Weston Street Hartford, LLC v. Zebra Realty, LLC ( 2019 )

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WESTON STREET HARTFORD, LLC v.
ZEBRA REALTY, LLC
(AC 40415)
DiPentima, C.J., and Sheldon and Moll, Js.*
Syllabus
The plaintiff sought a temporary and permanent injunction prohibiting the
defendant from, inter alia, maintaining a parking lot within an easement
granting the plaintiff a right-of-way over certain property owned by the
defendant. The defendant filed a counterclaim, seeking, inter alia, a
judgment declaring that it had the right to relocate the right-of-way at
its own expense provided that it would be similar in size to the existing
right-of-way and that it would not impose any additional burden on the
plaintiff, as well as a permanent injunction directing the plaintiff to
release the right-of-way upon its relocation by the defendant. The trial
court rendered judgment for the defendant on the plaintiff’s complaint,
concluding that the plaintiff was not entitled to injunctive relief because
it had failed to establish that the defendant’s actions were interfering
with the plaintiff’s use of the right-of-way. The court also rejected the
defendant’s counterclaim insofar as the defendant sought a right to
relocate the existing right-of-way and an order directing the plaintiff to
release the right-of-way upon its relocation. Thereafter, the defendant
appealed, and the plaintiff filed a cross appeal with this court. Held:
1. The trial court properly rendered judgment for the plaintiff on the counts
of the defendant’s counterclaim relating to the defendant’s request to
relocate the right-of-way and for an order directing the plaintiff to release
the right-of-way; notwithstanding the defendant’s claim to the contrary,
there was no meaningful difference between the unilateral modification
of an easement that this court in Alligood v. LaSaracina (122 Conn.
App. 473) found to be improper and the unilateral relocation of an
easement that the defendant sought in the present case, as either change
is improper without the mutual consent of the landowner and the ease-
ment owner, and this court rejected the defendant’s claim that Alligood
was inconsistent with Supreme Court precedent and declined to over-
rule Alligood.
2. The plaintiff could not prevail on its claim that the trial court improperly
rendered judgment in the defendant’s favor on the plaintiff’s complaint
and denied the plaintiff’s request for injunctive relief: in concluding that
the plaintiff had failed to demonstrate that its inability to use the right-
of-way would necessarily result but for the issuance of the requested
injunction, and, thus, was not entitled to its requested injunctive relief,
the trial court applied the correct standard of law set forth in Karls v.
Alexandra Realty Corp. (179 Conn. 390), which requires a party seeking
injunctive relief to show that there a substantial probability that but for
the issuance of the injunction, the party seeking it will suffer irreparable
harm; moreover, the court did not abuse its discretion in denying the
plaintiff’s request for injunctive relief under the circumstances of the
case and in light of the extraordinary nature of injunctive relief, as the
court fully acknowledged that parking in the right-of-way would interfere
with the plaintiff’s access to the right-of-way but that this harm was not
likely to befall the plaintiff but for the issuance of the requested
injunction.
Argued January 22—officially released October 15, 2019
Procedural History
Action for, inter alia, a temporary and permanent
injunction prohibiting the defendant from maintaining
a parking lot within a right-of-way, and for other relief,
brought to the Superior Court in the judicial district
of Hartford, where the matter was transferred to the
judicial district of Tolland; thereafter, the defendant
filed a counterclaim; subsequently, the matter was tried
to the court, Bright, J.; judgment for the defendant
on the complaint and in part for the plaintiff on the
counterclaim, from which the defendant appealed and
the plaintiff cross appealed to this court. Affirmed.
