Opinion
No. CV 08 5018788
March 28, 2011
MEMORANDUM OF DECISION
Preliminary Statement
This case arises from a dispute between adjoining landowners regarding the defendants' use of the plaintiff's land along the northern border of the plaintiff's property. The plaintiff commenced this action seeking to enjoin the defendants from parking their vehicles on the property thereby obstructing passage. The plaintiff further seeks an easement by necessity over a portion of the southern border of the defendants' land for purposes of making repairs or renovations to the northside of the plaintiff's building. The defendants object to any injunction on the grounds that they are permitted to park vehicles on the plaintiff's land by virtue of an easement granted to them by the plaintiff's predecessor in title. Alternatively, they aver, by special defense, that they are entitled to park on the parcel in question by way of a prescriptive easement. The defendants further argue that the plaintiff has not met its burden of establishing an easement by necessity.
The plaintiff's complaint includes a nuisance claim, which the court considers abandoned, as well as a claim for money damages, for which no evidence was adduced. The court limits its consideration to those issues briefed by the parties as identified above.
The matter was tried to the court on December 2, 2010. Post-trial briefs were filed on January 11, 2011. The court has reviewed the pleadings in this case, the evidence introduced, the briefs of the parties and applicable law.
Also tried was the consolidated matter of Cokic v. Washington Park Revitalization Project LLP, Dkt. No. 09 5027657. That case involved a claim of adverse possession by Cokic for the same portion of land. The court directed a verdict in favor of the defendant on that claim. That does not, however, resolve the issues presented in this case.
Facts
The plaintiff is the owner of property located at 564 Kossuth Street in Bridgeport, Connecticut. The building located at 564 Kossuth Street is a multi-unit residential building, acquired for the purpose of providing affordable housing in the area. The defendants are the owners of the adjoining property located at 574 Kossuth Street, a single-family home. They have lived at that location since at least 1982.
In 1982, the defendants were friends with the then owner of 564 Kossuth Street, Roger Cole. At that time, there was a fence that separated the two properties. The effect of the fence was to create a narrow alley along the side of the building at 564 Kossuth. This became a security concern for both the defendants as well as Mr. Cole as the alleyway was being used for illicit and possibly illegal activities. In an effort to address those concerns, Mr. Cole and the defendants agreed to remove the fence, creating a wider strip of land that included a portion of both parcels — 564 Kossuth Street and 574 Kossuth Street. By arrangement, the defendants used the wider strip as a driveway for their home and parked their vehicles on this strip of land. This was a mutually beneficial arrangement for both the defendants and Mr. Cole. The defendants received off street parking and Mr. Cole's security concerns were addressed.
In 1982, in order to give the arrangement legal validity, an easement was drafted and recorded in the land records. The easement provides in pertinent part:
I, Roger B. Cole, . . . does (sic) give grant, bargain, sell and confirm unto Dejan Cokic and Karan Hoerle, . . . a driveway on a certain piece or parcel of land, shown as 564 Kossuth Street, . . .
Together with the right to pass and repass for the said grantees, . . . over the northerly 7.5 feet of the premises of said releasor . . .
Reserving however, for the releasor, . . . the right to pass and repass over the northerly 7.5 feet of the above describe premises.
The Northerly 7.5 feet of the above described premises constitutes a driveway from Kossuth Street to the easterly boundaries of 564 Kossuth Street . . .
(Exhibit 4.)
Current land surveys reveal that the portion of the driveway which is actually a part of the easement from the parcel known as 564 Kossuth Street is approximately 4.9 feet wide along the northern border, which is approximately 100 feet long. Measuring the full 7.5 feet from the property line extends into the building at 564 Kossuth Street. The remaining portion of the driveway is on the defendants' property. However, the defendants cannot park their vehicles on the driveway without using the easement area.
