Opinion
No. MMX CV07 400 7804 S
April 12, 2010
MEMORANDUM OF DECISION
As set forth in a decision concluding prior litigation between the parties, O'Neill Camp, Inc. v. Brett Stuart, 2005 Ct.Sup. 12167, No. MMX CV04 010 3655 S, Superior Court, Judicial District of Middlesex at Middletown (Walsh, J., September 1, 2005):
The plaintiff, O'Neill Camp, Inc., (OCI) is the owner of real property at Lake Pocotopaug in East Hampton, Connecticut. The defendant Stuart's parcel abuts the O'Neill parcel on the South, and therefore the plaintiff's southerly boundary is the defendant's northerly boundary.
Such prior case involved a disputed area to which OCI sought to quiet title. The disputed area included both a swampy inlet (after a 1998 dredging, the inlet became a cove off of Lake Pocotopaug) and a land area in addition to such inlet/swamp. Judge Walsh explained the history of the parties' use of the inlet/swamp area and adjoining property as follows:
When (1971) OCI became the owner of the O'Neill parcel, there were four owners of the six residential units shown on Exhibit #2. The Brooks family owned Unit 1; Robert Hayes' parents owned Units 2 and 6, the McGrath family owned Units 3 and 5, and the Coens owned Unit 4. Unit 7 was vacant land. In 1971 there were only summer residents. Robert Hayes has lived full-time in Unit 6 since 1978, but has been going there since his birth in 1954.
Since 1987, Mr. Hayes and his children have occasionally used the area from the mouth of the cove on the north side of the brook down almost to Old Marlborough Road. In the summertime the children would play in there occasionally, and once in a while at other times in the year. They would set-up a "camp" with chairs etc. and Mr. Hayes since 1978 has walked around in that area a couple of times a month. From 1978 to 1981 Mr. Hayes took firewood from that area until he stopped heating with wood. From 1987 to date, the Hayes children sometimes left furniture and toys in this area. From about 1960 to 1980 the McGrath children, and from 1980 to about 2000, the McGrath grandchildren used this area to play around in with toys. Some of this play activity took place on the Hayes property, and some of it took place in the disputed area. The Stuart children also played in these areas on occasion. No one who was part of the OCI ever asked permission of Mr. Stuart or his predecessors to use this area. The above described use can be described as occasional or sporadic, and as casual and episodic.
Mr. Stuart started to do some clearing of vegetation on the north side of the brook in the late 1990s, and when it continued, OCI sent him a letter in 2000 asking him to stop.
From 1988 through 2003, the defendant occasionally saw the Hayes children playing in and near the disputed area where there were trees, vegetation and the brook. The defendant never asked the children to leave the area, and his children used these areas in like manner, and played with the OCI children.
From the 1970s on, OCI wanted to leave the area with trees and vegetation in its natural state as a barrier providing privacy.
With respect to the swamp area, in 1971 the area marked as "Inlet" on Exhibit 2, was basically a swamp; lower in the winter, with more water in the summer. In the summer, a person could come in with a canoe, or a rowboat with a motor, which could be tipped up until the water was deep enough.
On a virtually daily basis, in the summer, from 1971 until the dredging in 1998, members of OCI used this inlet area for fishing, canoes, rowboats, and kids played in the area with nets. The court finds the testimony of Robert Hayes in this regard to be credible. This daily activity was visible from the defendant's property.
Once the dredging occurred, the inlet or cove became larger and deeper, and the swampy area basically became the cove, and members of OCI brought in boats, used it for swimming, and put in docks. Therefore, from 1971 to date, the swampy area (the Cove after the 1998 dredging) has been used daily during the summer in an open, visible, continuous and uninterrupted manner. This use was not occasional and sporadic.
Until 2003, OCI paid taxes on the disputed property, but since then the defendant has paid the tax on that land because he filed a survey with the Town which indicated that he, and not the plaintiffs, owned the disputed area.
At no time did the plaintiffs seek permission from the defendant or his predecessors to carry on any of their activities in the disputed area. They believed they owned the property.
Id., 12178-80.
