Opinion
LLICV165008081S
03-02-2018
Diane FLYNN, et al. v. Stephen J. OLDAKOWSKI, as Trustee of the Oldakowski Family Trust, et al.
UNPUBLISHED OPINION
OPINION
Bentivegna, J.
This matter arises out of a neighbor dispute regarding a right-of-way easement between two properties on Bantam Lake.
I
STATEMENT OF CASE
On May 26, 2016, the court, Pickard, J., granted an ex parte application for a temporary injunction filed by the plaintiffs, Diane Flynn and Lynne Capecelatro, against the defendants, Stephen J. Oldakowski as Trustee of the Oldakowski Family Trust, and Kurt Sluzdak as Trustee of the Oldakowski Family Trust. The court also entered an order to show cause for June 14, 2016, on why a temporary injunction should not issue against the defendants on the plaintiffs’ application and complaint.
The application contained a proposed order to show cause, summons, verified complaint, affidavit, certification of service, and proposed order for a temporary injunction.
The plaintiffs allege the following facts in their verified complaint, dated May 26, 2016. The plaintiffs own 354 Bantam Lake Road, Morris, Connecticut, and the deed to their property references a 502-foot right-of-way on the northern boundary of their property. This right-of-way is on the southern boundary of the defendants’ property, 356 Bantam Lake Road, Morris, Connecticut On May 16, 2016, defendant Stephen J. Oldakowski informed the plaintiffs that he purchased and intended to plant twenty arborvitae trees on the plaintiffs’ right-of-way. The plaintiffs contend that the defendants do not have the right to interfere with their use of that right-of-way because they do not own the right-of-way, and do not have any lawful right or authority to plant trees, clear, cut, alter, or modify it in any manner. The plaintiffs further contend that the defendants are intending to alter the right-of-way, and such actions have caused and will cause irreparable injury to the plaintiffs’ property. The plaintiffs claim no adequate remedy at law, and seek damages and a " permanent injunction prohibiting and restraining the defendants from altering the right-of-way in any manner whatsoever, including but not limited to restraining them from planting trees on the right-of-way."
The defendants explain that arborvitaes " grow very slowly and will be a maximum diameter of [three to five feet] when fully grown." The defendants further explain that they wish to place arborvitae trees in the right-of-way to gain privacy.
On June 14, 2016, the defendants filed an objection to the plaintiffs’ motion for a temporary injunction (# 103) along with a supporting memorandum of law (# 104). The defendants assert that a well, well house, and a shrub (the easterly bush) were installed in the easement area at the time it was deeded to the plaintiffs, but the easterly bush was subsequently removed by the plaintiffs with the permission of the prior beneficiary. The defendants argue that the installation of the arborvitae trees would not obstruct the plaintiffs’ ingress and egress to and from the lake on the right-of-way. The defendants contend that they will suffer irreparable harm if the injunction is granted because they are not able to return the trees to the seller or keep them alive much longer.
On June 14, 2016, the court, Moore, J., granted the plaintiffs’ motion for a temporary injunction. See Order (# 100.40). Thereafter, on October 4, 2016, the defendants filed an answer to the plaintiffs’ verified complaint (# 106), where, in relevant part, they admitted that they purchased and intended to plant the arborvitae trees, but denied that they intended to interfere with the plaintiffs’ use of the right-of-way. The defendants also filed three special defenses (# 107), alleging that (1) the plaintiffs abandoned the right-of-way, (2) the plaintiffs lost the right-of-way by prescription (and the defendants, by prescription, have acquired the right to use their own land free of the right-of-way), and (3) the right-of-way was extinguished by the impossibility of its original purpose. The plaintiffs deny each of these special defenses (# 110). In addition, the defendants filed a counterclaim (# 108) alleging they have acquired, by prescription, title to the right-of-way over the northerly portion of the plaintiffs’ property. In their answer to the counterclaim (# 111), the plaintiffs claim lack of information or knowledge about the defendants’ use of their easement, and deny that the defendants acquired title to their easement by prescription.
Hereinafter, the plaintiff/counterclaim defendants will be referred to as the " plaintiffs," and the defendants/counterclaim plaintiffs will be referred to as the " defendants."
The matter was tried to the court on October 25 and 26, 2017. The court conducted a view of the premises on November 3, 2017. The last post-trial brief was filed on February 13, 2018. Additional procedural history will be set forth as necessary.
II
STATEMENT OF FACTS
This matter was the subject of an evidentiary hearing on October 25 and 26, 2017, at which the following witnesses testified: David Zygmont (plaintiffs’ surveyor), Roy Cheney (defendants’ surveyor), Lynne Capecelatro (plaintiff), Diane Flynn (plaintiff), Mary Jane Bannerman (former neighbor), Bruce Bannerman (former neighbor’s spouse), and Stephen Oldakowski (defendant).
The court had ample opportunity to observe the conduct, demeanor and attitude of the witnesses and to evaluate the testimony. In considering the evidence, in addition to evaluating the testimony, the court also drew reasonable inferences from the facts established in this case. The court took into consideration, as well, all direct and circumstantial evidence presented. The court evaluated the witnesses who came before it, taking into account not only their spoken testimony, but also their ability to perceive the things about which they testified; their ability to recall relevant facts and events; any interest that they may have had in the outcome; the reasonableness of their testimony; and any contradictions that arose between their testimony and other evidence introduced at the hearing. The court’s conclusions are based upon all of the foregoing factors.
David Zygmont testified regarding his completion of a survey of the plaintiffs’ property in May 2016. The parties share a joint border which runs from Bantam Lake Road/CT Route # 209 (westerly) to Bantam Lake (easterly). The parcels are subject to a seven-and-a-half-foot (northerly and southerly) easement on each side of the property line, creating a fifteen-foot right-of-way. The right-of-way provides the parties with access to the road, their homes and the lake. The defendants’ residence is north of the right-of-way, and the plaintiffs’ house is south of the right-of-way. As part of the survey, Zygmont staked out the right of way on the plaintiffs’ side.
