground utilities were located partially outside the deeded utility easement.
In June 1977 Elizabeth S. Wall sold the lot now owned by the plaintiffs to Stephen G. Bayer II. The warranty deed to Bayer was not prepared by attorney Maclay. That deed included both the access easement and the view restriction as appurtenances and recited that the premises conveyed were subject to the utility easement. The deed also contained the following additional language: "together with riparian and littoral rights in the land lying below the mean high water mark of Holly Pond appurtenant to the premises." CT Page 11232-io
As noted above, at the time of the deed to Bayer, Wall no longer owed property adjoining Holly Pond. At trial the plaintiffs conceded that the riparian and littoral right clause of the deed from Wall to Bayer was ineffective to create deeded riparian or littoral rights. As discussed below, the plaintiffs assert that the access easement itself implies and grants such rights.
On November 12, 1985, the defendant purchased his property from the Proctors. His warranty deed reflected the existence of the two easements and the restriction at issue in this case. At the time the defendant purchased his property the entire neighborhood, including the plaintiffs' property and the defendant's property was heavily wooded. The access easement was no more than a pathway through those woods.
In 1998 and again in 2000, the defendant had water main problems and called his plumber, Kevin Ortega, to perform repairs within the utility easement. Ortega had no problem in 1998 in locating the utility lines because of the visible manhole cover, and the above ground electrical box and sewer cleanouts. However, in 2000 Ortega found that the plaintiffs had buried the electrical box and placed sod over the sewer cleanouts located on their lot.
On March 1, 1999 plaintiff Margaret Stefanoni purchased the Bayer property. In late February 2000, while the defendant was out of town, he received word from friends and neighbors regarding activities being performed by the plaintiffs. Without notice to their neighbors or obtaining the approvals required by the Darien Zoning Regulations, the plaintiffs undertook a massive clear cutting of the trees and vegetation on their property. In addition to their work on their own property, the contractors hired by the plaintiffs performed considerable cutting within the access easement, on other portions of the defendant's lot and on the neighboring Calby property. Although the plaintiffs deny that the cutting was done with the intention of improving their view of Holly Pond, the cutting had that result.
In April 2000 by means of quitclaim deeds through a "strawman" both plaintiffs became the record owners of the property.
The plaintiffs' activities took place within one thousand feet of the mean high water line of Holly Pond and consequently were in a regulated Costal Area Management Zone under the Darien Zoning Regulations. Those regulations require that prior approval from the Darien Planning and Zoning Commission be obtained for such activities within a Costal Area Management Zone. On February 25, 2000, David J. Keating, the Darien Zoning Enforcement Officer, wrote to Margaret Stefanoni calling her attention to violations of the Darien Zoning Regulations. In the same letter Keating demanded that steps be taken to prevent erosion and that restoration plan be presented to the Planning and Zoning Commission for approval.
Enforcement proceedings were subsequently brought by the Town of Darien. The defendant and the Calbys intervened as parties to those proceedings. In September 2000, those proceedings were settled by the parties. Under the terms of the settlement, the plaintiffs agreed, at CT Page 11232-ip their sole expense, to landscaping and planting on their property, the defendant's property and the neighboring Calby property in accordance with a plan approved by the Town, the Calbys and the defendant. The plaintiffs implemented that plan, including the installation of stepping stones within the access easement. Before the stepping stones were placed the defendant informed the plaintiffs that he no longer wished them installed and requested that the surface of the access easement be left alone. However, the plaintiffs installed the stepping stones.
In the spring of 2002, the Plaintiffs erected walls and fences surrounding their property, leaving a six-foot gap in their wall at the start of the access easement. The defendant protested that the plaintiffs' walls and fences infringed upon his right of access for maintenance of his utilities. Thereafter, the plaintiffs installed a gate in the fence on the southerly boundary of their property bordering the Judge driveway. That gate provides the defendant direct access to the utility easement from the right of way serving the defendant's residence. Although the installation of the gate resolved the defendant's immediate concerns, the plaintiffs have informed the defendant that they believe they have the right to plant trees, erect structures and place a driveway within the utility easement and, at their election, remove the gate or lock it.
At about the same time the defendant discussed with plaintiffs his plans to install a gate on his property line with the plaintiffs. He proposed to locate the gate in the area of the access easement opposite the gap which the plaintiffs left in their wall. The plaintiffs did not wish any gate installed. However, they agreed to the defendant's proposed gate when the defendant told them that, as an alternative, he would place a fence and wire gate across the easement a few feet from the property line. The gate which the defendant installed matches the design of the gate the plaintiffs themselves installed along the utility easement and is not kept locked. Both plaintiffs now claim to be highly offended and psychologically impacted by the presence of the gate. Each of them testified that the gate makes them feel "unwelcome." They also testified that, in the winter, snow drifts occasionally require the removal of snow from the access easement to permit the gate to swing open. In their complaint the plaintiffs pray that the court issue an injunction requiring the defendant to remove the gate.
In the early summer of 2002, the plaintiffs and the defendant made some efforts to put their differences aside and avoid future controversies. The plaintiffs had acquired a outboard motorboat and expressed a wish to install a permanent dock four and a half feet wide and forty feet long extending into Holly Pond from the defendant's property and to tie up CT Page 11232-iq their boat to the dock. The defendant agreed to the erection of such a dock and to sharing the cost and use of it with the plaintiffs on an equal basis. A draft joint application to the Darien harbor master was prepared by the plaintiffs and reviewed by the defendant and his attorney. Shortly prior to leaving on a trip to England, the defendant informed the plaintiffs that his attorney had advised him that he should be the sole legal owner of the dock since it was being erected on his land, but that such ownership would not effect the plaintiffs' use of the dock. The plaintiffs took this communication as a sign of bad faith on the defendant's part. Without informing the defendant of their intentions, the plaintiffs filed their own application with the Darien harbor master for a permit authorizing a floating dock. When the defendant returned from his trip in three weeks he found the plaintiffs' dock floating in the waters of Holly Pond in front of his property.
The application that the plaintiffs filed with the harbor master included an extract from a map prepared by the tax assessor of the Town of Darien. The lot lines on the map make it appear that the plaintiffs were the owners, in fee simple, of the access easement area and thereby owned littoral rights in the waters of Holly Pond in front of the easement area.
