Opinion
No. FST CV 07-4011317 S
April 12, 2011
Memorandum of Decision
This case involves a very close question as to whether a structure erected within an easement constitutes a permanent structure prohibited by the express terms of the deed creating the easement. The structure at issue is a large "Monster Double Whammy" play system. The relevant facts are not in dispute. The plaintiff, Bruce Zirinsky, owns residential property located at 17 Brookside Park in Greenwich. Defendant Carnegie Hill Capital Asset Management, LLC ("Carnegie") owns residential property at 116 Brookside Drive ("the Carnegie property"), which is adjacent to the plaintiff's property. Defendant Michael Jamison is the sole member of Carnegie and maintains a place of abode at 116 Brookside Drive for himself, his wife, defendant Janice Jamison, and their two children.
The "play system" is referred to in the plaintiff's brief as the "jungle gym" and in the defendant's brief as the "swing set." The court will refer to the structure as a "play system," the term used by the manufacturer. (Ex. 22, p. 2.)
By virtue of a deed dated June 12, 1995 the plaintiff's property is burdened by an easement affecting an area of 5,346 square feet adjacent to the Carnegie property (Ex. 3 and 4). The document granting that easement was signed by David and Deborah Peeler (the plaintiff's predecessors in title) in favor of Fred and Kathy Epstein (Carnegie's predecessors in title) and provides:
1. Epstein shall have an exclusive and perpetual easement to use that portion of Peeler's property which is shown on the Map entitled `Map Showing Easement Area To Be Granted To Frederick J. Kathy C. Epstein Across the Property Of David Deborah Peeler Greenwich, Conn.,' said Map being filed in the Office of the Town Clerk of Greenwich simultaneously with this Agreement, said area being bounded as described in Schedule A attached hereto, hereinafter the `Easement Property.'
2. Said Easement Property may be used by Epstein for any lawful purpose, including, but not limited to landscaping and maintaining the grounds and Epstein agrees to maintain the Easement Property in a neat and landscaped condition. Epstein agrees that no construction of any permanent structure may be erected on the Easement Property.
3. Epstein shall maintain liability insurance for the use of the Easement Property and shall hold Peeler harmless from any and all losses, claims or suits involving the Easement Property, unless due to the negligence or intentional acts of Peeler.
4. The terms of this Agreement shall run with the land and shall be binding upon the parties hereto, their heirs, successors and assigns and is intended to benefit and be appurtenant to the property owned by Epstein and referenced above. (Ex. 3.)
The map referred to in the first paragraph of the easement agreement was recorded in the Greenwich Land Records on June 12, 1995 as Map #7036. (Ex. 4.) The map shows the boundaries of both the Epstein and the Peeler properties, the location of the easement within the Peeler property as well as the location of the residences and outbuildings on both properties. The map also shows an area "Reserved For Park and Playground," located to the south of the Epstein property and to the east of the Peeler property. The owners of both properties apparently have the right to use the "Park and Playground" area.
The plaintiff acquired title to the Peeler property on June 24, 2003. (Ex. 1.) Carnegie purchased the Epstein property on December 9, 2003. After the Carnegie purchase, the Jamison family, who maintained a principal residence in New York City, began using the Carnegie property as a weekend and summer residence.
In the fall of 2004 Michael Jamison asked the plaintiff's permission for a delivery vehicle to use the plaintiff's driveway to make a delivery to the Jamisons' residence. The plaintiff granted permission without inquiring as to the nature of the proposed delivery. Thereafter, a truck arrived and workmen proceeded to erect a "Monster Double Whammy" play system partially on the Carnegie property and partially on the easement area. The play system, which the Jamisons had purchased from Rainbow Play Systems, Inc., consisted of swings, slides, ladders and towers. According to the manufacturer's catalogue (Ex. 22, p. 52) the base unit of the play system weighs 1759 pounds. The catalogue describes the base unit as follows: "The Monster Castle is built like a tank." (Ex. 22, p. 52.) Photographs of the system installed by the Jamisons (Ex. 5a and 5b) show that their installation is at least twice the size of the base unit shown in the catalogue. Page 193 of the same catalogue states that many of the components of the play system were included in a "lifetime warranty" and that the remaining components were guaranteed for five years. (Ex. 22, p. 193.)