The well house, located near the lake, is partly on the defendants’ property. It encroaches three-and-a-half feet into the northerly easement and is four feet from the property line. Larger vehicular traffic accessing the lake by use of the right-of-way would likely need to steer away from the well house and towards the southerly easement and the plaintiffs’ residence. Nearer to the road, there is a large bush on the defendants’ property, encroaching on the northerly easement (westerly bush). Its dripline edge, the widest part of the bush where rainwater falls, is very close, if not over, the property line. Some of the older photographs show tire tracks within the right-of-way, but the tracks do not appear to be deep. In 2017, the plaintiffs asked Zygmont to stake out the edge of the southerly easement, and, thereafter, they installed railroad ties at the edge of the easement onto their property.
Roy Cheney testified regarding his role in conducting a survey of the defendants’ property. In April 2016, his firm was hired to conduct a survey and prepare a map. He examined the plaintiffs’ map and determined that the two survey maps coincide. The fifteen-foot right-of-way runs from the street line to the lake, and consists of a seven-and-a-half-foot easement on each side of the parties’ property line. The well house is on the defendants’ property and extends 3.4 feet into the northerly easement. Based on old photographs, Cheney was able to estimate that the easterly bush had protruded into the easement area and over the property line.
The plaintiffs, who are sisters, are the owners of 354 Bantam Lake Road, Morris, Connecticut. Capecelatro testified that her family has owned the property since 1960, and the sisters obtained the property in 2009. Their property shares a boarder with the neighboring property, now owned by the defendants. The deed for both properties provides for a fifteen-foot right-of-way with a seven-and-a-half-foot easement on each side of the property line. Since 1960, the right-of-way has been used for access to the road and the lake by the owners of the two properties. From 1960 to 2011, the right-of-way was maintained as mostly grass. Older photographs show tire marks within the right-of-way, but the wear and tear was minimal. The plaintiffs had access rights to the well, by deed, and there were no access issues between 1960 and 2011.
Before the defendants closed on their home in June 2011, the plaintiffs made arrangements with the previous owners to remove the easterly bush. The easterly bush, located between the well house and the lake, had grown so large that it significantly encroached into the northerly easement and was close to the property line. It was cut down right before the defendants closed on the property and without their knowledge.
On May 16, 2016, Capecelatro saw the defendants receive a delivery of twenty arborvitae trees. Oldakowski informed her that he intended to plant the trees in a line from the westerly bush to just east of the well house. He indicated that the trees were being planted for privacy while maintaining access to their residence. She expressed concerns to Oldakowski regarding obstruction of the right-of-way. The parties were unable to reach an agreement regarding the planting of the arborvitae trees. The plaintiffs subsequently sought and were granted a temporary injunction to prevent the installation of the trees. After the temporary injunction was granted, the defendants installed a fence on the northerly edge of the easement line, which is seven-and-a-half feet from the property line. The fence runs from the westerly bush to the well house.
Capecelatro further testified that the condition of the right-of-way has changed for the worse since May 2016. She complained that the fence, mounding, and plant growth to the south of the fence are adversely affecting the right-of-way and the plaintiffs’ use of the northerly easement. The northerly easement is not being maintained as it was before May 2016. The right-of-way shows more tire marks and greater wear and tear. Capecelatro complained about Oldakowski speeding back and forth on the right-of-way and spinning the tires of his vehicle. She claims that the right-of-way has been diminished since May 2016, and the plaintiffs now have to launch their pontoon boat from the public boat launch. However, she conceded that the lake level has been low and launching the boat at the public launch has advantages. She also admitted that there have not been any occasions when the plaintiffs were not able to access the lake by the right-of-way. The westerly bush has been there for a long time and has grown over the easement toward the property line. Capecelatro’s contact with Oldakowski since May 2016, has left her feeling intimidated. She testified that the plaintiffs have installed a video security system that shows Oldakowski’s misuse of the right-of-way. However, no video evidence was offered.
The plaintiffs are asking the court to grant a permanent injunction to protect their deed rights to the right-of-way. Capecelatro wants the right-of-way to be returned to the condition before the temporary injunction was issued, with free and uninterrupted access to be maintained.
Flynn also testified regarding her family’s use of the right-of-way since purchasing the property in 1960. Over the years, the right-of-way was not a high traffic area. However, she did admit to seeing tire marks on the right-of-way before. The easterly bush had grown over time and was encroaching on the right-of-way. Initially, after the defendants purchased the property, they had a nice relationship. In May 2016, Flynn was away when the defendants tried to plant the arborvitae trees. She did not want to change the deed rights. It has been more difficult to use the right-of-way and there has been more wear and tear since the defendants installed a fence in May 2016. Flynn placed railroad ties on the westerly edge of the right-of-way to prevent Oldakowski from driving on the plaintiffs’ property, but has witnessed Oldakowski drive over the stakes and railroad ties, and onto the plaintiffs’ property. Although the plaintiffs had a video surveillance system installed, no video evidence was offered. The plaintiffs are still able to launch their boat from the right-of-way but, for the last few years, have launched their pontoon boat at the public boat launch because of the low water levels and more solid footing.
Mary Jane Bannerman, whose family previously owned the defendants’ property beginning in the early 1950s, testified that, while she was growing up, her family spent all of the summer, and parts of the fall and winter at the lake house. After she went to college, she would come for the weekends. In 2000, she and her husband, Bruce, bought a house in Rhode Island and started spending less time at the lake house. During the time she spent there, the right-of-way would be used by her family and the plaintiffs’ family to take boats down to the lake. The right-of-way was not really a high traffic area, although there would be some tire tracks. She does not remember any disputes between the families regarding use of the right-of-way. The westerly bush has been there since the 1950s. After seeing recent pictures of the right-of-way, she testified that she did not recall it looking so overgrown. She remembered the easterly bush being small enough to jump over when she was a child. The bush grew and was cared for, at times, by her husband and other relatives. She was not aware of any discussions with the plaintiffs about removing the easterly bush.