Over the next year, the defendant's attorneys and the plaintiffs exchanged correspondence with the Darien harbor master and an assistant attorney general of the state regarding the legitimacy of the plaintiffs' permit. On May 8, 2003, assistant attorney general, Paul K. Pernerewski, advised the harbor master that, in his opinion, the rights granted to plaintiffs in their deed entitled them to apply for and maintain their floating dock. That opinion, however, was based on the understanding that the plaintiffs were granted, in addition to the rights set forth in the access easement, deeded riparian and littoral rights. The plaintiffs have since acknowledged that no such deeded riparian or littoral rights exist. (See footnote 5, above.)
In connection with their proposed improvements in and adjacent to the access easement, the plaintiffs retained the services of Stanley Martin White, a professional engineer. White designed a ninety-six foot long walkway and dock that the plaintiffs propose to erect largely below the mean high water line at the end of the access easement. White testified that the walkway and dock would require pipe foundations to be sunk into the ground both within the access easement and below the mean high water line. The walkway and dock would be removed each fall and reinstalled each spring. White further testified that erection of the walkway and dock would require approval from the Connecticut Department of Environmental Protection and that if the plaintiffs obtained such a CT Page 11232-ir approval, it would be highly unlikely that the defendant would be able to obtain approval to erect his own dock within the area of his littoral rights.
At some point after 2000, the Calbys installed a fence running partially along the boundary between their property and the access easement. Below the end of the fence the Calbys installed stone markers approximately two to three feet in height marking their property line, one at the mean high water mark and the other about sixty feet to the east. The Calbys allegedly took these steps after the plaintiffs and their landscapers trespassed on the Calby property. After the Calbys placed their marker, the defendant placed a similar marker on his property a little over ten feet from the Calby's upland marker, intending to indicate the width of the access easement at that point. Thereafter the plaintiffs placed a marker at the mean high water mark approximately twenty-five feet from the Calby's property line, claiming to mark the width of the access easement at the mean high water mark.
In September 2003 the plaintiffs commenced this litigation against the defendant and filed a notice of lis pendens on the Darien Land Records pursuant to General Statutes § 52-325. The case was tried to court over four days from May 19, 2004 to May 25, 2004. Thereafter the parties submitted briefs.
THE UTILITY EASEMENT
The plaintiffs presented the testimony of Roy Carey, a licensed surveyor, who prepared a survey demonstrating that the water, sewer and electrical lines serving the defendant's residence are, in fact located partially outside of the ten-foot wide utility easement recited in the parties' deeds. The defendant does not dispute this evidence. The first issue to be resolved is whether such location of the utility lines constitutes a trespass. The defendant claims that he is entitled to maintain his utilities in their current location and advances two theories justifying his position. First, that the location of the easement was changed by the agreement of the parties' predecessors in title. Second, that because the utility lines have been in place for over fifteen years he has acquired a prescriptive easement to maintain them in their current location. In the seventh and eighth counts of his counterclaim the defendant claims a declaratory judgment with respect to his rights in the utility easement and a permanent injunction prohibiting the plaintiffs from any activity which might interfere with his utilities.
RELOCATION OF UTILITY EASEMENT CT Page 11232-is
At the time the utility lines serving the defendant's property were installed in 1976, Elizabeth Wall was the owner of the property presently owned by the plaintiffs. She also resided in the dwelling presently occupied by the plaintiffs. From these facts the defendant invites that the court to infer that Elizabeth Wall either consented to or acquiesced in a relocation of the utility easement to match the route of the utilities through the plaintiffs' property.
The defendant relies upon Stueck v. Murphy Co., 107 Conn. 656, 142 A. 301 (1928), in which the court found that a parole license for passage given in return for abandonment of a deeded easement was irrevocable. The effect of the court's judgment was to sanction the relocation of the easement. The defendant's reliance on Stueck, supra, is misplaced. The evidence does not show an express agreement between the Procters and Elizabeth Wall to partially relocate the utility easement or to substitute a license for the easement. The court cannot infer such an agreement from the mere fact that the utilities were installed outside the deeded easement and that Elizabeth Wall presumably had knowledge of such installation. Accordingly, the court finds the issues for the plaintiffs on the defendant's first special defense.
PRESCRIPTIVE UTILITY EASEMENT
The defendant's second special defense to the plaintiffs' complaints of trespass is the claim that the defendant acquired an easement by prescription over the plaintiffs' property lying between the deeded utility easement and the defendant's property. In Connecticut the statutory period for acquiring an easement by prescription is fifteen years. The Supreme Court, in a recent case, summarized the elements of an easement by prescription:
General Statutes General Statutes § 47-37 provides: "No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years."
this court repeatedly has explained that "[a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." A party claiming an easement by prescription must prove that the use "has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993); Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). The purpose of the open and visible requirement is to give "the owner of the servient land knowledge and full CT Page 11232-it opportunity to assert his own rights." Klein v. DeRosa, 137 Conn. 586, 588-89, 79 A.2d 773 (1951).
Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002).
In addressing the "open and visible requirement," the court in Waterbury, id. cited, with approval, the following commentary from the Restatement of Law:
The purpose of the requirement that the use be open or notorious is to give the owner of the servient estate ample opportunity to protect against the establishment of prescriptive rights. To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. "Open" generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. "Notorious" generally means that the use is actually known to the owner, or is widely known in the neighborhood. Although the terms are often stated conjunctively, the requirements are disjunctive. A use that is actually known to the owner satisfies the requirement even though it is not open. An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement.
1 Restatement (Third), Property, Servitudes § 2.17, comment h p. 273 (2000). That commentary continues:
Uses that are not visible or apparent are seldom open. Underground uses and slight intrusions on the surface, or above the ground, are not open unless a reasonably diligent landowner would become aware of them. However, if the installation of underground utilities is open and their location remains notorious, either because actually known to the owner or widely known in the community, the prescriptive period will continue to run even though evidence of the use is subsequently buried.
Id. CT Page 11232-iu
The court in Waterbury, supra, also cited, with approval, the discussion of prescriptive easements in the treatise, The Law of Easements and Licenses in Land by Professors Jon W. Bruce and James W. Ely, Jr. With respect to the proof required to establish a prescriptive easement those writers state:
The landowner need not have actual knowledge of adverse usage. Rather, the claimant must prove that the use was sufficiently open and notorious to apprise a diligent owner of its existence. In other words, the usage must be of such a nature as to charge the landowner with constructive notice.