The installation of the play system surprised and disturbed the plaintiff. However, he made little or no effort to contact the Jamisons until March 17, 2005 when he directed his attorney to write a letter to the Jamisons asserting that the play system was placed within the easement area in violation of the prohibition against permanent structures. (Ex. 9.) Within two months of that letter, the Jamisons left one or two notes at the plaintiff's home offering to discuss the plaintiff's concerns regarding the play system and leaving a contact number. (Ex. 16 and 17.) After four months, the plaintiff telephoned the Jamisons. However, because he called on a solemn religious holiday observed by the Jamisons, no meaningful conversation took place at that time. Neither side made any further efforts to engage a dialogue concerning the play system.
At trial, the plaintiff testified that he recalls receiving only one of the two notes.
In early 2006 the Jamisons undertook a major renovation/reconstruction of the residence on the Carnegie property. Because of the construction work, maintenance of the easement property was neglected for several months. In late 2006 the plaintiff decided to install additional trees on his property to screen the play system and the Jamisons' backyard from his view. He did not have the boundaries of the easement area staked by a surveyor. Rather, he claimed that he worked with employees of a tree nursery in a good-faith attempt to plant the trees along the boundary of the easement area. The plaintiff spent approximately $88,000 for the acquisition and installation of the new trees. He estimated that about 20% of this cost was incurred in order to screen the play system from his sight. After the trees were planted the defendants retained a surveyor who determined that approximately six of the new trees (spruces with trunk diameters of six to eight inches) were planted within the easement area. (Ex. 15.)
In April 2007, the plaintiff brought this action against the defendants claiming that the erection of the play system within the easement violated the prohibition against permanent structures. In the first count of his complaint the plaintiff requests an injunction ordering the removal of the play system from the easement area. In the second, third and fourth counts the plaintiff claims damages for trespass, damages for misuse of the easement and damages for overburdening the easement. At trial the plaintiff abandoned any claim for punitive damages.
The defendants' answer admitted the essential factual allegations of the plaintiff's complaint but denied the legal conclusions with respect to violation of the easement and trespass. Carnegie also filed a counterclaim alleging: 1) that the planting of spruce trees within the easement area constituted a trespass on Carnegie's exclusive right to maintain landscaping within the easement area; and 2) that the planting of the spruce trees interferes with the use of the easement by Carnegie; and 3) requesting injunctive relief.
The court heard evidence from the parties on January 25, 2011. At trial the parties stipulated that the play system was a "structure." However, the parties differ on whether the structure is a permanent one. Both parties filed post-trial briefs on February 8, 2011. On March 29, 2011, at the request of the parties, the court visited the plaintiff's property and viewed the defendants' play system and the trees planted by the plaintiff.
DISCUSSION The Plaintiff's Claims
Each of the four counts in the plaintiff's complaint is based on his claim that the play system constitutes an impermissible permanent structure within the easement area. The parties agree that the play system is a structure, but disagree as to whether the structure is a permanent one. The plaintiff asserts that the play system is permanent based on the size of the installation and the fact that the play system has remained in place year-round for more than six years. The defendants claim that because the Jamisons do not intend to keep the play system in place after their youngest daughter grows up, the play system is a temporary structure rather than a permanent one.
"The meaning and effect of the [language in the deed] 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 the light of the surrounding circumstances . . . The primary rule of interpretation . . . is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met." (Internal quotation marks omitted.) Bird Peak Road Ass'n., Inc. v. Bird Peak Corp., 62 Conn.App. 551, 557, cert. denied, 256 Conn. 917 (2001).
"[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Emphasis added; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498 (2000).
Neither party presented any evidence as to the intent of the parties to the 1995 deed creating the easement. Nevertheless, in their brief the defendants invite the court to infer, from the deed itself, that the easement granted the defendants an exclusive or "near exclusive" right to use the easement area. The defendants claim that the apparent intent of the easement was to make the easement area, for all practical purposes, a part of their backyard and to bar the plaintiff from any rights (outside of naked title) to the easement area. In support of their position, the defendants claim that if the easement area had been included in the Carnegie property rather than the plaintiff's property, the area of the plaintiff's lot would have been reduced below the minimum one-acre size required under the applicable zoning regulations. The defendants claim that the grant of "an exclusive and perpetual easement" was intended to exclude the plaintiff from any rights to use the easement area. Neither party makes any claims that any other extrinsic evidence or any facts or circumstances surrounding the 1995 deed are helpful in explaining what the parties intended by the use of the term "permanent structure." Having considered the defendants' claims, the court finds that there is insufficient credible evidence to allow the court to make the inferences proposed by the defendants.