Bruce Bannerman began visiting the lake property in the late 1980s, around the time he started dating his wife. From the late 1980s to 2000, they visited on a consistent basis. In 2000, they bought a house in Rhode Island and started spending less time visiting the lake house. When he visited, he witnessed the right-of-way being used for access to the lake, but it was not used every day. During the 1990s, all the brothers-in-law would take turns trimming the easterly bush. He remembered the bush being around six feet tall and six to eight feet wide. After the 1990s, he did not spend much time there and no longer trimmed the bush. After seeing recent pictures of the right-of-way, he testified that he did not recall it ever appearing in that condition. The right-of-way was lawn that was mowed.
Oldakowski is one of the owners of 356 Bantam Lake Road, Morris, Connecticut. In Spring 2011, after becoming aware that the property was for sale, he toured it with the seller, the Herbert family, who explained the right-of-way and easement. Before the closing, he had a conversation with the plaintiffs regarding use of the right-of-way and the well. He understood that he was purchasing a fifteen-foot right-of-way, which provided unobstructed access to the lake. Prior to purchasing the property, a title search was performed and he reviewed the deed, including the easement provisions. The property was purchased on June 8, 2011. As far as he knew, no survey of the property existed at the time of the sale.
Before closing on the property, Oldakowski did not have any conversations with the plaintiffs about the removal of the easterly bush. Shortly after the closing, he visited the property and found that it had been cut down, leaving only the stump. The plaintiffs informed him that they had permission to remove the bush and had made additional arrangements for the stump to be removed and the ground seeded. The stump was removed after the closing and without his permission.
After the defendants purchased the property, they spent the whole summer there. They had almost daily interaction with the plaintiffs. The plaintiffs were very controlling regarding the " rules" and commented regarding the defendants’ use of their property. On occasion, he would help them by doing work on their property and the parties socialized. After a few years of interacting with the plaintiffs, Oldakowski felt that the plaintiffs had become overly friendly and intrusive. As the relationship between the families soured, the defendants decided that they needed more privacy. By May 2016, there was virtually no dialogue between the parties. Oldakowski remembered mentioning to Capecelatro that he planned to plant some bushes.
When the arborvitae trees were delivered, Oldakowski marked out where he intended to plant the trees and have a bed border, which was mostly to the south of the well house. Capecelatro came over and they had a discussion regarding the placement of the arborvitae trees. After several hours of discussion, the parties were unable to work out an agreement. He did not intend to deprive the plaintiffs of access to the lake or the well. Eventually, Oldakowski planted some of the trees on his property and outside the easement, and sent the others back. He also parked some vehicles on his property for privacy. After the temporary injunction was granted, the defendants built a privacy fence on their property. The defendants went through the local permit process, but because the fence was less than six feet tall, it did not need zoning approval. It was built from the westerly bush to the well area.
Oldakowski thought that the defendants had bargained for a common easement straight back to the lake. It was not until the surveys were done that the easement boundaries were clearly located. No one ever told Oldakowski that the well was within the easement area. He recognized that the trees and border would have been in the easement area and close to the property line. The defendants did not intend to deprive the plaintiffs of access to the right of way and do not want to spoil the view. They only want peace and privacy. Oldakowski has not tried to intimidate the plaintiffs. He drives his vehicle on the right-of-way when he feels like it. He does not try to spin his wheels or run over their boundary stakes. He does not believe that he has a legal obligation to maintain the easement.
III
DISCUSSION
A
Easement
" [A]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement ... Furthermore, [t]he benefit of an easement or profit is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose." (Citation omitted; internal quotation marks omitted.) II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000); see Russakoff v. Scruggs, 241 Va. 135, 138, 400 S.E.2d 529 (1991) (easements are not ownership interests but rather privileges to use land of another in certain manner for certain purpose).
" In determining the character and extent of an easement created by a deed the court must look to the language of the deed. 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 ... 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." (Citation omitted; internal quotation marks omitted.) Welles v. Lichaj, 136 Conn.App. 347, 357, 46 A.3d 246, cert. denied, 306 Conn. 904, 52 A.3d 730 (2012); see Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995); Leposky v. Fenton, 100 Conn.App. 774, 778, 919 A.2d 533 (2007). " The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent ... In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered." (Citations omitted; internal quotation marks omitted.) Leposky v. Fenton, supra ; see Lake Garda Improvement Ass’n v. Battistoni, 160 Conn. 503, 513, 280 A.2d 877 (1971). " In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view ... [I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." (Internal quotation marks omitted.) Simone v. Miller, 91 Conn.App. 98, 109, 881 A.2d 397 (2005).
" [I]f a conveyance is silent as to the duty to maintain an easement, the general rule is that the duty falls on the owner of the easement, referred to as the owner of the dominant estate. The duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement ... When the terms of the deed or conveyance do provide an agreement as to maintenance, then the relevant language of the deed governs the maintenance of that easement." (Citation omitted; internal quotation marks omitted.) Welles v. Lichaj, supra, 136 Conn.App. 358.
Although a determination of the intent behind language in an easement agreement presents a question of law, a " determination of the scope of an easement is a question of fact ... [and the] decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact ..." (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007).
In the present case, the parties submitted into evidence multiple documents, including an agreement and various deeds, from which this court now determines the easement at issue to be an express easement appurtenant. See Kosnik v. Barton, 93 Conn.App. 244, 254, 888 A.2d 1107 (2006) (" [a]n express easement is created by an express grant by deed or other instrument satisfying the statute of frauds" (internal quotation marks omitted); see also Hyde Road Development, LLC v. Pumpkin Associates, LLC, 130 Conn.App. 120, 130, 21 A.3d 945 (2011) (" principles governing the valid creation and execution of an express easement appurtenant [mandate] that the express grantee of the easement appurtenant must also be the owner of the dominant estate that the easement is intended to benefit" ). " [A]ppurtenant means that the benefit can be used only in conjunction with ownership or occupancy of a particular parcel of land, or that only the owner or occupier of a particular parcel is liable for failure to perform a servitude obligation." (Internal quotation marks omitted.) Wykeham Rise, LLC v. Federer, 305 Conn. 448, 482 n.2, 52 A.3d 702 (2012); see Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 728, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006) (" [a]n easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate" (internal quotation marks omitted) ).