Judge Walsh found that the plaintiff OCI had used the cove part of the disputed area, which included more than the cove, on a sufficiently regular basis to be entitled to a prescriptive easement with respect to it:
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The plaintiffs have not proved that they used the disputed area south of the brook or south of the cove.
With respect to the area north of the brook and east of the cove, extending down to Old Marlborough Road, the court finds that the plaintiffs have not proved by a fair preponderance of the evidence that their use of this area was open, visible, continuous and uninterrupted for fifteen years, and made under a claim of right. The use was too sporadic and casual.
CT Page 8604
With respect to the once swampy area, which along with the inlet is shown on defendant's "K" as Cove, the court concludes that the plaintiffs have proved by the better, weightier, more persuasive and more convincing evidence, that they have used that area openly, visibly, continuously and uninterruptedly for fifteen years under a claim of right. They have proved this by a fair preponderance of the evidence.
From 1971 to the 1998 dredging, the plaintiffs used the area almost every day in the summer for visible activities, such as use of canoes, rowboats, fishing, frogging, and children using nets to catch whatever they could. Since the 1998 dredging, the plaintiffs have used this area fully as part of the lake, which it now is. The fact that this use was basically a seasonal use does not militate against a prescriptive easement.
Regular and adverse use of property during the summer season is a sufficient basis for a claim of adverse possession.
Roche v. Fairfield, 186 Conn. 490, 501, note 11 (1982).
This same reasoning would apply to a claim of prescriptive easement.
The cove as shown on Ex. K is what was used by the plaintiffs and therefore that use defines the bounds of the easement with reasonable certainty.
The cove is now part of Lake Pocotopaug; defendant's servient estate will not be heavily burdened inasmuch as his property has direct access to the lake, apart from the cove, and he also will be able to use the cove.
The plaintiff, OCI, is awarded a prescriptive easement over that part of the disputed area as shown on a survey and map entitled PROPERTY OF BRETT STUART, DATE AUGUST 4, 2003, which was drawn by Close, Jensen Miller, P.C., which map is on file in the East Hampton Land Records, described as follows: Beginning at a point where the Brook meets the Cove and continuing in a generally northwesterly meandering line through the Cove, as shown on said map, to the end of said Cove, including all the disputed area which is north of said line. The easement shall include the right to use the area over which the easement is granted, for any activity reasonably related to the use of Lake Pocotopaug, including, but not limited to, swimming, boating, fishing, and placement of docks and rafts of reasonable size.
Id., 12185-87.
On October 22, 2007, the plaintiff filed an application for temporary injunction and a complaint against the defendant. The complaint in part contained the following allegations and request for relief:
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4. Plaintiff and defendant were parties to a lawsuit entitled O'NEILL CAMP INC., ET AL v. BRETT STUART, DOCKET NO. CV-04-0103655-S, in the Superior Court in Middletown, Connecticut.
5. The Court (Honorable Richard A. Walsh, Judge Trial Referee), awarded to the plaintiff a prescriptive easement on property owned by the plaintiff as follows:
O'Neill Camp Inc has a prescriptive easement over a certain cove, depicted on a map entitled "Property Survey, Property of Brett Stuart" prepared by Close, Jensen Miller, dated August 4, 2003, which map is recorded at Vol. 63, p. 45 in the Land Records in the Town of East Hampton, which was awarded by judgment on September 1, 2005, in the case of O'NEILL CAMP INC., ET AL v. BRETT STUART, DOCKET NO. CV-04-0103655-S.
6. The defendant has constructed and placed a dock in said cove, which interferes with the plaintiff's right to use said cove for swimming, boating, and fishing and other activities.
The plaintiff claims:
1. A temporary and permanent injunction prohibiting the defendant Brett Stuart from maintaining a dock in the cove depicted on a map entitled "Property Survey, Property of Brett Stuart" prepared by Close, Jensen Miller, dated August 4, 2003, which map is recorded at Vol. 63, p. 45 in the Land Records in the Town of East Hampton.
On November 6, 2007, the defendant filed an answer. On May 13, 2008, the matter was tried to Judge Walsh. In June 2008, each party filed a post-trial brief and the plaintiff filed a reply brief.