J. Bruce J. Ely, Jr., Easements and Licenses in Land (2001) § 5:12, pp. 5-34, 5-35.
That same treatise addresses the issue of prescriptive easements where the use is concealed or underground:
Concealed or nighttime usage cannot serve as the basis of a prescriptive claim because it does not put the landowner on notice. The typical situation of this type involves an asserted easement in an underground sewer or pipeline. Courts frequently have determined that buried pipes and conduits are not sufficiently notorious to permit a prescriptive easement to arise. Yet even when the underground pipes or sewers are not apparent, courts have sometimes found other circumstances that would apprise a diligent owner of their existence. The presence of posts, signs, valve boxes, manhole covers, or other installations on the surface of the servient estate may give the landowner adequate notice of adverse use.
J. Bruce J. Ely, Jr., supra at 5-36 to 5-37.
This view is supported by other authorities:
. . . a concealed use or a use veiled in the secrecy of nighttime does not suffice, unless the potential servient owner has actual knowledge of the use. However, it is not necessary to prove that the potential servient owner, in fact, knew of the use CT Page 11232-iv made by the claimant. Such a requirement would unduly favor the absent or careless landowner. It is necessary only to show that the use was such that a reasonable person would have discovered its existence.
Powell on Real Property § 34.10[2][f] (2004).
The underground utilities serving the defendant's property have been located partially outside the utility easement since they were installed in 1976. The court concludes that the use of the underground utilities has been continuous, uninterrupted and made under a claim of right for more than the fifteen-year period required by General Statutes § 47-37. The question of whether the defendant has established his right to an easement by prescript depends upon whether the use was "open."
A prescriptive easement must be proved by a fair preponderance of the evidence. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983); Public Storage v. Eliot Street Ltd. Partnership, 20 Conn.App. 380, 385, 567 A.2d 389 (1989). "Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts after the nature and character of the use and the surrounding circumstances have been considered." Krohner v. Seyburt Associates Ltd. Partnership, 20 Conn.App. 298, 391, 566 A.2d 995 (1989), cert. denied, 213 Conn. 814, 589 A.2d 550 (1990). See Crandall v. Gould, 46 Conn.App. 164, 167-68 (1997).
The court finds the following relevant facts. From the time of their installation in 1978 until 2002 when the plaintiffs partially covered the manhole and some of the sewer cleanouts with sod, the location of the utilities serving the defendant's property was at all times evidenced by the existence of the manhole and five sewer cleanouts. These were clearly visible at the surface of the ground (in the case of manhole) or above the surface (in the case of the sewer cleanouts). The manhole and the sewer cleanouts were arranged in continuous line from Nearwater Lane to the defendant's residence. Two of the sewer cleanouts were on the plaintiffs' property outside of the utility easement and the fact the utilities serving the defendant's residence were located below those cleanouts was an obvious inference.
The existence of the utility easement was a matter of public record in the Darien Land Records; the plaintiffs and their predecessors in title were, as a matter of law, charged with knowledge of the existence of the easement and the fact that it included not only sewer lines, but, more broadly, "water, power, telephone, sewer and similar utilities." CT Page 11232-iw
That knowledge together with the matters readily visible on or above the ground, would lead any reasonable landowner to conclude that the route of the utilities serving the defendant's property were not situated entirely within the utility easement, but instead ran through the plaintiffs' property outside of the easement for approximately one hundred fifty feet. The court finds that these circumstances, standing alone, are sufficient to satisfy the requirement that the use be "open." Moreover, the court notes that a diligent landowner, having observed two of the sewer cleanouts on his property outside of the easement, would have made inquiries at the Building Department at the Darien Town Hall and determined from documents on file in that office that the utilities serving the defendant's property were, in fact located partially outside of the deeded utility easement.
The court finds that the defendant and his predecessors in title have used the utility lines in a portion of the plaintiffs' property outside of the deeded utility easement in an open, visible, continuous and uninterrupted use for more than the statutory fifteen-year period and that this use was made under a claim of right. Accordingly, the court concludes that the defendant has proven his second special defense to the plaintiffs' claims of trespass, as set forth in counts one and two of the complaint. The court further finds that the defendant has acquired a right of way for such utilities by prescriptive easement.
ACCESS TO AND OBSTRUCTION OF THE UTILITY EASEMENT
The defendant claims that the plaintiffs have threatened to plant trees and build structures within the utility easement and to erect walls and fences denying the defendant access to the utilities for maintenance and repair. On their part the plaintiffs claim the right to engage in all such activities within the ten-foot wide utility easement and to require that the defendant and his contractors seek their permission before entering on the easement.
In their analysis of the utility easement the plaintiffs overlook several important facts. First, the grant to defendant includes not only the right to place utilities within the easement but also an express "right of access for maintenance and repair purposes." The court finds that the plaintiffs cannot exclude the defendant and his contractors from the utility easement when they wish to enter for the purposes of maintenance or repairs. At present, only an unlocked gate on the southerly boundary of the plaintiffs separates the defendant from access to the utility easement. The court finds that this gate provides the defendant with adequate access to the deeded utility easement. The CT Page 11232-ix plaintiffs may change that access by moving the gate, if they wish, but they may not exclude the defendant from the utility easement by erecting walls or fences without gates or by locking the gate in a closed position.
Secondly, the plaintiffs assume, without justification, that the utilities within the deeded easement must be maintained underground. The grant set forth in the deed to defendant's predecessor in title does not require that the utilities be located underground. Consequently, the defendant has the right to erect telephone or power poles within the utility easement in order to bring electric or telephone service to his residence. The plaintiffs may not perform any activity within the deeded utility easement that unreasonably interferes with the defendant's actual or potential exercise of his rights under the deeded utility easement. The paving of a driveway or the planting of trees and shrubbery within the utility easement would not be unreasonable unless such activities were conducted in a fashion to interfere with either the defendant's existing utilities within the deeded utility easement or the potential use which the defendant might make of the utility easement. The erection of a small shed without a foundation might not unreasonably interfere with the defendant's utilities. On the other hand the erection of a substantial garage or barn within the boundaries of the easement would almost certainly constitute an impermissible interference with the defendant's rights.
The rights of the parties within the area of the utility easement which the defendant has acquired by prescription are slightly different. The existence of the prescriptive easement creates an implied right of reasonable access for maintenance and repair. Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987). The gate on the southerly boundary of the plaintiffs' property opening on the utility easement also provides the defendant adequate access to the area of the prescriptive utility easement. "It is well settled that when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it." Hawley v. McCabe, 117 Conn. 558, 560, 169 A. 192 (1933).
