Opinion
No. FST CV 04 4001883 S
April 24, 2007
MEMORANDUM OF DECISION
1. Background
Robert Harmon, Marilyn Harmon, Edward Bloom and Eleanor Bloom, holders of an easement, brought this action against Quentin A. Pearson and his wife, Doreen Pearson, owners of the real property encumbered by the easement. The easement, or right of way, is fifty feet wide and runs westerly and then southwesterly over the defendants' property, from Maple Avenue in Greenwich, Connecticut to provide access to two properties known as Lots 3 and 4 owned by Mr. and Mrs. Bloom and Mr. and Mrs. (Dr.) Harmon, respectively. A private road, known as Boxwood Lane, about twelve feet wide, located on the easement, provides the actual access to the driveways and residences owned by the Blooms and Harmons. There is no present dispute about the existence or use of the roadway named Boxwood Lane. Rather, issues have arisen about the uses of certain portions of the right of way not occupied by the private road.
The lot numbers referred to in this decision are those shown on Map No. 6825 made in connection with a 1993 resubdivision, on file in the Greenwich Land Records. Map No. 6825 is Exhibit 1. The same lot numbers are shown on Exhibit A, a survey prepared in 2006.
The land in question was initially one parcel of about three and a half acres owned in the 1940s by Nora Stanton Barney. She operated a rooming house or boarding house in a structure located on Maple Avenue that had once been a large family residence. That structure is now a 24-unit bed and breakfast operation owned by the Pearsons, known as the Stanton House Inn and situated on Lot 1. In 1947 a portion of the property, Lot 3, was sold off and is now owned by the Blooms. The deed specified that the property was conveyed along with a
right of way, in common with the grantor and others to whom such right has been or may hereafter be granted, in, to and over a certain way 50 feet in width adjoining said premises on the east and south leading easterly to Maple Avenue, for all lawful purposes to the same extent as if the same were a public highway; that portion of said way herein granted to the grantee being subject to said rights and uses.
Ex. 2 at 1 (emphasis added).
In 1949 another portion, Lot 4, was sold and is now owned by the Harmons. That deed conveyed the property along with
The right to use in common with the grantor and others to whom such right has been or may hereafter be granted said private road or right of way, for all purposes of travel and for purpose of installing and maintaining in said private road, water, sewer, gas lines, electric light and telephone poles, wires, conduits and other utilities and to connect with all such utilities laid or to be laid therein.
Ex. 9 at 1 (emphasis added).
The remainder of the original property owned by Nora Stanton Barney was conveyed in 1964 to Q. Associates, Inc., owned by the Pearson family, and this remainder now known as Lots 1, 2 and 5 are owned by Quentin Pearson, Jr. or jointly with his wife Doreen. Lot 1 is the location of the Stanton House Inn and fronts on Maple Avenue. Lot 2 is in back (west) of the Inn and contains a "secret garden" accessible to and for the benefit of Inn guests. Lot 5 is southwest of Lot 1, with a driveway leading to Maple Avenue and is the location of Quentin Jr.'s and Doreen's residence, built in 1994.
At its beginning off Maple Avenue, Boxwood Lane runs to the north of the Inn along the northern edge of Lots 1 and 2. Since the easement (50 feet) is considerable wider than Boxwood Lane itself (12 feet) a significant portion of the easement area lies south of Boxwood Lane, an asphalt road.
A portion of the right of way that encumbers Lot 1 located to the south of Boxwood Lane and immediately northeast of the Stanton House Inn has been paved over and is used as a parking lot for guests of the Inn. There is no real dispute that this area on the right of way, which is only part of the parking area for guests, has been used as a parking lot for many years. Mr. Bloom testified that the area had been used for Inn parking for 35 years. Tr. 1, 76; see also id., 39. Mr. Pearson said it had "always been there for years." Tr., 2, 33; see also id., 34. The parking area located on the right of way is marked as "Asphalt Parking" on Exhibit A and has been surveyed in 2006 as roughly rectangular in shape about 71 feet (east-west) by 30.2 feet (north-south).
References to "Tr. 1" and "Tr. 2" followed by a number are to the transcript of the trial for September 29, 2006 and October 3, 2006, respectively.
