Opinion
No. FST CV-07-4011089-S
April 23, 2010
MEMORANDUM OF DECISION
This case comes to this court as a court trial. The court heard the extensive evidence presented by the witnesses in the case. The court has reviewed the extensive exhibits filed as part of the trial. The court has reviewed the plaintiffs' and defendant's pre-trial and post-trial memoranda of law and draft findings. The court allowed a supplemental memorandum of law to be filed February 18, 2010 on motion to address the Supreme Court's decision that came down in Slack v. Greene, 294 Conn. 418 (2009). This case came down on December 29. It involves this defendant but a different plaintiff.
The court has reviewed the law in that decision and finds it does not substantially affect the law as previously submitted by the parties.
In the first count of the Complaint the plaintiff claims a prescriptive easement. Under count 1 of the Complaint the Keatings seek the following: (a) a declaration that the Keatings have a prescriptive easement for ingress and egress over the east-west portion of the traveled way (Plaintiff's Exhibit 18) ("East-West Traveled Way"); (b) an injunction ordering the removal of all obstructions installed by Greene within the bounds of the East-West Traveled Way; (c) a declaration that the Keatings have a prescriptive easement for ingress and egress over the north-south portion of the traveled way (Plaintiff's Exhibit 18) ("North-South Traveled Way"); (d) an injunction ordering the removal of all obstructions installed by Greene within the bounds of the North-South Traveled Way; and (e) a declaration that the east-west portion of the Map 423 Right-of-Way has been expanded to include the right to park on the Map 423 Right-of-Way. "A prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under claim of right . . . The standard of proof that is required is a fair preponderance of the evidence." Gallo-Mure v. Tomchick, 78 Conn.App. 699, 704-05 (2003).
In the Second Count of the Complaint the plaintiff claims an implied easement. Under the Second Count of the Complaint the Keatings seek a declaration that they have acquired an implied easement over the four-foot area inside the curve between the East-West Traveled Way and the North-South Traveled Way and an injunction ordering the removal of the Belgian block curb in the implied easement area.
In the Third Count of the Complaint the plaintiff claims an injunctive relief for interference with a right of way.
In the Third Count of the Complaint the Keatings are seeking an injunction to prohibit Greene from interfering with their deeded right to use the Map 423 Right-of-Way for ingress and egress and for parking.
In the Fourth Count and the Fifth Count of the Complaint issues are addressed concerning malicious erection of a structure.
In the Fourth Count of the Complaint the Keatings seek an injunction preventing the installation and maintenance of the Greenes' Belgian block planter and hedges installed by Greene in front of the Keatings' entrance pillar and garden as well as an injunction barring Greene from installing a temporary tape and post structure in front of the Keatings' driveway.
In the Fifth Count of the Complaint the Keatings seek damages for the diminution in value of the Keatings' residence due to the installation of the Belgian block planter and hedges and temporary tape and post structures.
The Sixth Count of the Complaint sounds in private nuisance.
In the Sixth Count of the Complaint the Keatings allege that the Stone Bulge Wall, pillars, Belgian block curbing, and ground cover installed by Greene adjacent to the Map 423 Right-of-Way constitute a private nuisance for which the Keatings are entitled to damages.
The Seventh Count of the Complaint is a claim for disturbance of right.
In the Seventh Count of the Complaint, the Keatings allege that the filing of Plaintiffs' Exhibit 54 operated as a disturbance of their prescriptive right to use the Traveled Way for which the Keatings are entitled to costs under Conn. Gen. Stat. § 47-41.
Pursuant to Conn. Gen. Statute § 47-41, a noticed filed under Conn. Gen. Stat. § 47-38 "shall be considered a disturbance of the right in question which enables the party claiming the right to bring an action as for a nuisance or disturbance for the purpose of trying the right. If the plaintiff in that action prevails, he shall be entitled to full costs."
The essence of Plaintiffs' case is a claim that they have acquired, by prescription, a right to drive over small portions of the paved portion of the driveway removed as part of Mrs. Greene's landscaping, that were outside the right-of-way as defined on Map 423. The basis of this claim is their allegations that (a) they and their predecessors-in-interest drove over the driveway for a fifteen-year period under a claim of right and (b) that the driveway was in a fixed location for the whole of the prescriptive period. Plaintiffs also claim a prescriptive right to park on the right-of-way.
