Opinion
No. CV 05 4007029 S
June 14, 2007
Memorandum of Decision
This action arises out of disagreements concerning littoral rights between the owners of adjacent properties in Norwalk located on banks of the Five Mile River, a navigable stream. There is often confusion between the terms "littoral" and "riparian" as applied to the water rights of property owners. "Littoral" is the proper term for describing the rights that shoreline owners possess to make exclusive use of the land lying seaward of the mean high water mark. Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769 n. 5 (1994). This memorandum will use the term "littoral" to describe the rights involved in this case. Some of the permits and communications issued by state authorities which are quoted herein, use the term "riparian" to describe the identical rights. Certain appellate cases also use the term "riparian" in the same fashion. Strictly speaking "riparian" rights are limited to rights related to the waters in a watercourse and include the right to take waters from a stream and to dam or impound the waters of a stream. However, the term "riparian" is also used in an expansive sense to describe all water related rights including littoral and riparian rights. 78 Am.Jur.2d 386, Waters § 30 (2002).
The plaintiff Diane Caminis owns and resides at premises located at 11 Rowayton Avenue, Norwalk with her husband, Perry W. Caminis. The defendants own and reside at premises located at 15 Rowayton Avenue, Norwalk which is north of and adjacent to the plaintiffs' property. Both properties are bounded on the west by the waters of the Five Mile River in close proximity to the mouth of the river and Long Island Sound.
Both plaintiffs purchased 11 Rowayton Avenue in January 1975. At that time the 15 Rowayton Avenue was owned by John Morgan. Both properties were improved as single-family residences. A dock was located in the waters of the Five Mile River adjacent to the Morgan property. A permit to maintain the dock had been obtained from the Water Resources Commission of the State by Morgan's predecessor in title in 1957. In 1975, the dock consisted of a pier approximately 110 feet long running from the Morgan property into the river. A hinged ramp was connected to the end of the pier. The ramp led to a small floating dock approximately 10 feet square which was held in place by two pilings.
At trial, Perry Caminis testified that while he had been co-owner of the property located at 11 Rowayton Avenue from 1975 until shortly before the trial, he had recently deeded his interest in the property to plaintiff Diane Caminis leaving her as the sole owner of the property. Because Perry was co-owner during the majority of the period relevant to the issues of the case, this memorandum of decision will refer to the plaintiffs in the plural.
In 1984, Morgan applied to the Connecticut Department of Environmental Protection (successor to the Water Resources Commission) for a permit to remove the existing floating dock and pilings, conduct dredging and install a larger 9.5-foot by 40-foot float to be held in place by four pilings. Although the length of the pier shown in the 1957 permit was 110 feet, the 1984 application showed the pier to be actually 122 feet long. After the permit was granted, Morgan's contractors dredged the river and installed the new pilings and dock.
When the construction was completed, the plaintiffs became concerned that Morgan's new floating dock was improperly located in front of their property within the area of their exclusive littoral rights. Over the next three years they called the matter to Morgan's attention and made inquires to the Department of Environmental Protection and Morgan's contractors concerning the location of the pilings and float. In 1989, Perry Caminis was transferred to his employer's Tokyo office. His wife accompanied him on that assignment. The plaintiffs did not pursue the issue of the dock location until long after their return to Norwalk in 1993.
The defendants purchased Morgan's property in 1991 without notice of any issue regarding the location of the pilings and floating dock. As boat owners, the existence of the dock was an important factor in their decision to buy the Morgan property. After the purchase, the defendants invested over $500,000 in alterations and improvements to the residence on the property.
In 2000, the plaintiffs had a survey prepared showing the littoral areas of the respective parties. That survey showed that approximately half of the defendants' floating dock and two of the pilings anchoring the dock were located in the area of the plaintiffs' littoral rights. After receiving the survey, the plaintiffs voiced their concerns to the defendants and eventually provided them with a copy of the survey. The plaintiffs requested the defendants to move their float and pilings to a more northerly position so that the plaintiffs would be able to construct their own dock. The defendants refused the plaintiffs' request and directed them to submit all future communications regarding the dock to their attorney.