II. The Parties' Claims
In their second amended complaint, the Harmons and the Blooms seek to enjoin the Pearsons from what they claim are encroachments on the fifty-foot right of way, e.g. the Pearsons' refusal to allow the plaintiffs to park on that part of the easement which is not Boxwood Lane (Count one). They also seek to enjoin the maintenance of guinea hens by the defendants alleging that the guinea hens are a nuisance (Count 2).
In their response the Pearsons deny the material allegations of the complaint and make two counterclaims: (1) seeking a declaration that the part of the right of way used by the Stanton House Inn as a parking lot is extinguished by prescription or adverse possession, and (2) seeking a declaration that defendants may not park their vehicles "beyond the paved portion of Boxwood Lane." The Pearsons also assert as special defenses that the plaintiffs' claims are barred by the doctrine of laches, unclean hands, estoppel and waiver.
III. Discussion A. Plaintiffs' Clams for Injunction Against Guinea Hens
The court finds that the claim to enjoin the Pearsons' keeping of guinea hens should be denied as moot. The uncontroverted evidence showed that the noisy fowl were removed a number of years ago, rather soon after a complaint was made by the Harmons, have not been brought back, and that the Pearsons have no intention of bringing them or other such birds, back. Tr. 2, 23-24.
B. Plaintiffs' Claims of Encroachment, and Defendants' Counterclaims.
Two of the plaintiffs' claims of encroachment bear little discussion. They contend that the Pearsons "maintain[ed] a large stone at the entrance to Boxwood Lane . . . from Maple Avenue and striped paved portions of the right of way so that they were incorporated into the parking area of the Stanton House Inn." Amended Complaint, October 2, 2006, ¶ 9.
The evidence at trial showed that the large stone was moved away from the Boxwood Lane entrance by Mr. Harmon several years before the commencement of this lawsuit. Tr. 1, 140; Ex. G. There is no evidence that the Pearsons have any wish to move the stone to a position of obstruction. This claim is not proven.
Similarly not proven is the allegation that the Pearson's striping of the Inn parking lot was an encroachment. There was no proof that painting lines for parking spaces in 1998 on the existing asphalt lot encroached on Boxwood Lane or increased the area used for Inn parking in any fashion. Indeed, the evidence was that the striping was designed to encourage guests to park in designated areas, not on Boxwood Lane, and that anyone parked within a striped slot could not block the plaintiffs' ingress and egress. Tr. 2, 96-97. While the striped parking area is within the right of way and will be discussed later, this particular aspect of the plaintiffs' claim is also not proved.
The third facet of the claimed encroachment is the allegation that the defendants have improperly refused to allow the plaintiffs to park at western end of the right of way off Boxwood Lane. Amended Complaint, October 2, 2006, ¶ 10. The areas in contention are the previously described "Asphalt Parking" as delineated on Exhibit A and a smaller area just to the west of "Asphalt Parking" which previously was the location of an old patch of asphalt large enough for two cars. This asphalt patch was torn up by the Pearsons in 1998 and grassed over. These two areas are also the gist of the Pearsons' counterclaims seeking a declaration that no parking is allowed on the right of way outside or off of Boxwood Lane, and a declaration that the portion of the right of way covered by the area shown as "Asphalt Parking" has been extinguished. Therefore, these three intertwined claims will be considered together.
The essence of this neighborhood dispute arises in part because of the nature of Boxwood Lane and the scope of the easement itself. According to the testimony presented by the plaintiffs, Boxwood Lane has, at one point west of the entrance on Maple Street and past the "Asphalt Parking" area, both a steep drop in elevation and a curve. Mr. Harmon estimated the grade of the slope to be 15 percent. Tr. 1, 118 ("Boxwood Lane falls off very steeply . . . in slippery weather it's pretty treacherous to come down there"). Mr. Bloom testified . . ."when it snows . . . you would take your life in your hands if you . . . tried to drive down Boxwood Lane." Tr. 1, 39 (conceding that four-wheel drive vehicles might make it easier). A tenant of the Blooms, Ms. Zottola, said the lane was "very wind[ing] and very steep" and it was "impossible to get the cars to go up and down" in bad weather. Tr. 2, 106. Mr. Pearson described the slope as "I don't think it's that bad," (Tr. 2, 67) and the defendants argue that no expert testimony was presented as to the grade of the incline or how it compared to Town road regulations. However, the court credits the testimony presented by the plaintiffs that in snowy or icy conditions Boxwood Lane is difficult for car travel. This finds support in the letter to Mr. Pearson notifying him of approval of a subdivision in 1993 and noting the existence of steep slopes on or near Boxwood Lane. Ex. 3.