Under Connecticut law, "[w]hether a [prescriptive easement] has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered." Stefanoni v. Duncan, 92 Conn.App. 172, 184 (2005).
The standard for establishing a prescriptive easement is clear: "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." Conn. Gen. Stat. § 47-37. In applying this statute, the courts of this state have consistently required that the plaintiff show by a preponderance of the evidence that the adverse use has been open, visible, continuous, and uninterrupted for the fifteen years and made under a claim of right. Ruotolo v. Esposito, 94 Conn.App. 438, 442 (2006). Plaintiffs bear the burden of establishing that they and their predecessors in interest used the claimed portions of 10 Runkenhage Road outside the boundaries of the right-of-way as delineated on Map 423 openly and continuously, and also that such use was "adverse" in the sense that it was a use that gave rise to a cause of action against Mrs. Greene and her predecessors-in-interest:
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 . . . 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.
Bean-Corveira v. Milton D. Friedman, Inc., 83 Conn.App. 826, 830 (2004). These stringent conditions must be met because prescriptive easements are disfavored, as they result in a permanent forfeiture of ownership rights. See, 25 Am.Jur.2d, Easements Licenses § 39.
Plaintiffs have not met the burden of establishing any of those stringent conditions — i.e. that they have openly, visibly, and adversely used, and parked on, 10 Runkenhage Road outside the bounds of the deeded right-of-way, under a claim of right, for fifteen uninterrupted years.
Since the Keatings have owned 12 Runkenhage Road only since December 1998, they must show uninterrupted adverse use by their predecessors upon which they might tack their claim. But they offered insufficient evidence of such prior adverse use. They offered testimony from Michael Tjader concerning his childhood memories of visiting the area beginning in 1967 (when he was four years old). Plaintiff Kevin Keating backed away from Mr. Tjader's testimony and suggested that the prescriptive period began with Ms. Glassmeyer's involvement with the property. Mr. Tjader's sporadic early childhood memories are a weak basis for establishing the stringent conditions for creation of a prescriptive easement. His testimony was vague, incomplete and inconsistent.
Plaintiffs therefore must establish by a preponderance of the evidence that both Ms. Glassmeyer (who owned 12 Runkenhage Road from July 1989 to March 1992) and the Stamms (who owned the property from March 1992 to December 1998) used the claimed prescriptive area in a way adverse to the ownership interests of the Murphys (who owned 10 Runkenhage Road from April 1980 to July 2000). The evidence, however, demonstrated that the opposite was true — that neither Ms. Glassmeyer nor the Stamms ever used 10 Runkenhage Road outside the right-of-way in a manner adverse to the Murphys' ownership interest under a claim of right, and that any use by them of 10 Runkenhage Road outside the deeded right-of-way was with the express or implied permission of Mrs. Greene's predecessors-in-interest.
Plaintiffs ask this Court to declare that they have a prescriptive easement over the portion of Mrs. Greene's property outside the right-of-way where pavement was as of July 2005 (when the landscaping began), and an order directing her to remove the stone retaining wall, the Belgian block curbing to the south of the east-west portion of the right-of-way, the entrance pillar near the front of her property, the pillars outside the northern boundary of right-of-way, and requiring her to restore the pavement removed in the summer of 2005. However, the evidence did not establish by a preponderance either that (a) they and their predecessors-in-interest actually used the portion of the claimed prescriptive easement outside the bounds of the right-of-way, or (b) the pavement had been in the same location for an uninterrupted fifteen-year period.
A prescriptive easement is defined by its use, and its borders must be able to be determined with reasonable certainty. See, Kaiko v. Dolinger, 184 Conn. 509, 510-11 (1981) ("[A] prescriptive right extends only to the portion of the servient estate actually used . . . and is circumscribed by the manner of its use . . . A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty").
Leaving aside the issue of lack of evidence of any adverse use made under a claim of right, Plaintiffs presented no substantial evidence that their predecessors-in-interest actually used the claimed portion of 10 Runkenhage Road, as opposed to the right-of-way in which they held easement rights, and, if they did use the claimed prescriptive area, when, how, or how often. Without evidence of such use, a prescriptive easement cannot be acquired.