"The fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land. The language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved. Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning." 1 Restatement (Third), Property, Servitudes § 4.1, comment (d), p. 499-500 (2000).
With respect to whether the play system constitutes a permanent structure, the plaintiff relies on Historic District Commission v. Hall, 282 Conn. 672 (2007). In that case the defendants, who owned property within a historic district where structures were subject to special approval requirements, erected a sizeable sculpture on their property. Id., 674-76. The sculpture was approximately eighty feet long, weighed more than six tons and rested on a bed of more than twenty-one tons of gravel and stone contained in a trench approximately eighty feet long, four feet wide and two feet deep. Id., 673-75. The Supreme Court affirmed a Superior Court decision finding that the sculpture was affixed to the ground by its very weight and accordingly was a "structure" within the meaning of General Statutes § 7-147a(a) and was subject to the regulations of the district. Id., 674, 676. The court in that case was not called to determine whether the sculpture constituted a "permanent structure."
General Statutes § 7-147a(a) provides in relevant part: "`structure' means any combination of materials, other than a building, which is affixed to the land, and shall include, but not be limited to, signs, fences and walls . . ."
The plaintiff also relies on Dodson Boatyard, LLC v. Planning Zoning Commission, Superior Court, judicial district of New London, Docket No. 556880 (February 1, 2002, Purtill, J.T.R.) ( 31 Conn. L. Rptr. 314). In that case the court found that ocean freight containers used for storage by a property owner could be considered "buildings" and accordingly entitled to protection under the provisions of General Statutes § 8-13a which provides that non-conforming buildings are entitled to remain in place after they have been situated in the same place for three years. Id., 315, 317-18. In reaching this determination, the court noted that the statute did not define the term "building" and relied on the definition set forth in the local zoning regulations. Id., 317-18.
The defendants rely on Tickell v. Bridgewater, Superior Court, judicial district of Litchfield, Docket No. CV 93 0062462 (February 10, 1994, Dranginis, J.). That case was an administrative appeal in which the court considered whether a planning and zoning commission was correct in determining that a structure housing a camper and screening it from view qualified as a screening "constructed of permanent materials" as required by the zoning regulations. Id. The structure in question, known as a "COVERIT," consisted of fabric supported by a frame. Id. The record contained a brochure published by the structure's manufacturer. Id. The brochure stated that the product had a useful life of twenty years but was a "portable structure" that could be quickly disassembled and removed. Id. The court found that the commission's finding that the structure did not qualify as screening "constructed of permanent materials" was supported by substantial evidence. Id. In its decision, the court noted the definition of "permanent" set forth in the American Heritage Dictionary as something "[f]ixed and changeless; lasting or meant to last indefinitely . . . [n]ot expected to change in status, condition or place." (Internal quotation marks omitted.) Id. The defendants concede that the play system is heavier than and constructed of more durable materials than the "COVERIT" considered in Tickell. However, they correctly point out that the play system is not nearly as massive as the sculpture at issue in Historic District Commission v. Hall, supra, 282 Conn. 674.
There are apparently no cases in which a Connecticut court has construed the phrase "permanent structure" as used in a statute, contract, deed or other writing. The phrase has been considered by courts in other jurisdictions.
In Dugan v. Long, 234 Ky. 511, 515 (1930), the Kentucky Court of Appeals approved the following definition: "A permanent structure of this character is defined as one which may not be readily remedied, removed, or abated at a reasonable expense, or one of a durable character evidently intended to last indefinitely, costing as much to alter as to built it in the first instance."
The Court of Appeals was the sole appellate court in Kentucky prior to 1976. Hoskins v. Maricle, 150 S.W.3d 1, 6 n. 1 (Ky. 2004).