In approximately 2008, the plaintiff began a renovation to the building at 564 Kossuth Street. When the work was to begin on the northerly wall of the building, it was determined by the contractor (as testified to by Mr. Fedus) that the plaintiff would need not only access to the easement area, but also a portion of the defendants' property for purposes of erecting scaffolding. The instant dispute arose as to whether the defendant's use of the easement for parking was within the scope of the easement and whether the parking of vehicles obstructed the plaintiff's access to the easement area. The plaintiff sought to preclude the defendants from parking in the easement area. The plaintiff also filed the instant suit seeking a determination that it could temporarily use the defendants' property as a result of an easement by necessity.
There were allegations and some evidence that the defendants also used the easement area for storage of inoperable vehicles, gas tanks, oil and other unspecified debris. The defendants denied any such allegations and there is no claim that the easement permits or contemplates that type of use.
At trial, the plaintiff offered testimony of Robert Fedus, a director of construction services for a construction firm in Massachusetts. He was involved in the 2008 renovation of 564 Kossuth Street, which had fallen into disrepair. He described the work that was completed and the work that was unable to be completed. He testified that in order to complete the exterior renovation to the northerly wall of the building at 564 Kossuth Street, he would have needed to erect scaffolding that was between four to five feet in width, along the side of the northern wall. That scaffolding would necessarily rest, in part, upon the defendants' property. The scaffolding would also, while it was in place, preclude the use of the easement for parking purposes. The scaffolding would be in place for between two to four weeks. He further testified that unless the northerly wall could be completed, the building was exposed to the elements and would eventually be damaged thereby.
Mr. Fedus did not testify as to whether there were alternatives to the scaffolding as a means of accomplishing the restoration and repairs. Mr. Fedus does not work for the firm which will be performing the restoration and repairs if the plaintiff is successful in this litigation. There was no testimony as to the current plan or whether Mr. Fedus' plan was or is the only way to accomplish the work needed.
The defendants Dejan Cokic and Karen Hoerle testified that since at least 1982, they have used the driveway to park their cars. They both testified that their use of the driveway for that purpose has been uninterrupted and that having the space for that purpose was the intent of the easement in the first instance. Until the plaintiff purchased 564 Kossuth Street, in 1999, there had never been an issue regarding his use of the driveway.
Mr. Cokic's testimony also included a brief history of the very unfortunate but clear animus that has developed between these two neighbors. Mr. Cokic described untenable conditions resulting from the renovation that was accomplished to include damage to some of his property. He also described tenants who left garbage strewn about the street. He introduced many photographs to support his descriptive testimony. While these issues and images are not irrelevant to the court's equitable determination, they are in many respects tangential.
Discussion
CT Page 8297
A. The scope of the easement
The first issue presented is whether under the easement granted to the defendants, they are permitted to park their vehicles within the easement area. The plaintiff argues that the easement is limited simply to the right "to pass and repass" which is generally understood to be a right of way. The plaintiff relies on the language of the easement as well as that portion of the easement which reserves to the Grantor the same right of access. The defendants argue that the easement specifically states that the use includes that of a "driveway." They argue that people park in driveways. Both defendants testified that it was their intent to secure an easement for parking purposes."Intent as expressed in deeds and other recorded documents is a matter of law." Mandes v. Godiksen, 57 Conn.App. 79, 82 (2000), citing, Contegni v. Payne, 18 Conn.App. 47, 51 (1989). Here, there is no question that Mr. Cole intended to grant an easement in favor of the defendants. No one claims to the contrary. "Although the intent to create an easement by recorded instruments is a question of law, the deeds, maps and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine the nature and extent of the easement." Id. at 83.
A deed shall, if possible, be construed to effectuate the intent of the parties. "[I]t is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence)" . . . Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995). Thus, "if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity." Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780-81, 687 A.2d 1270 (1997).
Mandes v. Godiksen, supra, 57 Conn.App. at 90.
Because the circumstances and procedural posture of the Mandes case were different than those presented here, it is unclear to this court whether, under Mandes, an initial finding of "ambiguity" in the language of the easement is required when determining the scope of the easement, as opposed to its existence. However, to the extent such a finding is required in advance of considering parol evidence on the parties' intent, the court does so find.