Plaintiffs failed to establish the bounds of the claimed prescriptive easement. Plaintiffs claim that the pavement on Mrs. Greene's property as it existed following the late 1990 repaving of the east-west portion of the drive defines the bounds of their claimed prescriptive easement. However, any claimed prescriptive period ended in June 2003, when Mr. Greene sent a certified letter to Plaintiffs asking that they review their deed and the map incorporated therein by reference and asked that they respect the Greenes' property. Moreover, Wilber King removed the pavement from outside the southern boundary of the east-west portion of the right-of-way in the summer of 2005, less than fifteen years after the repaving. Thus, Plaintiffs must prove that the bounds of the claimed prescriptive easement were fixed prior to the 1990 repaving. However, the evidence presented by Plaintiffs demonstrated that the location of the drive's edge before 1990, including from a survey done in 1989, varied from where it was after the 1990 repaving. Moreover, even if the bounds of the claimed prescriptive easement could be determined with certainty, Plaintiffs acknowledged that they have no basis to insist that the paving be restored: Mr. Keating conceded there is no requirement in Plaintiffs' deed, nor in any other document or agreement, that any portion of the right-of-way be paved.
To establish a prescriptive easement, the claimed use must be adverse to the owner of the servient estate; in other words, the use must be made without recognition of the rights of the servient estate owner to stop the use, and without express or implied license or permission. The use must be "adverse" in the sense that it creates a cause of action in favor of the servient estate owner. See Boccanfuso v. Green, 91 Conn.App. 296, 309 (2005) ("To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised . . . Use by express or implied permission or license cannot ripen into an easement by prescription").
In support of their claims, Plaintiffs alleged no more than that they and their predecessors drove over the driveway maintained by the owners of 10 Runkenhage Road. However, simply driving on an existing road in common with the Greenes or their predecessors, especially when they had deeded rights to the right-of-way through which the driveway runs, does not establish the necessary adversity.
Proof of continuous and open use alone is insufficient to establish a prescriptive easement. In Bean-Corviera, 83 Conn.App. at 831-32, for example, the appellate court upheld the trial court's finding that no prescriptive easement had been established where plaintiff presented evidence that her predecessors in title used the disputed driveway for at least twenty-four years: "The court found that there was a use of the driveway, but not specifically that there was an adverse use under a claim of right . . . [b]ecause the plaintiff provided evidence only of [her predecessor's] use of the driveway, and not whether that use was under a claim of right . . . The term, `under a claim of right' denotes a user who does not recognize the rights of an owner of a servient estate."
The evidence offered by Plaintiffs established only the fact that, consistent with their deeded easement rights, Plaintiffs' predecessors-in-interest used the driveway for ingress and egress to and from Runkenhage Road. Plaintiffs' predecessor owner of 12 Runkenhage Road, Ms. Glassmeyer, understood that she had an express deeded right to pass over the right-of-way and never used the driveway in a manner adverse to the owners of 10 Runkenhage Road, the Murphys. The Stamms likewise did not use 10 Runkenhage Road in any manner adverse to the Murphys' interest. Both Charles and Mapes Stamm testified that in using the driveway maintained by the Murphys for ingress and egress, they believed they were driving within the bounds of the deeded right-of-way and never had any intention of acquiring rights to the Murphys' property beyond those granted by their deed.
Plaintiffs presented no credible evidence that Ms. Glassmeyer and the Stamms actually drove over the portion of the paved drive outside the bounds of the right-of-way, let alone specific evidence of when and precisely where such use occurred. Even assuming they had presented such credible evidence, as a matter of law, merely driving over that portion of the driveway does not demonstrate that the use was adverse or that it created a cause of action — i.e., trespass — in favor of the Murphys. In Connecticut, "[t]he essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by Mrs. Greene affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury . . ." Boyne v. Town of Glastonbury, 110 Conn.App. 591, 602 (2008). Trespass will not lie where the owner invited or induced the other party to enter his or her property. See Restatement (2d) Torts § 164.
The evidence demonstrated that the Stamms and Ms. Glassmeyer, predecessors-in-interest of the Keatings recognized, and acknowledged, that their rights were subordinate to the rights of Mrs. Greene's predecessors-in-interest.