On June 24, 2008, Judge Walsh heard argument concerning the judgment entered by the court dated September 1, 2005, and filed on January 23, 2006. That judgment provided in part:
The Plaintiffs have failed to prove by clear and positive, clear and convincing proof, that the Defendant was ousted of possession of any portion of his property and kept out uninterruptedly for a period of fifteen years, by an open visible and exclusive possession;
Plaintiffs have not established any possessory interest in the Disputed Area; Plaintiffs have failed to establish by a fair preponderance of the evidence that they have used the Disputed Area south of the brook or south of the cove, which brook and cove are depicted on the Close Jensen Survey. With respect to the portion of the Disputed Area that lies north of the brook and east of the cove, extending down to Old Marlborough Road, plaintiffs have failed to establish by a fair preponderance of the evidence that they have used this area openly, visibly, continuously, and uninterruptedly for fifteen years; and
Plaintiffs have established by a fair preponderance of the evidence that O'Neill Camp, Inc. used the cove openly, visibly, continuously and uninterruptedly for fifteen years under a claim of right.
WHEREUPON, it is adjudged that judgment enter in favor of the defendant on Counts One, Two, and Three; and it is further adjudged that the title to the property be and the same is hereby quieted and settled in the defendant, as against the plaintiffs, and that none of the plaintiffs have any estate, interest in or encumbrance on the property or any part thereof, except as follows; that judgment is entered for plaintiff O'Neill Camp, Inc. on the Fourth Count of plaintiff's complaint (Prescriptive Easement), awarding a prescriptive easement to O'Neill Camp, Inc. as to the following portion, only, of the cove depicted on the Close Jensen Survey:
Beginning at a point where the brook meets the cove and continuing in a generally northwesterly meandering line through the cove, as shown on said map, to the end of said cove, including all the Disputed Area which is north of said line.
The easement shall include the right to use the area over which the easement is granted (for any activity reasonably related to the use of Lake Pocotopaug) including but not limited to, swimming, boating, fishing, and placement of docks and rafts of reasonable size,
and that the plaintiff's right to use the area over which the easement is herein granted shall not be exercised so as to interfere with the Defendant's ability, as owner of the servient estate, to use the cove; and that judgment is entered for the Defendant on the Fourth Count of plaintiffs' complaint (Prescriptive Easement), with respect to the remaining portions of the Disputed Area.
On June 24, 2008, the court granted the plaintiff's motion to correct the above judgment file upon which the parties had relied during the trial that occurred on May 13, 2008, and the court offered the parties the opportunity to present additional evidence that would have been presented at such trial if the amended judgment file had been in effect. After noting that the trial court had a responsibility to "make sure that the judgment exactly reflects the memorandum of decision . . ." Judge Walsh amended the judgment dated September 1, 2005, and he explained his reasons for doing so as follows:
I'm correcting this judgment as follows: After the words, which are in parentheses, prescriptive easement, there is a comma. I am changing that comma to a period. And I am striking the rest of the sentence, that is, those words that say, "awarding a prescriptive easement to O'Neill Camp Inc. as to the following portion only of the cove depicted on the Close, Jensen survey." I did not say that in the memorandum of decision.
That is why I'm correcting it. For clarity sake, on the last page of the judgment above Jonathan W. Field, Deputy Chief Clerk's signature, I'm going to strike that entire page, but I'm going to restore part of it in what I'm about to say next. First of all, I'm striking the whole page in order to prepare myself to substitute something that will be very clear. And what I'm substituting for that page, the last page, is the final paragraph of the memorandum of decision, which is page 22 of the memorandum of decision, the final paragraph.
So the new final page of the judgment will read as follows: The plaintiff OCI is awarded a prescriptive easement over that part of the disputed area as shown on a survey and map entitled property of Brett Stuart, date August 4, 2003, which was drawn by Close, Jensen and Miller, PC, which map is on file in the East Hampton land records described as follows: Beginning at a point where the brook meets the cove and continuing in a generally northwesterly meandering line through the cove as shown on said map to the end of said cove, including all the disputed area which is north of said line.
The easement shall include the right to use the area over which the easement is granted for any activity reasonably related to the use of Lake Pocotopaug, including, but not limited to swimming, boating, fishing and placement of docks and rafts of reasonable size.