The warranty deed recorded on 8/6/53, Defendants’ Exhibit No. C, includes the following language: " TOGETHER WITH a right of way in favor of the Grantee, her heirs and assigns, over the Northerly 7 1/2 feet of land to be conveyed to Elsa A. Wikowski for the purpose of traveling to and from the highway and to end from the lake ...
" Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests ... An [a]ppurtenant easement cannot be used to serve property other than the dominant estate ... The purpose underlying the rule is that the owner of the easement appurtenant may not materially increase the burden of the easement upon the servient estate or impose a new or additional burden. The doctrine was intended to protect the servient estate from the use of an easement in a manner or to an extent not within the reasonable expectations of the parties at the time of its creation." (Citations omitted; internal quotation marks omitted.) Cedar Lake Owners Ass’n, Inc. v. Bunn, Superior Court, complex litigation docket at Waterbury, Docket No. CV-08-4015335-S (October 30, 2008, Eveleigh, J.) .
" The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit ... The owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more ... The right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both ... The interests of the owner of the easement often conflict with the interests of the owner of the burdened estate. By law, however, each of the parties owes certain duties to the other." (Citations omitted.) Peterson v. Oxford, 189 Conn. 740, 744-45, 459 A.2d 100 (1983). " An easement must be used reasonably. Rights must be exercised with reference to the rights of others ... Current social policy dictates that a person no longer have unfettered control of his land. In an urbanized state such as Connecticut it would be unjust for [an easement owner] to ignore the harmful consequences of his actions." (Citation omitted; internal quotation marks omitted.) Id., 746. An easement created by grant " is to be construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant." Birdsey v. Kosienski, 140 Conn. 403, 413, 101 A.2d 274 (1953).
The easement rights in this matter are set forth in plaintiffs’ exhibit 3 and defendants’ exhibits C, D, E, G, and H. Those documents refer to a right-of-way of seven and one-half feet over the southerly portion of the defendants’ property, and seven and one-half feet over the northerly portion of the plaintiffs’ property. The purpose and intent of the right-of-way is to provide ingress and egress to and from the highway and the lake, thus allowing each party to have unobstructed access between the road and the lake. In terms of scope, the easement limited the use of the burdened property for a particular purpose, that is, access to the lake. The plaintiffs and the defendants have the right to enter the land in possession of the other for the sole purpose of using the easement, and each party is prohibited from interfering with the uses authorized by the easement. The use of the easement must be reasonable and as little burdensome as possible; neither party may materially increase the burden of the easement upon the other or impose a new or additional burden. The reasonable expectation of the land owners, who created the right-of-way, was that its condition would remain essentially the same.
B
Plaintiffs’ Case
1
General Statutes § 52-471(a) provides: ‘Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session. Upon granting of the writ, the writ shall be of force until the sitting of the court and its further order thereon unless sooner lawfully dissolved."
The plaintiffs seek a permanent injunction preventing the defendants from planting twenty arborvitae trees in the plaintiffs’ easement. The plaintiffs argue that " the defendants[’] proposal ... would wreak havoc upon the plaintiffs’ easement even while the trees are immature and would, when additional growth ensued, likely wipe out all of the plaintiffs’ easement for the entire length of the stand of trees. The proposed planting would, for the length of the row of arborvitae, eradicate the ability of the plaintiffs to use their easement to pass to and from the lake. The proposed planting would be, therefore, entirely inconsistent with the plaintiffs’ ability to use their easement for the very purpose for which it was deeded to their predecessors in title. Therefore, the plaintiffs would suffer an irreparable injury and would be left with no adequate remedy at law." Pls.’ Post-Trial Brief (# 123) pp. 2-3. The plaintiffs request that a permanent injunction be granted " with a clear message to the defendants that the right of way should be restored to its previous condition previous to May of 2016." Id., 8. In contrast, the defendants contend that the plaintiffs have not demonstrated that, without the issuance of the requested injunction, they will suffer an irreparable injury, nor have they demonstrated that they lack an adequate remedy at law.
" An [i]njunction is the proper remedy to stop interference with an owner’s use and enjoyment of an easement." (Internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn.App. 286, 296, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003). " As a general matter, a showing that irreparable harm to the moving party will ensue without it is a prerequisite to a claim for injunctive relief ... However, there are exceptions to that rule." (Citation omitted.) Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-4011727-S (October 1, 2009, Adams, J.), aff’d on other grounds, 130 Conn.App. 363, 23 A.3d 745 (2011). One such exception is that an " owner of an easement is entitled to relief ... if he can show that he will be disturbed or obstructed in the exercise of his right to use it." Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954); see Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440-41, 440 A.2d 935 (1981); Leabo v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981); Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979), overruled on other grounds, Mannweiler v. LaFlamme, 232 Conn. 27, 35 n.10, 653 A.2d 168 (1995); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977); Expressway Associates II v. Friendly Ice Cream Corp., 22 Conn.App. 124, 130, 576 A.2d 575, reversed on other grounds, 218 Conn. 747, 591 A.2d 813 (1990); Hickey v. Slovesky, Superior Court, judicial district of Ansonia-Milford at Derby, CV 04 0084068 (April 3, 2008, Levin, J.) (45 Conn.L.Rptr. 347). Thus, in determining whether to grant an injunction, the court considers whether, under all the circumstances, the complained of action constitutes an unreasonable or material interference with an easement. See Connecticut Light & Power Co. v. Holson Co., supra, 443 (plaintiff had burden of establishing that conduct " materially interfered with its easement" ); Gerald Park Improvement Assoc. v. Bini, 138 Conn. 232, 237, 83 A.2d 195 (1951) (court considered whether conduct constituted " an unreasonable inference with ... [a] right of way" ).