"The determination of the scope of an easement is a question of fact." Strollo v. Iannantuoni, 53 Conn.App. 658, 659 (1999). "A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created." 1 Restatement (Third), Property, Servitudes § 4.1, pp. 496-97 (2000), cited with approval in Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 830 (1998). Such circumstances include "the location and character of the properties burdened and benefited by the servitude, [and] the character of the surrounding area." 1 Restatement (Third) Property, Servitudes § 4.1, p. 499 (2000).
In determining the scope of an easement, "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." Strollo v. Iannantuoni, 53 Conn.App. at 659, citing, Kuras v. Kope, 205 Conn. 332, 341 (1987). The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact. Id. at 660. See also, First Union National Bank v. Eppoliti Realty Co., 99 Conn.App. 603, 608 (2007).
This court finds that the scope of the easement includes the right to park vehicles therein. While the easement refers to the right of the grantee to "pass and repass," the ordinary use of that language has little application to these parcels of land. The easement in question was not designed to give access to an otherwise inaccessible location, as is often the case. In other words, the easement is not an access way that a person might pass through on their way to someplace else and then pass through again on their way back. It is essentially a 4.9-foot by 100-foot dead-end strip of land. It would have been a meaningless gesture to give the grantee the right to travel back and forth along the side of the building, when the pathway leads to nowhere. This, coupled with the use of the term "driveway" as the intended use, makes manifest that the defendants' intent and understanding coincides with the intent of Mr. Cole, the grantor, when the easement was created. This conclusion is bolstered by the evidence that the defendants immediately began, and have not stopped, using the easement to park their vehicles.
Of note, even if the original intent and the written easement did not include the right of the grantee to park vehicles along the easement, that the defendants have done so, unabated since 1982 or before, results in a prescriptive easement which would include such use. General Statutes § 47-37 provides for the acquisition of an easement by adverse use, or prescription and provides: "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." "A party claiming to have acquired an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." Slack v. Greene, 294 Conn. 418, 427 (2009). The burden is on the party claiming a prescriptive easement to prove all of the elements by a preponderance of the evidence. Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 125 (2005). The evidence is undisputed that the defendants have used the easement as their driveway since at least 1982. The first claim that such use was outside the scope of the easement was made well after the plaintiff's purchase of the property in 1999. If the use of the easement for parking was determined to be outside the scope of the easement (and therefore not permissive), such use would have been "under claim of right" as that term has been defined by our Appellate Courts. See Slack v. Green, 294 Conn. at 427-28.
However, as indicated, the scope of the easement must be limited as appropriate so as not to overly burden the servient estate. First Union National Bank v. Eppoliti Realty Co., 99 Conn.App. 603, 608 (2007). And as indicated, the easement, as written retains to the plaintiff, the right of passage and use. Certainly, the plaintiff is entitled to access its property for purposes of making repairs and maintaining its building. To that extent, the defendants' rights under the easement must give way as necessary for the plaintiff to accomplish such maintenance or repairs. The defendants, therefore, may not park their cars on the easement during such times as the plaintiff requires access to the 4.9 feet adjacent to the northern wall of the building at 564 Kossuth Street for maintenance or repair.
B. Easement by necessity
The plaintiff also seeks a determination that it is entitled to an easement along the defendant's property for purposes of accomplishing its renovation. It claims an "easement by necessity" and seeks access to approximately 3 feet of the defendant's property running adjacent to the northern property line between the two parcels. The effect of such an "easement by necessity" would be to create a strip of land approximately 7 feet wide along the northern wall on which scaffolding could be erected for purposes of the planned repair and maintenance.
