Opinion
No. CV 09 6001527
October 4, 2010
MEMORANDUM OF LAW
I FACTS
The plaintiff, Double D Properties, LLC, is the owner of real property located at 376 South Street, Bristol, Connecticut. The owner and single sole member of the LLC is David DiNino. The defendant, Melody Dallaire, is the plaintiff's neighbor, who owns abutting property located at 20 Emily Lane, Bristol, Connecticut. The plaintiff is claiming an easement by implication over a strip of land which is located on the defendant's property. In addition, the plaintiff claims that certain actions taken by the defendant to obstruct the alleged easement rise to the level of willful, wanton, and reckless conduct, and is also seeking punitive damages.
The parcels owned by the plaintiff and the defendant had been commonly owned by the May R. Lassy Living Trust (Lassy Trust) with Gail Sjogren acting as the trustee. The plaintiff purchased its parcel of land with a multiple dwelling unit residence on it located at 376 South Street, Bristol, Connecticut (Parcel A) on June 30, 2004, from the Lassy Trust. Abutting the plaintiff's property to the east is Parcel B, now known as 20 Emily Lane, Bristol, Connecticut, which at the time the plaintiff purchased his property was a vacant, undeveloped lot. On July 1, 2004, Parcel B was conveyed to David Scully and Joseph Geladino. Neither deed referenced an easement by grant or reservation or any other restriction in favor of the plaintiff's property over Parcel B.
Some time prior to 1986, the primary access to Parcel A was a driveway on to South Street. (South Street driveway.) The then owner of the parcels constructed a driveway from the rear of Parcel A over Parcel B in order to provide a second exit from parcel A on to Emily Lane (Emily Lane driveway). The prior owner found it more convenient and safer to use the Emily Lane driveway during the winter months, due to the slope and location of the South Street driveway. At that time, Parcel B was a vacant, undeveloped lot, and the Emily Lane driveway was solely used for servicing Parcel A.
Prior to purchasing Parcel A, the plaintiff was shown a site plan by a real estate agent of the property, which had been made for the benefit of selling the property. (Plaintiff's Exh. 6.) The site plan, which is a Class D survey, depicted the Emily Lane driveway running parallel to Parcel B, and leading to an area marked "Bit," which the plaintiff testified is a parking lot used by his tenants. After the plaintiff purchased Parcel A, he continued to use the Emily Lane driveway as well as using the South Street driveway. Although the driveway had originally been paved, over the years it became cracked, with patches of weeds and grass growing through the cracks. During the winter, the plaintiff employed David Scully to plow the Emily Lane driveway and the parking areas for Parcel A, and in so doing, Scully testified he would pile all the snow in the South Street driveway. As previously stated, the South Street driveway was curved and sloped, and the Emily Lane driveway was easier to maneuver in the winter months.
The site plan is entitled: "Compilation Plan of the Estate of May R. Lassy Showing Parcels A B South Street Emily Lane, Bristol, Connecticut." This type of plan is "based on land record research and other sources of information which depicts the approximate size and shape of a parcel of land. This plan may be derived from records only and not as a result of a field survey or measurements by the surveyor. The accuracy of this plan may vary with the quality of the data from which is has been compiled." Regs., Conn. State Agencies § 20-300b-7. It is also certified as a Class D survey, which again is a compilation of existing data and not a field survey. Regs. Conn. State Agencies § 20-300b-11.
On May 14, 2007, the defendant acquired title to Parcel B by warranty deed from Joseph Geladino and Robert Zangrandi. She testified that prior to buying the lot, she would often drive by the property, and was unaware of the Emily Lane driveway. Even after she bought the lot and began construction of her house, she never noticed anyone using the Emily Lane driveway to access Parcel A. A plot plan dated June 14, 2007, was prepared showing the location of the house to be constructed, as well as depicting the location of the proposed driveway which would service her new home. Although the survey references the Emily Lane driveway noting it as an "existing bit driveway," it does not list any restriction, right of way, or easement as to the Emily Lane driveway.
David Scully transferred his interest in Parcel B to Robert Zangrandi on October 30, 2006. (Plaintiff's Exh. 3.)
This survey, classified as an A-2 survey as to horizontal accuracy is entitled "ZONING LOCATION SURVEY PLOT PLAN FOR HOUSE ASSESSORS LOT 207-3 PREPARED FOR LAURETTI CORPORATION EMILY LANE BRISTOL, CONN. SCALE 1"=20' JUNE 14, 2007.
The map does reference two other easements recorded in the City of Bristol Land Records which do not concern the Emily Lane driveway.
There has also been an issue with a forty-foot strip of land located on the westerly boundary of Parcel B, abutting Parcel A. Discussions had taken place between the plaintiff and the defendant about a possible purchase of that strip of land as well as the Emily Lane driveway. The plaintiff had intentions of developing part of his land, and in order to comply with zoning regulations, he would need to have access to that piece via the Emily Lane driveway. But those conversations did not result in any settlement, and sometime during the construction of the defendant's home, what remained of the Emily Lane driveway was removed, and eventually a new driveway constructed in accordance with the A-2 survey. (Defendant's Exh. B.) A boulder was placed at the end of her driveway, which made any possible access to Parcel A through the Emily Lane driveway impossible. As a result, the plaintiff contends that he is unable to have fair enjoyment of his property as he cannot safely access his property from the South Street driveway and service trucks are unable to access the property for trash removal or oil delivery. He claims an easement by implication over the Emily Lane driveway.
