No. CV 03 0195573 S
May 3, 2006
MEMORANDUM OF DECISION
This case comes to this court as a court trial. The plaintiff filed an amended complaint on October 14, 2003 which complaint consisted of 6 counts. Count Five an unfair and fraudulent business practices claim was stricken by Judge Rogers. The case proceeded to trial on the remaining five counts.
In essence, the plaintiff claims that Connecticut Light Power Company had no easement or right to proceed to trim trees and cut bushes in a pass-way of approximately 30 feet wide by 300 feet long. The easement is set forth in Exhibit J and Exhibit 7. The court finds that following facts:
1. The plaintiff, Timber Trails Associates, is the fee owner of property known as "Timber Trails" located in the towns of Sherman and New Fairfield, Connecticut. (Plaintiff's Exhibit 1.)
2. The defendant, The Connecticut Light and Power Company (CLP), holds two express easements over "Timber Trails" which were recorded in the towns of Sherman and New Fairfield in 1939 and 1957. (Defendant's Exhibit J.)
3. The 1939 easement provides that "THE TIMBER TRAILS CORPORATION, does hereby give, grant, bargain, sell and confirm unto said THE CONNECTICUT LIGHT AND POWER COMPANY, the right to set or relocate and permanently maintain poles, guys, anchors, guy stubs and other usual fixtures and appurtenances on any or all of the private or public streets or passways laid out or relocated on the property . . . known as `Timber Trails.'"
4. The 1939 easement provides that CLP shall also [have] the right to set or relocate and permanently maintain poles, guys, anchors, guy stubs and other usual fixtures and appurtenances in such other locations on said development as the Grantee and the Grantor and their respective successors or assigns may, from time to time, mutually agree upon; and also the right to permanently maintain and relocate all poles, guys, anchors, guy stubs and other usual fixtures and appurtenances, as now constructed on said premises.
(Emphasis added.) (Defendant's Ex. J.)
5. The plaintiff was aware of CLP's easements and read them thoroughly. (Testimony of Henry Pascarella, T. 82, ll. 4-10; T. 83, ll. 24-27; T. 84, ll. 1.)
6. In 1936 or 1937, CLP placed pole 243 on the plaintiff's property in a wooded area between Route 37 and Big Trail Road. (Testimony of Harry Brennan, T. 109; Defendant's Ex. C; Defendant's Ex. I.)
7. Mr. Pascarella, an owner of Timber Trails, testified that he lived on the property since 1970 and drove down Route 37 and passed the area where the poles and wires are located frequently during his commute from home to his office in Greenwich. (Testimony of Henry Pascarella, T. 27, ll. 22-27; T. 28, ll. 1-12.)
8. Mr. Pascarella walked the road of Timber Trails and made a great effort to know what CLP does on the property. (Testimony of Henry Pascarella, T. 83, ll. 24-27; T. 84, ll. 1-5.)
9. In 2001, CLP received a call from a customer who owned a house near CLP's pole number 233 located on the west side of Route 37. (Testimony of Harry Brennan, T. 107.)
10. The customer was concerned about a large mature dying tree that needed to be removed and asked CLP to remove its guy wire from the tree. (Testimony of Harry Brennan, T. 108.)
11. Harry Brennan, an employee of CLP, went to the plaintiff's property and determined that, in order to remove the guy and reanchor pole 233, he would have to replace several poles on the plaintiff's property, one of which was pole 243. (Testimony of Harry Brennan, T. 119.)
12. The poles needed to be replaced as the new standards called for forty-foot poles rather than thirty-five-foot poles which were the standard back in the 1930s. (Testimony of Harry Brennan, T. 119.)
13. Pole 243 also had a tree guy that needed to be removed.
14. Prior to performing the work, Jerry Greenberg, Mr. Pascarella's partner, was notified of the work. (Testimony of A. Carey, T. 155; ll. 10-19; Defendant's Ex. M.)
15. The new lines were replaced in a way to minimize the impact on the surrounding trees and the trimming needed was not extensive. (Testimony of Harry Brennan, T. 119.)
16. Poles 243 and 244 were replaced but left in approximately their original locations. (Testimony of Harry Brennan, T. 119.)
17. The trimming was done in accordance with CLP's standards and that trimming was necessary for the safety of CLP's lineworkers and for reliability reasons. (Testimony of Alan Carey, T. 143, ll. 8-19.)
18. No large trees were removed by CLP's tree trimming contractor, Davey Tree. (Testimony of Alan Carey, T. 145, ll. 19-27; t. 146, Plaintiff's Ex. 10C.)
19. CLP's work on the plaintiff's property was completed October 15, 2001. (Defendant's Ex. E.)
20. In June of 2002, Mr. Pascarella complained to CLP about the work that was performed on the property in 2001. (Testimony of Alan Carey, T. 152, ll. 22-25.)
21. Alan Carey advised Mr. Pascarella that CLP had the right to maintain its poles and wires pursuant to the express easements. (Testimony of Alan Carey, T. 169, ll. 13-25.)
