Opinion
No. CV 02-0068751
August 27, 2004
MEMORANDUM OF DECISION
This case involves a dispute between the owners of adjacent properties concerning their respective rights to a well or easement.
The plaintiffs filed an application for temporary injunction with the court on August 26, 2002, together with a complaint, seeking a permanent injunction enjoining the defendant from interfering with the plaintiffs' access to a certain well on the defendant's property which the plaintiffs claim they were entitled to use by reason of an easement. On September 12, 2002, after hearing, the court granted the request for a temporary injunction, ordering the plaintiffs and the defendant to allow each other unfettered access to the well and also ordering the defendant to pay one-half of any costs of the maintenance of the well. (Cosgrove, J.) On January 2, 2003, the defendant filed a counterclaim seeking a judgment to determine the rights of the parties in or to the land and quieting title thereto.
On December 20, 2002, the plaintiffs also filed a small claims action seeking expenses for digging of the well and damage to the well pump. On motion by the defendant, the matter was transferred to the docket of the Superior Court. (Foley, J.)
A trial was held on the permanent injunction and quiet title on May 5, 2004. On May 19, 2004, the plaintiffs filed a motion to consolidate the small claims action with the injunction action. The court granted the motion to consolidate by agreement of the parties, since the evidence that would have been presented in connection with the small claims action had been presented in the injunction hearing.
The court finds the following facts.
The plaintiffs are the owners of a certain piece of land known as Lot 41B, in Pomfret, Connecticut, which was conveyed to them by a quitclaim deed on April 5, 1997, by Edward and Betty Snelling. Prior to the plaintiffs taking title, they occupied the property and were told by Snelling that they "shared" a well with the property adjacent to them and that they also shared in the expenses of the maintenance of said well. This was noted in the subdivision map referenced in their quitclaim deed entitled "Resubdivision Plan Lot 4 Prepared by "Messier Associates, Inc. Surveyors — Engineers 288 Main Street Manchester, Conn. (203) 646-6013," which note stated: "RIGHTS TO USE AND MAINTAIN THE EXISTING WELL LOCATED ON LOT 4A GRANTED TO LOT 4B. LOTS 4A AND 4B SHALL SHARE EQUALLY IN THE MAINTENANCE OF THE EXISTING WELL. EACH LOT SHALL BE RESPONSIBLE FOR THEIR WATER SERVICE LINE TO THE EXISTING TRAILERS AS THEY ARE CURRENTLY LOCATED." (Plaintiffs' Exh. 1.) The map was recorded in the Pomfret Land records on May 26, 1993 prior to the conveyance of Lot 4B to the plaintiffs.
The Snellings owned the large parcel which was subdivided into Lots 4A and 4B.
The defendant is the owner of the Lot 4A referenced in the subdivision plan and was conveyed the parcel by warranty deed on July 15, 1996, by Edward and Betty Snelling. Neither deed made any specific reference to the shared well, nor specifically referenced the notes on the subdivision map, but simply set forth a description of their parcel as shown on the above stated subdivision map. (Plaintiffs' Exh. 2.)
The defendant is the daughter of the Snellings.
The subdivision map in fact indicated there were two old wells in the area delineated "well easement." (Plaintiffs' Exh. 3.) No evidence was presented regarding which well was functioning or whether both were functioning.
Some time in 2000, problems arose with the existing well that had furnished water to both Lots 4A and 4B and the plaintiffs took steps to construct a new well. After the new well had been installed, the plaintiffs informed the defendant of the installation of the new well. The plaintiffs believed that the new well was located on their land, however, it is not clear whether this was told to the defendant, and it is not clear whether the plaintiffs ever asked the defendant to pay for one-half of the costs of the new well. Nevertheless, the defendant offered to the plaintiffs some pine trees on her property as her share of the cost.
In June 2002, a dispute arose between the plaintiffs and the defendant's daughter who was occupying Lot 4A regarding a barking dog. On July 5, 2002, the plaintiffs, believing that the new well was located on their property, shut off the water servicing the defendant's property and the defendant's property was left without water. The defendant contracted to survey the land to determine exactly where the new well was located. To the plaintiffs' and the defendant's surprise, the new well was also located on the defendant's property, so the defendant proceeded to disconnect the water of the plaintiffs' new well which serviced the plaintiffs and erected "No Trespassing" signs to prevent the plaintiffs from obtaining water from the new well. The plaintiffs now seek a permanent injunction requiring the defendant to refrain from interfering with their access to the well and damages as well as expenses for the installation and maintenance of the new well and the defendant is seeking to quiet the title claiming there is no easement in favor of the plaintiffs.
An injunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." Schwartz v. Murphy, 74 Conn.App. 286, 296, 812 A.2d 87 (2002).
This case sets forth several interesting questions: (1) is there an easement in favor of Lot 4B for the use of the "existing old" wells on the property of Lot 4A; (2) if an easement initially existed, has it been extinguished; and (3) is the new well installed by the plaintiffs and located on the property of the defendant covered under the easement. The court answers the questions as follows.