Steven Lapp, with whom, on the brief, was Daniel
J. Klau, for the appellant-cross appellee (defendant).
Mario R. Borelli, with whom, on the brief, was Frank
A. Leone, for the appellee-cross appellant (plaintiff).
Opinion
MOLL, J. The present case arises from a dispute
between the plaintiff, Weston Street Hartford, LLC, and
the defendant, Zebra Realty, LLC, concerning a right-
of-way easement held by the plaintiff that runs over
property owned by the defendant. The defendant has
appealed and the plaintiff has cross appealed from the
judgment rendered, after a court trial, on the plaintiff’s
complaint and the defendant’s counterclaim. On appeal,
the defendant claims that the trial court, in rendering
judgment in favor of the plaintiff on counts one and
two of the counterclaim, incorrectly determined that
Alligood v. LaSaracina, 122 Conn. App. 473, 999 A.2d
836 (2010), applies to the present case and prohibits
any landowner from relocating an easement without
the consent of the easement holder. In the alternative,
the defendant contends that the Restatement (Third),
Property, Servitudes § 4.8 (3) (c), is a more logical
extension of Connecticut easement law than the rule
adopted by this court in Alligood.1 On cross appeal, the
plaintiff claims that, upon finding that the defendant’s
use of the servient estate interfered with the plaintiff’s
intended use of the easement, the court should have
rendered judgment in its favor on its complaint and
granted its request for an injunction prohibiting interfer-
ence by the defendant. We disagree with both parties’
claims and, accordingly, affirm the judgment of the
trial court.
The following procedural history and facts, as found
by the trial court, are relevant to the parties’ claims.
The plaintiff is the owner of real property located at
170 Weston Street in Hartford, and the defendant is the
owner of adjacent real property located at 145 West
Service Road in Hartford. The properties are located
in an area zoned for commercial or industrial use. When
facing Weston Street, the back right corner of the plain-
tiff’s property abuts the rear of the defendant’s property.
The portion of the plaintiff’s property that abuts the
defendant’s property was formerly known as Lot 13.
In 1979, Gennaro Russo transferred his ownership of
145 West Service Road to Dalchard Warehouse, Inc.
(Dalchard Warehouse), by deed, which provided in rele-
vant part that 145 West Service Road was subject to a
right-of-way in favor of what was then Lot 13 (right-of-
way).2 At the time of this transfer, Russo still owned
the lots that would become 170 Weston Street as it
exists today, namely, Lots 6 through 13 of an area known
as the Fox Press Subdivision. In 1980, Russo’s owner-
ship of Lots 6 through 12 was transferred to Charter
Oak Bank & Trust Company (Charter Oak) by way of
foreclosure by sale, and, thereafter, Russo transferred
his ownership of Lot 13 to Charter Oak by quitclaim
deed. The combined transferred parcels eventually
became known as 170 Weston Street. Consequently, Lot
13 no longer exists as a separate lot.
In April, 1998, Dalchard Warehouse quitclaimed its
interest in 145 West Service Road to Bechard, LLC. In
November, 2006, Belchard, LLC, transferred the prop-
erty to the defendant by warranty deed, which provided
in relevant part that 145 West Service Road was encum-
bered by ‘‘[a] Right-of-Way, 25 feet in width, as reserved
in a deed dated August 29, 1979 and recorded in Volume
1723 at Page 277 of the Hartford Land Records.’’
In June, 2011, the plaintiff acquired 170 Weston
Street. The deed transferring ownership of 170 Weston
Street to the plaintiff specifically references the right-
of-way, describing it as follows: ‘‘[T]he right to use a
25 foot right-of-way for the benefit of that portion of
these premises previously known as Lot No. 13, for
ingress and egress to West Service Road as reserved
in a deed from Gennaro A. Russo, Debtor in Possession
to Dalchard Warehouse, Inc. Dated August 29, 1979 and
recorded in Volume 1723, Page 277 of the Hartford
Land Records.’’
In August, 2011, the plaintiff entered into a three
year lease agreement with Capitol Transportation, LLC
(Capitol Transportation), pursuant to which Capitol
Transportation was to use a portion of the plaintiff’s
property at 170 Weston Street as a school bus terminal
and storage and transportation facility. Thereafter,
approximately 135 school buses and/or vans, which
were used to transport students enrolled in the Hartford
public and magnet schools, were regularly parked on
the plaintiff’s property in an area that includes, but is
not limited to, former Lot 13. At this time, the defendant
operated and continued to operate an adult entertain-
ment establishment and night club, known as the Mynx
Cabaret, on its property at 145 West Service Road. The
parking lot surrounding the Mynx Cabaret contained
eighty-five parking spaces, including twenty-five to
thirty of which were located in the right-of-way.
