Opinion
No. CV 99-0061836S
December 12, 2003
MEMORANDUM OF DECISION
Background
This action was brought in 1999 by the Plaintiff, Morgan Whitney, Inc., against the Defendant, Providence and Worcester Railroad ("PW"). The Plaintiff's complaint alleges that it owns property known as 1720 Upper Maple Street in Killingly, Connecticut. The Plaintiff claims that its property is completely landlocked and does not abut any public road or highway. On January 22, 1980 the Defendant and the Plaintiff's predecessor in title, Hale Manufacturing, entered into an agreement whereby the Defendant, as licensor, agreed to permit the licensee, Hale Manufacturing to "construct, maintain and use a railroad crossing at grade on, across and over its land and existing railway tracks." The Plaintiff claims that this railroad crossing is the only viable means of egress and ingress from a public highway to and from the Plaintiff's property. The Plaintiff claims that it pays the Defendant $2,000 per year to use the crossing and has incurred additional costs assessed by the Defendant. The Defendant has now threatened to block the Plaintiff's access over the railroad crossing on or before September 24, 1999. The Defendant informed the Plaintiff that it wished to install electrical gates and warnings at the crossing and that the cost to the Plaintiff would be $85,000. The Plaintiff alleges that such expensive safety measures are unnecessary and that it has proposed alternatives to the Defendant which it has rejected. The Plaintiff also claims that the only other means of egress and ingress to its property is a lengthy easement which is not usable because of its length, width, and hilly grade, and the fact that portions of it have been blocked by the Defendant. The Plaintiff seeks a permanent injunction enjoining the Defendant from closing, limiting, restricting, or otherwise obstructing full and complete access by the Plaintiff and its tenants across the railroad crossing to the Plaintiff's property.
Trial on this matter was held on April 8, 9, and 10, 2003. The Plaintiff presented the testimony of Kenneth Gambardella, supervisory adjudicator for the state department of transportation; John Minogue, principal in Leslie Elliott, owners of the property north of the Plaintiff's; Mark Yellin, the owner, along with his wife and children, of the Plaintiff; Morgan Whitney, Inc.; and Bernard A. Cartier, chief engineer, communications and signals, for PW. The Defendant presented the testimony of Ronald Chrzanowski, formerly vice-president for real estate and engineering for PW, and Bernard A. Cartier. The court also received 139 exhibits of which at least 32 were duplicates. Post-trial briefs were filed by the parties on June 17, July 15, August 14 and 28, 2003.
Findings of Fact
By its answer, the Defendant has admitted the following allegations of the Plaintiff's complaint: The Plaintiff, Morgan Whitney, Inc., is a Connecticut corporation with a principal place of business in Farmington, Connecticut. The Defendant, PW, is a Delaware corporation with a principal place of business in Worcester, Massachusetts and doing business throughout the state of Connecticut. On or about January 22, 1980 the Defendant and the Plaintiff's predecessor in title, Hale Manufacturing entered into an agreement whereby the Defendant, as licensor, agreed to permit the licensee, Hale Manufacturing, to "construct, maintain and use a railroad crossing at grade on, across and over its land and existing railway tracks (the `Railroad Crossing')." By letter dated July 8, 1999, the Defendant required the Plaintiff to install electrical gates and warnings at the railroad crossing. By letter dated July 30, 1999, the Defendant also informed Morgan Whitney that yearly maintenance expenses for the railroad crossing would thereafter be a certain amount due to the electrical gates and warnings. There is only one set of tracks at the railroad crossing.
Based upon a preponderance of the evidence, the following additional facts are found. The subject property lies east of Maple Street in Killingly, Connecticut. It consists of 15.2 acres with a 26,500 square feet commercial building. Industrial Packaging Supply is a tenant of the property. Based on a site plan dated January 30, 1989, prepared for the Plaintiff prior to its purchase of the subject property, the Plaintiff's property is bordered on the south by the land of William Prym, Inc., on the west by land of PW, on the north by land of Leslie Elliott Co., and on the east by the Five Mile River. In order to access Maple Street, which runs north to south, persons coming from the Plaintiff's property must cross over the land and tracks of PW and then over the land of John Robert Sheridan. A lease granting a right-of-way over Sheridan's expired by its terms in 2002.