"Easements traditionally have been divided into two categories, express and implied, that relate to the means by which the easement is created. An express easement is created by an express grant by deed or other instrument satisfying the statute of frauds. An implied easement is implied by law because of necessity, e.g., an otherwise landlocked parcel would result from severance of a part by a common owner." (Citations omitted; internal quotation marks omitted.) Martin Drive Corp. v. Thorsen, 66 Conn.App. 766, 773, 786 A.2d 484 (2001). "In construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances." (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-11, 757 A.2d 1103 (2000).
General Statutes § 47-361 states: "In any conveyance of real property all rights, privileges and appurtenances belonging or appertaining to the granted or released estate are included in the conveyance, unless expressly stated otherwise in the conveyance and it is unnecessary to enumerate or mention them either generally or specifically." Although the deed itself did not make specific reference to the easement in favor of Lot 4B, the conveyance referenced the subdivision map which set forth the terms and conditions of the easement for use of the shared well. Both parcels prior to the subdivision had been owned by the Snellings and the evidence was uncontroverted that there existed a shared well servicing the two parcels and the properties were intended to be conveyed together with and subject to the rights and obligations set forth in the note on the subdivision map. Although the deed to the plaintiffs does not expressly grant the easement, the map is another instrument which sufficiently defines the rights of the grantor in and to the well such as they were conveyed to the grantee in accordance with the terms of the statute. Thus, the court finds that the plaintiffs possess an express easement over Lot 4A for the purpose of the shared "existing" well and its maintenance.
Having found an express easement in favor of Lot 4B owned by the plaintiffs, the next question to be answered is whether that easement has been extinguished in some way.
"An easement may be extinguished by a written release or by an abandonment of his right by the owner of the dominant estate. 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." Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241 (1930). "[Abandonment] implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances . . . Although before legal abandonment can be found, there must be proof of an intent to abandon . . . that requirement can be met without resort to proof of specific intent. Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon . . . but nonuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." (Citations omitted; internal quotation marks omitted.) Friedman v. Westport, 50 Conn.App. 209, 212-13, 717 A.2d 797, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). "An abandonment of an easement will be presumed when the owner of the right does or permits to be done some act inconsistent with its future enjoyment, or some other unequivocal act showing the intention permanently to abandon it." Richardson v. Tumbridge, supra, 111 Conn. 97.
When the existing well ceased to perform, the plaintiffs elected to dig an entirely new well. There was no evidence to suggest that this was absolutely necessary or that the existing well was beyond repair. Rather than repair the existing well, the plaintiffs elected to dig a new well on what they mistakenly thought was their own property and when they did construct the new well, they at no point sought any reimbursement from the defendant for their "share" of the expense. Furthermore, when they shut off the defendant's water, they attempted to exercise exclusive dominion and control over the new well. It was not until the dispute arose between the parties and the later discovery that the new well was located on the defendant's property that the plaintiffs sought any repayment for costs and expenses of the construction and maintenance of the new well. Based upon the plaintiff's actions and testimony, the court finds there was an intention to abandon the easement for the shared well by the plaintiff.
The plaintiff testified that she told the defendant about the expense, but the defendant said she didn't have the money to pay. The plaintiff at that time did not bring any legal action seeking the defendant's share of the expense.
Although not raised by the plaintiffs, the court also declines to find an easement by implication for the use of the new well. In order to find an easement by implication, two principal factors are required to be examined: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. See, Kenny v. Dwyer, 16 Conn.App. 58, 64, 546 A.2d 937 (1988). No evidence was presented to indicate an intent to grant the plaintiffs the right to access the well on the defendant's property and moreover, no evidence was given to indicate that the plaintiffs were unable to construct a well on their own property.
Since the court finds that the easement has been extinguished by abandonment by the plaintiffs, it is unnecessary to address the third question of whether the new well installed by the plaintiffs and located on the property of the defendant is covered under the easement. The well installed by the plaintiffs is separate and apart from any easement which existed which has now been extinguished. At the time the well was dug, the plaintiffs believed the well was wholly on their property, and there never was an agreement by the defendant to include this new well in the easement nor was there ever an intention by either party that it was to be a part of the maintenance agreement for the existing well. Since it was not installed as part of any easement agreement, it is no different than any other situation where a party mistakenly drills a well on the property of another. The parties did not enter into any written agreement or any express understanding that this well was covered by the terms and conditions of the "easement." In the absence of any easement, the plaintiffs possess no right to use the well located on the property owned by the defendant.
The court finds title as follows: Lot 4A is free and clear of the well easement as set forth in the notes on the map entitled: "Resubdivision Plan Lot 4 Prepared by "Messier Associates, Inc. Surveyors — Engineers 288 Main Street Manchester, Conn. (203) 646-6013." Lot 4B has no right to the existing wells since the easement has been extinguished. The court having found the easement to be abandoned, denies the plaintiff's request for expenses, costs or damages. Although the request for a permanent injunction is denied, the plaintiffs shall be permitted to continue the use of the new well located on the defendant's property until December 1, 2004, to allow them sufficient time to construct a well on their own property.
Judgment shall enter accordingly in favor of the defendant in the plaintiffs' complaint and the small claims action, and in favor of the defendant on her counterclaim.
Swienton, J.