Accordingly, the court finds that while the defendant has the right to maintain all existing utilities and to install similar utilities underground, he has no right to install electric or telephone poles within the area of the prescriptive easement. The court has considered each of the plaintiffs' special defenses to the defendant's counterclaim with respect to the access easement and found them to be without merit. The defendant has demonstrated his right to declaratory judgment confirming his rights as to the deeded easement and the prescription CT Page 11232-iy easement. The defendant is also entitled to a permanent injunction enjoining the plaintiffs from interfering with the defendant's utilities or with his access to the utilities. However, that injunction will not preclude the plaintiffs from making reasonable use of those portions of their property burdened by the utility easements, provided that such use does not interfere with the defendant's utilities or his access to them.
THE ACCESS EASEMENT — GENERALLY
"[A]n easement creates a nonpossessory right to enter and use the land in possession of another and obligates the possessor not to interfere with the uses authorized by the easement . . . it generally authorizes limited uses of the burdened property for a particular purpose . . . easements are not ownership interests, but rather privileges to use land of another in certain manner for certain purpose." II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000) In the case of the access easement the purpose is clearly stated in the deed creating the easement — "for access to the waters of Holly Pond." The court is required to determine the manner is which the access easement may be used by the plaintiffs to accomplish the purposes of the easement.
"Generally, [T]he beneficiary of an easement [can] make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose." Abington Limited Partnership v. Heublein, 246 Conn. 815, 831, 717 A.2d 1232 (1998). "The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit . . . This is not to overlook, however, that [t]he owner of an easement has all rights incident or necessary to its proper enjoyment [although] nothing more." (Citations omitted; internal quotation marks omitted) Kuras v. Hope, supra.
THE ACCESS EASEMENT — USE OF LITTORAL AREA
The plaintiffs claim that the grant of the access easement implies a grant of riparian and littoral rights in the waters of Holly Pond at the end of the easement. They rely on Gage v. Carlson, 146 Conn. 288, 150 A.2d 302 (1959), in which the court decided that the owner of a deeded flowage easement allowing the flooding of the plaintiff's land to create a pond implied the right to use the waters of the pond within the boundaries of plaintiff's land for swimming, fishing and boating. The court noted language explicitly limiting the benefit of the flowage easement to the operation of a sawmill had been crossed out of the deed by the grantor and found that the flowage easement was stated in general terms and was unlimited as to time or purpose. Id. 298. The court was CT Page 11232-jz careful to limit the case to its particular facts. "That is as far as it is necessary for us to go in this case. We need not determine, nor do we, what, if any, rights of boating, swimming or fishing would pass under some other easement of flowage, differently worded or executed under different circumstances." Id.
The plaintiffs also rely on Ezikovich v. Linden, 30 Conn.App. 1, 618 A.2d 570 (1993), in which the court upheld a finding that an easement permitting the use of a portion of a neighbor's waterfront property "for general boating purposes" allowed the holder of the easement to exercise riparian rights and construct a floating dock and a walkway to it, but did not allow the construction of a boat rack within the easement area.
The plaintiffs also claim that their position is supported by Toms v. Settipane, 30 Conn.Sup. 374, 317 A.2d 467 (1973). In that case, the plaintiffs' predecessor in title originally owned a parcel of beach front property, a portion of which he subsequently conveyed to the defendant's predecessors in title, "together with a right-of-way over a footpath to the beach . . ." Id., 376. The defendant's property otherwise had no access to the beach. The footpath was approximately eighteen inches wide. Id., 379. The area of the beach, to which the footpath led and of which the defendants sought use, was owned by the plaintiff. The trial court concluded that, based upon the easement granting a right-of-way over the footpath, the defendants had an easement by implication that gave them the right to use the entire area of the plaintiff's beach. Id., 382.
The court concludes that the plaintiffs' reliance on these cases is misplaced. In contrast to Gage, supra, the plaintiffs' easement does not allow for the use of the defendant's property to create the body of water at issue. The plaintiff's easement is a right-of-way allowing only passage over the defendant's upland property. That right-of-way is limited to "access to the waters of Holly Pond." There is no broadly worded grant "for general boating purposes" as was the case in Ezikovich, supra. In Toms, supra, the court found that an easement allowing access to a beach implied the right to use the plaintiff's beach when the defendant had no other beach rights. The evidence in this case shows that at all relevant times there was no beach on any portion of the defendant's property. The margins of Holly Pond consist of mud and marsh grasses, not sand The plaintiffs' access easement does not state that the plaintiffs have the right of access to the "beach," the "shore" or the "waterfront." The easement allows only "access to the waters of Holly Pond."
The court finds that the plaintiffs have the right, along with other members of the general public to the use of Holly Pond below the mean CT Page 11232-ja high water line. The plaintiffs' right to cross the defendant's property to obtain access to the waters of the pond does not imply any further rights to participate in the exercise of defendant's littoral rights.
The plaintiffs claim the benefit of the rule of construction that, ambiguous language in an instrument creating an easement in a case of reasonable doubt will be construed in favor of the grantee rather than in favor of the grantor. Sweeney v. Landers, Frary Clark, 80 Conn. 575, 579, 69 A. 566 (1908). "Ambiguous language in a grant is ordinarily construed against the grantor and in favor of the grantee." Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 514 (1971). In making this claim the plaintiffs overlook the fact that the easement was created by a reservation in a deed executed by Elizabeth Wood, their predecessor in title, as grantor. In any event, the court finds no ambiguity in the portion of the deed creating the access easement.
As noted above, the grantees were Elizabeth Wood and David S. Maclay, trustee.
The rules for construing and interpreting the language of an express easement are well established. "The meaning and effect of the reservation are, to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in light of the surrounding circumstances." Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982).
The language of the easement and the surrounding circumstances do not imply rights more extensive than those actually granted under terms of the access easement. Under the laws of this state the owner of land abutting the water owns to the mean high watermark and the public, i.e., the state, owns the property between the high and low watermarks on navigable water where the tide ebbs and flows. Rochester v. Barney, 117 Conn. 462, 468-69, 169 A.2d 45 (1933). The owners of upland adjoining the water have the exclusive, yet qualified, right and privilege to dig channels and wharf out from the owner's land in a manner that does not interfere with free navigation. Water Street Associates Ltd. Partnership v. Innopak Plastics, 230 Conn. 764, 769, 646 A.2d 790 (1994). Any exercise of claimed littoral rights by the plaintiffs would necessarily be derogation of the defendant's otherwise exclusive rights. The court cannot infer that the language of the access easement evidences an intent to convey anything more than the right to pass over the area of the easement to reach the waters of Holly Pond.