The January 30, 1989 site plan references "Crossing Rights" over the Defendant's tracks and property as recorded in Volume 98 at page 557. The April 18, 1989 deed of the property to the Plaintiff from the Polymer Corporation references the site plan and conveys the premises described in the plan together with "a right of way twenty-five (25) feet in width, in common with others, from the northerly line of the within described premises across lands of others to the southerly side of the Attawaugan Crossing Road" and "the terms of a certain License Agreement between the Trustees of the New York, New Haven and Hartford Railroad Company and Prefab Construction Company, dated November 16, 1944, recorded in Volume 98 at Page 557 of the Killingly Land Records." That license agreement provides that: "License is hereby given . . . to construct, maintain and use a crossing at grade on, across and over the land and tracks of the Norwich and Worcester Branch of Providence Division of [The New York, New Haven and Hartford Railroad Company] at Dayville, Connecticut, at about station 1600-15 of the monumented center line of the [Railroad] . . . upon the following conditions . . . the license shall continue until terminated by a written notice given by either party to the other at least ten days prior to termination . . ." The license also provides that the licensee shall, at its sole cost and expense, construct and maintain the crossing to the satisfaction of the Railroad. In addition, the licensee is to provide, erect and maintain gates and signs at the crossing. This same agreement is referenced in Polymer's deed to the property dated February 23, 1988 from the Hale Manufacturing Company. It is likewise referenced in the deed to the Hale Manufacturing Company from the U.S. Corrugated-Fibre Box Company dated June 19, 1972. Similarly, the January 14, 1959 deed from Westlake Steel, Inc. to the U.S. Corrugated-Fibre Box Company references the same agreement. Westlake Steel, Inc. was the successor to Prefab Construction Company which was deeded the property by Veronica Romanowska on July 21, 1945. Romanowska received the property by deed from Joseph Lapointe dated March 3, 1941.
As to the 25-foot right-of-way, the same description of the right-of-way as contained in the Plaintiff's deed is found in the February 23, 1988 deed from Hale Manufacturing to the Polymer Corporation. A document entitled "Layout of the Existing Right of Way from Attawaugan Crossing Road to the Land of John D'Abate in the Town of Killingly, Conn." dated October 10, 1958 and allegedly recorded in the land records, reflects at one point that the right-of-way crosses over the land of Westlake Steel (Plaintiff's predecessor in title) and then over the land of PW to the road to Dayville. Neither the Plaintiff's deed, however, nor the site plan reference a continuation of the right-of-way over the Defendant's property from the Plaintiff's property.
On February 5, 1959, shortly after the U.S. Corrugated-Fibre Box Company acquired the property, the New York, New Haven and Hartford Railroad Company executed a "lease" to the U.S. Corrugated-Fibre Box Co. leasing to them "the privilege of constructing, maintaining and using a crossing at grade on, across and over land and track of The New Haven Division of the Railroad Company at Dayville, Connecticut at about Engineering Station 1600 + 12 of the monumented center line of the Rail Company" which lease was to continue until terminated by a written notice given by either party to the other at least ten days prior to the date of termination. The lease also provides that the lessee shall, at its sole cost and expense, construct and maintain the crossing to the satisfaction of the railroad company. In addition, the lessee is to provide, erect and maintain gates and signs at the crossing. The lease was also assignable and superceded a license dated October 30, 1947 to the Dayville Manufacturing Company. The terms of this "lease" are almost identical to the terms of the 1944 "license" referenced in the Plaintiff's deed except for the addition of provisions regarding the payment of rent and the maintenance of insurance. After the Defendant acquired the rail line in 1976, the February 5, 1959 lease was superceded by a Non-Rental Grade Crossing License executed on January 22, 1980 by PW and the Hale Manufacturing Company. That agreement gave Hale Manufacturing a license "to construct, maintain and use a crossing at grade on, across and over the land and tracks of the Railroad Company at Dayville, Connecticut at about Engineering Station 1600 + 12 of the monumented center line of the Railroad Company." The license was to continue until terminated by a written notice given by either party to the other at least thirty days prior to the date of termination. It was also assignable. It contained essentially the same terms as the 1959 "lease" but did not require the payment of "rent" and the amount of insurance was increased. The license also provided that the licensee "shall provide, erect and maintain such automatic gates, flashing light signals and pedestrian bells, etc. at each side of said crossing as shall be required by the Railroad Company." These other various "leases" and "licenses" are not referenced in the Plaintiff's deed nor any other document specifically assigning them to the Plaintiff.