The evidence established that Plaintiffs' predecessors-in-interest continuously acknowledged the ownership rights of Mrs. Greene's predecessors-in-interest. When Ms. Glassmeyer purchased 12 Runkenhage Road in 1989, the property was in disrepair, that she never lived there, and that her intention was to tear down the existing house and build a new one. At the time of Ms. Glassmeyer's purchase, there was pavement in part of the east-west portion of the right-of-way (and likely some outside the right-of-way), and a dirt path leading from the east-west portion of the right-of-way to 12 Runkenhage Road and the rear drive at 10 Runkenhage Road. The dirt path was a narrow, one-lane drive, and was located to the east of the right-of-way as delineated on Map 423. Before construction of the new house began, Ms. Glassmeyer sought permission from the Murphys to leave the north-south drive in its existing location, but Brian Murphy insisted that the north-south drive be relocated to conform to the right-of-way as defined on Map 423, a demand to which Ms. Glassmeyer readily acceded. Thus, Mr. Murphy was well aware that the existing drive did not conform to the defined right-of-way, and Ms. Glassmeyer acknowledged that she needed the Murphys' permission to use the driveway outside the bounds of the right-of-way. Ms. Glassmeyer understood that the Murphys were within their rights to insist that the drive be moved to conform to the right-of-way. She claimed no prescriptive right to keep the drive in its existing location, but rather conceded the subservience of her position in relation to the Murphys.
Throughout the period of her ownership of 12 Runkenhage Road from 1989 to 1992, Ms. Glassmeyer acknowledged and was respectful of the Murphys' ownership rights, and demonstrated subordinate conduct as to the right-of-way. She sought and obtained the Murphys' permission to park construction vehicles along the east-west portion of the right-of-way, provided she left space for the Murphys to pass parked vehicles. Further acknowledging the Murphys' rights and the primacy of the deeded right-of-way, Ms. Glassmeyer sought the express permission of the Murphys to construct an entrance from 12 Runkenhage Road to the north-south portion of the right-of-way substantially wider than the ten feet denoted on Map 423. She presented them with three proposals, each clearly showing the location of the right-of-way, and they allowed her to construct one of the proposals.
Ms. Glassmeyer also sought and obtained the Murphys' permission to bury utility cables under the right-of-way, and the parties entered a modification of the right-of-way reflecting this agreement. Following completion of construction in the fall of 1990, Ms. Glassmeyer offered to pave the north-south portion of the right-of-way, as well as other portions of the Murphys' property as a gift to them. The location of the paving done by Ms. Glassmeyer was at the Murphys' direction, and, as she testified, she paved whatever the Murphys wanted to be paved.
Plaintiffs can make no valid claim to a prescriptive easement over Mrs. Greene's property adjacent to the right-of-way. The entrance to their property is wider than the right-of-way because the Murphys gave permission to Ms. Glassmeyer. Significantly, in contrast to the modification of the easement done to permit Ms. Glassmeyer to install utility cables under the right-of-way, Plaintiffs presented no evidence of any formal, recorded modification of the easement that would impose upon the Murphys' successors-in-interest the obligation to permit such use of 10 Runkenhage Road to continue. Ms. Glassmeyer's use and paving of this portion of the Murphys' property was permissive, and therefore was not an adverse use made under claim of right. As noted above, her use of the east-west portion of the driveway was also with the Murphys' permission. The permissive use allowed by the Murphys cannot give rise to prescriptive rights. The Keatings therefore cannot tack on to Ms. Glassmeyer's use to support their claim to a prescriptive easement.
The Stamms, who owned 12 Runkenhage Road from March 1992 to December 1998, understood that their easement rights were limited to ingress and egress to and from Runkenhage Road, they did not believe they ever drove on the Murphys' property outside the deeded right-of-way, and never intended to assert any prescriptive rights against the Murphys based on driving over the driveway. The Stamms could not recall ever parking on the right-of-way, nor could they recall their guests ever having done so. The Stamms also understood that had they wanted to park on the right-of-way, they would have needed the Murphys' permission.