22. Mr. Pascarella did not believe Mr. Carey's statement regarding CLP's use of the easement to be correct and did not rely on Mr. Carey's statement. (Testimony of H. Pascarella, T. 88, ll. 12-27.)
23. Mr. Pascarella never obtained an appraisal of the alleged damages. (Testimony of H. Pascarella, T. 90, ll. 10-15.)
24. Mr. Pascarella did not include the value of any trees trimmed or removed in his calculation of damages. (Testimony of H. Pascarella, T. 79, ll. 27, T. 80, ll. 1-4.)
25. Since 1939, CLP relied on the language of the easements in providing electrical service to its customers who live in Timber Trails.
26. Since 1939, CLP relied on the language of the easements in maintaining its poles and wires that are located on Timber Trails. (Testimony of Harry Brennan, T. 126, ll. 25-27; T. 128, ll. 18-27; T. 132, ll. 11-27; Testimony of A. Carey, T. 169, ll. 18-25.)
27. CLP's poles have telephone and cable wires attached to them. (Testimony of Harry Brennan, T. 127, ll. 14-27; T. 128, ll. 1-4.)
28. CLP's customers are responsible for the cost of moving telephone and cable wires attached to CLP poles. (Testimony of H. Brennan, T. 129, ll. 1-4.)
29. Mr. Pascarella brought this action on behalf of the plaintiff in October of 2003. (Complaint.)
In a civil case the plaintiff has the burden of proving each allegation of the complaint by a preponderance of the evidence. Fed. Deposit Ins. Corp. v. Napert-Boyer Part., 40 Conn.App. 434, 441, 671 A.2d 11303 (1996). To maintain an action in trespass a plaintiff must establish four elements: (1) an ownership or possessory interest in land; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) intentional intrusion or invasion; and (4) a direct injury as a result of the alleged invasion or intrusion. Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916). Further, "the essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . ." (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004).
CLP did not trespass on the plaintiff's land, nor breach any duty that it owed to the plaintiff, as it was exercising its rights under an express easement and maintaining poles and wires that have been on the property for over sixty years. To determine the character and extent of the easements at issue, the court must look to the language of the easements, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. Hall v. Altomari, 19 Conn.App. 387, 390, 652 A.2d 574 (1989). "Ambiguous language in a grant is ordinarily construed against the grantor and in favor of the grantee . . . Further, where boundaries are ambiguous the grantee may adopt that boundary most favorable to him." (Citation omitted; internal quotation marks omitted.) Lane Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 514, 280 A.2d 877 (1971). This proposition specifically applies to . . . "an instrument creating an easement . . ." Gayer v. Carlson, 146 Conn. 288, 298, 150 A.2d 302 (1959).
The express language of the 1939 easement provides that CLP shall have "the right to permanently maintain and relocate all poles, guys, anchors, guy stubs and other usual fixtures and appurtenances, as now constructed on said premises." (Defendant's Ex. J.) Further, the 1939 easement provides that CLP shall also have the right "to trim and keep trimmed or to remove trees, to such extent as in the judgment of the Grantee or its successors or assigns may be necessary." (Emphasis added.) (Defendant's Ex. J.) The evidence was that pole 243, which was ordered to be set in 1936 and had a brand of 1937, was already constructed and located on the plaintiff's property at the time of the execution of the 1939 easement. (Defendant's Ex. I and J.) Thus, CLP had the express right to do the work it did in 2001 because the poles and wires were in place of the time of the execution of the 1939 easement.
The language of the easement is broad enough to allow CLP to replace and maintain its poles as it did in 2001. The language of the 1939 easement provides that CLP shall have the "right to set or relocate and permanently maintain poles, guys, anchors, guy stubs and other usual fixtures and appurtenances on any or all of the private or public streets or passways laid out or relocated on the property . . ." Although the plaintiff argues that the easement did not provide that CLP could place poles on areas of its land other than the roadways, the language of the easement, allows CLP to replace and maintain its poles and wires and wires on passways located on the property. Thus, CLP was not limited to maintaining and replacing poles located only on the roadways of Timber Trails. This interpretation is fortified by the rule that in the construction of an instrument creating an easement, ambiguous language, in a case of a reasonable doubt, will be construed in favor of the grantee rather than in favor of the grantor. Sweeney v. Landers, Frary Clark, 80 Conn. 575, 579, CT Page 8106 69 A. 566 (1908).
Under all the circumstances, the clear expressed intention of the parties was that the easement authorized CLP to maintain and relocate its poles and wires and allowed CLP to trim and remove trees as necessary to maintain its poles and wires located on the plaintiff's property. Thus, CLP did not wrongfully enter the plaintiff's property, nor did it breach any duty owed to the plaintiff as it had a right under the easement to maintain its poles and wires and trim trees as necessary to maintain those facilities.
Since the court finds that the defendant had a valid easement encompassing the work that was done, as set forth above, the court finds the issues on all counts for the Defendant and against the plaintiff.
Because of the court's ruling the special defenses of the defendant are moot. Judgment may enter accordingly.