Opinion
No. CV 04-4000357 S
October 27, 2004
MEMORANDUM OF DECISION RE PLAINTIFFS' APPLICATION FOR A TEMPORARY INJUNCTION
The Plaintiffs have applied for a temporary injunction in this matter in which they claim that the Plaintiff Frank Hastings had an agreement with the Defendant Leslie S. Scoville to allow Frank Hastings to continue to use an ingress and egress to a certain sand and gravel operation located at Babcock Hill Road and Pucker Street in Coventry which ingress and egress is located at the entrance to 947-949 Pucker Street, Lot 5a and Lot 5b, in Coventry. The Plaintiffs claim that in May 2004 the Defendant erected barriers at the entrance to 947-949 Pucker Street and placed rocks across a road between Lots 5a and 5b. The Plaintiffs also claim that as a result they cannot operate the sand and gravel operation, cannot remove equipment from the sand and gravel operation, cannot prepare the site for future subdivision, and have lost large sums of money. A hearing on the application was held on October 5th and October 7th, 2004. Memorandum of law were filed by all parties on October 15th.
From the evidence presented the court finds the following facts. Both Lots 5a and 5b were purchased by the Defendant in 2003. The Defendant's property is bordered on the west by Pucker Street and on the east by property owned by the Plaintiffs. All the property which is the subject of this case were previously owned by the Plaintiff Hastings. The ingress and egress gravel drive over the Defendant's property, which the Plaintiffs claim, was constructed by the Plaintiffs in 1998. Prior to that time the Plaintiffs accessed the sand and gravel operation on their property from Babcock Hill Road which is north of the Plaintiffs' land. The deed from Neal Robertson to the Defendant of Lot 5a refers to a "map entitled `Revised Boundary Plan Prepared for Neil Robertson Revised Lots 5A 5B Babcock Hill Estates Pucker St., Coventry, CT. Scale 1"=50' Date: 12 April 1993 Drawn By: PND Checked By: S.A.F. Sheet 1 of 1 Filip Associates 1875 Storrs Rd., Storrs, CT Certified Class A-2 Stephen A. Filip, Conn. L.S. #7757,' a copy of which map or plan is on file in the Office of the Town Clerk of Coventry . . ." The deed also states that the conveyance is "[s]ubject to a perpetual 60 foot wide driveway easement to Pucker Street for the benefit of Neal Robertson and Frank Hastings, their heirs and assigns, as shown on said map." No such map is on file with the Town Clerk. The map, although not on file, is available and was made an exhibit in this matter. It sets forth only a driveway easement in favor of Lot 5b which runs from Pucker Street over Lot 5a to Lot 5b. Although the Plaintiffs claim this was intended to reserve them access to the gravel operation, it does not. The deed to Lot 5b references the same map and refers to "a driveway easement to Pucker Street as shown on said map." The actual road to the gravel operation passes from Pucker Street over the driveway easement and then continues over Lot 5a to the Plaintiffs' property.
The Plaintiffs intend to develop the gravel operation area into an active adult community at which time the claimed access road will be abandoned. The Plaintiffs allege that they had an agreement with the Defendant to use the gravel driveway for eighteen months. In Plaintiff Hastings' affidavit in support of the application for a temporary injunction he states that in May 2003 he had an agreement with the Defendant to continue to use the ingress and egress from Pucker Street to the sand and gravel operation until December 2004. Although the Plaintiffs claim in their verified complaint that in consideration for the agreement regarding access the Plaintiffs installed a roadway at a cost of $25,000, the Plaintiff Hastings denies this.
"The standards regarding the issuance of a temporary injunction are well settled `A temporary injunction is a preliminary order of the court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally determined by the court.' Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the rights of the parties can be determined after a full hearing on the merits. Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). The plaintiffs, to be entitled to such relief, must show: (1) probable success on the merits of their claim; (2) irreparable harm or loss; and (3) a favorable balancing of the results or harm which may be caused to one party or the other, as well as to the public, by the granting or denying of the temporary relief requested. See Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457-58, 493 A.2d 229 (1985). `The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court . . . Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971). See also International Ass'n. of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992). This is so, even where the danger of irreparable injury has been demonstrated. Hartford v. American Arbitration Assn., 174 Conn. 472, 477, 391 A.2d 137 (1978)." The court must analyze the facts proved by the plaintiffs in the light of the aforementioned principles, and determine, in the exercise of its discretion, whether a temporary injunction against the commissioner is warranted. The plaintiffs must show that they are in danger of sustaining substantial and immediate injury if the injunction is not granted. See Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 5 L.Ed.2d 675 (1983). Past injury alone is insufficient, although it may support the likelihood of future recurrences; but, to obtain an injunction, the plaintiffs must demonstrate either present continuing injury or the likelihood of future injury. O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).' Fleet National Bank v. Burke, 45 Conn.Sup. 566, 569-71, 727 A.2d 823, 23 Conn. L. Rptr. 516 (1998)." Nevas v. MacDonald, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV04 0200626 S (Landau, S.J., May 14, 2004).