For the next five years, the plaintiffs pursued applications with the Department of Environmental Protection seeking to obtain an order requiring the defendants to relocate their float and pilings and a permit allowing the plaintiff to construct their own dock. On September 12, 2001, Susan Jacobsen, an environmental analyst for the Office of Long Island Sound Programs of the Department of Environmental Protection wrote to the plaintiffs stating:
Please be aware that although this Office considers possible riparian rights conflicts during its review of permit applications, the permit once issued, does not establish or affect property rights and we cannot require the Troys to relocate their dock based on riparian conflicts.
The plaintiffs' further efforts to obtain assistance from the Department of Environmental Protection in securing an order requiring the relocation of the defendants' pilings and float did not meet with success. On May 3, 2002, Susan Jacobsen advised them:
relocation of the Troy float and/or a determination of your actual riparian rights area is outside the scope of your pending application and a private matter between you and the Troys. Should you choose to pursue relocation of the Troy float or a court determination of your riparian lines, we ask that you withdrawn your application and resubmit after resolution of these matters.
Despite these communications from Jacobsen, the plaintiffs continued to seek redress from the Department of Environmental Protection until late 2005 at which time they commenced this action seeking declaratory judgment establishing the boundary of the parties' respective littoral rights and a finding that portions of the defendants' floating dock and pilings encroach on plaintiffs' littoral rights area. Other counts of the plaintiffs' complaint claim damages and injunctive relief requiring the defendants to remove the encroaching portions of their pilings and floating dock.
The defendants' revised answer, special defenses and counterclaim denied most of the essential allegations of the complaint, asserted special defenses claiming adverse possession under General Statutes § 52-575, statute of limitations under General Statutes § 52-577, laches, estoppel, compliance with permits, and collateral estoppel. In their counterclaim the defendants claim a declaratory judgment confirming their continuing right to maintain their floating dock and pilings in their present location and confirming their ownership of the littoral rights in the area occupied by their floating dock and pilings.
The case was tried before the court on February 21 and 23, 2007. After the close of evidence the court heard oral argument and ordered the parties to submit post-trial briefs by April 16, 2007. The evidence offered by the plaintiffs at trial established that the depth of the water in the location of the defendants' floating dock is significantly deeper than that of water to the north or south of the dock's location. Under these circumstances, the location of the defendants' floating dock effectively prevents the plaintiffs from constructing a dock of their own which would be usable at low tide. The relocation of the defendants' floating dock to the north (entirely within the defendants' own littoral rights area) would allow the plaintiffs to construct a dock with access to the water of the Five Mile River at all stages of the tide. However, it appears that the greater depth of the river in the area of the defendants' floating dock is the result of dredging performed by the Morgans under the authority of the 1957 permit.
The defendant Austin Troy testified that moving his floating dock would result in great expense to him as well as loss of convenient docking for larger vessels and a diminution of the value of the defendants' property. He pointed out that the general set of the waves in the Five Mile River in the vicinity of his dock is from Long Island Sound which lies to the south. This requires that vessels moored in the river (whether at individual moorings or secured to floating docks) have their bows pointed toward Long Island Sound. This practical necessity, in turn, requires that when the defendants or guests wishing to tie up a vessel to the defendants' dock approach the dock from the north. Relocation of the dock to the north would, in defendant Austin Troy's opinion, prevent such an approach at lower stages of the tide.
The evidence also established that defendants removed their floating dock each fall and replaced it each spring. The pilings to which the floating dock was attached (including the two located within the plaintiff's littoral rights area) have remained in place from 1985 until the present.
LOCATION OF LITTORAL RIGHTS BOUNDARY
The plaintiffs' expert surveyor, Jeffrey MacDonald, testified as to the methods of determining the location of littoral rights lines. In this case his initial approach was to use a straight line method. Upon further consideration he adopted a modified straight line method which established littoral rights lines perpendicular to the chord of the general shoreline in the area of the parties' properties. Although both methods resulted in littoral rights lines in nearly identical locations, the modified straight line method resulted in the line defining the littoral rights boundary between the parties being slightly further to the south (and therefore in favor of the defendants).