Therefore, the evidence does not support Plaintiffs' claim that their predecessors-in-interest used the claimed prescriptive easement in a manner adverse to the Murphys under a claim of right. Where a predecessor does not assert adverse use under a claim of right, a successor, such as the Keatings, cannot tack on to that predecessor's use of the land at issue. Since neither Ms. Glassmeyer nor the Stamms claimed any rights adverse to the Murphys' ownership interest, their use of 10 Runkenhage Road cannot serve as the basis for Plaintiffs' prescriptive easement claim.
Express or implied permission or license cannot ripen into an easement by prescription. Here, the Murphys gave Ms. Glassmeyer express permission to pave and drive over a portion of their property outside the bounds of the right-of-way, and further gave her permission to construct an entrance from 12 Runkenhage Road to the driveway wider than the right-of-way. Indeed, she paved precisely what they directed her to pave.
Moreover, the Greenes and their predecessors gave the owners of 12 Runkenhage Road either express or implied permission to use the whole of the paved drive, even where it extended outside the bounds of the deeded right-of-way in which they held an express easement of way. As Charles Stamm testified at deposition, when he and his wife resided at 12 Runkenhage Road between 1992 and 1998, Brian Murphy paid to have the whole of the right-of-way plowed. Clearly, the Murphys actively invited Ms. Glassmeyer and the Stamms to use the whole of the drive, regardless of whether part of it was outside the bounds of the deeded right-of-way. Presently, the Greenes have similarly maintained the driveway at their sole expense since their purchase of 10 Runkenhage Road, and have also paid to have the right-of-way cleared of snow, including the part of the east-west portion of the right-of-way planted with groundcover. Plaintiffs acknowledged that the bounds of the driveway had changed over time, and contended that the pavement had been placed with the "mutual consent" of both the Murphys and the Keatings' predecessors-in-interest. Mr. Keating's contention that the location of the pavement resulted from mutual consent negates any claim of an adverse use or claim of right.
Plaintiffs' deeded rights to the use the right-of-way do not include the right to park, nor have they acquired such a right through prescription.
While the scope of use of an easement may be expanded prescriptively, a party with an express easement can only establish an enlargement by prescriptive use, if it can show that it used the easement in a manner not contemplated by the terms of the grant, and that it did so openly and visibly, continuously and uninterruptedly, and under a claim of right for the fifteen-year prescriptive period. Having only owned 12 Runkenhage Road since December 1998, to establish an expansion of the scope of the deeded easement to include parking, the Keatings must tack on to adverse use of Ms. Glassmeyer and the Stamms for any claimed prescriptive rights.
Both Charles and Mapes Stamm testified that they could not recall either they or their guests ever parking on the right-of-way during the period in which they owned 12 Runkenhage Road, from 1992 to 1998, and that they would have sought the Murphys' permission had they wished to do so. Mrs. Murphy testified that Ms. Glassmeyer sought permission to park construction vehicles along the east-west portion of the right-of-way, and confirmed that neither the Stamms nor their guests ever parked on the right-of-way without permission. Mrs. Murphy also testified that neither Ms. Tjader Harris nor her guests ever parked on the right-of-way without permission. Thus, the evidence does not support Plaintiffs' claim that they and their predecessors-in-interest openly parked on the right-of-way without permission from the owners of 10 Runkenhage Road for a continuous fifteen-year period.
As for the Keatings' deed, the Appellate Court has previously determined that language essentially identical to that in the Keatings' deed provides a limited right of ingress and egress, but does not include the right to park within the right-of-way. In determining the rights granted by deed, a court "must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties." Hall v. Altomari, 19 Conn.App. 387, 390-91 (1989). The deed granted a right-of-way "for purposes of ingress and egress and to use for general driveway purposes" it was found not to include a right to park. The Hall Court also considered the situation of the properties, and noted that the testimony established that there was ample parking on the defendant's property to meet the parking needs of that property. Such is the case here, as Mr. Keating has acknowledged that Plaintiffs' parking area can accommodate six to eight cars.
Expanding the Keatings' easement to include parking would also be unreasonable. 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." Blow v. Konetchy, 107 Conn.App. 777, 793 (2008). Here, the purpose of the easement is ingress and egress, the Keatings have adequate parking on their own property, and allowing parking on the right-of-way without permission would be an unnecessary and unreasonable burden on 10 Runkenhage Road.