The corrected judgment in relevant part is thus as follows:
WHEREUPON, it is adjudged that judgment enter in favor of the defendant on Counts One, Two, and Three; and it is further adjudged that the title to the property be and the same is hereby quieted and settled in the defendant, as against the plaintiffs, and that none of the plaintiffs have any estate, interest in or encumbrance on the property or any part thereof, except as follows; that judgment is entered for plaintiff O'Neill Camp, Inc. on the Fourth Count of plaintiff's complaint (Prescriptive Easement).
The plaintiff, OCI, is awarded a prescriptive easement over that part of the disputed area as shown on a survey and map entitled PROPERTY OF BRETT STUART, DATE AUGUST 4, 2003, which was drawn by Close, Jensen Miller, P.C., which map is on file in the East Hampton Land Records, described as follows: Beginning at a point where the Brook meets the Cove and continuing in a generally northwesterly meandering line through the cove, as shown on said map, to the end of said cove, including all the Disputed Area which is north of said line. The easement shall include the right to use the area over which the easement is granted, for any activity reasonably related to the use of Lake Pocotopaug, including but not limited to, swimming, boating, fishing, and placement of docks and rafts of reasonable size.
Thus, Judge Walsh continued to include the sentence "Beginning at a point where the Brook meets the Cove and continuing in a generally northwesterly meandering line through the cove, as shown on said map, to the end of said cove, including all the Disputed Area which is north of said line." The only "generally northwesterly meandering line through the cove . . ." shown on such 2003 Close, Jensen map is the line that is the southernmost boundary of the cove, e. g., the line closest to the dry land owned by the defendant. Thus, the plaintiff and its unit owners have a prescriptive easement over the entire water area of the cove that exists over the land owned by the defendant. See, e. g., the finding of Judge Walsh set forth in his memorandum of decision:
The cove as shown on Ex. K is what was used by the plaintiffs and therefore that use defines the bounds of the easement with reasonable certainty.
On July 15, 2008, the court granted the defendant's motion to amend its pleadings to add a counterclaim that included the following:
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5. In or about June 2008, O'Neill Camp moved a large trampoline into the middle of the cove, of a size and in a location that constitutes an unreasonable increase in the scope of the prescriptive easement acquired by O'Neill Camp and significantly burdens Stuart's use of the water bordering his upland property . . .
The defendant sought the following relief:
WHEREFORE, Stuart claims:
1. A permanent injunction requiring O'Neill Camp to move the trampoline to a location where it will not constitute unreasonable increase in the scope of the prescriptive easement;
2. A permanent injunction prohibiting O'Neill Camp from placing or maintaining objects in the cove in a manner constituting an unreasonable increase in the scope of the prescriptive easement or that would significantly burden Stuart's use of the water bordering his upland property.
3. Such other and further equitable relief as may be just and equitable.
Proceedings described on the court docket as "[o]ngoing court trial" proceedings were scheduled but did not take place on May 6, 2009, June 24, 2009, and July 15, 2009. On August 31, 2009, it was determined that Judge Walsh would not be able to continue to try the matter; a mistrial was declared and the matter was rescheduled for trial.
John Heagle, a registered professional engineer and land surveyor, was the first witness for the plaintiff. He reviewed the Close, Jensen and Miller survey dated August 4, 2003. He testified that in his opinion the "northwest meandering line" was the southern boundary of the cove, thus including the area where the defendant had constructed his dock.
Owners of condominium units also testified for the plaintiff. In addition to the four docks in the cove, the condominium owners have access to two docks directly on Lake Pocotopaug, and the defendant has a dock on such lake. Each owner claimed that the defendant's dock interferes with his or her use of the cove and creates a dangerous condition. (However, no expert testimony was offered by the plaintiff concerning the alleged dangerous conditions.) The unit owners also alleged that the defendant has placed a raft in the cove that increases the problems created by the defendant's dock. Boats owned by persons other than the unit owners and the defendant also enter and use the cove. The unit owners testified that the defendant's dock was the main problem or danger — they did not refer to or discuss any effect of the placement or location of the plaintiff's four condominium docks in the cove, one of which is across from the defendant's dock, or whether there should or could be changes in location or removal of one or more of such docks to eliminate or reduce any of the alleged problems or safety issues. Both the size of such docks and the size of the boats owned and used by the condominium owners have increased since the completion of the 1998 dredging of the cove that expanded the navigable area in the cove. Also, the plaintiff unit owners did not refer to or discuss any effect of the placement or location of other floating objects, such as a yellow water slide, that they have placed in the cove.