The survey produced by MacDonald showed that two of the defendants' pilings and approximately one-half of the defendant's float was located to the south of the boundary line and within the area of the plaintiffs' littoral rights. MacDonald's surveys also located the area dredged pursuant to Morgan's 1984 permit. Approximately half of the dredged area is within the plaintiffs' littoral rights area.
The defendants offered no evidence contradicting McDonald's evidence. In their post-trial brief the defendants do not take a definitive position as to exactly where they believe the littoral rights line should be located. However, in their counterclaim, the defendants claim ownership of the portion of the plaintiffs' littoral rights area occupied by their pilings and floating dock.
The court is persuaded that the plaintiffs have shown that the littoral rights area appurtenant to their property is properly shown on exhibit 25, the survey prepared by Jeffrey MacDonald using the modified straight line method. That survey also shows that the defendants' floating dock and two of their pilings encroach upon the area of the plaintiffs' littoral rights. Considering all the evidence produced at trial, the court is persuaded that there have not been any significant changes to the shoreline in the area of the properties owned by the parties in the last fifty years. Accordingly, the court concludes that the littoral rights line determined by MacDonald was applicable from the date of the installation of the first Morgan dock in 1957 to the present.
ADVERSE POSSESSION A. BURDEN OF PROOF
In their first special defense, the defendants assert that the plaintiffs' claims are barred by General Statutes § 52-575(a). In relevant part, that statute provides:
No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements . . .
These provisions establish the fifteen-year time period required to gain title by adverse possession. Common law establishes the requisites for adverse possession.
"[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner . . . A finding of adverse possession is to be made out by clear and positive proof. The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n. 13 (2006).
"Ouster has been defined clearly in case law. By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title . . . As otherwise stated: An entry . . . on the land of another is an ouster of the legal possession arising from the title . . . if made under claim and color or right . . . otherwise it is a mere trespass . . . The intention guides the entry, and fixes its character." (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn.App. 296, 313-14 (2005).
To acquire title by adverse possession, the possession must be hostile from its inception. Kramer v. Petisi, 53 Conn.App. 62, 71, cert. denied 249 Conn. 919 (1999). "[T]he claimant's possession [must be without license or consent of the owner." (Internal quotation marks omitted.) Lazoff v. Padgett, 2 Conn.App. 246, 249, cert. denied 194 Conn. 806 (1984).
The defendants' first special defense and second counterclaim do not clearly set forth factual allegations supporting the conclusion that the defendants acquired title to a portion of the plaintiffs' littoral rights area through adverse possession. However, the parties, both during the trial and in their briefs, have treated the defendant's position as an assertion of ownership by adverse possession. The court will do likewise.
"A finding of adverse possession is to be made out by clear and positive proof . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) Allen v. Johnson, 79 Conn.App. 740, 745, cert. denied, 266 Conn. 929 (2003). In post-trial argument, counsel for the defendants asserted that when adverse possession is asserted as a defense, the standard of proof is merely that of preponderance of the evidence. In their post-trial brief, this claim has been largely abandoned and the defendants now assert that defendants have established adverse possession by "clear and positive proof." The court finds that the appropriate burden of proof is that of clear and convincing evidence and that the burden of proof is on the defendants as the parties asserting ownership by adverse possession.
B. EVIDENCE SUPPORTING ADVERSE POSSESSION
The evidence establishes that for more than fifteen years prior to the filing of this action, the defendants and their predecessors in title have maintained two pilings within the area of the plaintiffs' littoral rights. For the same period a float has been attached to those pilings during the boating season, which is partially within the area of the plaintiffs' littoral rights.
C. DISCUSSION
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 Corp., 230 Conn. 764, 769, 646 A.2d 790 (1994).
In State v. Knowles-Lombard Co., 122 Conn. 263 (1936), the Supreme Court considered the rights of owners of property bordering on tidal water. "The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and for these purposes of occupying and using it in any manner which does not interfere with navigation . . ." Id., 265; See also: Stefanoni v. Duncan, 282 Conn. 79 (2007).