As a result of these conditions, the plaintiffs testified they or tenants in their houses, have on various occasions parked their automobiles at the easterly end of the right of way either on the "Asphalt Parking" area used by the Inn for parking or to the side of Boxwood Lane where the asphalt patch was formerly located. Plaintiffs point out that no parking is allowed on Maple Street itself. Tr. 1, 43. They claim they have the right to do this through the right of way language in their deeds. See Ex. B and Tr. 1, 61, 92, 95. The occasions for such parking occur mainly during winter conditions but also when work or repairs are occurring on Lots 3 or 4 and trucks or other impediments are in their driveway or when their driveway parking areas are needed for guests invited to their homes. Tr. 1, 93-95, 117, 131, 165, 182-83; Tr. 2, 13.
The above parking practices have been objected to by the Pearsons. The evidence concerning these objections begins some time after 1985 when the Pearsons took over full-time management of the Inn. Tr. 2, 69. See also Tr. 2, 77. In 1988 Mr. Pearson put a note on the windshield of the car belonging to someone caring for the dogs belonging to a tenant of the Bloom's house on Lot 3. This engendered an exchange of correspondence between Mr. Bloom and Mr. Pearson in which the former insisted on the right to park on the right of way and the latter stating he believed no such right existed. Exhs. B, C. In 1994 Mr. Pearson told Dr. (Mrs.) Harmon that she had no right to park on his property off Boxwood Lane. Tr. 1, 184.
The Inn has twenty-four rooms and the parking lot, including the area on the right of way which was striped in 1998 has twenty-four parking spaces. Tr. 2, 84. This appears to be the minimum number of parking spaces allowed by zoning regulations. Ex. M.
The Connecticut Appellate Court has said the following about interpreting easements created by deed:
To determine the nature of an easement created by deed, we must discern the intention of the parties to the deed by considering the language of the deed, the situation of the property and the surrounding circumstances . . . we give the language of the easement its ordinary import where nothing in the situation or surrounding circumstances indicates a contrary intent . . . The meaning and effect of the reservations are to be determined, not by the actual intent of the parties, but by the intent expressed in reading it in the light of the surrounding circumstances . . . and its interpretation present[s] a question of law . . . 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. (Citations omitted; internal quotation marks omitted.)
Hoffman Fuel Co. of Danbury v. Elliot, 68 Conn.App. 272, 279-80 (2002) [quoting from Ezikovich v. Linden, 30 Conn.App. 1, 5-6 cert. denied 225 Conn. 919 (1993)] see also Mackin v. Mackin, 186 Conn. 185, 189 (1982).
The wording of the grant of the rights of way in the deeds to Lots 3 and 4, as set forth above, is not identical. Both deeds conveyed the right of way "in common with the grantor and others to whom such right has been or may hereafter be granted." The deed to Lot 3 specified a fifty-foot wide right of way, whereas the Lot 4 deed seems to refer to an existing right of way. The deed to Lot 3 granted the right of way "for all lawful purposes to the same extent as if the same were a public highway." The Lot 4 deed did not contain that language but used the phrase "for all purposes of travel." While it is disconcerting to come across different language, in the absence of any evidence to the contrary, the court determines that the grantor intended to convey the same easement with same rights and privileges to the owners of Lots 3 and 4. The language of both deeds evidences an intent to grant access to the lots from Maple Avenue, and no reason appears to grant one lot a different type of access than the other.
The Lot 4 deed also made reference to use of the right of way for water, sewers and utilities.