It is the nature of an easement that creates the exception to the " irreparable harm" standard. " From the nature of an easement its owner cannot be the owner of the land over which it exists. The right to the fee and the right to the easement, in the same estate, are rights independent of each other, though existing in the same estate. Each party may protect himself by appropriate actions, one to maintain his possession of the fee, and the other to protect himself in the enjoyment of his easement." (Internal quotation marks omitted.) Waterbury Trust Co. v. G.L.D. Realty Co., 121 Conn. 50, 52-53, 182 A. 466 (1936). " [T]he owner of a way cannot be disseized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment." (Internal quotation marks omitted.) Id., 53. Thus, the owner is entitled to relief " if he can show that he will be disturbed or obstructed in the exercise of his right to use it." Wambeck v. Lovetri, supra, 141 Conn. 564; see Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 11 A.2d 396 (1940) (" [t]he owner of the easement has all rights incident or necessary to its proper enjoyment but nothing more" ).
Nevertheless, even if irreparable harm must be shown, it can be satisfied through evidence that a plaintiff has been obstructed in its efforts to use an easement. See, e.g., Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., supra, Superior Court, Docket No. CV-07-4011727-S (it is likely that irreparable harm would arise " if the plaintiff was not entitled to enforce by injunction a lawful easement" ). " The nature of the plaintiffs’ right ... the loss of enjoyment of land, is a right whose diminishment constitutes irreparable harm since it cannot be adequately compensated in damages nor be measured by any pecuniary standards." Bradman v. Cea, Superior Court, judicial district of Stamford-Norwalk, Docket Nos. CV-01-0181628-S, CV-01-0181888-S (March 1, 2001, D’Andrea, J.).
In the present case, the court finds that the plaintiffs are not entitled to a permanent injunction. There is no evidence that they have been disturbed or obstructed in the use of the right-of-way or suffered irreparable harm as a result of the defendants’ conduct. The plaintiffs are able to use the right-of-way to access the lake from the road and launch their boat but have, instead, chosen to use the public boat launch because of the low water level and better footing. The planting of twenty arborvitae trees on the defendants’ property north of the easement line will not cause an unreasonable or material interference with the plaintiffs’ use of the right-of-way, including their right to pass, stand, and park vehicles, and even unload trucks, within the easement area. Just like the defendants were able to build a privacy fence on their property, they are able to plant arborvitae trees on their property, far enough away from the northerly easement so as to not create a drip line infringement of the easement. See Shea v. Gavitt, 89 Conn. 359, 94 A. 360 (1915) (discussing principle that an individual cannot alter his land to injuriously cause surface water to flow onto the land of another); Moreno v. Imperial Beach, Cal.Ct.App., Docket No. D050405 (May 20, 2008) (drip line is from the trunk to the edge of the canopy crown); see also Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974) (" owner of land over which an easement has been granted has, by law, all the rights and benefits of ownership consistent with the existence of the easement ... The owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more" (citations omitted) ). If the trees are planted, the defendants will need to maintain and trim them to prevent their growth over the northerly easement line.
Given the equities and circumstances, the court does not see the need for a permanent injunction and has no reason to believe that the defendants will not abide by this judgment. To address issues with the upkeep of the right-of-way, including the mounding issue, the plaintiffs arguably have an adequate remedy at law by way of an action for maintenance of private easement or right-of-way under General Statutes § 47-42f. Finally, the plaintiffs also have not satisfied the standard for an award of damages. The plaintiffs’ request for a permanent injunction is denied.
General Statutes § 47-42f:
(a) As used in this section: (1) " Residential real property" has the same meaning as provided in section 20-325c, but does not include property owned by the state or any political subdivision thereof; (2) " benefited property" or " property that benefits" includes residential real property burdened by an easement or right-of-way, the owner of which residential real property uses such easement or right-of-way; and (3) " easement" or " right-of-way" means a private appurtenant easement or right-of-way.
Notwithstanding, the court will evaluate the defendants’ three special defenses alleging that the right-of-way was (1) abandoned by the plaintiffs, (2) lost by prescription and the defendants have acquired, by prescription, the right to use their own land free of the right-of-way, and (3) extinguished by the impossibility of the right-of-way’s original purpose.
C
Defendants’ Special Defenses
1
First Special Defense: Abandonment
The defendants argue that the plaintiffs abandoned five feet six inches of the northerly portion of their easement by their passive conduct, failure to demand the removal of the well and bushes that have encroached upon their easement since the 1950s, and the non-use of the easement by the plaintiffs and their predecessors in title. In contrast, the plaintiffs contend that there is no evidence that they have acted affirmatively, evincing an intent to abandon their use of the easement. They assert that the five-foot well encroaches three-and-a-half feet onto their easement and is a de minimus interference. They also contend that they have used the entire scope of the easement since the property was purchased, and the bush’s previous existence does not support the defendants’ claim of abandonment.
" 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." (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 527, 932 A.2d 382 (2007). " [A] party faces a difficult burden in establishing the necessary intent to abandon." Simone v. Miller, supra, 91 Conn.App. 103. " The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement." (Internal quotation marks omitted.) Smith v. Muellner, supra . " [Abandonment] implies a voluntary and intentional renunciation ..." (Internal quotation marks omitted.) Simone v. Miller, supra . " Mere nonuser of an easement created by deed, however long continued, is insufficient to establish abandonment. There must also be some conduct on the part of the owner of the servient estate adverse to and inconsistent with the existence of the easement and continuing for the statutory period, or the nonuser must be accompanied by unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it." (Internal quotation marks omitted.) Smith v. Muellner, supra .
" To establish an abandonment of an easement by the acts of the owner of the dominant tract, it is said that his acts must be of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement ... [T]o establish an abandonment of an easement, the proof must go to this extent: First, that the acts relied on were voluntarily done by the owner of the dominant tenement, or by his express authority; secondly, that such party was the owner of the inheritance, and had authority to bind the estate by his grant or release; and, thirdly, that the acts are of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement." (Citations omitted; internal quotation marks omitted.) American Brass Co. v. Serra, 104 Conn. 139, 148, 132 A. 565 (1926).