In September, 2011, the plaintiff commenced an
action against the defendant, seeking a temporary and
permanent injunction prohibiting and restraining the
defendant from maintaining a parking lot on the right-
of-way or from obstructing the plaintiff’s right to pass
over the right-of-way. See Weston Street Hartford, LLC
v. Zebra Realty, LLC, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-S (first action).
The defendant filed a counterclaim, seeking, inter alia,
a permanent injunction enjoining the plaintiff from
asserting any right to use the right-of-way and a declara-
tory judgment with respect to the parties’ rights to the
right-of-way. See id.
On March 11, 2013, in the first action, the trial court
rendered judgment, after a court trial, in favor of the
defendant on the plaintiff’s complaint and in favor of
the plaintiff on the defendant’s counterclaim. In its
memorandum of decision, the court concluded that the
plaintiff had established the existence of the right-of-
way but had failed to prove that the defendant’s actions
or inactions were materially interfering with the plain-
tiff’s use of the right-of-way because one particular util-
ity pole, which was located in the public right-of-way,
was obstructing the right-of way, and the plaintiff had
not established that the utility pole could be relocated.
The court also concluded that the plaintiff’s intended
use would overburden the right-of-way because some
of the buses that would be utilizing it would do so to
travel to and from property not intended to be benefit-
ted by the right-of-way, i.e., property other than former
Lot 13, and, therefore, such use was not permitted.
Additionally, the court rendered a declaratory judgment
that the plaintiff was still the owner of the right-of-way
and specified as follows: ‘‘The right-of-way shall run
with the land benefitted, that being former Lot 13, and
the land burdened, that being 145 West Service Road,
whether there is other access to former Lot 13. The
right-of-way to be maintained by the owner or owners
of former Lot 13. The right-of-way may not be used to
benefit any other property into which former Lot 13
was merged.’’3
Following the conclusion of the first action, the plain-
tiff began considering alternative uses for former Lot 13
involving the right-of-way. Between July and November,
2014, the plaintiff arranged for and paid over $60,000
to move three utility poles outside of the right-of-way,
including the utility pole that was in the city of Hart-
ford’s (city) control. In March or April, 2015, the plaintiff
notified the defendant that it was developing a new
plan for former Lot 13.
In August, 2015, the plaintiff commenced the present
action against the defendant. In its complaint, the plain-
tiff alleged, inter alia, that it was the owner of the right-
of-way, that the defendant materially interfered and
continues to materially interfere with the plaintiff’s use
of the right-of-way by maintaining a parking lot in the
right-of-way and by failing to sign an application or a
letter of authorization enabling the plaintiff to obtain
a curb cut permit from the city, and that such interfer-
ence has caused and will continue to cause irreparable
injury to the plaintiff. The plaintiff sought the following
relief: (1) a temporary and permanent injunction prohib-
iting and restraining the defendant from maintaining a
parking lot within the right-of-way or from obstructing
the plaintiff’s right to use the right-of-way; (2) an order
requiring the defendant to sign documentation that may
be required to enable the plaintiff to obtain a curb cut;
and (3) costs.