In McCullough v. Waterfront Park Assn, Inc., 32 Conn.App. 746, 630 A.2d 1372 (1993), the court found that the defendants had acquired a prescriptive easement over land owed by the plaintiff. The court reversed a finding of the trial court holding that the defendants were allowed to exercise littoral rights with respect to the easement. The court stated: CT Page 11232-jb "We conclude, therefore, that the placement of the docks off the plaintiff's property is an unreasonable increase in the scope of the easement acquired by the defendants and that the placement of the docks significantly burdens the plaintiff's use of the water bordering her property, thereby interfering with her littoral rights." Id. 758.
The court finds that under the access easement the plaintiffs have a right of way across a delineated portion of the defendant's property to reach the waters of Holly Pond, and nothing more. Upon reaching the waters of Holly Pond, the plaintiffs have the same rights as any member of the public to use the waters of the Holly Pond for any lawful purpose, including swimming, fishing, boating and skating. The plaintiffs' right of access for such purposes implies the right to use the access easement to transport equipment related to such activities, including boats, fishing gear, etc., to Holly Pond, but not to store such equipment on the defendant's property.
The court does not encourage the plaintiffs, their children or any person, for that matter, to risk the dangers of skating on frozen salt water. The instability of salt ice is so well known as to be a matter of judicial notice.
In their pleading, both parties have petitioned the court to determine all their respective rights with respect to the access easement. The court has found that the grant of the access easement did not expressly or implicitly grant to the plaintiffs' property any of the littoral rights appurtenant to defendant's property. Nevertheless, the court finds that the access easement does create an implied restriction on the defendant's exercise of his littoral rights. The defendant may not exercise his littoral rights in a manner that unreasonably interferes with the stated purpose of the access easement — "access to the waters of Holly Pond." The defendant is free to exercise his littoral rights, without restriction, in waters of Holly Pond below the portion of his property not burdened by the access easement. Any such exercise may well have the effect of diminishing the portion of Holly Pond available to the plaintiffs and members of the general public for boating, swimming, and other water-related activities. Such effects are the normal consequences of the exercise of littoral rights. In the littoral area below the access easement, the defendant's littoral rights are limited only to the extent that he cannot, for example, erect a dock or pier of such size or shape as to unreasonably interfere with the plaintiffs' right of access to the waters of Holly Pond. The court finds that the plaintiffs have not demonstrated that the defendant has evidenced any intention to exercise his littoral rights in a manner which would interfere with the plaintiffs' access to Holly Pond. Accordingly, the court concludes that the plaintiffs have not shown that an injunction is necessary to protect their legitimate rights with respect to the access easement.
In view of the court's conclusion that the access easement does not afford the plaintiffs littoral rights, it follows that the plaintiffs may CT Page 11232-jc not erect a "walkway and dock" within the area of the defendant's exclusive littoral rights as they propose. The status of the existing floating dock or mooring is another matter.
The placement of the floating dock in Holly Pond did not require the exercise of the littoral right to "wharf out." The dock is not attached to shore in any way. It is secured in its location by anchors located below the mean high water line. The floating dock was placed in the water pursuant to a permit issued by the Darien Harbor Master. The evidence shows that the Harbor Master and Paul K. Pernereswski, the Assistant Attorney General who advised him, were under the mistaken belief that the plaintiffs' deed entitled them to riparian and littoral rights in Holly Pond. It is unlikely the permit would have been issued to the plaintiffs as members of the general public. It is clear that the erroneous determination that the plaintiffs owned riparian and littoral rights was essential to the issuance of the permit. However, until that permit is revoked, cancelled or a renewal of it is denied, the plaintiffs appear to have a right to maintain their floating dock in accordance with the terms of the permit.
In his third counterclaim, the defendant claims damages for the alleged trespass of the floating dock and for the plaintiffs' trespass on the upland portion of his property outside of the access easement. In his fourth counterclaim, the defendant claims that the floating dock constitutes a nuisance. The defendant presented no evidence to show that the floating dock actually interferes with the exercise of his littoral rights, either by physically interfering with the placement of a dock or pier or by preempting the defendant's right to obtain a permit from the requisite authorities. "Although riparian rights are in fact property; rather than simply rights that constitute elements of ownership; they are so limited by superior public rights that they are often referred to as a mere franchise." Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 597, 587 A.2d 126 (1991) (internal quotes and citations omitted). The court can not find that the plaintiffs' floating dock located in public waters pursuant to a presumptively valid permit constitutes a trespass or a nuisance at this time. Should the defendant find that the presence of the floating dock precludes or interferes with the exercise of his littoral rights, he may pursue his remedies at that time.
The plaintiffs' application in their fifth count for a declaratory judgment confirming their right to maintain the floating dock and their application in their sixth count for an injunction prohibiting the defendant from interfering with that dock are denied. The defendant is free to seek revocation of the plaintiffs' permit for their floating CT Page 11232-jd dock. On the defendant's third counterclaim, to the extent that it alleges that the dock constitutes a trespass, and the fourth counterclaim alleging that the dock is a nuisance, the court finds the issues for the plaintiff.
The court finds that on his third counterclaim the defendant has met his burden of proof with respect to the plaintiffs' trespass on the upland portion of his property outside the easement. In their special defense to the third counterclaim, the plaintiffs correctly point out that the defendant may not recover damages for the cutting of trees in February 2000. The statute of limitations had expired nearly prior to the filing of the counterclaim.
The defendant did, however, produce evidence of other trespasses committed by the plaintiffs that are not barred by the statute of limitations. These trespasses included the placement of a stone monument on the defendant's property and the evidence that the plaintiffs and members of their family have not restricted their pedestrian use of the defendant's property to the access easement. However, the defendant presented no evidence of damages arising from these trespasses. In such cases the court is required to award no more than nominal damages. McManus v. Roggi, 78 Conn.App. 258, 826 A.2d 1275 (2003). Accordingly, the court finds for the defendant on the third counterclaim and awards damages to the defendant in the amount of ten dollars.
In this state the right of the party to injunctive relief is not affected by his failure to proof damages. McGibney v. Waucoma Yacht Club, Inc., 149 Conn. 560, 182 A.2d 622 (1962); Sisters of St. Joseph Corporation v. Atlas Sand, Gravel Stone Co., 120 Conn. 168, 180 A. 303 (1935). The court finds that the defendant is entitled to an injunction on his third counterclaim prohibiting the plaintiffs from trespassing on his property outside of the area of the access easement.