Subsequent to its purchase of the property, the Plaintiff received a bill from the Defendant for the grade crossing. In response to the Plaintiff's inquiry as to the source of the bill, the Defendant sent the Plaintiff a copy of the February 5, 1959 "lease." The Defendant claims this was an error and the Plaintiff should have been sent the 1980 agreement which did not provide for the payment of rent. In any event, the Plaintiff paid the bill. Over the next several years the Defendant continued to assess the Plaintiff fees and charges for the use of the crossing which it paid. In August 1996 the Defendant constructed a new crossing and advised the Plaintiff that it would be responsible for the costs. The Plaintiff's president spoke to the Defendant about the bill and complained that Leslie Elliott also used the crossing and should pay at least one-half of the costs. The Plaintiff failed to pay the costs, and on May 21, 1997 the Defendant notified the Plaintiff by letter that if the balance was not paid then "effective July 1, 1997, the grade crossing will be closed and pursuant to the terms of our agreement, this letter will serve as thirty (30) days notice of PW's intentions to terminate the license between our two companies." The parties subsequently agreed that the Plaintiff would be charged only one-half of the cost and Leslie Elliott Co. would be charged the remainder. On or about July 3, 1997 the Plaintiff and the Defendant agreed that "the current license agreement relative to the [Dayville Private R.R. Crossing] would remain in effect" and that effective for 1997 their annual license fee would be $1,000 and the Plaintiff would pay its share of the repair costs over five years. The agreement does not state the nature of the current license agreement or the identity of the document in which it is embodied. The Plaintiff's president, who signed the agreement, did not know the nature of the license agreement referred to. The Defendant's representative who signed the agreement believed it referred to the 1980 Non-Rental Grade Crossing License.
In July 1999, the Defendant, in response to a concern by one of the Plaintiff's tenants, and after investigation by its staff, advised the Plaintiff and Leslie Elliott that "PW is requiring as stipulated in your Non-Rental Grade Crossing License, the installation of automatic grade crossing warning devices" at an estimated cost of almost $83,000 and that PW was requiring an advance payment of $52,000 to initiate the work. The Plaintiff disputed the necessity for such warning devices. Since the parties were unable to resolve their dispute, by letter dated August 13, 1999, the Defendant provided the Plaintiff with the required thirty-day notice that the license agreement would be terminated as of September 20, 1999. In September 1999 the Defendant closed the crossing as to the Plaintiff and its tenant by placing concrete barriers across the approach to the crossing from the Plaintiff's property.
The twenty-five foot right-of-way referenced in the Plaintiff's deed north to Attawaugan Crossing Road crosses over the property of Leslie Elliott. The right-of-way is subject to various obstructions, including buildings, railroad spur lines, and parking lots, that have been placed in the right-of way by various persons. In addition, parts of it are not navigable by regular or emergency motor vehicles because of the characteristics of the terrain. Evidence was not presented as to how long the right-of-way has existed in such a state.
On October 18, 1999 the court granted a temporary injunction restraining the Defendant from closing, limiting, restricting or otherwise obstructing full and complete access by the Plaintiff or its tenants across the railroad crossing, either to or from the Plaintiff's property, by car, truck or by any other commercial vehicle.
By letter dated October 21, 1999, the Defendant requested that the department of transportation, in accordance with General Statutes § 13b-292, order that the crossing be closed because it constituted a hazard to public safety. That matter is still pending. No orders have been issued yet regarding safety or signage equipment at the crossing but the Defendant has been ordered to reduce its speed in a southerly direction near the crossing.
Discussion Standards for Issuing Permanent Injunctive Relief
"The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Aposporos v. Urban Redevelopment Commission, 259 Conn. 563, 571, 790 A.2d 1167 (2002). "The request for injunctive relief is addressed to the sound discretion of the trial court . . . In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction . . . The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier." (Citations omitted; internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994). "The granting of injunctive relief in each case is . . . exercised according to recognized principles of equity." (Internal quotation marks omitted.) Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 541, 450 A.2d 369 (1982). Lastly, "[a]n [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).
License or Lease
A threshold issue to be determined is whether the Plaintiff has a lease or a license to cross the Defendant's railroad tracks. The Plaintiff argues that the parties entered into a lease and therefore, the proper way to "evict" the Plaintiff is through a summary process action. The Defendant argues that the agreement between the parties is instead a license, and, as such, it is revocable upon thirty days notice. In support of its argument, the Plaintiff maintains that shortly after the Plaintiff purchased the property in 1989, the Defendant sent a letter to the Plaintiff in which it enclosed a copy of a "lease" agreement for use of the railroad crossing executed by the parties' predecessors in 1959 and a bill in the amount of $1,575. For the next ten years, the Plaintiff alleges that all correspondence between the parties, including bills for the use of the crossing, and the payments in response, referred exclusively to "Rent," "Lease," and "Rent Payments." It was not until 1993 that the Plaintiff claims it was first notified that the use of the crossing was governed by a license agreement when the Defendant gave the Plaintiff a copy of the 1980 "Non-Rental Grade Crossing License." In this regard it should be noted that nowhere other than in the Plaintiff's deed that references the 1944 license and the letter agreement of July 3, 1997 in which the parties agreed "that the current license agreement relative to the [Dayville Private R.R. Crossing] shall remain in effect" is there any indication that the Plaintiff had acquired by either deed or assignment any of the other leases or licenses concerning the crossing referenced above. In addition, although the Plaintiff alleged in its complaint the 1980 license as the basis of its right to use the crossing, at trial it relied principally on the 1959 lease.