Riparian and littoral rights can be protected from encroachment by an action in trespass. McCullough v. Waterfront Park Ass'n. Inc., 32 Conn.App. 746, 630 A.2d 1372, cert. denied 227 Conn. 933 (1993). In that case, the court found that the defendants had acquired a prescriptive easement over land owed by the plaintiff. However, 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: "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., 757-58
It has long been the law in Connecticut that a downstream owner may lose his riparian rights in the natural flow of a stream, if an upstream owner expropriates the waters of the stream for his own use for a period long enough to constitute adverse possession. Parker v. Griswold, 17 Conn. 288 (1845). The same is true of other riparian rights. "Riparian rights may be gained and lost by adverse user . . ." S.O.C. Co. v. Ansonia Water Co., 83 Conn. 611, 623 (1910). That case involved issues concerning the right to the flow of water in a non-navigable stream. The court also referred to the rights in question as a "water-privilege."
Connecticut courts have considered the nature of littoral rights. In Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 597 (1991), the court considered the rights of the plaintiff to expand an existing dock to add boat slips in the waters of Clinton Harbor. Referring to the plaintiff's littoral rights, the court observed: "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." (Citations omitted; internal quotation marks omitted.) Id., 597.
In Barri v. Schwarz Bros. Co., 93 Conn. 501 (1919), the court considered an action to quiet title to the littoral right to reclaim certain tidal mud flats. The defendant claimed that the action could not be maintained since title to the mud flats rested in the public and the statute only permitted an action to be brought by one claiming title or an interest in property. The court acknowledged that title was not at issue only the enjoyment of littoral rights, but stated that littoral rights "have their source in property ownership and exist only as an original incident of such ownership. They are in the nature of a franchise, constitute a species of property and are separable from and alienable as thus separated in the same manner as other property . . . They clearly constitute interests in property." (Citations omitted.) Id., 506.
In Oak Leaf Marina, Inc. v. Ertel, 23 Conn.App. 91 (1990), the owner of waterfront property sought injunctive relief against the owner of adjacent waterfront property seeking to prevent interference with its littoral rights. The defendant asserted a special defense claiming adverse possession of significant portions of the plaintiff's littoral area. In a bench trial, the trial court found for the plaintiff with respect to both its claim and on the special defense. On appeal, the defendant challenged the trial court's determination that it had not established his adverse possession of the disputed littoral area. The Appellate Court held that the issue of adverse possession is an issue for the trier of fact and affirmed the decision of the trial court.
Under the provisions of General Statutes § 22a-359 et seq., the Connecticut Department of Environmental Protection regulates structures below the high tide line. A permit issued by the Commissioner of Environmental Protection is required prior to the erection of any structure waterward of the high tide line. General Statutes § 22a-361(a).
The 1957 Morgan permit was issued by the Department of Water Resources, the predecessor to the Department of Environmental Protection. The terms of the 1957 and 1984 permits issued to the defendants' predecessors in title are expressly conditional. The 1957 permit issued by the Water Resources Commission states:
It is not the intent of this Commission to convey or waive any property rights in any lands of the state, nor will this letter be construed as giving any property rights in real estate or material or any exclusive privileges, nor does it authorize any injury to private property or the invasion of private rights or any infringement of federal, state or local laws or regulations.
Paragraph 8 of the 1984 permit issued to John W. Morgan by the Department of Environmental Protection states:
This permit is subject to and does not derogate any present or future property rights or other rights or powers of the State of Connecticut, and conveys no property rights in real estate or material nor any exclusive privileges, and is further subject to any and all public and private rights and to any federal, state or local laws or regulations pertinent to the property or activity affected hereby.
The acquisition of littoral rights by adverse possession was addressed by the court in Matto v. Dan Beard, Inc., 15 Conn.App. 458, cert. denied, 209 Conn. 812 (1988). In that case the Appellate Court held that the defendant who had exercised rights beyond those granted in a permit issued by the Department of Environmental Protection, could not thereby acquire the littoral rights of an adjacent littoral owner.
The court finds that all rights exercised by Morgan and the defendants, as his successors, were granted by the state pursuant to permits issued under the authority of the General Statutes. The actions taken by Morgan and the defendants under the permits were not taken "with such circumstances as to evince a claim of exclusive right and title." Indeed, by acceptance of the permits they agreed that they were not thereby acquiring "any present or future property rights." (Emphasis supplied). Under these circumstances the court finds that the defendants have not acquired title to any portion of the plaintiffs' littoral rights by adverse possession.