THE ACCESS EASEMENT — AREA AND USE
The boundaries of the eastern portion of the access easement are well defined. The easement is ten feet wide until it reaches a point sixty feet from the mean high water line of Holly Pond. At that point the easement widens "to a maximum width of 25 feet at said mean high water line . . . as shown on said map (Map No. 3915 in the Darien Land Records)."
The purpose of the access easement is clearly described in the deed creating the easement: "said easement being for access to the waters of Holly Pond." With respect to the uses permitted within the access CT Page 11232-je easement, the court considered the testimony of the plaintiffs that the area immediately above the mean high water line was uneven, covered with tussocks of marsh grass. There is no beach either above or below the high water line. The court also considered the fact that the easement was shaped to provide a twenty-five foot width at the water line.
Five years prior to the creation of the access easement in 1974 Connecticut enacted Public Act 69-695 designed to protect and preserve tidal wetlands. Section 2 of that act, declared it to be the "public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." Other sections of that act implemented that public policy by defining the term "wetland"; requiring that an inventory of all tidal wetlands be made; and regulating certain activities within tidal wetlands. It appears that most of the access easement within sixty feet of the mean high water line lies with a tidal wetland
"Wetland" means those areas which border on or lie beneath tidal waters, such as, but not limited to banks, bogs, salt marsh, swamps, meadows, flats, or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters, and whose surface is at or below an elevation of one foot above local extreme high water; and upon which may grow or be capable of growing some, but not necessarily all, of the following: Salt meadow grass . . ." currently General Statutes § 22a-29(2).
The court believes it is reasonable to infer that the additional width below the point sixty feet from the mean high water line was included in the access easement to provide alternative routes for travel from the upland area of the easement to the waters of Holly Pond without the need to unnecessarily disturb the tidal wetlands or to conduct a regulated activity therein.
Against this background, the court finds that the width of the access easement alone does not imply that the plaintiffs have any rights to use the access easement for any purpose other than to traverse the portion of the defendant's property burdened by the easement to reach the waters of Holly Pond.
The court is satisfied that the defendant has met his burden of proof with respect to the plaintiffs' proposed uses of the access easement and is therefore entitled to the permanent injunction he seeks against certain of the plaintiffs' intended actions within the access easement including the storage of boats, trailers, docks or dock ramps; the installation of lighting, water, electricity or other utilities; the installation of benches or other furniture; and the temporary placement of portable chairs or other furniture.
THE ACCESS EASEMENT — IMPROVEMENTS AND MAINTENANCE
The plaintiffs wish to pave the existing path within the access easement and to erect a metal walkway over the tidal wetlands. The defendant argues that no such improvements are permissible and demands that the plaintiff remove the stepping stones that were placed in the CT Page 11232-jf access easement by the plaintiffs following the settlement of the zoning enforcement action instituted by the Town of Darien.
Ordinarily, the owner of an easement has the right to make reasonable improvements to the easement related to its intended purpose. The question of what constitutes reasonable use of an easement is a question of interpretation of the particular language used to create the right-of-way. Hall v. Altomari, 18 Conn.App. 387, 391, 562 A.2d 574 (1989). In Strollo v. Iannantuoni, 53 Conn.App. 658, 660, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999) the court stated that "[t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." The treatises on the subject reflect similar views. "The right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both." 2 Thompson, Real Property (1980 Replacement) 427.
The court finds that paving or otherwise improving the surface of the path within the access easement would not be an unreasonable exercise of the plaintiffs' rights. Any such improvement would need to be made in such a manner to avoid any impact on the portion of the defendant's property not burdened by the easement and to minimize the impact on the portion of the defendant's property within the access easement. In improving the surface of the easement, the plaintiffs must obtain all necessary permits required by governmental authority and comply with all applicable regulations.
The plans for the metal walkway presented by the plaintiffs involve the placement of footings both above and below the mean high water line. The walkway would consist of nine ten-foot sections ending at a six-foot wide platform. Each of these ten-foot sections would have upright aluminum pipes connected with rope handrails. Although described as a "walkway" the structure would, in fact, be a pier. The total length of the structure would be ninety-six feet. The court finds that the "walkway" would not, as alleged in the plaintiffs' complaint, be constructed "over the marshland of the easement." Only the first twenty feet would be located within the access easement. The remaining seventy-six feet would be below the mean high water line within the area of the defendant's littoral rights. Because the court has determined that the plaintiffs may not exercise the defendant's littoral rights, the structure, as proposed, is not a permissible improvement within the access easement.
The right to improve the surface of the easement by paving or other resurfacing does not allow the plaintiffs to plant a garden within the CT Page 11232-jg easement or to erect stone monuments marking the boundary of the easement. Davila v. Bump, 37 Conn.L.Rptr. No. 2, 51, 52 (2004). The evidence shows that some of the planting conducted by the plaintiffs within the access easement was done in connection with the settlement of the zoning enforcement action brought by the Town of Darien. The defendant acquiesced in these plantings and cannot claim damages as a result. However, no evidence was presented that the defendant was under any obligation to allow the plaintiffs to continue to maintain such plantings.
The defendant has also complained of the plaintiffs' activities of mowing, raking, weeding, watering and shoveling snow within the access easement and of using the access easement as a children's play area. Activities within the access easement are permissible only to the extent that they are reasonably related to maintaining the easement for actual access to Holly Pond. For example, if weeds grow to such a height that they hinder the use of the easement, they plaintiffs may mow or cut them, provided that such activities are permitted under applicable environment regulations. Similarly, snow may be removed to clear the access easement, but not deposited on the defendant's property. The plaintiffs do not have the right to water, seed, mow or otherwise maintain the easement merely to make the area more attractive to them or to make it appear to be part of their own property. Any maintenance activities must be reasonably related to the exercise of the plaintiffs' rights of access permitted under the easement. The use of the access easement as a children's play area is not such an activity.
The plaintiffs are entitled to a declaratory judgment in accordance with this opinion confirming the limited extent of the activities they are entitled to conduct within the access easement. The defendant is entitled to a permanent injunction prohibiting the plaintiffs from making improvements and conducting activities within the access easement in excess of their rights as set forth in this opinion.
THE ACCESS EASEMENT — OBSTRUCTION
The plaintiffs complain that the defendant has obstructed the access easement by placing an unlocked gate on his property within the easement. The plaintiffs complain that the existence of the gate makes them feel "unwelcome" to make use of the access easement. The evidence established that the plaintiffs' family includes several very young children. The defendant claims that the installation of the gate was proper to preserve his family's privacy and does not constitute an unreasonable burden on the plaintiffs' exercise of the access easement. The gate is also desirable because of the presence of a swimming pool on CT Page 11232-jh the defendant's property as well as the shore of Holly Pond. A latched but unlocked gate could prevent an injury to an unattended child.