"A lease transfers an estate in real property to a tenant for a stated period, with a reversion in the owner after the expiration of the lease. Its distinguishing characteristic is the surrender of possession by the landlord to the tenant so that he may occupy the land or tenement leased to the exclusion of the landlord himself." Jo-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598, 601, 96 A.2d 217 (1953). "Unlike a lease, a license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property." Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993). "[A] license must be exercised only in the manner and for the special purpose for which consent was given." (Internal quotation marks omitted.) Miller v. Grossman Shoes, Inc., 186 Conn. 229, 237, 440 A.2d 302 (1982). "In determining whether an interest relating to real property is a lease, easement or license, the intent of the parties is the controlling factor." (Internal quotation marks omitted.) Middletown Commercial Assoc. Ltd. Partnership v. Middletown, 42 Conn. App. 426, 441, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996).
The decision in Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 772 A.2d 154 (2001), is instructive in that it deals with facts similar to the present case. In that case, the plaintiff, who had entered into a "lease agreement" with the defendant to advertise on certain signs on the roof of the defendant's building, brought an action alleging forcible entry and detainer after the defendant had found the plaintiff in breach of the agreement and barred the plaintiff from the premises. The court held that the agreement was nothing more than a license to go upon the building and place advertisements on the signs because "the language of the agreement [did] not indicate any intention to surrender exclusive possession of the premises. Rather, under the agreement, the plaintiff obtained the `exclusive right of servicing the Signs, and to hang scaffolds, or to construct, post, paint, illuminate, repair or remove its advertisements on the Signs' and `the right of egress and ingress into and over the Premises to gain access to the Signs.' " Murphy, Inc. v. Remodeling Etc., Inc, supra, 62 Conn. App. 523. In the present case, neither the 1959 Lease nor the 1980 License indicate any intention to surrender exclusive possession of the crossing to the Plaintiff. The Plaintiff was merely given a right to cross the railroad tracks to access its property and assumed the responsibility of maintaining the crossing. The 1959 lease refers to the leasing of "the privilege of constructing, maintaining and using a crossing." The 1980 license refers to a license being given "to construct, maintain and use a crossing at grade on, across and over the land and tracks of the Railroad Company." The 1997 letter agreement refers to "the current license agreement."
Moreover, it is of no moment that the parties used the phrases "Rent," "Lease," and "Lease Payments" in their correspondence, for "[i]t is the character of the agreement itself rather than the words or phrasing used that determines whether a transaction is a license or a lease." Message Center Management, Inc. v. Getchell, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 00 73738 (December 18, 2000, Sferrazza, J.), citing Columbia Pictures Industries v. Tax Commission, 176 Conn. 604, 607,410 A.2d 457 (1979). The parties' intention was to grant the Plaintiff a limited right to use the crossing and not to confer a possessory interest in it. Therefore, the right of the Plaintiff to use the crossing constitutes a license and not a lease.
The Plaintiff argues in the alternative that even if the agreement between the parties was a license and not a lease, it was irrevocable because it was coupled with an interest. "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, 612 A.2d 1153 (1992). In this case, the 1980 license required that the Defendant give the Plaintiff thirty-days notice if it intended to revoke the license to use the crossing. The 1959 lease required that the Defendant give the Plaintiff ten days notice if it intended to revoke the license to use the crossing. The Plaintiff argues, however, that "a license may become irrevocable if the license is granted for a particular purpose and the licensee expends money or incurs obligations for its permanent improvement in reliance on the licensor." Plaintiff's Post-Trial Memorandum, 5/13/03, p. 24. (Citing Am.Jur.2d, Easements and Licenses in Real Property, Section 145.) The Plaintiff alleges that its erecting signs at the crossing, expending money to maintain the crossing, as well as the Defendant's request that the Plaintiff install $82,000 worth of equipment at the crossing, create a sufficient justification to hold that the Plaintiff has acquired a license coupled with an interest which should "continue for so long a time as its nature calls for." The Plaintiff, however, does not offer any Connecticut law in support of its proposition that the license has become irrevocable because of expenditures by the licensee where, as here, the Plaintiff's alleged license is based on an agreement which requires certain expenditures in order to maintain the license. The only case cited by the Plaintiff is not controlling because it deals with a license coupled with an interest in chattels. See Ely v. Cavanaugh, 82 Conn. 681, 681, 74 A. 1122 (1910) ("An extension of time in which to remove personal property from land is a mere license, in the creation of which no formality is necessary. Such a licensee acquires a privilege which, by virtue of his ownership of the personal property, is coupled with an interest, and one which cannot be terminated without affording him a reasonable opportunity to remove his chattels."). The holding, however, in Bland v. Bregman, 123 Conn. 61, 64, 192 A.2d 703 (1937), is relevant to the facts in this case. There the walls of the plaintiff's garage had been used as a supporting wall of an adjoining landowner's building. The court, finding that the neighbor's utilization of the wall created only a license, noted that "a license, while affording justification for what is done under it while it remains in effect, [is] not effective to convey an interest in the land and [is] revocable at the will of the licensor . . . although the licensee has expended money under the license." According to the holding in Bland v. Bregman, the fact that the Plaintiff incurred expenses to maintain the crossing did not render the license irrevocable. Therefore, the Defendant could properly revoke the license between the parties by giving the Plaintiff the required notice of its intent to close the crossing.