Applying the criteria to be considered when deciding an application for a temporary injunction to the facts in this case, the court finds as follows:
1) Irreparable and imminent harm — The Plaintiffs claim loss of business by being unable to access the sand and gravel operation. Yet no evidence was presented of any business, past or future, lost because of the denial of access. In any event loss of business is clearly compensable by money damages. Where a suit for money damages could be maintained there is an adequate remedy at law and no irreparable injury. Nicoli v. Frouge Corporation, 34 Conn.Sup. 74, 78 (1977). The Plaintiffs also claim that they cannot access certain equipment on the property but that equipment is owned not by the Plaintiffs but by James Randall who is not a party to this action. Lastly, the Plaintiffs can establish, and, in fact, must establish as part of their plan to develop the parcel to which access is claimed, alternative access to the parcel from Babcock Hill Road rather than over the Defendant's property.
2) Lack of an adequate remedy at law — As noted above, the Plaintiffs have an adequate remedy in the form of money damages.
3) Likelihood of success on the merits — The Plaintiffs' position in their complaint appears to be that they had an agreement with the Defendant regarding use of the access road yet their trial brief references the easement in the Defendant's deed as the basis for their claim. In any event, the deed to the Defendant does not refer to the easement now claimed by the Plaintiffs. "`[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court's factual inferences . . . The meaning and effect of the [language in the deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . The primary rule of interpretation . . . is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.' (Internal quotation marks omitted.) Bird Peak Road Assn., Inc. v. Bird Peak Corp., 62 Conn.App. 551, 557, 771 A.2d 260, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). `[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.' (Emphasis added; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). `The fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land. The language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved. Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning.' 1 Restatement (Third), Property, Servitudes § 4.1, comment d pp. 499-00 (2000). With those principles in mind, we look to the disputed language in the context of the entire deed to determine whether an ambiguity exists." Dent v. Lovejoy, 85 Conn.App. 455, 462-4 (2004).
The Defendant's deed references an easement as described on a map drawn in 1993. That easement extends only to Lot 5b and not to the Plaintiffs' gravel operation. The easement the Plaintiffs now claim was built in 1998. It appears on a map, not referenced in the deed, drawn in 2003. Thus the Defendant's deed does not support the Plaintiffs' claim.
In addition, the Plaintiff Hastings claims that he agreed to abandon the claimed easement within a short period of time. Considering this fact and the fact that the Defendant's deed does not reference the easement, indicates that the Plaintiffs' right to cross the Defendant's land may be at best a license. "Generally, a license to enter premises is revocable at any time by the licensor." (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 163 (1992).
As to the Plaintiffs' claim that they had an agreement with the Defendant to use the access road, the Defendant argues that such a claim is barred by the statute of frauds. "Section 52-550(a) provides in relevant part: `No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property . . .' In Connecticut, therefore, any agreement for the sale of real property or any interest therein must be in writing and signed by the party to be charged. See Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972)." Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn.App. 420, 425, (1995), certification granted in part, 235 Conn. 916, affirmed, 237 Conn. 123. An agreement to grant an easement is clearly an agreement to grant an interest in land and therefore is subject to the requirements of the statute of frauds. The Plaintiffs have not submitted any agreement in writing supporting their claim that the Defendant granted them an easement. Therefore it is unlikely that the Plaintiffs will succeed on the merits of their action.
4) Balancing the equities — The Plaintiffs, although conveying their property to the Defendant, still wish to exert some dominion and control over it without clear authority to do so and burdening the Defendant's property. If access is allowed, the Defendant will experience heavy trucks and equipment traveling over her property. The Plaintiffs created the situation in which they find themselves by not making sufficient efforts to protect their interests. They abandoned previously used accesses to their property and will, in order to develop their property as they intend, be required to create a new access. The Plaintiffs, although claiming they have not been able to access the sand and gravel operation, have not proven that their business required that they do so in order to meet customer's demands or to develop their property as planned. In addition, they intend to abandon this access as well. Considering all these factors the equities balance in favor of the Defendant.
For the reasons stated above, the application for a temporary injunction is denied.
Jane S. Scholl, J.