The court concludes that under the above factual circumstances the defendant's installation of an unlocked gate is a reasonable use of his servient estate. This conclusion is consistent with the recent Superior Court case of Orchard Place Associates v. Briggs, No. CV01 0182302 2002 Ct.Sup. 2554-q, 31 Conn.L.Rptr. 465 (Feb. 22, 2002, Adams, J.). In that case the court approved of a locked gate provided the owner of the dominant tenement was provided with a key. The court found no Connecticut authority directly on point and founded its decision on Restatement Third Property (Servitudes), §§ 4.9 which states:
. . . the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.
The court noted that the comments and illustrations to that section contemplate the balancing of the interest of the parties. In particular the court noted that Illustration 4 provides the example of a landowner using a gate across a right of way to combat vandalism, but providing the right of way holder with a key to the gate is approved since the inconvenience to the right of way holder is not unreasonable.
The court finds that the unlocked gate installed by the defendant does not constitute an unreasonable obstruction of the access easement. The court finds the issues on the plaintiffs' seventh count for the defendant. The defendant is entitled to a declaratory judgment determining the parties' rights with respect to the access easement in accordance with this opinion.
THE VIEW RESTRICTION — VIEW PROTECTED
The evidence established that the fenestration on western side of the plaintiffs' residence has not changed since the view restriction was created by Elizabeth S. Wall in 1975. The windows on the first floor are small double hung windows. The second floor features two sizable picture windows, the larger of which is situated in the southwest corner of the residence.
The description of the location of the view protected by the restriction, "a point 5 feet above the elevation of the existing floor of the southwest bedroom of the dwelling located on land of the grantors," is not patently ambiguous. The plaintiffs testified that the large CT Page 11232-ji picture window on the southwest corner of the second floor belonged to the master bedroom. However, the plaintiffs further testified that the room on the first floor directly below the master bedroom was also used as bedroom. This testimony demonstrated a latent ambiguity in the wording of the view restriction. Where there is a latent ambiguity in a deed, the question is one of fact for the trial court. Christen v. Ruppe, 131 Conn. 149, 151, 38 A.2d 439 (1944) "The court may also consider the surrounding circumstances at the time of the conveyance, and the situation of the parties at that time." Lake Garda Improvement Assn. v. Battistoni, supra at 513.
The plaintiffs presented photographs taken through the widows of both the second floor master bedroom in their home and the bedroom on the first floor immediately below it. From the low elevation of the first floor there is not a significant view of the main body of Holly Pond; the ground and low lying shrubbery impinge upon views of the water. The master bedroom enjoys a much more significant view of the pond and, in particular, its main body through the large picture window.
Retired attorney, David S. Maclay, was called as a witness by the defendant. He testified that he was Elizabeth S. Wall's attorney in the 1970s. He prepared the deed creating the view restriction. He was thoroughly familiar with the Wall residence and the layout of its rooms. He testified that the only view that Elizabeth S. Wall was concerned about was the one through the picture window in her second floor master bedroom. The room below the master bedroom was not used as bedroom in 1975 but as a "junk room" or storage room. The plaintiffs attacked Maclay's credibility both on the basis of prior inconsistent statements, which he denied and they did not establish by evidence, and, sadly, on the basis of his advanced years. The court found Maclay's testimony to be entirely credible and consistent.
Even if Maclay's testimony had been unavailable, the physical evidence alone (the relative size of the windows in the two rooms and the significance of the respective views of the main body of Holly Pond from each of the subject windows) was more than sufficient to resolve any ambiguity in the view restriction. The language of the view restriction provides that protected view "shall not be significantly obstructed by any vegetation or structure." The view restriction does not protect the plaintiffs' view of any portions of Holly Pond other than the main body of the pond. The court concludes that the view protected by the view restriction is the one of the main body of Holly Pond from a point five feet above the floor of the master bedroom on the second floor of plaintiffs' residence. CT Page 11232-jj
The evidence produced at trial did not establish that an injunction was required to preserve the plaintiffs' rights under the view restriction. Accordingly, the plaintiffs' application for injunctive relief is denied.
THE VIEW RESTRICTION — RIGHT TO ENTER DEFENDANT'S PROPERTY
The plaintiffs claim that they have the right to enter the defendant's property to remove any vegetation or structures which obstructs their view. To determine whether they are correct the court must examine the nature of the view restriction. Both the utility easement and the access easement allow the owner of the dominant tenement to make use of the land of the servient tenement. They are by their wording and effect affirmative easements. 1 Restatement (Third), Property, Servitudes § 1.2 Comment b. (2000). In contrast, the view restriction is not an easement at all. It is merely a restriction on the ability of the defendant to use property in his possession in certain ways.
In claiming a right to enter the defendant's property the plaintiffs place great reliance on the recent case of Schwartz v. Murphy, 74 Conn.App. 286 (2002), in which the Appellate Court upheld the trial court's ruling finding that a view restriction existed, but reversing the court's determination that the defendants had the obligation to trim hedges and trees to preserve the view protected by the easement. The court found that the language of the easement did not impose any duties upon the defendants to maintain the easement. Instead the court found that the plaintiff had the right to trim the hedge and prune the trees on the defendant's property so long as he could do so without causing unreasonable harm to the existing hedge and tree.
In Schwartz, supra, the parties disagreed at the trial court and on appeal as to whether a view easement, in fact, existed. They also disagreed as to consequences should such an easement be found to exist. However, all parties and the trial court were in agreement that if a servitude existed it was an easement and not a restriction. On his part, the plaintiff, the owner of the dominant tenement, claimed that the easement required the defendants to trim foliage at their own expense to preserve the plaintiff's view. The defendants claimed that the plaintiff had the obligation to trim the foliage at his own expense. The Appellate Court agreed that an easement existed and in addressing the respective rights of the parties cited 1 Restatement (Third), Property, Servitudes § 4.13 in support of its conclusion that the defendants, the owners of the servient tenement, had no duty of "maintaining the easement so that it can perform its intended function . . ." Accordingly, the Appellate Court dissolved the injunction issued by the trial court requiring the CT Page 11232-jk defendants to trim the foliage, and remanded the case for the trial court "to determine the respective rights and obligations of the parties with respect to the maintenance of the view easement in accordance with this opinion." Id. at 298. In a footnote the Appellate Court indicated that it believed the easement entitled the plaintiff to trim the foliage on the defendant's property if he could do so without causing necessary harm to the defendant's hedge and tree. The court cited Gage v. Carlson, supra, a case involving an easement entitling the plaintiff to the use of a pond on the plaintiffs' property. The finding that an easement, as opposed to a restriction, existed was clearly essential to both the trial court's and the Appellate Court's findings in Schwartz.