In the present case, the court finds that the defendants have not met the difficult burden of establishing the necessary intent to abandon. The evidence shows that the plaintiffs did not abandon the northerly portion of the easement by their passive conduct, or their failure to demand the removal of the bushes and well. To the contrary, the evidence indicates that the plaintiffs and their predecessors in title have continuously used the entire right-of-way for ingress and egress to and from the highway and the lake, and there were no disputes or disagreements between the parties’ predecessors in title regarding the use of the right-of-way. The plaintiffs’ use of the public boat launch in recent years is not an affirmative act indicative of an intention to abandon, nor does it constitute nonuse, or negative or passive conduct sufficient to signify the requisite intent to abandon. Further, the tire tracks varied over time and are inconclusive.
In terms of the easterly and westerly bushes, " courts routinely reject that vegetation on an easement, both cultivated and natural, constitutes adverse use adequate to extinguish the easement." Smith v. Muellner, supra, 283 Conn. 525. The easterly bush was removed with the consent of the defendants’ predecessors in title and before the defendants closed on their property. The plaintiffs’ failure to request the removal of the westerly bush does not equate to an affirmative act indicative of an intention to abandon, or constitute nonuse, or negative or passive conduct by the plaintiffs sufficient to signify the requisite intent to abandon. Finally, the use and maintenance of the well is provided for in the deed documents and evinces the intent of the parties. Based on the language of the deed documents and the use of the right-of-way for over fifty years by the plaintiffs and their predecessors in title, the encroachment of the well/well house, a de minimus interference, does not justify a finding of abandonment.
The warranty deed recorded on 8/13/60, Plaintiffs’ Exhibit No. 3 and Defendants’ Exhibit No. G, includes the following language: " Together with the perpetual right in favor of said Witkowski, her heirs and assigns in common with Ina L. Hebert, her heirs and assigns, to take water from well on adjoining land of Ann I. Hebert by means of pipe, together with the right to enter on premises of said Hebert for the purpose of laying, maintaining, repairing and replacing said pipe, provided said Witkowski, her heirs and assigns, leave the premises of said Hebert in substantially the same condition as they were prior to such entry, and provided said Witkowski, her heirs and assigns, bear 1/2 the expense of the repair and maintenance of said well and pump. In the event said Witkowski, her heirs and assigns shall install a separate pump then said Witkowski, her heirs and assigns, shall be relieved from further liability to pay 1/2 the expense of repairing and maintaining the original pump or its replacement, but shall continue to be liable for 1/2 the expense of maintaining and repairing said well." The warranty deed recorded on 8/13/60, Defendants’ Exhibit No. F, includes the following language: " Elsa A. Witkowskik, her heirs and assigns, a perpetual right in common with said Hebert, her heirs and assigns, to take water from well on land of said Hebert adjoining land of said Witkowski on the easterly side of route # 109 in the Town of Morris by means of pipe, together with the right to enter on premises of said Hebert for the purpose of laying, maintaining, repairing and replacing said pipe, provided said Witkowski, her heirs and assigns, leave the premises of said Hebert in substantially the same condition as they were prior to such entry, and provided said Witkowski, her heirs and assigns, bear 1/2 the expense of the repair and maintenance of said well and pump. In the event said Witkowski, her heirs and assigns, shall install a separate pump then said Witkowski, her heirs and assigns shall be relieved from further liability to pay the expense of maintaining and repairing said well." ---------
For the foregoing reasons, the defendants’ special defense of abandonment must fail.
2
Second and Third Special Defenses: Prescription and Impossibility
The defendants allege that the right-of-way was lost by prescription, and that they have acquired, by prescription, the right to use their own land free of the right-of-way. They also allege that the right-of-way was extinguished by the impossibility of its original purpose. The plaintiffs refute these claims.
An easement may be extinguished by prescription or, in other words, on the basis of one party’s adverse use. Smith v. Muellner, supra, 283 Conn. 516-17; Boccanfuso v. Conner, 89 Conn.App. 260, 279-81, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). " Although the law does not favor termination of property rights, a deeded easement may be extinguished by acts of the owner of the servient tract, showing an intent to obstruct the dominant owner’s enjoyment of the easement." (Internal quotation marks omitted.) Smith v. Muellner, supra, 517. " [I]f the servient owner should by adverse acts lasting through the prescriptive period obstruct the dominant owner’s enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement." (Internal quotation marks omitted.) Id.
" To prove that an easement has been extinguished by prescription, the owner of a servient tract must show that he, by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominate tract so as to form a basis for an interference of a grant, releasing the easement, by an owner of the dominant tract to the owner of the servient tract." (Internal quotation marks omitted.) Id. " [T]he adverse actor typically is the fee owner of the land subject to the easement and, therefore, is entirely justified in using that land in any way not inconsistent with the existence of the easement." Id., 518. Therefore, the acts necessary to extinguish an easement by adverse use " must be distinctly adverse to the existence of the easement ... not merely acts showing dominion over the servient estate ... [A]n act that serves to start the prescription period in the servient [owner’s] favor must be one clearly wrongful as to the owner of the easement, for example, the erection of permanent structures, such as ... building[s] ... or other obstructions seriously interfering with the right of use." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 518-19; see, e.g., Public Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn.App. 380, 567 A.2d 389 (1989) (easement extinguished where building with a six-foot high chain link security fence was erected thereon); Russo v. Terek, 7 Conn.App. 252, 508 A.2d 788 (1986) (right-of-way extinguished where six-by-eight-foot outdoor fire place was constructed in the center of the right-of-way). " [V]egetation on an easement, both cultivated and natural," is insufficient to constitute use adequate to extinguish an easement." Smith v. Muellner, supra, 525 (collecting cases). " [A]n easement by adverse use need only be established by a preponderance of the evidence." (Internal quotation marks omitted.) Public Storage, Inc. v. Eliot Street Ltd. Partnership, supra, 385.
Finally, " [w]hile an express easement generally does not terminate even when the necessity or purpose of the easement ceases, an easement granted for a particular purpose may terminate as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment." Bennett v. Bowditch, 163 Conn.App. 750, 760 n.7, 137 A.3d 81 (2016).