In connection with the parking issue the parties have focused attention on two Appellate Court cases from the late 1980s: Hagist v. Washburn, 16 Conn.App. 83 (1988) and Hall v. Altomari, 19 Conn.App. 387 (1989). In Hagist the Appellate Court decided that the holder of a right of way over a neighbor's property had the right to park her vehicle on that right of way. The court remarked that "to hold otherwise would mean that the driveway could not be used to park any cars and exists only for the use of vehicles making delivery." Hagist, supra, 16 Conn.App. 88. This language would indicate that there may not have been any area for parking on the easement holder's property. Hagist also held that the servient landowner could not park on the right of way since that would block any use of the easement by the holder of the easement.
In Hall v. Altomari, supra, the deeded easement in question stated "Together with a right of way in common with others for all lawful purposes to and from said premises to Long Ridge Road." Hall claimed that Altomari, the easement holder, was parking as many as five cars on the right of way. The Appellate Court held that "unlike the right of way at issue in Hagist" the right of way in Hall contained "to and from" language which the court interpreted as "words of limitation restricting the defendant's rights with respect to the private road to those of ingress and egress." Id., 391. In other words, no parking. The court also observed that the defendant's property contained a large parking lot sufficient to handle the needs of the defendant's three-family residence.
A third Appellate Court decision pertinent to this case was released after the parties in this case had filed their post-trial papers. In Leposky v. Fenton, AC 26869 (official release date April 24, 2007, but on the Judicial Branch web site as of April 17, 2007) the Appellate Court dealt with a deed conveying property subject to "a right of way . . . for a driveway for ingress and egress from the rear portions of [an adjacent lot]." The court said in "determining the scope of an express easement, the language of the grant is paramount in discerning the parties' intent" and held that rights of the easement holder "are limited to ingress and egress and do not include the right to use the right-of-way to park vehicles." The court found that the easement language "for ingress and egress" was similar in effect to the limiting language "to and from" in Hall v. Altomari, supra and distinguishable from the more general terms of the easement found in Hagist v. Washburn, supra.
The issue is whether the language of the deeds to Lots 3 and 4 conveys a right to the plaintiffs to park vehicles on the right of way but off of the pavement of Boxwood Lane. The two areas specifically at issue are the "Asphalt Parking" area on Exhibit A, now being used for Inn parking and the smaller area to the west of the "Asphalt Parking" where formerly there had been a asphalt patch big enough for two vehicles.
In determining this issue the court finds that it was clearly the intent of the grantor of the rights of way (the predecessor of the Pearsons) to allow the owners of Lots 3 and 4 freely available vehicular access from Maple Avenue to those lots which were subdivided out of the original property. Without such access those two lots could not have been sold for residential purposes. The "right of way" encompasses the right to traverse the defendant's property from Maple Avenue to Lots 3 and 4. The court further concludes that access to those lots is effectively denied if weather, driving conditions or other circumstances make it prudent not to drive a vehicle all the way to the driveways of Lots 3 and 4, and the vehicle is not allowed to temporarily park on the right of way but off of Boxwood Lane itself. With no right to temporarily park under such circumstances there would be no access from Maple Avenue at all because no parking is allowed on Maple Avenue in the vicinity and vehicles would have to be left quite some distance from the Harmon and Bloom lots.
The court's review of the Appellate Court cases noted above persuades it that the language of the deeds to Lots 3 and 4 granting the right of way ("to the same extent as if the same were a public highway" "for all purposes of travel") is considerably less restrictive than the right of way language emphasized in Hall or Leposky and closer to the language of Hagist. On most public highways parking is allowable, and "for all purposes of travel" implies the inclusion of activities such as stopping for sightseeing or stopping for emergencies.
Based on the above conclusion that vehicular access is effectively denied when certain conditions make it imprudent to drive on the steep slope and curve, and the court's analysis of the language granting the right of way in light of Appellate Court authority, the court determines that the right to traverse the right of way includes the right to traverse as far as prudent, possible or reasonable under the circumstances and it includes the right to stop or park on a temporary in the right of way and off Boxwood Lane when circumstances dictate. This would clearly be so in the case of a flat tire or running out of gas, and the court concludes it is equally so when driving conditions or other circumstances dictate that it is prudent to go no further.