In this case, the document creating the view restriction does not describe it as an easement — it is clearly labeled a "restriction." The court can not find that it was intended by the parties creating the view restriction that the owners of the dominant tenement would have the right to enter upon the servient tenement to trim or remove vegetation or to remove structures obstructing the protected view. The testimony of Attorney Maclay established that, at the time of the creation of the view restriction, the properties of the plaintiffs and the defendant were heavily wooded. This testimony was confirmed by photographic evidence offered by the defendant showing that view of Holly Pond from the window of the second floor master bedroom was not a clear and unobstructed one. In creating the view restriction for her own benefit it cannot be supposed that Elizabeth Wall intended that the view to be protected be anything other than the view she enjoyed at the time of the reservation in the deed to Proctor. The language of the restriction clearly recognizes that plaintiffs' right to a view is not absolute. Structures and vegetation on the portion of the defendant's property affected by the easement are not forbidden, nor are they required to avoid every impact on the plaintiffs' view. The view restriction only requires that "the view of the water of the main body of Holly Pond shall not be significantly obstructed by any vegetation or structure . . ." (Emphasis supplied.) The court finds this background to be compelling evidence that the parties to the deed did not intend that the view restriction be enforced by unilateral action of the owner of the dominant tenement upon another's land
Accordingly, the court finds that the plaintiffs do not have the right to enter upon the defendant's property to remove any structures or vegetation which encroach upon their protected view. If in the event of such encroachment, communications with the defendant are unavailing, the plaintiffs' remedy is to commence a civil action seeking appropriate orders from the court to enforce the restriction. The plaintiff's application for injunctive relief as set forth in the tenth count of their CT Page 11232-jl complaint is denied.
THE VIEW RESTRICTION — PERMANENCY
The parties disagree as to whether the view restriction would survive a relocation of the plaintiffs' residence or significant redesign of the existing residence. The plaintiffs claim that the restriction would survive virtually any changes they might wish to make. On his part the defendant claims that the only view protected is that from a particular window in the existing residence. He claims that any changes to the residence which alters that window in any way would constitute the abandonment of the view restriction.
The view restriction constitutes a servitude. The general rule regarding the effect of changed circumstances on servitudes is set forth in the 1 Restatement (Third), Property, Servitudes § 7.10:
(1) When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, the court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude . .
There was not evidence produced at trial as to any plans to relocate, alter or rebuild the plaintiffs' residence. If the plaintiffs were to remodel their residence and make a small shift in the size or location of the view from the bedroom on the southeast corner of the second floor it is probable that the view restriction would remain in effect. In such an event the restriction would be enforced so as not to increase the burden on the defendant's property. On the other hand, if the plaintiffs were to demolish their present residence and construct a new one on a different part of their property, the view restriction might well become inoperative. In the absence of any evidence as to the changes the plaintiffs might make in the residence, the court is left to speculate as to whether any particular plan might have the effect of rendering the view restriction inoperative. The court declines the parties' invitation to rule on an issue which is, at this point, moot.
THE VIEW RESTRICTION — MODIFICATION
In their prayers for relief the plaintiffs request a judgment modifying the parties' deeds to include a new description of the view restriction based on a survey information rather than the current reference to the CT Page 11232-jm existing residence. This request is not justified. The particular view restriction at issue does not exist without reference to a location from which the view is to be made. As noted above, if that location is so altered that it no longer exists, the servitude would be terminated. The effect of the plaintiffs' request would be to improperly increase the burden of the view restriction on the defendant's property. The request is accordingly denied. A declaratory judgment may enter declaring the rights of the parties with respect to the view restriction in accordance with this opinion.
SLANDER OF TITLE
In the fifth count of his counterclaim, the defendant claims that in connection with their application to obtain a permit for their floating dock, the plaintiffs misrepresented to the Town of Darien and the State of Connecticut that they enjoyed littoral rights in the defendant's property. The defendant claims that this misrepresentation of property rights constitutes slander of title. In addition, the defendant claims that the plaintiffs improperly filed a lis pendens against the defendant's property in violation of General Statutes § 47-33j. The court has decided that the plaintiffs do not, in fact, have any littoral rights in the waters of Holly Pond adjacent to the defendant's property. It is clear therefore that statements to the contrary that they made in their applications for a dock permit were not accurate. Whether these statements can form a basis for a claim of slander of title and an award of damages is another matter.
"No person may use the privilege of recording notices under sections 47-33f and 47-33g for the purpose of slandering the title to land In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, CT Page 11232-jp including such attorneys fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded."
"A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." Elm Street Builders v. Enterprise Park Condominium, 63 Conn.App. 657, 669, 778 A.2d 237 (2001).
The defendant presented considerable evidence as to the plaintiffs' behavior including substantial and insubstantial trespasses on his property and less than forthright actions with respect to the application for approval of the dock. None of this evidence establishes actual malice on the part of either plaintiff. Similarly, while evidence was presented as to the recording of a lis pendens, the record does not establish that plaintiffs' only purpose was to slander the defendant's title. Accordingly, the court finds that the defendant has failed to establish either a common-law action for slander of title or a statutory one under CT Page 11232-jn General Statutes § 47-33j. The court finds that issues on the defendant's fifth counterclaim in favor of the plaintiffs.
SPECIAL DEFENSES
The plaintiffs pled special defenses of unclean hands and laches in answer to several of the defendant's various counterclaims. No evidence was presented to support these special defenses. Moreover, the plaintiffs did not pursue these defenses in their post-trial brief. Accordingly, the court finds that the plaintiffs have failed to meet their burden of proof with respect to these defenses.
ATTORNEYS FEES
In each of his counterclaims the defendant included in his prayers for relief demands for the award of attorneys fees. Only the cause of action in the fifth counterclaim for statutory slander of title under General Statutes § 47-33j provided a basis for the award of attorneys fees. As noted above the defendant did not prevail on that counterclaim. In addition, the defendant failed to offer evidence as the amount of his attorneys fees or their reasonableness. Such evidence must be offered at the time of trial if an award of attorneys fees is to be made. Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004).
Judgment may enter in accordance with the foregoing opinion without costs to either party.
David R. Tobin, Judge.