Easement by Necessity
"An easement is a nonpossessory interest in the land of another. `[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. 1 Restatement (Third), [Property, Servitudes § 1.2(1), p. 12 (2000)]. 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. Id., § 12, comment (d), pp. 14-15; see also Russakoff v. Scrugas, 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).' (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000) . . . Easements traditionally have been divided into two categories, express and implied, that relate to the means by which the easement is created. An express easement is created by an express grant by deed or other instrument satisfying the statute of frauds. J. Bruce J. Ely, Jr., The Law of Easements and Licenses in Land, § 3.04, pp. 3-9-3-10 (1995). An implied easement is implied by law because of necessity, e.g., an otherwise landlocked parcel would result from severance of a part by a common owner. See id., § 4.01(2), p. 4-4." Martin Drive Corp. v. Thorsen, 66 Conn. App. 766, 772-73, 786 A.2d 484 (2001).
"The law respecting easements by necessity was set forth in Collins v. Prentice, [ 15 Conn. 39, 43 (1842)] . . . The court recited the common-law rule, established for over two centuries, respecting easements by necessity: [T]he law will not presume, that it was the intention of the parties, that . . . [the grantor] should so convey a portion as to deprive himself of the enjoyment of the remainder . . . Whether arising from presumption of intent or from the necessity of the party claiming it . . . an easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee . . . The requirement of unity of ownership is a strict one . . ., but to fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one." (Citations omitted; internal quotation marks omitted.) Hollywyle Ass'n, Inc. v. Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973). "An easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel." Pender v. Matranga, 58 Conn. App. 19, 26, 752 A.2d 77 (2000).
The unity of title doctrine referred to in Hollywyle was subsequently abrogated by the Connecticut Supreme Court in Bolan v. Avalon Farms Property Owners Ass'n, Inc., 250 Conn. 135, 735 A.2d 798 (1999). The Court held that "the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve." Id. 144-45.
The Plaintiff argues that due to the condition of its alternative access to Attawaugan Crossing Road, it has acquired an easement by necessity over the Defendant's land, because the only practical means of ingress and egress to its property is over the railroad crossing to Upper Maple Street. The Plaintiff also maintains that such a right-of-way is necessary for the enjoyment of its parcel of land "[I]n so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate." (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 169-70 n. 5, 783 A.2d 1226 (2001). The Plaintiff argues that the alternate right-of-way is impassable due to the topography of the land, including the hilly grade of the terrain. The Plaintiff also alleges that the right-of-way has been impeded by a number of factors, including "the unlawful placement by the defendant of gates, lightpoles, cantilevers, equipment bungalows, railroad crossing controls within the easement, and railroad spur tracks containing railroad cars which block, restrict, and can `hit' vehicular traffic along the easement." Plaintiff's Post-Trial Memorandum, 5/13/03, p. 20. It is the Plaintiff's contention that these factors favor an easement by necessity over the Defendant's land In this regard it should be noted that from the evidence presented it does not appear that the Plaintiff has taken any significant action during its ownership, other than the institution of a lawsuit in 1997 and correspondence in 1999, to preserve its right-of-way. "The owner of the right of way may repair it, and do whatever is reasonably necessary to make it suitable and convenient for his use." (Internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987).