On November 20, 2015, the defendant filed an answer,
special defenses, and a five count counterclaim. As part
of its first special defense, the defendant alleged that
the plaintiff’s intended use will overburden and consti-
tutes an impermissible misuse of the right-of-way. In
its counterclaim, the defendant alleged, inter alia, that:
it has a right to relocate the right-of-way (count one);
it would be equitable to deny the plaintiff’s request for
injunctive relief and to enter injunctive relief in favor
of the defendant, compelling the plaintiff to release the
right-of-way upon its relocation by the defendant (count
two); the defendant was not materially interfering with
the plaintiff’s use of the right-of-way (count three); the
defendant has no duty to sign curb cut permit applica-
tions or otherwise authorize the plaintiff to make unnec-
essary alterations and/or modifications to the defen-
dant’s property to make use of the right-of-way (count
four); and a permanent injunction should enter prohib-
iting the plaintiff from making unnecessary alterations
and/or modifications to the defendant’s property to
access the right-of-way (count five). The defendant
sought a variety of relief, most relevantly: (1) a declara-
tory judgment that it has the right to relocate the right-
of-way on its property, at its own cost and expense, such
that the relocated right-of-way is substantially equal in
dimension, utility, and convenience to the plaintiff as
the current right-of-way and that the relocated right-of-
way would not impose any additional burden on the
plaintiff; and (2) a permanent injunction ordering the
plaintiff to release the right-of-way upon its relocation
by the defendant in the manner described previously.4
Meanwhile, in October, 2015, the plaintiff submitted
a curb cut application to the city, which the city deemed
unacceptable.5 A curb cut was not necessary for the
plaintiff to gain access to the right-of-way.6 In Novem-
ber, 2015, with the assistance of a surveyor, the plaintiff
began preparing a site plan for former Lot 13 upon
which the plaintiff intended to construct a parking lot
that would be accessed using the right-of-way.
In January, 2016, the defendant prepared two concept
plans to relocate the right-of-way on its property. The
defendant intended to reconfigure its parking area to
maintain approximately the same number of parking
spaces utilized by patrons while also providing the
plaintiff with access across its property to former Lot
13. The plaintiff had no interest in either alternative,
however, and would not consider any alternative to the
right-of-way. The defendant did not establish that the
city would approve these alternative concept plans.
On March 15, 2016, the plaintiff submitted a planning
and zoning application to the city for approval of its
site plan. According to the site plan, former Lot 13
would serve as a parking lot, containing seventy-nine
parking spaces, and would be fenced off from the
remainder of 170 Weston Street such that the only
means of access to the parking lot would be by way of
the right-of-way. The plaintiff’s current tenants, Spe-
cialty Corporation, Inc. (Specialty),7 and Hertz Corpora-
tion (Hertz), which operate a school bus depot and sell
out of service rental cars, respectively, would use the
parking lot as an accessory to their principal uses of
170 Weston Street. On June 20, 2016, the plaintiff sub-
mitted a revised site plan. Per the revised site plan, the
plaintiff intended for the parking lot to be used for
passenger vehicle parking for tenants, employees, and
invitees of Specialty and Hertz, and as passenger vehicle
parking for concert and sporting event attendees. On
July 12, 2016, the city approved the revised site plan.
The plaintiff did not establish that it obtained from the
city a permit or license to utilize former Lot 13 as a
parking lot for public use, however.
On April 18, 2017, following a court trial held on July
12 and 13, 2016, and the submission of posttrial briefs
from both parties, the court issued a memorandum of
decision. With respect to the plaintiff’s complaint, the
court rendered judgment in favor of the defendant, con-
cluding, inter alia, that the plaintiff was not entitled to
injunctive relief because it had failed to establish that
the defendant’s actions were causing imminent harm
or currently interfering with the plaintiff’s use of the
right-of-way. With respect to the defendant’s counter-
claim, the court rendered judgment in favor of the plain-
tiff on counts one, two, and five, dismissed the third
count, and, with respect to the fourth count, issued a
declaratory judgment that, on the basis of the facts as
they existed before the court, the defendant had no
duty or obligation to assist the plaintiff in obtaining a
curb cut permit.
On May 5, 2017, the defendant appealed from the
court’s judgment on the first and second counts of its
counterclaim.8 On May 11, 2017, the plaintiff filed a
cross appeal from the court’s judgment on its complaint.
Additional facts and procedural history will be provided
as necessary.
