Opinion
No. CV05-4002743.
December 28, 2006.
MEMORANDUM OF DECISION
The plaintiff is the owner of real property located at 20 Quarry Hill Road, Killingworth, Connecticut. The defendants are the plaintiff's neighbors who own the property located at 18 Quarry Hill Road located at Killingworth, Connecticut. This case concerns the use by the defendants of a portion of their driveway (approximately 10 feet wide by 20 feet long) which is located on the plaintiff's property. The plaintiff brings this complaint seeking an injunction against the defendants' use of his property, specifically this portion of his driveway.
The lots which the parties own were parts of a subdivision developed by Mario Demelis of Middletown, Connecticut. The subdivision is described in a final subdivision map (Plaintiff's Exhibit #1) recorded in the Killingworth land records on April 4, 1972. The subdivision declarations of restrictions and covenants running with the land was filed on August 7, 1975 (Plaintiff's Exhibit #3). The subdivision documents and the parties' deeds (Plaintiff's Exhibits A B) do not reference an easement or right-of-way in favor of the defendants over the plaintiff's property.
The defendants' property was developed first by the developer and sold to the defendants' predecessor in title in 1976. The plaintiff's lot and home was subsequently developed and sold to the plaintiff's predecessor in title in 1977 (Defendants' Exhibit BB). The defendants and their predecessors in title have used the front portion of the driveway located on the plaintiff's property since 1976.
The subdivision map shows that the driveway for the defendants' lot should be on an area adjacent to Lot #10 accessing Quarry Hill Road. The plaintiff's property is essentially situated behind the defendants' lot, but with a lengthy 25-foot wide strip connecting the lot to Quarry Hill Road. The plaintiff's driveway is approximately 600 feet in length. The plaintiff, after purchasing the property in 2003, learned that it appeared that the defendants were encroaching on his property with respect to the use of the portion of his driveway adjacent to Quarry Hill Road. The defendants' driveway encompasses a small portion of the plaintiff's driveway near Quarry Hill Road and then veers off towards the defendants' house.
The defendants claim an easement by implication over the front forward portion of the plaintiff's driveway (near an area of approximately 10 feet wide by 20 feet long).
"In this state, the law regarding easements by implication arising out of the severance of title of two adjoining or commonly owned properties is well settled. Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a . . . reservation of the right to continue such use . . . In so far as necessity is significant it is sufficient if the easement is `highly convenient and beneficial for the enjoyment of the dominant estate.' " Schultz v. Barker, 15 Conn.App. 696 at 700-01 (1998). (Internal marks and citations omitted.)
In the instant case, the developer, Mario Demelis, originally owned both lots, Lot 11 (defendants' property) and Lot #12 (plaintiff's property) and the constructed homes and driveways on both properties. Demelis located part of the driveway for Lot #11 on Lot #12 at the time of construction. This was done despite the map filed in the Killingworth land records showing that the driveway for Lot #11 would be located on a different part of the lot with a different access to the house (Defendants' Exhibit CC). The driveway for Lot #11 was constructed in 1976 and conveyed to the defendants' predecessors in title that year. The driveway and home on Lot #12 were constructed shortly thereafter and the plaintiff's predecessor in title was deeded Lot #12 with the improvements thereon in 1977. Thus, it appears that an apparently permanent and obvious servitude (an easement or right-of-way over a small portion of the driveway for Lot #12) was imposed in favor of the defendants' predecessors in title. At the time of the severance the servitude was in use.
In order to determine if an easement by implication was created, it is also necessary to determine if it is reasonably necessary for the fair enjoyment of Lot #11.
The defendants testified that due to the slope of their property, it would be costly, difficult, and substantially less convenient to build a driveway which would not encompass the disputed area on Lot #12. The construction costs would be in excess of $22,000 and would involve blasting of rock ledge in close proximity to the defendants' home. "The implied easement must be reasonably necessary for the fair enjoyment of the property, not merely an enhancement to the enjoyment of such property." See Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 640 (2002). Necessity has also been defined as "highly convenient and beneficial" for the enjoyment of the dominant estate." D'Amato v. Weiss, 141 Conn. 713, 717 (1954).
The court finds that easement in favor of the defendants over the 10 foot wide by 20-foot long portion of the plaintiff's driveway is reasonably necessary for the fair enjoyment of the defendants' property. The court makes this finding based on the significant cost of relocating a driveway to the defendants' home, the risks associated with the blasting near the defendants' home, the limited impact of this easement on the plaintiff's property (plaintiff's driveway is approximately 600 feet long), the grade of the defendants' property, and safety issues associated with the construction of a steep driveway to defendants' property. The court also notes that the plaintiff made a claim on his title insurance policy with respect to the diminution of value to his property by the existence of the easement in benefit of the defendants on the small portion of his driveway. This claim was valued by the title insurance company at $190.00.
Judgment enters for the defendants on plaintiff's complaint. Judgment also enters for the defendants on their counterclaim. The defendants are awarded judgment recognizing a right-of-way over the driveway apron located on the plaintiff's property. This right-of-way measures approximately 10 feet wide by 20 feet long.