In reviewing the Plaintiff's claim, the court notes that there was no claim here of a unity of title between the successors in title of the Plaintiff and PW or that it was the intention of the parties to create an easement over PW's land for the benefit of the Plaintiff. It is therefore questionable whether the principle that only reasonable necessity as cited in Hollywyle is the appropriate standard to apply here. Two Appellate Court cases deal with the issue of easement of necessity between landowners who do not trace their title to a single owner. In D'Addario v. Truskoski, 57 Conn. App. 236, 749 A.2d 38 (2000), the court permitted an easement by necessity over a right-of-way where there was no unity of title or intention ascertainable from the deeds of the parties. The court noted that the trial court "did find that the Kuriansky land was landlocked by the unusual circumstances of the state's taking land to the south for the turnpike, the railroad tracks to the north and the natural disaster that destroyed the bridge over the Noroton River. The court also found that multiple local, state and federal agencies would have to approve replacement of the bridge and that there was no reasonable probability that the necessary approvals could be obtained. In addition, the court found that since the Lenox Avenue bridge was destroyed, many trucks used the right-of-way on a daily basis to reach a business operation or a pumping station on the Kuriansky land The court granted an easement of necessity over the right-of-way to the Kuriansky land, citing Marshall v. Marshall . . ." D'Addario v. Truskoski, supra, 57 Conn. App. 246-47. The court continued: "It may be, however, that while access to the property is not absolutely cut off, the circumstances of the case are such that the means of access available would not afford the landowner any real beneficial enjoyment of his property. Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought. Such a means of access would be no better than none at all and there would seem to be equal reason for presuming a grant under such circumstances as in the case where there was no access. Although there are cases which hold that the way must be one of strict necessity, the weight of authority supports what seems to us to be the better rule — that the necessity need only be a reasonable one. We agree that equity requires that the plaintiffs be permitted to use the right-of-way for the beneficial enjoyment of the Kuriansky land For centuries our law has held that no person shall be denied the beneficial enjoyment and use of land because it is not accessible. The plaintiffs did not create the situation that has made the Kuriansky land inaccessible. The court found that the residential development, as permitted by the Darien zoning laws, will not overburden the right-of-way and that in the recent past many trucks crossed the right-of-way on a daily basis to which the defendants apparently did not object. The court, therefore, properly granted the plaintiffs an easement over the right-of-way to the Kuriansky land" (Citation omitted; internal quotation marks omitted.) Id.
In Murray v. Schroeder, 59 Conn. App. 747, 757 A.2d 1256 (2000), the Court upheld the finding of an easement of necessity in favor of the plaintiff Mazerolle. The court noted the trial court's findings that Mazerolle's lot was landlocked and that he was entitled to an easement of necessity with respect to the driveway as it passed over the defendants' property. "The court based its finding on its conclusion that the driveway is Mazerolle's only source of access to his property from Cossaduck Hill Road, there being no credible evidence to the contrary." Murray v. Schroeder, supra, 59 Conn. App. 751.
The court here concludes that more would be needed to establish an easement by necessity over the Defendant's land absent any intention by PW or its predecessor in title to grant such an easement to the Plaintiff or its predecessor. Furthermore, the Plaintiff purchased the property without any direct road frontage, it does have another means of access by way of the twenty-five foot right-of-way to Attawaugan Crossing Road, and there was no evidence that any cost to make the right-of-way passable was prohibitive. To hold otherwise raises questions of confiscation.
In any event, General Statutes § 47-27 precludes the court from finding an easement by necessity over PW's land Section 47-27(a) provides in relevant part: "No length of possession, use or occupancy of land belonging to a railroad or street railway corporation and used for its corporate purposes shall create or continue any right in or to such land" In Dalton Enterprises v. Boston and Maine Corp., 48 Conn. App. 251, 252, 707 A.2d 347, cert. denied, 245 Conn. 903, 719 A.2d 1163 (1998), the Court stated: "The plain language of § 47-27 prevents the creation of any interest in the disputed parcel during the period of corporate use of the land This statute accordingly serves as a toll on the time period necessary for the creation and perfection of prescriptive rights on the disputed parcel while the land is being used for the defendants corporate purposes." In the lower court decision in that case, adopted by the Appellate Court, the court stated: "[t]he legislature's intent was to protect lands for public transportation so that adverse use would not create a prescriptive easement while the property was used as a railroad." Dalton Enterprises, Inc. v. Boston Maine Corp., 45 Conn. Sup. 251, 255, 709 A.2d 611 (1997). It seems clear that the purpose of § 47-27 is to reserve exclusive control of railroad land in the railroad so that it can be used for its public purposes free from the risk that a private interest in the land could be created adverse to the interests of the railroad, and the public, in the absence of any agreement of the railroad to such use.
Although the Plaintiff agrees that the statute prohibits a claim of a prescriptive easement or adverse possession against a railroad, the Plaintiff argues that it does not prohibit an easement by necessity over a railroad's land Such an argument is misplaced. To allow an easement by necessity which effectively would confiscate the railroad's property without its consent and accomplish the same interference with the control of the land sought to be avoided by the statute would be just as contrary to the statute's intent as an easement accomplished through adverse possession.
Therefore the court concludes that § 47-27 precludes the Plaintiff from claiming an easement by necessity over PW's property.