II DISCUSSION A. EASEMENT BY IMPLICATION
"[A]n implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property . . . In the absence of common ownership . . . an easement by implication may arise based on the actions of adjoining property owners . . . There are two principal factors to be examined in determining whether an easement by implication has arises: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." (Internal quotation marks omitted.) Sanders v. Dias, 108 Conn.App. 283, 288, 947 A.2d 1026 (2008). See McBurney v. Cirillo, 276 Conn. 782, 800, 889 A.2d 759 (2006). Our Supreme Court has "not required a showing that such an easement is necessary in order for the implication of its existence to arise. Instead, [the court] has stated that in so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the portion granted . . . The reason that absolute necessity is not essential is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it." (Internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. 799-800.
In Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999), the Supreme Court abrogated the requirement that there be unity of title to establish an easement. But the court may consider that there once was unity of title in order to make a determination of an implied easement. Saunders v. Dias, supra, 108 Conn. 289-90.
"[W]e determine whether the grantor intended to establish an easement by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law . . . [A]lthough the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine that nature and extent of the easement . . ." (Citations omitted; internal quotation marks omitted.) Sanders v. Dias, supra 108 Conn.App. 290.
"The second prong that must be examined . . . is if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate . . . An easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence. But the test is not or at least has not been all that clear. In D'Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954), the court said, in so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment . . . These cases say absolute necessity is not essential . . .
"Perhaps the best way to evaluate the necessity factor is to look at the situation in practical terms. In 25 Am.Jur.2d Easements and Licenses at § 29, p. 527, it says: Necessity cannot be established where an alternative is already in existence. On the other hand, the requirement of necessity may be met where use of an alternative would involve disproportionate expense and inconvenience or whether a substitute can be furnished by reasonable labor or expense." (Citations omitted; internal quotation marks omitted.) Kolb v. Mazzucco, Superior Court, judicial district of New Haven, Docket No. CV 04 400517 (August 23, 2005) ( 39 Conn. L. Rptr. 845, 850-51).
In this case, the deeds introduced into evidence make no mention of any easement or restriction over Parcel B. (See Plaintiff's Exh. 1-4.) The Class D survey introduced by the plaintiff does show the access to Parcel A by the Emily Lane driveway. However, it was prepared for the marketing of the property, and does not show any right of way or easement from Parcel A to Emily Lane other than an indication of "drive." Sjogren testified there was no intention to convey use of the driveway to the plaintiff. Furthermore, no mention was made of any restrictions or easements in the real estate multiple listing of the property. The court finds no intention of the parties to convey an easement over Emily Lane driveway for access from Parcel A to Emily Lane.
Both previous owners of Parcel B, David Scully and Joseph Geladino, testified that they never had any discussions with Sjogren about the Emily Lane driveway. Scully testified that he continued to use the driveway before and after he sold the property, but acknowledged that his deed was silent about any encumbrance by an easement. Geladino testified that he recalled seeing the paved driveway, and inquired about it, because as a builder/developer it is his policy to inquire and do research about properties he is intending to buy in order to insure it is not encumbered with any easement. He is certain that at no point did he have discussions with the defendant concerning the Emily Lane driveway.
Arguably it would be easier and more convenient for the plaintiff to access his property by way of the Emily Lane driveway than the South Street driveway. In order for trash removal and other trucks to service Parcel A, the plaintiff may have to widen the South Street driveway, but he presented no evidence that this would involve a disproportionate expense or unreasonable burden that would thereby create a reasonable necessity to use the Emily Lane driveway. Thus, the court finds that the plaintiff has failed to establish by a preponderance of the evidence that an easement over Parcel B is reasonably necessary for the use and normal enjoyment of his property. Accordingly, the court finds in favor of the plaintiff.
B. WILLFUL, WANTON AND MALICIOUS CONDUCT
In the third count of the complaint, the plaintiff claims that the defendant's conduct in destroying and blocking the Emily Lane driveway rises to a level of willful, wanton and malicious conduct, and thus, punitive damages are appropriate. There is no evidence to indicate that the defendant knew or should have known that the plaintiff was claiming an easement over a strip of her property. On the contrary, the plaintiff had discussions with the defendant at or around the time she purchased Parcel B about the possibility of purchasing the Emily Lane driveway in addition to another strip of her land. Neither the deeds nor any surveys indicated of the presence of a valid easement, or even an intent to convey any right-of-way or easement. If there was no evidence of any valid easement or claimed easement or right-of-way, how could the defendant's conduct pertaining to her own property rise to a level of willful or reckless behavior?
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
"While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). See also Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002), where the Supreme Court considered what a plaintiff must show in order to establish that a defendant's conduct is "wanton, reckless or malicious" pursuant to General Statutes § 4-165. ". . . In order to establish that the defendants' conduct was wanton, reckless, willful, intentional and malicious, the plaintiff must prove, on the depart of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the actions . . ." Id.
General Statutes § 4-165 addresses immunity of state officers and employees from personal liability for "damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment."
The court finds that any unilateral actions that the defendant took with respect to the placement of the boulder at the end of her driveway constructed in accordance with the A-2 survey prepared for her, were not done with any willful or malicious conduct or intent.
The plaintiff argues that the defendant lacks credibility because she said she did not have knowledge that the Emily Lane driveway was used for access to Parcel A. Likewise the court does not find credible the plaintiff's statement that every time he went to view the property prior to his purchase, he "exclusively" used the Emily Lane driveway, and even after the defendant was constructing her house he continued to use it to gain access to his property because of necessity and convenience. More credible is the contention made by the defendant that the plaintiff intended to sell a lot in the rear of his property, and in order to do so, regulations would require him to have a twenty (20) foot driveway — the Emily Lane driveway.
III CONCLUSION
For the foregoing reasons, the court finds in favor of the defendant on count one and count three of the complaint.