Connecticut law is quite clear that the owner of an easement or right of way is entitled to the reasonable use of the easement for the purposes that the easement was given, and an easement holder has all the rights necessary or incident to its enjoyment, although nothing more. Kuras v. Kope, 205 Conn. 332, 341 (1987); Peterson v. Oxford, 189 Conn. 740, 745 (1983). Furthermore, because the deeds' language is more generalized than limited, it is not improper for a court to consider what reasonable uses are incident to the enjoyment of the purposes of the easement. Leposky, supra, n. 5.
The temporary parking must be allowed off of the twelve-foot wide Boxwood Lane because if parking is limited to Boxwood, the Lane itself would be effectively blocked. The right of way is, after all, fifty feet wide and a reasonable portion of that area must be available for temporary parking. However, the court does not believe that parking on the right of way on Lot 1 is required by the deeds' language or the circumstances simply for the purpose of allowing guests to park in the driveways of Lots 3 and 4.
The question then becomes what area must be made available. The Pearson's first counterclaim asserts that the portion of the fifty-foot wide right of way which is denoted on Exhibit A as "Asphalt Parking" and which is part of Stanton House parking lot, has been lost by means of the Pearsons' adverse possession of that area. There is no question that an express easement may be lost through prescription. Russo v. Turek, 7 Conn.App. 252, 255 (1986).
If the servient owner (here, the Pearsons) should by adverse acts lasting through the prescriptive period obstruct the dominant owner's (here, the Harmons and Blooms) enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement.
Id., [quoting from American Brass Co. v. Serra, 104 Conn. 139 (1926)]. The prescriptive period in Connecticut is fifteen years. General Statutes § 47-37. To establish prescriptive rights the claimed right must be exercised openly, under a claim of right and uninterruptedly for a period of fifteen years. Id.; Roche v. Fairfield, 186 Conn. 490 (1982).
The testimony of Bloom is evidence that the "Asphalt Parking" area had been used for Stanton House parking for thirty years or more. Tr. 1, 38-39, 76. When the Blooms moved, over fifteen years ago, when they did park on the "Asphalt Parking" area, they did not do so under a claim of right. Tr. 1, 95. The use of the "Asphalt Parking" area for Inn parking has been open and notorious for well over fifteen years as shown by the paving of the area by the Pearsons and more recently by the striping of parking slots. Moreover, the Pearsons claimed the area for Inn parking as a matter of right by leaving notes on cars not belonging to Inn guests and asking others not to park there. Tr. 2, 77; Exhs. B, C; Tr. 1, 184. Based on the foregoing, the court finds that the Blooms and Harmons have lost that part of the right of way shown as "Asphalt Parking" by prescription.
Another area, just to the west of the "asphalt parking" area has occasionally been used for parking. This is the asphalt patch area formerly asphalted but grassed over by the Pearsons in 1998. This area was large enough for two parking spaces on the right of way but not on Boxwood Lane and was used for parking by the Blooms. Tr. 1, 56-60, 72. The area has more recently been used by Mr. Pearson to park his truck. Tr. 2, 76, 101. The court determines that this area may be used by those residing at Lots 3 and 4 for parking when circumstances as described earlier dictate.
IV. Conclusion and Order
For the reasons set forth above, the court reaches the following conclusions and issues the following orders.
1. The second count of the second amended complaint (guinea hens) is dismissed as moot.
2. The plaintiffs' claims of encroachment in the first count of the amended complaint are found not proven and dismissed except for the claim of encroachment by means of preventing parking on the right of way, but off of Boxwood Lane. On that claim the plaintiffs prevail to the following extent; the defendants are enjoined from preventing residents or occupants of Lots 3 and 4 from temporarily parking on the right of way when weather or other conditions make it imprudent or difficult to drive all the way to the Lot 3 and Lot 4 driveways. This injunction does not extend to the paved parking area used for Stanton House Inn guests, for the reasons set forth in Paragraph 3 below.
3. The first counterclaim of the defendants' amended answer and counterclaim is found proven and the court declares that the part of the right of way on which the Inn parking lot is located is extinguished.
4. The second counterclaim is pleaded in the alternative, and is denied because the first counterclaim is granted, and because the court finds under certain circumstances the plaintiffs have rights to park on the right of way.