In their complaint, Plaintiffs claim an implied easement, but did not specify its claimed location. At trial, Plaintiffs' counsel argued that Plaintiffs had an implied easement over Mrs. Greene's property outside the turn in the right-of-way, because having a wider turn would be useful and beneficial to the Keatings. As a matter of law, an implied easement can only be created where there is no express easement. See Pender v. Matranga, 58 Conn.App. 19, 26 (2000) (upholding trial court's conclusion that where "an express easement exists over the subject property, any implied easements or easements of necessity over the same right-of-way are extinguished").
The existence of an implied easement is a question of law, and courts will consider two issues: (1) the intention of the parties, and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. "[A]n easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence." Pender, 53 Conn.App. at 26-27; Martin Drive Corp. v. Thorsen, 66 Conn.App. 766 (2001).
There is no evidence suggesting that when Olive Nichols Ward conveyed what is now 12 Runkenhage Road to Ms. Tjader Harris in 1959, she intended to convey an easement different than the one set forth in the deed. Nor is there any evidence that, at the time of that conveyance, the implied easement now claimed by the Keatings was reasonably necessary for the normal use and enjoyment of 12 Runkenhage Road. In determining whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate, it must be shown that the sought easement is highly beneficial and convenient to the dominant estate. Here, Plaintiffs have established no such need. Their ingress and egress has not been impaired, the full sixteen-foot width of the east-west portion of the right-of-way remains unobstructed, and service and emergency vehicles can access their property.
In their complaint, Plaintiffs allege that Mrs. Greene's landscaping interferes with their easement rights, and seek their reversal and/or removal. The evidence establishes, however, that none of Mrs. Greene's landscaping improvements obstruct the deeded right-of-way.
At trial, Mr. Keating stated that the landscaping changes do not impair his ingress and egress to and from Runkenhage Road. The evidence also demonstrated that garbage trucks, landscaping trucks, and other service trucks have used the right-of-way since the landscaping changes, and, two SUVs can pass each other in opposite directions at the narrowest point in the pavement on the east-west portion of the right-of-way. The evidence further demonstrated that emergency vehicle access is not impeded, and that fire trucks can reach Plaintiffs' home.
The evidence established the landscaping changes do not impede emergency vehicle access to the Keatings' property. The Darien Fire Marshal and the Darien Fire Department, after conducting a test in February 2009, concluded that the Keatings' home is safe, and that fire trucks would be able to access it in an emergency.
In their complaint, the Keatings alleged that two structures were erected out of malice towards them in violation of Conn. Gen. Stat. §§ 52-480 and 52-570: (1) the stone retaining wall installed south of the east-west portion of the right-of-way and (2) the Belgian block planter and bushes installed at the end of Mrs. Greene's drive, adjacent to the end of the north-south portion of the right-of-way, which they alleged obscured an entrance pillar on their property. At trial, Plaintiffs presented no substantial evidence that the stone retaining wall negatively impacted their property's value. As for the Belgian block planter, the evidence showed that, prior to trial, Mrs. Greene shortened the planter's length and removed the bush of which Plaintiffs complained. In their trial brief the plaintiffs allege that a temporary marker placed by Mr. Greene to denote the boundary of the right-of-way (for twenty-four hours in 2008 and twenty-four hours in 2009) constituted maliciously erected structures within the meaning of the cited statutes, a claim not made in their complaint.
The essential elements of a malicious erection claim are: (1) A structure erected on the owner's (defendant's) land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure is useless to the defendant; (6) the enjoyment of the adjacent landowner's land is in fact impaired. DeCecco v. Beach, 174 Conn. 29, 32 (1977); Whitlock v. Uhle, 75 Conn. 423 (1903); Dalton v. Bua, 47 Conn.Sup. 645, 646-47 (2003). To find for Plaintiffs, the Court must conclude that the facts establish by a preponderance of the evidence that malice was the "primary motive" or "controlling purpose" of the structure.