There is no serious dispute about the size of the rental trampoline, which is twenty feet in diameter, and its uncontrolled movement throughout the cove because of wind and other factors. It has been "underanchored" when it has been placed in the cove. Mr. Stuart testified about how the trampoline interfered with his access to and use of his dock and about how it was a general hazard as it moved about the cove under the influence of the wind. Photos that are full exhibits picture the water trampoline located near his dock and its general movements on the date of such photos.
The Supreme Court has long recognized that
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. (Internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 564, 645 A.2d 993 (1994).
Stefanoni v. Duncan, 282 Conn. 686, 701, 923 A.2d 737 (2007); see Center Drive-In Theater, Inc. v. Derby, 166 Conn. 460, 465, 352 A.2d 304 (1974). In Stefanoni, the Supreme Court reviewed some fundamental principles of the law with regard to easements:
We begin with a review of some fundamental principles of the law with regard to easements. "It is well settled that [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 rules authorized by the easement . . . [T]he benefit of an easement . . . is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . ." (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000). "In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation." Oak Leaf Marina, Inc. v. Ertel, 23 Conn.App. 91, 96, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990). "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." (Internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 564, 645 A.2d 993 (1994). "The determination of [the] reasonableness [of the use of an easement] is for the trier of fact . . ." (Citation omitted.) Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983).
Stefanoni v. Duncan, supra, 282 Conn. at 700-01. This case involves an easement by prescription that "is more limited than an easement by grant." McCullogh v. Waterfront Park Association, Inc., 32 Conn.App. 746, 756, 630 A.2d 1372, cert. denied, 227 Conn. 933, 633 A.2d 707 (1993).
The Supreme Court also described the rights of an owner of property adjacent to tidal waters:
We first must consider the scope of the plaintiffs' rights under the access easement in the context of the defendant's littoral rights. This court previously has described the rights of an owner of property adjacent to tidal waters in State v. Knowles-Lombard Co., 122 Conn. 263, 188 A. 275 (1936). "The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and for these purposes of occupying and using it in any manner which does not interfere with navigation . . ." Id., 265. Our Appellate Court has concluded in the context of a prescriptive easement that "the placement of the docks off the plaintiff's property is an unreasonable increase in the scope of the easement acquired by the defendants and that the placement of the docks significantly burdens the plaintiff's use of the water bordering her property, thereby interfering with her littoral rights." McCullough v. Waterfront Park Assn., Inc., 32 Conn.App. 746, 758, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).
Stefanoni v. Duncan, supra, 282 Conn. at 700-01.
The plaintiff and its unit owners have installed four docks in the cove including one dock near the mouth of the cove across from where the defendant installed his dock. The photos admitted into evidence included boats that both the plaintiff's unit owners and the defendant utilize and leave at such docks. The cove is approximately 250 feet long and at its widest point approximately 120-125 feet wide. By way of comparison as to its size, a professional football field is 360 feet in total length by 160 feet in total width. "American football," Wikipedia, the free encyclopedia.
As set forth above, the plaintiff claimed the following in the instant litigation:
6. The defendant has constructed and placed a dock in said cove, which interferes with the plaintiff's right to use said cove for swimming, boating, and fishing and other activities.
The plaintiff claims:
1. A temporary and permanent injunction prohibiting the defendant Brett Stuart from maintaining a dock in the cove depicted on a map entitled "Property Survey, Property of Brett Stuart" prepared by Close, Jensen Miller, dated August 4, 2003, which map is recorded at Vol. 63, p. 45 in the Land Records in the Town of East Hampton.
The standard for granting a permanent injunction has recently been set forth by the Supreme Court:
We are mindful of "the governing principles for our standard of review as it pertains to a trial court's discretion to grant or [to] deny a request for an injunction: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion." (Internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002).
Brennan v. Brennan Associates, 293 Conn. 60, 86-87, 977 A.2d 107 (2009) (footnote omitted).