Equitable Estoppel
The Plaintiff claims that the Defendant should be estopped from denying its use of the crossing. The Plaintiff claims the Defendant's actions led it to believe that it would have a right to use the crossing in perpetuity as long as it paid the rent. The Plaintiff argues that it relied to its detriment on the ability to use the crossing as access to its property and as a result did not seek to enforce its rights to the other easement or seek other means of access.
"Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby [the party] is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Union Carbide Corp. v. Danbury, 257 Conn. 865, 872, 778 A.2d 204 (2001). "We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Id. 873. "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Rapin v. Nettleton, 50 Conn. App. 640, 649, 718 A.2d 509 (1998).
Viewed in light of these principles, the Plaintiff's claim is unavailing. Assuming that the Plaintiff's rights are derived from the 1959 lease, that document by its terms provides that "it shall continue until terminated by a written notice given by either party to the other at least ten days prior to the date of termination." Thus the Defendant could terminate the Plaintiff's right to use the crossing at any time. In fact, the Defendant gave the Plaintiff notice in 1997 that the crossing would be closed if it did not make certain payments. A review of the documents, as well as the Defendant's conduct, does not establish that the Defendant ever indicated that the Plaintiff would be allowed to use the crossing in perpetuity. Therefore, the Defendant's conduct did not prohibit it from closing the crossing.
Easement by Plat/Survey
The Plaintiff alleges that a survey map of the twenty-five-foot right-of-way over the railroad tracks that was recorded in the Killingly land records created an easement to cross the railroad's land in favor of the Plaintiff's property. "General Statutes § 7-31 provides in relevant part: When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto . . ." (Emphasis in original; internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Ass'n, Inc., 250 Conn. 135, 141 n. 7, 735 A.2d 798 (1999). In Hackert v. Edwards, 22 Conn. Sup. 499, 502, 175 A.2d 381 (1961), the court held that "[t]he law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and the streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands . . . The sole limitation upon that right is that the street or highway must be of benefit to the lot owner." (Citation omitted; emphasis added.) The Plaintiff relies upon Hackert v. Edwards to argue that it is not essential that the owner of the property be the one who causes a survey or plat to be made or recorded. "As between the grantor and grantee, it is sufficient if he recognizes and approves a plat made by another. By making sales with reference to it, he adopts and makes the plat his own." Hackert v. Edwards, supra, 22 Conn. Sup. 502. The Plaintiff argues that the same principles should be applied in this case, for the Defendant was aware that the crossing had been used for sixty years, both from its grants of use and from the recording of the survey map. The Defendant's counter-argument is that Hackert is not authority for the theory the Plaintiff is attempting to advance. In that case, an owner of land caused a map to be made of it showing separate lots, and parks or other open areas, and thereafter sold the lots using the map as a conveyance tool. The defendant was a purchaser of one of the lots who attempted to build on land that had been designated as a "park." The court held that the other lot owners had acquired the right to have the parks kept open for use in connection with their lands based upon an implied easement by the recording of the survey map. Because the defendant had purchased his property pursuant to the map, he was on notice that the easement existed. The Defendant argues that this case is different in that the survey map did not serve as a conveyance device. The Plaintiff did not provide any evidence as to who caused the survey map to be done or recorded. Furthermore, the railroad company, the owners of the land where the track lies, did not acquire the property pursuant to the alleged map. Therefore, the principle that "[o]ne who purchases land with notice of the equitable rights of third persons will be regarded by a court of equity as standing in the shoes of his grantor and as purchasing the land subject to such equitable charge" cannot apply. Hackert v. Edwards, supra, 22 Conn. Sup. 507. Lastly, it is of significance to note that the uncertified copy of the alleged map, dated October 10, 1958, is entitled "Layout of the Existing 25 Foot Right of Way from Attawaugan Crossing Road to the land of John D'Abate in the Town of Killingly, Conn." The land of John D'Abate is north of the Plaintiff's land which is referred to as the land of Dayville MFG. Co. now Westlake Steel, Inc. Although the map appears to outline a right-of-way over the Plaintiff and the Defendant's property, that part of the right-of-way is not defined by degrees as is the remainder of the right-of-way, and the right-of-way over the D'Abate's property to the Westlake Steel property is described as "Right of Way to be Granted to Westlake Steel, Inc." Consequently the map does not serve to define any easement through the Plaintiff's property and over the Defendant's property to Upper Maple Street as the Plaintiff claims. This is consistent with the Plaintiff's deed which only references the right-of-way as running from the "northerly line" of the Plaintiff's property to Attawaugan Crossing Road. Therefore the map of the right-of-way provides the Plaintiff with no rights.