In its trial brief and complaint, the plaintiff also suggests that the court should find an easement by implication. Plaintiff appears to blur the distinction between the two types of easements and provides no separate analysis for a claim of easement by implication. The analysis offered is in the context of case law which discusses easement by necessity. In any event, this court has examined the case law regarding easement by implication and the circumstances of this case do not give rise to a finding of easement by implication. An easement by implication would require evidence of the land owners' intent. Regarding the use of the defendants' land to perform maintenance and repair to the plaintiff's building, there is no evidence that such was ever contemplated, discussed or intended at anytime until the apparent need arose in 2008 and this action was thereafter commenced. See, McBurney v. Cirillo, 278 Conn. 782 (2006).
This court has found no precedent which would support the proposition that circumstances such as those presented here give rise to an easement by necessity. Indeed, an easement by necessity is used for purposes of providing access to a landlocked parcel of land. See, Sanders v. Dias, 108 Conn.App. 283, 289 (2008) and cases cited therein. Cf Deane v. Kahn, Dkt. No. X09CV014022032, judicial district of Hartford, (July 13, 2007) (Shortall, J.) (Easement by necessity was established where although the property was accessible from the road (and thus not landlocked), the waterfront portion of the property was inaccessible unless the property owner was granted right of way over neighbor's land to permit access to the waterfront portion of the parcel).
"An easement by necessity requires the party seeking the easement's parcel to be landlocked." Sanders v. Dias, 108 Conn.App. 283, 289 (2008). It "will be imposed where a conveyance 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 though the lands conveyed." Hollywyle Association, Inc. v. Hollister, 164 Conn. 389, 389 (1973). "[T]o 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." Id., 399. See Christensen v. Reed, 105 Conn.App. 578 (2008). "However, there is no presumption that expense or inconvenience sufficiently establishes a right of way by necessity." Taylor v. Silverstein, Superior Court, judicial district of Tolland, Docket No. CV 04 400576 (April 10, 2006, Klaczak, J.T.R.), citing Marshall v. Martin, 107 Conn. 32, 37 (1927), affirmed on other grounds 104 Conn.App. 468 (2007).
Here, the plaintiff argues, in essence, that he can only gain meaningful access to the northern side of the building for the purpose of repair and restoration by traversing and using a portion of the defendant's land. Even assuming, arguendo, that an easement by necessity might arise under these circumstances, the plaintiff has failed to establish "necessity."
The plaintiff has approximately 4.9 feet of land along the northern wall of its building. For purposes of inspection, maintenance and repair, it will have unobstructed access to that strip of land. See, Part A, supra. There was no evidence presented that the defendants' land has ever been accessed or used for purposes of maintaining the building at 564 Kossuth Street. There was no evidence as to the current proposed plan of restoration or repair. There was no evidence as to any available alternatives, or lack thereof, to the scaffolding proposed for use in the 2008 repairs. While the plaintiff has established that the repairs are necessary, it has failed to establish that access to the defendants' property for purposes of making those repairs is also necessary.
Beyond a brief description that the stucco and windows needed to be replaced, little testimony regarding the nature of the repairs to be made and what will be required in the process was introduced.
The plaintiff asks this court to find an easement by necessity on the basis that its 2008 contractor testified that he would have required scaffolding which would temporarily encroach on the defendants' property. From this, the court is asked to infer that whoever is chosen to accomplish the repairs going forward, will also require such scaffolding and that the work could not be accomplished through any alternative means. These conclusions would require the court to engage in speculation and conjecture.
It is hereby ORDERED:
Upon reasonable notice to the defendants, but in no event less than 48 hours, for purposes of inspection, repair or maintenance, the plaintiff is to have unfettered access to the easement running along the northern border of the property located at 564 Kossuth Street, Bridgeport, Connecticut. The notice will include the dates and duration of the maintenance. During such time of maintenance and repair, the defendants will not obstruct or interfere in any manner with plaintiff's access to the easement.
The plaintiff may require access on less than 48 hours notice in the event emergency repairs or maintenance become(s) necessary. The defendants will not obstruct passage or access to the easement under such circumstances.
At all other times, the defendants are permitted to park their vehicles in the easement area. The easement does not include the right to store inoperable vehicles or other items within the easement.
SO ORDERED this 28th day of March 2011.