In Midgett v. North Carolina State Highway Commission, 260 N.C. 241, 248 (1963), overruled on other grounds by Lea Co. v. North Carolina Board of Transportation, 308 N.C. 603, 616 (1983), the North Carolina Supreme Court approved a nearly identical definition: "A permanent structure is one which may not be readily altered at reasonable expense so as to remedy its harmful effect, or one of a durable character evidently intended to last indefinitely and costing practically as much to alter or remove as to build in the first place."
The Dugan and Midgett definitions set forth three relevant factors: 1) the cost to alter the structure so as to remedy its harmful effect; (2) the durable character of the structure, evidently intended to last indefinitely; and (3) the cost to alter or remove as compared with the cost to build in the first place. These factors provide a reasonable basis to determine whether the play system erected and maintained by the defendants is, in fact, a permanent structure.
The evidence in this case included the catalogue and price lists published by the manufacturer of the play system. This evidence might allow the court to infer the approximate cost the defendants incurred to acquire the play system. However, there was no evidence as to the actual costs incurred by the defendants to purchase and erect the play system. Nor was there any evidence offered by any party as to the costs that would be incurred in removing the play system from the easement area. In the absence of such evidence, the court is not in a position to consider two of the three factors approved by the courts in Dugan and Midgett.
There is evidence, however, of the durable character of the play system and its indefinite useful life. The manufacturer's catalogue describes the system as "built like a tank." (Ex. 22, p. 52.) The heavy weight of the base unit and the "lifetime" guarantee of the play system also lead to the conclusion that the play system is not a temporary or seasonal structure but rather one of a permanent nature. Finally, the court notes that in the six and one-half year period since it was erected, the play system has remained firmly in the same place where it was erected and has not been moved or relocated on a seasonal basis.
After considering all the evidence, the court finds that the play system is, in fact, a permanent structure erected in violation of the terms of the easement. The court further finds that under his first count the plaintiff is entitled to an injunction requiring the defendants to remove the play system from the easement area within a reasonable time.
In his second and third counts, the plaintiff claims that he is entitled to monetary damages based on the funds he expended to screen the play system from his view. The plaintiff testified that in 2006 he spent a total of $88,000 on new trees and shrubbery which were planted on his property. He estimated that approximately 20% of that total or $17,600 was incurred in screening the defendants' play system from his view.
The court finds that the expenditure of funds for screening of the play system was neither a reasonable nor a necessary response to the trespass committed by the defendants. After the plaintiff, through his attorney, expressed his concerns about the placement of the play system within the easement, the Jamisons indicated their willingness to discuss the situation with him on several occasions. The plaintiff made only desultory efforts to have a meaningful dialogue with the Jamisons. The court finds that, under these circumstances, it was unreasonable for the plaintiff to incur the considerable expense of screening the play system with spruce trees with the expectation of obtaining reimbursement from the defendants.
The placement of the play system, a permanent structure, on the plaintiff's property was not permitted by the terms of the easement and accordingly constituted a trespass. In the absence of proof of actual damages, the plaintiff is entitled to an award of nominal damages. McManus v. Roggi, 78 Conn.App. 288, 304 (2003). Accordingly, the court awards damages to the plaintiff in the amount of $10.00 on his second count and third count.
In his fourth count, the plaintiff claims that the defendants "overburdened" the easement. That count was not separately addressed in the plaintiff's brief and may well have been abandoned. The plaintiff's evidence shows that the erection of the play system violated the express terms of the easement. There was no evidence presented that such a violation in any way constituted an overburdening of the easement. Accordingly, judgment may enter for the defendants on the fourth count of the plaintiff's complaint.
Overburdening of an easement occurs when the owner of the dominant tenement uses the easement in a manner which exceeds his rights and, consequently, constitutes an excess burden on the servient tenement. McCullough v. Waterfront Park Ass'n., Inc., 32 Conn.App. 746, 756, cert. denied, 227 Conn. 933 (1993).
B. The Defendants' Claims
The defendants claim that the trees planted by the plaintiff in the easement area constitute an unreasonable interference with their easement rights and a trespass. They request the court to find that the planting of those trees: 1) constitutes a trespass (count one); 2) breaches the easement (count two); and 3) allows them to seek injunctive relief (count three). In response, the plaintiff claims that the planting of the trees constitutes the lawful exercise of his right as the fee owner of the property to make reasonable use of the easement area. In addition, he claims that the erection of the permanent play system entitles him to take defensive action by way of screening.