In the present case, the court finds that the defendants have not established that the right-of-way was lost by prescription or extinguished by the impossibility of its original purpose. Indeed, there is no evidence from which this court could conclude that either party engaged in any clearly wrongful conduct. There is no evidence of interference with the right of use, or use of the land in any way inconsistent with the existence of the easement. The purpose of the easement, i.e., ingress and egress to and from the highway and the lake, has not ceased to exist, been abandoned, or rendered impossible of accomplishment. The evidence related to the tire tracks is inconclusive; the well/well house is subject to the deed documents and does not constitute an adverse use adequate to extinguish the easement; and the bushes and well have not adversely affected the ability of the plaintiffs and their predecessors in title to use the easement to travel to and from the lake. Moreover, the defendants failed to offer sufficient evidence regarding the prescriptive period.
For the foregoing reasons, the defendants’ remaining special defenses must fail.
D
Defendants’ Counterclaim
The defendants’ counterclaim alleges that they have acquired title to the right-of-way over the northerly portion of the plaintiffs’ property by prescription. The plaintiffs refute this claim.
" [General Statutes § ]47-37 provides for the acquisition of an easement by adverse use, or prescription. That section provides: ‘No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.’ In applying that section, [our Supreme Court] repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." (Internal quotation marks omitted.) Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998).
" Although the acts necessary to extinguish an easement by prescription are described in the law similarly to those necessary to acquire an easement by prescription, extinguishment and acquisition differ fundamentally such that a given act may be considered adverse for purposes of acquiring an easement, but not adverse for purposes of extinguishing one. Specifically, a party attempting to acquire an easement by prescription generally has no ownership rights in the land in question and, therefore, no right to use it in any fashion. Thus, that party’s open and visible use of the land, under a claim of right and absent permission from the fee owner, is sufficient to start the running of the prescriptive period." (Emphasis in original.) Smith v. Muellner, supra, 283 Conn. 518.
" The well established statutory elements necessary to establish an easement by prescription are that the use is (1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right ... A prescriptive easement must be proved by a fair preponderance of the evidence." (Citations omitted; internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn.App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). " Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts." (Internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985).
First, " [t]he purpose of the open and visible requirement is to give the owner of the servient land knowledge and full opportunity to assert his own rights ... To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. Open generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent ... An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement ... Concealed ... usage cannot serve as the basis of a prescriptive claim because it does not put the landowner on notice ... A typical example of such a concealed use involves an asserted easement in an underground sewer or pipeline." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 577, 800 A.2d 1102 (2002).
Second, " [t]he requirement that the use be continuous is satisfied if it is proven that the use was uninterrupted for a period of at least fifteen years." Frech v. Piontkowski, 296 Conn. 43, 57, 994 A.2d 84 (2010). " [T]he party claiming a prescriptive use may demonstrate that use by credible and probative circumstantial evidence. Moreover, the fact finder’s determination that the servient estate was used under a claim of right will be sustained unless that determination is manifestly unsupportable ... [A]dverse use or adversity simply refers to the requirement that the easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land and that such claim must be known to, and acquiesced in by the owner of the land ... Given that definition, it logically follows that adverse use or adversity will, in most instances, be proven from the same evidence by which [the] easement claimant establishes his open, notorious, exclusive, continuous and uninterrupted ... use of the easement for the full statutory period." (Citation omitted; footnote omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 433-34, 984 A.2d 734 (2009).
" If one party’s period of use or possession is insufficient to satisfy the fifteen-year requirement, that party may ‘tack on’ the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights ... Typically, therefore, a successful invocation of the doctrine of tacking will resemble the following hypothetical: A, the owner of Whiteacre, used a road across Blackacre for access to the public highway, without the permission of O, the owner of Blackacre, for ten years. A subsequently sold Whiteacre to B, who used the road across Blackacre for the same purpose for five years ... Under such circumstances, B has privity with A and, in the absence of other facts and circumstances, will be allowed to invoke the doctrine of tacking in order to establish that she has satisfied the fifteen-year use requirement of § 47-37." (Citations omitted.) McBurney v. Cirillo, 276 Conn. 782, 813, 889 A.2d 759 (2006), overruled in part on other grounds, Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).
Finally, " [t]he requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner ... It means nothing more than a [use] as of right, that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be under a claim of right ... [When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an inference from the circumstances of the parties and the nature of the [use] ... A trier has a wide latitude in drawing an inference that a [use] was under a claim of right." (Internal quotation marks omitted.) Chase & Chase, LLC v. Waterbury Realty, LLC, 138 Conn.App. 289, 297, 50 A.3d 968 (2012). " There can be no claim of right unless the use is unaccompanied by any recognition of [the] right [of the owner of the servient tenement] to stop such use. [Thus, a] use by express or implied permission or license cannot ripen into an easement by prescription." (Emphasis in original; internal quotation marks omitted.) Berube v. Nagle, 81 Conn.App. 681, 692, 841 A.2d 724 (2004).
" Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions." (Internal quotation marks omitted.) Id. Furthermore, " [a] prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty ... However, slight or immaterial changes or deviations in a portion or portions of a way do not prevent the acquisition of a right-of-way by adverse use so long as the way remains substantially the same throughout the prescriptive period ... The exact location of a right-of-way presents a question of fact for the trial court ..." (Citations omitted; internal quotation marks omitted.) Boccanfuso v. Conner, supra, 89 Conn.App. 291.
In the present case, the court finds that the defendants have not proven that they acquired title to the right-of-way over the northerly portion of the plaintiffs’ property by prescription. The evidence is insufficient to find that the defendants, or their predecessors in title, used the northerly portion of the plaintiffs’ property as part of the right-of-way adversely or for the requisite time period. Rather, the evidence supports the plaintiffs’ contention that there was a neighborly relationship between the plaintiffs and the previous owners of the defendants’ property, and there were never any issues, disagreements or arguments regarding the use and maintenance of the right-of-way. There is no evidence that the prior owners of the defendants’ property ever sought to gain a prescriptive easement over the plaintiff’s property. The easement has not migrated in a southerly direction toward the plaintiffs’ property, and the express easement in favor of the defendants over the plaintiffs’ land has not been prescriptively enlarged.