General Statutes § 13b-292
The Plaintiff argues that the Defendant does not possess the right to close the crossing because that right is vested solely in the commissioner of the department of transportation. The Plaintiff relies on General Statutes § 13b-292 to support this allegation. Subsection (a) of that statute provides: "For the purposes of this section, private crossing means any private way, private drive or any facility other than a public highway for the use of pedestrians, motor vehicles or other types of conveyances, which crosses at grade any railroad track. On and after June 20, 1961, no private crossing shall be established, except that the Commissioner of Transportation may authorize the establishment of a private crossing if it is deemed necessary for the economic welfare of the community but only after imposing specific requirements for the protection of persons using the crossing." Public Act 03-115, S.74, effective October 1, 2003, deletes the reference to the June 20, 1961 date. In respect to the authority to close a private railroad crossing, § 13b-292(e) provides in relevant part: "The Commissioner of Transportation shall make all necessary orders for the closing of any private crossing if he finds that the necessity for such crossing has ceased or that such private crossing constitutes a hazard to public safety. The commissioner may order the consolidation into one crossing of two or more private crossings located in close proximity to each other." The Plaintiff argues that the plain language of this section gives the commissioner of transportation the sole authority to close the Defendant's railroad crossing.
In support of its position, the Plaintiff cites the decision in Providence and Worcester Railroad Company v. Commissioner of Transportation, Superior Court, judicial district of Hartford, Docket No. CV 94-0540220 (June 6, 1995, Shea, J.T.R.). There the court dismissed the plaintiff's appeal from a decision of the commissioner denying the plaintiff railroad's petition to permanently close a public crossing. The court's decision implies that only the commissioner had jurisdiction to order the crossing closed in that case. This decision, however, is distinguishable from the situation here for two principal reasons. First, the commissioner acted pursuant to General Statutes § 13b-270 which deals with public crossings, that is, where a highway crosses or is crossed by a railroad. Second, in that case the legislature by special act had stated that the crossing should remain in use. Thus the decision provides little guidance to the court here.
A review of the statutory language itself raises the issue of its applicability to the situation here. The Supreme Court provides guidance in interpreting a statute. "`The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule. In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute. This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extra textual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.' (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 563 (2003)." Bhinder v. Sun Co., 263 Conn. 358, 367-68, 819 A.2d 822 (2003).
The statute refers to private railroad crossings established on or after June 20, 1961. It is clear that the railroad crossing at issue here was established prior to that date. PW, however, does not dispute that the statute applies, since it cited it as authority in its request to the commissioner of transportation for an order that the crossing be closed. Even assuming that the statute does cover crossings established prior to June 20, 1961, query whether the legislature intended to confer on the commissioner exclusive authority to approve, or disapprove, the closing of a private crossing whose creation he did not approve. Even if one assumes the legislature gave the commissioner such authority, is that authority exclusive? Did the legislature intend to usurp the authority of private parties to manage their affairs when they do not impact the public interest? The legislative history is of no assistance to the court but a careful reading of the statute indicates that it did not. Subsection (a) provides that the commissioner of transportation may authorize the establishment of a private crossing if it is deemed necessary for the economic welfare of the community. Thus the commissioner must find a public, and not simply a private purpose, for a crossing before allowing for its establishment. In determining whether to close a crossing, the commissioner must determine whether the necessity for such crossing has ceased or that such private crossing constitutes a hazard to public safety. The necessity referenced here must refer to that mentioned earlier in establishing a private crossing, that is, its necessity for the economic welfare of the community. Thus the commissioner's role is clear where the public interest is involved. That interest may be one of economic welfare or safety. Thus as to those crossings created by private agreement prior to June 20, 1961, the parties to the establishment of such crossings are left to their own determination as to their closure unless the public interest is impacted. The commissioner still has the authority to take action regarding a private crossing when the public interest requires it. To hold otherwise and reserve to the commissioner the exclusive authority to close a private crossing created by private agreement prior to June 20, 1961 would raise serious taking issues. In this regard it should be noted that the statutory scheme already allows a railroad to seek condemnation of a private crossing pursuant to General Statutes § 13b-289 if the "public safety" requires it. General Statutes § 13b-292 should thus be read as allowing the commissioner of transportation to take action regarding a private crossing where the public interest so requires, but not to preclude the parties to an agreement establishing a private crossing from exercising their rights under such an agreement, including an action to close the crossing.
The legislature could not have intended to reserve to the commissioner exclusive authority over a railroad crossing where no public interest is affected by either its opening or closing. Thus the commissioner does not have exclusive authority to order the closure of the private crossing at issue in this case.
Conclusion
The Plaintiff, Morgan Whitney Inc., has a license to use the railroad crossing from its property over that of the Defendant, PW, revocable by the Defendant at any time. The Defendant has revoked the license, and, therefore, the Plaintiff no longer possesses a right to use the railroad crossing. Judgment shall enter for the Defendant.
JANE S. SCHOLL, JUDGE.