The court will first consider the defendants' apparent claim that the use of the word "exclusive" in the deed creating the easement should be interpreted as excluding the plaintiff, as the owner of the servient tenement, from any right to use the easement area. Stripped to its essentials, the language used in the deed states: "[Grantee] shall have an exclusive and perpetual easement to use [the easement area] . . . for any lawful purpose . . ." (Ex. 3.) The defendants do not brief this claim or offer any authority interpreting the use of the word "exclusive" in a grant of an easement as excluding the owner of the servient tenement from making use of his property in a manner that does not unreasonably interfere with the use of the easement. The use of the term "exclusive easement" in the document creating an easement does not necessarily imply an intent to exclude the owner of the fee from the area of the easement. Manley v. Pfeiffer, 176 Conn. 540, 546 (1979), overruled on other grounds by Mannweiler v. LaFlamme, 232 Conn. 27, 35-36 n. 10 (1995).
A useful discussion of the degree of exclusivity of rights conferred by an easement may be found in comment (c) to Section 1.2 of 1 Restatement (Third), Property, Servitudes, p. 14 (2000). That comment recognizes the possibility that the holder of an easement might have the right to exclude everyone, including the owner of the fee, from making any use of the land. It cites the example of an easement which permits its holder to construct a pipeline or electrical transmission line. In such an easement, the owner of the fee has no right to use the pipeline or electrical transmission lines but retains the right to make other uses of the area where the lines are located so long as those uses do not unreasonably interfere with the lines.
The failure of the grantor of the easement to use language expressly barring himself and his successors from any right in and to the easement area militates against the broad interpretation of the word "exclusive" urged by the defendants. The court finds that, in the context of the rights granted to the defendants under the easement, the use of the word "exclusive" simply means that the plaintiff as the owner of the servient tenement may not grant easement rights in the easement area to third parties.
"The owners of the servient tract have by law all the rights and benefits of ownership consistent with the existence of the easement, and the exercise of such rights is not an adverse or hostile act which gives the owner of the dominant tract a right of action therefor." American Brass Co. v. Serra, 104 Conn. 139, 150 (1926).
"Except as limited by the terms of the servitude determined under § 4.1, 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." 1 Restatement (Third), Property, Servitudes § 4.9, p. 581 (2000).
1 Restatement (Third), Property, Servitudes § 4.1, p. 496-97 (2000) provides in relevant part: "A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created."
The evidence shows that three of the spruce trees planted by the plaintiff in the easement created an effective barrier to the defendants' access over the easement to reach the reserved "Park and Playground" area lying to the south of the Carnegie property. (Ex. 15.) The court finds that the use of the easement area by the defendants to obtain access to the "Park and Playground" is within the scope of the rights granted under the easement. Under these circumstances the planting of trees that obstruct that access constitutes an unreasonable use of the easement area by the plaintiff.
Aside from the trees blocking the defendants' access to the "Park and Playground" area, the evidence does not show that the trees planted by the plaintiff unreasonably interfere with the defendants' use of the easement area. The court finds that the defendants are entitled to injunctive relief on their counterclaim requiring the plaintiff to remove one or more spruce trees from the easement area and thereby restore the pathway over the easement area from the Carnegie property to the "Park and Playground." Although the defendant's counterclaim asks the court to award money damages, no proof of such damages was produced at trial. The court will, however, award the defendants nominal damages in the amount of $10.00.
The defendants claim that although the trees planted by the plaintiff in the easement area in close proximity to the play system do not interfere with the use of the play system, they are close enough to the play system to obstruct the ability of children to freely run around the play system. Since the court has determined that the defendants do not have the right to maintain the play system in the easement area, the defendants' ability to use the play system or to have children run around it is not at issue.
Neither the plaintiff nor the defendants included a count asking the court to issue a declaratory judgment with regard to the rights of the parties with respect to the easement area. Under these circumstances it is inappropriate for the court to opine as to whether the defendants' right to use the easement area for "landscaping and maintaining the grounds" includes any right to remove or trim trees planted by the plaintiff which have not been found to unreasonably interfere with the defendants' use of the easement area.
Judgment may enter in accordance with this memorandum of decision without costs to any party.