For the foregoing reasons, the defendants’ counterclaim for an easement by prescription must fail.
IV
CONCLUSION
For the above-stated reasons, the court enters the following orders:
1) The plaintiffs’ request for a permanent injunction is DENIED.
2) The plaintiffs’ request for damages is DENIED.
3) The defendants’ counterclaim is DENIED.
" RESERVING nevertheless to the Grantors, their heirs and assigns, a right of way over the Southerly 7 1/2 feet of the premises herein described for the purpose of travel to and from the highway and to and from the lake."The warranty deed recorded on 816/53, Defendants’ Exhibit No. D, includes the following language: " SUBJECT to a right of way in favor of Ann L. Hebert, her heirs and assigns, over the Northerly 7 1/2 feet of the premises herein described for the purpose of traveling to and from the highway and to and from the lake. TOGETHER WITH a right of way in favor of the grantee, her heirs and assigns, over the Southerly 7 1/2 feet of land conveyed by these Grantors to Ann L. Hebert for the purpose of traveling to and from the highway and to and from the lake." An agreement recorded on 8/9/60, Defendants’ Exhibit No. E, provides as follows: " THIS AGREEMENT MADE AND ENTERED INTO THIS 8th day of August 1960, between Elsa A. Witkowski of Farmington, Connecticut, and Ann L. Hebert, of Avon, Connecticut, ...
" WITNESSETH: ..
" That whereas the parties hereto presently use a right of way leading from Connecticut State Highway Route # 109 to and from the water of Bantam Lake, which right of way is 15 feet in width 7 1/2 feet of which are along the southerly border line of the land of said Hebert and 7 1/2 feet of which are along the northerly boundary line of land of said Witkowski and ...
" WHEREAS the parties hereto wish to limit the use of the easterly 225 feet of said right of way to such persons as may own the property presently owned by said Hebert and said Witkowski lying easterly from a line drawn 310 feet easterly from the easterly line of said highway ...
" NOW THEREFORE, it is agreed between the parties hereto that in the event that either of them shall sell that portion of their property lying between the easterly line of Connecticut State Highway Route # 109 and a line drawn 310 feet easterly therefrom and parallel thereto, then, the purchaser of such portion of said property shall have a right of way from the highway easterly to a point 310 feet from the highway in common with said Hebert, said Witkowski, their heirs and assigns and no further."The warranty deed recorded on 8/13/60, Plaintiffs’ Exhibit No. 3 and Defendants’ Exhibit No. G, includes the following language: " Together with the right of way in favor of said Witkowski, her heirs and assigns over the southerly 7 1/2 feet of land of Ann L. Hebert for the purpose of travelling to and from the highway and to and from the Lake, as hereinafter limited ...
" Subject to a right of way in favor of Ann L. Hebert, her heirs and assigns over the northerly 7 1/2 feet of land of Elsa A. Witkowski herein described for the purpose of travelling to and from the highway and to and from the Lake, as hereinafter limited ...
" The future use of so much of the 15-foot right-of-way hereinbefore referred to as lies easterly of a line drawn 310 feet easterly from the easterly line of said highway shall be limited to such persons as may own the property presently owned by said Hebert and presently owned by said Witkowski lying easterly from said line."The defendants’ Trustee’s Deed recorded 6/13/11, Defendants’ Exhibit No. H, includes the following language: " Said premises are conveyed subject to maintenance Agreement Rights as set forth in an instrument dated August 9, 1960 and recorded in Volume 26 at Page 417 [Defendants’ Ex. No. F]; Right of Way Agreement dated August 8, 1960 and recorded in Volume 29 at Pages 5 and 7 [Defendants’ Exhibit No. E]; ... Reservation as set forth in a Warranty Deed dated August 6, 1953 and recorded in Volume 24 at Page 504 [Defendants’ Exhibit No. C] ..." Attachment A to the Trustee’s Deed, included with Defendants’ Ex. No. H., included the following language: " Together with a right of way over the Northerly 7.5 feet of land to be conveyed to Elsa Witkowski for the purpose of travelling to and from the highway and to and from the lake as set forth in a Warranty Deed dated August 6, 1953 and recorded in Volume 24 at Page 504 of the Morris Land Records [Defendants’ Exhibit No. C]."
(b) The owner of any residential real property that benefits from an easement or right-of-way, the purpose of which is to provide access to such residential real property, shall be responsible for the cost of maintaining such easement or right-of-way in good repair and the cost of repairing or restoring any damaged portion of such easement or right-of-way. Such maintenance shall include, but not be limited to, the removal of snow from such easement or right-of-way.
(c) If more than one residential real property benefits from such easement or right-of-way, the cost of maintaining and repairing or restoring such easement or right-of-way shall be shared by each owner of a benefited property, pursuant to the terms of any enforceable written agreement entered into for such purpose. In the absence of such agreement, the cost of maintaining and repairing or restoring such easement or right-of-way shall be shared by each owner of a benefited property in proportion to the benefit received by each such property.
(d) Notwithstanding the provisions of subsections (b) and (c) of this section, any owner of a benefited property who directly or indirectly damages any portion of the easement or right-of-way shall be solely responsible for repairing or restoring the portion damaged by such owner.
(e) If any owner of a benefited property refuses to repair or restore a damaged portion of an easement or right-of-way in accordance with subsection (d) of this section, or fails, after a demand in writing, to pay such owner’s proportion of the cost of maintaining or repairing or restoring such easement or right-of-way in accordance with subsection (c) of this section, an action for specific performance or contribution may be brought in the Superior Court against such owner by other owners of benefited properties, either jointly or severally.
(f) In the event of any conflict between the provisions of this section and an agreement described in subsection (c) of this section, the terms of the agreement shall control.