No. CV04 0084068S
July 18, 2005
MEMORANDUM OF DECISION RE APPLICATION FOR AN INJUNCTION
The plaintiffs herein have brought this action against the defendant alleging an interference with their use of an easement over the southerly 23 feet of the defendants' property. The plaintiffs are the owners of the dominant estate, while the defendants are the owners of the servient estate. The easement is located in the City of West Haven and has become known as Bungalow Lane.
The right of way as is pertinent reads as follows: "A right of way for all purposes whatsoever in, through, over and upon each and every portion of the southerly 23 feet of the land conveyed therein for the grantor, his heirs and assigns and all others to whom a similar right of way shall be granted."
The prayer for relief seeks "to restrain the defendant from continuing to close, obstruct, stop up, or interfere with the right of way and in any manner interfering with or attempting to prevent the plaintiffs from passing over or using the right of way for any purpose whatsoever."
The evidence presented at the hearing shows that the defendants have constructed a speed bump across the right of way. The speed bump, ordinarily a traffic control device, is larger than one might expect, being higher and wider than normal, causing vehicles to scrape their bottom when crossing the bump. One of the defendants has installed metal ports on either side of the right of way, filled with cement and sunk three feet into the ground. While his testimony was that the only purpose was to erect signs on the posts, the nature of the construction would lead the court to believe that their purpose was to place a chain across the right of way, thus obstructing any passage over the right of way by any motor vehicle. The evidence also indicates an CT Page 11060-x interference with the mail and also an attempt to prevent the City of West Haven from snowplowing during the winter months as well as interfering with guests of the plaintiffs.
"The phrase `for all purposes whatsoever,' is a broad one, without any restrictions as to the use of the right to pass or repass . . . The phrase permits any use reasonably connected to the reasonable use of the land." (Internal citations omitted.) Pender v. Matranga, 58 Conn.App. 19, 25 (2000).
"Ordinarily, except in cases of trespass, a plaintiff is entitled to an injunction only in the event that he can show that the threatened conduct will cause him irreparable damage. Specifically, the owner of the easement is entitled to relief only if he can show that he will be disturbed or obstructed in the exercise of his right to use it." (Internal citations omitted.) Wambeck v. Lovetri, 141 Conn. 558, 564 (1954).
"The plaintiffs would be entitled to relief only if they had been disturbed or obstructed in the exercise of their rights to the use of it." (Internal citations omitted.) Catania v. Vanacore, 136 Conn. 244 (1949).
"The law is well settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it." (Internal citations omitted; quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 45 (1982).
The plaintiffs have established that their use of the easement has been obstructed and disturbed and they are without an adequate remedy at law. As the owners of the dominant estate, they are entitled to relief from the actions of the defendants, the owners of the servient estate and are therefore entitled to injunctive relief.
A temporary injunction may issue enjoining the defendants from obstructing or disturbing the plaintiffs in their use of the easement and the defendants are directed to remove the speed bump and the metal posts presently on Bungalow Lane.
Curran, JTR CT Page 11060-y
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