Other standards for granting a permanent injunction set forth by the Supreme Court include the following:
". . . 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. Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980)." (Internal quotation marks omitted.) Avalon Bay Communities, Inc., v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). We note also that, "[i]n 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." Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972).
Tighe v. Town Of Berlin, 259 Conn. 83, 87-88, 788 A.2d 40 (2002).
Some trial courts have considered the four-part test set forth in Waterbury Teachers Assn. v. Freedom Of Info. Comm., 230 Conn. 441, 446, 645 A.2d 978 (1994), in connection with a determination of whether a permanent injunction should issue:
The court determined that, in order for a stay to issue, it must determine that:
(1) the plaintiff had no adequate legal remedy;
(2) the plaintiff would suffer irreparable injury absent a stay;
(3) the plaintiff was likely to prevail on appeal; and
(4) the balance of the equities favored a stay.
See, e. g., New Breed Logistics v. CT INDY NH TT, 2010 Ct.Sup. 857, 860, No. CV084032668, Superior Court, Judicial District of New Haven at New Haven (A. Robinson, J., December 9, 2009).
The standard of proof for injunctive relief is by a preponderance of the evidence.
The proper burden of proof for injunctive relief is by a preponderance of the evidence. "The party seeking the injunction must prove his own case and adduce whatever proof is necessary to show the existence of the conditions or circumstances upon which he bases the right to and necessity for injunctive relief, and he must establish his right thereto by a preponderance of the evidence. 42 Am.Jur.2d, Injunctions 287." Beacon Falls v. Posick, 17 Conn.App. 17, 24, n. 5 (1988).
Chinati v. Kobyluck Sand Gravel, Inc., 2008 Ct.Sup. 17550, 17569, No. CV 06-4005354, Superior Court, Judicial District of New London at New London (Parker, J., November 6, 2008).
The plaintiff did not establish by a fair preponderance of the evidence that the defendant's dock or his 8' by 8' raft "creates a potential hazard for boats coming in and out of the cove . . ." or that they "seriously interfere with the [plaintiff's unit owners] use of the cove . . ." and that the defendant owner has less right to use the cove for dockage of his water craft and the placement of a reasonably sized raft than the plaintiff and the unit owners do. Specifically, the plaintiff did not prove that it or any of its unit owners has a greater right to place a dock and water craft near the mouth of the cove than the defendant does. Nor did the plaintiff prove its claim to exercise its prescriptive rights in the relatively small docking area utilized by such defendant owner, to the total exclusion of such defendant owner and his right to place a dock in the cove. The plaintiff also did not prove it met the standards for and was entitled to injunctive relief against the defendant.
In his post-trial brief, the plaintiff set forth three issues that it believed to be before the court:
1. Was the dock erected by Brett Stuart within the easement by prescription granted by Judge [Walsh] in his memorandum of decision, of September 1, 2005?
2. Did the acts of the servient owner, Brett Stuart, in erecting a dock in the cove, unreasonably interfere with the plaintiff's easement?
3. Did the trampoline used by the plaintiff in the cove expend or exceed its easement?
As set forth above, the answer to the first issue raised by the plaintiff is "Yes," but such easement by prescription does not bar the defendant from erecting and using his dock. The answer to the second statement of issues before the court is thus "No." As set forth below, the answer to the third statement of issues is "Yes."
The defendant, however, did prove that the 20 foot in diameter water trampoline rented by one or more of the plaintiff's unit owners and placed in the cove without adequate anchoring was not a "raft[] of reasonable size . . ." within the scope of the prescriptive easement, and that such trampoline has interfered with the defendant's access to and use of his property in the cove, and it thus has unreasonably interfered with the defendant's rights in the cove. The court finds that the defendant has no adequate legal remedy; the defendant has suffered and will suffer irreparable injury absent an injunction; and the balance of the equities favors the defendant. The defendant is entitled to a permanent injunction against the plaintiff prohibiting further violation of the prescriptive easement and that such 20 foot in diameter water trampoline is prohibited from the cove. Such plaintiff is thus prohibited from bringing such trampoline into or arranging for such trampoline to be brought into such cove, and such permanent injunction is hereby issued by the court.