The court's finding in this regard is also supported by statutory authority. In relevant part, General Statutes § 22a-362 provides: "Any violation of sections 22a-359 to 22a-361, inclusive, or any violation of the terms or conditions of a certificate, permit or authorization issued pursuant to said sections shall be considered a public nuisance."
In Feudl v. New Britain, 88 Conn. 125 (1914), the Supreme Court established the principle that riparian rights could not be gained by adverse possession if the activities of the party claiming adverse possession constituted a nuisance. In that case the court found that a right to continue to pollute a river by discharging waste into it could not be obtained by adverse use. There is no reason to believe that the court would reach a different finding when the rights involved are littoral rather than riparian.
STATUTE OF LIMITATIONS — TORT ACTIONS
The defendants' second special defense claims that the plaintiffs' action is barred by General Statutes § 52-577, which states: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." In their post-trial brief, the plaintiffs state that they are seeking only a declaratory judgment and an injunction. From this statement the court infers that the plaintiffs have abandoned their second count which sought compensatory damages on a tort theory of recovery. This inference is reinforced by the fact that the plaintiffs produced no evidence of damages at trial. Under these circumstances, the court is compelled to find for the defendants on the second count of the plaintiffs' complaint and on the defendants' second special defense.
LACHES
In their third special defense, the defendants assert that the plaintiffs were guilty of laches for having waited from 1985 when the Morgan dock was installed, until 2006 before bringing this action. Since the plaintiffs are requesting equitable relief in the form of an injunction, the defendants are entitled to assert any equitable defenses, including laches, they might have to the plaintiffs' action. "It is a well established rule in equity that if a party is guilty of laches or unreasonable delay in applying for an injunction, he may thereby forfeit his claim to that special form of remedy; and where in such case, by his laches he has made it impossible or very difficult for the court to enjoin his adversary without inflicting great injury thereby, an injunction should be refused . . ." (Internal quotation marks omitted.) Gage v. Schavoir, 100 Conn. 652, 664-65 (1924); Fisk v. Hartford, 70 Conn. 720 (1897) "[L]aches consists of two elements; First there must have been a delay that was inexcusable; and second, the delay must have prejudiced the [party claiming it]." (Internal quotations omitted.) Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685 (1955).
In their answer, the defendants allege that, had they known that the float and pilings were located within the area of the plaintiffs' exclusive littoral rights, they would not: 1) have purchased their residence in 1991; 2) have paid the price they did for their residence; 3) have paid real property taxes based in part on the value of the float and dock; and 4) have maintained and repaired the dock. The evidence supports these allegations. In addition the defendants' evidence shows that they expended considerable sums of money in improving their property prior to being put on notice of the plaintiffs' concerns regarding the location of the pilings and floating dock.
The evidence also establishes that,. as early as 1985, the plaintiffs were concerned that the Morgan's dock may have been infringing on their littoral rights area. However, the plaintiffs took no action to have a surveyor determine the location of the pilings and float until 2000. The court finds that the plaintiffs' delay was inexcusable and that the defendants were prejudiced by that delay. Accordingly, the court finds the issues on the defendants' third special defense for the defendants.
ESTOPPEL BY ACQUIESCENCE
In their fourth special defense, the defendants claim that the plaintiffs acquiesced in the installation and maintenance of the float and pilings within their littoral rights area. In their post-trial brief the defendants rely principally on the case of Lowndes v. Wicks, 69 Conn. 15 (1897). That case involved a dispute between neighboring property owners on the Five Mile River in Norwalk, not far from the properties owned by the parties to this litigation. The Supreme Court of Errors reversed the judgment of the trial court and found that the defendant's acquiescence in a row of pilings running from the shoreline to the harbor line was sufficient to establish the division line between the adjoining littoral proprietors.
The court finds that doctrine of estoppel by acquiescence to be inapplicable to the facts of the dispute between the parties. The facts establish that the only portions of the defendants' dock and float which were arguably within the plaintiff's littoral rights area were the two most southerly pilings and approximately one half of the float. The evidence does not support a finding that the plaintiffs knew that the pilings and float were within their littoral rights area and acquiesced in the establishment of a division line based on that location. The court finds the issues on the fourth special defense for the plaintiffs.