The purpose of the Belgian block planter was to remediate a flooding and water pooling problem on the drive. Mr. Wilber testified, he designed and installed the planter after two regradings of the drive failed to completely address the flooding problem. In fact, the planter serves to push water off the drive and into Mrs. Greene's back yard. Mr. Wilber installed bushes behind the Belgian blocks for aesthetic reasons. Mrs. Greene and her husband testified that the purpose of the planter was to alleviate the flooding and prevent a potentially dangerous condition. When it was made clear to Mrs. Greene that the Keatings were more troubled by the obstruction of their pillar than the possibility of flooding, Mrs. Greene directed Mr. Wilber to shorten the planter and remove the bush in front of the Keatings' pillar.
As for the temporary boundary marker, Plaintiffs made no allegations in their complaint concerning the marker that was placed by Mr. Greene for twenty four hours in 2008 and 2009.
In their private nuisance claim, the Keatings allege that Mrs. Greene has engaged in a course of deliberate and harassing conduct, that the alleged obstructions of the right-of-way were "completely unnecessary and done solely to annoy and harass the Keatings," that they have suffered great mental anguish as a result, and that the value of their property has been impaired. In Pestey v. Cushman, 259 Conn. 345, 352 (2002), our Supreme Court formulated the following standard for a private nuisance:
[A] plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.
Plaintiffs offered no credible evidence or testimony supporting their claim to have suffered "great mental anguish." The evidence established that Mrs. Greene landscaped her property to enhance its beauty, not to annoy and harass the Keatings, and the photographic evidence shows substantial improvement in the appearance of the right-of-way. The Greenes paid Wilber King well over $200,000 for the project. As for an alleged diminution in the value of Plaintiffs' property, Ms. Redican's "opinion" was confined to the Belgian block planter and the temporary property line marker and not to the other landscaping changes.
The Keatings ask the Court for equitable relief, including an injunction requiring Mrs. Greene to reverse hundreds of thousands of dollars of landscaping improvements which were made wholly on her property and outside the bounds of the right-of-way as defined in the Keatings' deed and delineated on the map referenced therein, and, indeed, ask the Court to redraw the right-of-way that has existed since 1928, when Map 423 was created. Mr. Greene testified that reversing the landscaping would cost over $100,000. Redrawing the right-of-way would redefine the rights not only of the Plaintiffs and Mrs. Greene, but for all their successors-in-interest as well. It is axiomatic that the determination of what equity requires is a matter for the discretion of the trial court. See, Deutsche Bank Nat'l Trust Co. v. Angle, 284 Conn. 322, 326 (2007). Here, where there has been no interference with Plaintiffs' ingress and egress from their property, no encroachment or obstruction of the right-of-way, no diminution in the value of Plaintiffs' property, and no impairment of emergency vehicle access, equity does not favor requiring Mrs. Greene to reverse her landscaping.
A permissive use cannot ripen into a claim of adverse use. The evidence has established that any use of 10 Runkenhage Road outside the deeded right-of-way as delineated on Map 423 was done with the express or implied permission of Mrs. Greene's predecessors-in-interest.
The defendant has counterclaimed in its answer. There is a claim of trespass on Mrs. Greene's property by the plaintiff. The court finds that the defendant has failed to prove the trespass was done intentionally and that it caused direct injury. The court finds that the use of the property was more negligent than intentional.
The court notes the special defense of unclean hands but because of the rulings on the previous issues it does not address specifically the unclean hands special defense. Suffice it to say the court finds the necessity of ruling on that as moot.
As previously discussed, Slack v. Greene restates the law that the cases are fact driven. Therefore, the court's attention in this decision to the proven facts or lack of proof was an important consideration.
In this case the only special defense alleged by the defendant was as set forth above the doctrine of unclean hands.
To the extent that Slack v. Greene shifts the burden of proof on the issue of "permission" to the defendant, the court finds that based on the facts as set forth above not only did the plaintiff not prove lack of permission but in fact the defendant proved by a fair preponderance of the evidence that the use was permissive. This court notes in Slack v. Greene there was no deeded right of way as there was in this case.
Accordingly, the court finds the plaintiff has failed to prove by a fair preponderance of the evidence the allegations of the complaint. The court finds that the defendant has failed to establish the trespass in the counterclaim.
Judgment may enter in favor of the defendant on the Complaint.
Judgment may enter in favor of the plaintiff on the Counter Claim
Judgment may enter accordingly.
So Ordered.