I
We first address the defendant’s claim on appeal. The
defendant argues that, in rendering judgment in favor
of the plaintiff on the defendant’s counterclaim, the trial
court erred in concluding that Alligood v. LaSaracina,
supra, 122 Conn. App. 473, was controlling precedent.
Specifically, the defendant contends that Alligood
should be limited to its facts and should not be broadly
applied so as to preclude the relocation, as opposed to
the modification, of any right-of-way by the owner of
servient land without the consent of the owner of the
dominant estate. In the alternative, the defendant con-
tends that Alligood is inconsistent with controlling Con-
necticut Supreme Court precedent, which has relied
on the Restatement (Third) of Property in Connecticut
easement cases, and that § 4.8 (3) (c) of the Restatement
(Third) of Property is more consistent with general
principles of Connecticut easement law and public pol-
icy. We disagree.
Central to the defendant’s claim is the question of
whether a servient landowner must obtain consent from
the owner of the dominant estate to relocate an ease-
ment on the servient estate. As this is a question of law,
our review is plenary. See Abrams v. PH Architects,
LLC, 183 Conn. App. 777, 788, 193 A.3d 1230, cert.
denied, 330 Conn. 925, 194 A.3d 290 (2018) (‘‘[i]t is
axiomatic that matters of law are entitled to plenary
review on appeal’’).
To answer this question, we first turn to Alligood. In
Alligood, the defendants unilaterally altered a section
of the plaintiffs’ right-of-way across the defendants’
property by eliminating the circular turnaround at the
end of the right-of-way. Alligood v. LaSaracina, supra,
122 Conn. App. 475. On appeal, and in agreement with
the plaintiffs, this court determined that the trial court
applied the incorrect standard of law to the plaintiffs’
request for injunctive relief and that the defendants’
unilateral alteration of the location and dimensions of
the right-of-way was improper. Id., 476. In so holding,
we adopted and applied the general rule adhered to
by a majority of jurisdictions, namely, that ‘‘once the
location of an easement has been selected or fixed,
it cannot be changed by either the landowner or the
easement owner without the other’s consent.’’ (Internal
quotation marks omitted.) Id.
Our adoption of the majority approach was not
dependent upon any distinction between the relocation
or modification of an easement. See id., 476–77 (collect-
ing cases applying majority rule to easement modifica-
tion and relocation). Rather, we adopted the majority
approach, over that set forth in § 4.8 (3) (c) of the
Restatement (Third) of Property, which provides:
‘‘Unless expressly denied by the terms of an easement,
as defined in § 1.2, the owner of the servient estate is
entitled to make reasonable changes in the location or
dimensions of an easement, at the servient owner’s
expense, to permit normal use or development of the
servient estate, but only if the changes do not . . .
(c) frustrate the purpose for which the easement was
created.’’ We reasoned: ‘‘[W]e believe that the attributes
of the majority rule, namely, uniformity, stability, pre-
dictability and judicial economy, outweigh any
increased flexibility offered by the Restatement
approach.’’ Alligood v. LaSaracina, supra, 122 Conn.
App. 478. Applying the majority rule to the factual cir-
cumstances of the case, we determined that the defen-
dants’ alteration of the plaintiffs’ right-of-way was
improper because ‘‘[t]he defendants did so without the
plaintiffs’ consent.’’ (Emphasis added.) Id., 478–79.
Accordingly, per our legal precedent, no meaningful
difference exists between the unilateral modification
of an easement, as in Alligood, and the unilateral reloca-
tion of an easement, as sought by the defendant in the
present case; under the majority rule, either change is
improper without consent from both the landowner and
easement owner.9
Moreover, although the defendant contends that we
should distinguish Alligood from the present case on
the basis that Alligood involved the modification, rather
than a relocation, of an easement—and, therefore, apply
§ 4.8 (3) (c) of the Restatement (Third) of Property
instead of the majority rule—§ 4.8 (3) (c) does not sup-
port such distinction. As recited previously, § 4.8 (3)
(c) of the Restatement (Third) of Property provides in
relevant part: ‘‘Unless expressly denied by the terms of
an easement . . . the owner of the servient estate is
entitled to make reasonable changes in the location or
dimensions of an easement, at the servient owner’s
expense, to permit normal use or development of the
servient estate, but only if the changes do not . . .