EXHAUSTION OF ADMINISTRATIVE REMEDIES COLLATERAL ESTOPPEL
In their fifth special defense, the defendants claim that the plaintiffs have failed to exhaust their administrative remedies before the Connecticut Department of Environmental Protection. In their seventh special defense, the defendants claim that the issues have been determined against the plaintiffs by the Connecticut Department of Environmental Protection. The court will consider these defenses together. Our rules of practice permit alternative and inconsistent defenses to be pled. Danko v. Redway Enterprises, Inc., 254 Conn. 369, 379 (2000).
In this case the court finds that neither of these defenses is available to the defendants. The evidence is clear that the Department of Environmental Protection refused the plaintiffs' repeated attempts to obtain an adjudication that the defendants and their predecessors in title had extended the pilings and float beyond the limits established in their permits. The response of the DEP made it clear that the plaintiffs would be required to establish the location of the littoral ("riparian") rights division line between their property and that of defendants before agency action could be taken. The failure of the plaintiffs to challenge the position of the DEP in an administrative appeal to the Supreme Court does not deprive the court of the jurisdiction to hear a common-law property dispute between the parties.
Because the DEP failed to address the merits of the plaintiffs' complaints regarding the location of the defendants' float and pilings, the agency's decision cannot serve as a basis for collateral estoppel. "Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." LaBow v. Rubin, 95 Conn.App. 454, 461, cert. denied 280 Conn. 933 (2006). "To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties . . . and that the determination was essential to the decision in the prior case." (Internal quotation marks omitted.) 12 Havemeyer Place Co. LLC v. Gordon, 93 Conn.App. 140, 153 (2006).
The court finds the issues for the plaintiffs on the defendant's fifth and seventh special defenses.
SUBSTANTIAL COMPLIANCE
In the defendants' sixth special defense, they claim that they are in substantial compliance with both the 1957 and 1984 permits. The defendants' post-trial brief fails to address the legal implications of this defense. In plaintiffs' post-trial brief, they suggest that the defendants abandoned their sixth special defense by failing to revise that defense after the court, Jennings, J., had overruled the defendants' objections to plaintiffs' request to revise that count.
In any event, the evidence is clear that the placement of pilings and floats outside of the littoral rights area owned by the defendants and their predecessors in title exceeded the rights granted by the state under the permits. Accordingly, the court finds no merit in the defendants' sixth special defense.
COUNTERCLAIMS
The defendants have asserted two counterclaims, both asking the court to render declaratory judgments in their favor. In the first counterclaim, the defendants ask the court to declare that they are entitled to maintain their fixed pier, ramp, float and pilings in their current location. In the second counterclaim, the defendants ask the court to declare that the defendants own littoral rights in and to the current location of their fixed pier, ramp, float and pilings. The defendants did not independently brief the legal issues arising out of their counterclaims, but instead relied on the issues briefed with respect to their opposition to the plaintiffs' claims and in support of their special defenses.
The court has determined the littoral rights boundary between the parties in adjudicating the issues involved in the plaintiffs' first count. It is clear that the defendants' fixed pier and ramp, as well as all but two of their pilings, are located within the area of the defendants' littoral rights. If the plaintiffs ever disputed the location of those installations, they abandoned such positions before trial.
The court cannot declare that the two pilings and the half of the float which are situated within the area of the plaintiffs' littoral rights are entitled to remain in their current location. As noted above, the installation of those improvements were authorized by permits issued by the Department of Environmental Protection and its predecessor agency, the Water Resources Commission. The DEP is not a party to this action. The court cannot predict whether the DEP will allow the defendants to maintain their pilings and float beyond the boundary of their littoral right area. Accordingly, the court finds that the issues involved in the defendants' first counterclaim are addressed and subsumed in the court's decision with respect to the plaintiffs' first count.
Since the court has determined that the defendants did not acquire the ownership of any portion of the plaintiffs' littoral rights area, the court finds the issues for the plaintiffs with respect to the defendants' second counterclaim.