(c) frustrate the purpose for which the easement was
created.’’ (Emphasis added.) As demonstrated by its
express terms, § 4.8 (3) (c) does not distinguish
between the relocation and modification of an
easement.10
Likewise, the defendant’s contention that Alligood
is inconsistent with our Supreme Court precedent is
unsupported, as the defendant points to no case in
which our Supreme Court has adopted § 4.8 of the
Restatement (Third) of Property or suggested that § 4.8
is a necessary corollary to sections upon which our
Supreme Court has relied, namely, §§ 4.9,11 4.10,12 and
8.313 of the Restatement (Third) of Property, which con-
cern the use and enforcement of servitudes. Moreover,
in Alligood, we expressly acknowledged the intended
purpose of § 4.8 of the Restatement (Third) of Property,
namely, ‘‘to permit development of the servient estate
to the extent it can be accomplished without unduly
interfering with the legitimate interests of the easement
holder,’’ while rejecting it in favor of the majority rule.
(Internal quotation marks omitted.) Alligood v. LaSara-
cina, supra, 122 Conn. App. 477.
By arguing further that Alligood is inconsistent with
the general principles of Connecticut easement law and
public policy, the defendant essentially asks that we
overrule Alligood. ‘‘[I]t is axiomatic that one panel of
this court cannot overrule the precedent established by
a previous panel’s holding. . . . As we often have
stated, this court’s policy dictates that one panel should
not, on its own, [overrule] the ruling of a previous panel.
The [overruling] may be accomplished only if the appeal
is heard en banc.’’ (Internal quotation marks omitted.)
LM Ins. Corp. v. Connecticut Dismanteling, LLC, 172
Conn. App. 622, 632–33, 161 A.3d 562 (2017); see also
Graham v. Commissioner of Transportation, 330
Conn. 400, 417, 195 A.3d 664 (2018) (‘‘[t]he doctrine of
stare decisis counsels that a court should not overrule
its earlier decisions unless the most cogent reasons and
inescapable logic require it’’ [internal quotation
marks omitted]).
In the present case, relying on the majority rule
adopted in Alligood, the trial court rejected the first
and second counts of the defendant’s counterclaim, in
which the defendant sought both a declaratory judg-
ment that it has the right to relocate the right-of-way
unilaterally and an injunction requiring the plaintiff to
release its rights in the existing right-of-way if the relo-
cated right-of-way were substantially equal in dimen-
sion, utility, and convenience. In accordance with our
adoption of the majority approach in Alligood, and in
light of our foregoing discussion, we decline to limit
Alligood in the manner requested by the defendant,
and we conclude that the trial court properly rendered
judgment in favor of the plaintiff on counts one and
two of the defendant’s counterclaim.
II
We turn now to the plaintiff’s cross appeal. The plain-
tiff claims that, upon finding that the defendant’s use
of the servient estate interfered with the plaintiff’s
intended use of the easement, the trial court should
have rendered judgment in the plaintiff’s favor on its
complaint and granted its request for an injunction pro-
hibiting additional interference by the defendant. In
support of its claim, the plaintiff argues that the court
erred by holding the plaintiff to an incorrect and more
burdensome standard with respect to whether it would
suffer irreparable harm to its easement rights. The plain-
tiff argues in the alternative that the court abused its
discretion when it denied its request for injunctive
relief. We disagree.
We are mindful of the following standard of review.
‘‘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. . . . Therefore, unless
the trial court has abused its discretion . . . the trial
court’s decision must stand. . . . How a court balances
the equities is discretionary but if, in balancing those
equities, a trial court draws conclusions of law, our
review is plenary.’’ (Citation omitted; internal quotation
marks omitted.) Commissioner of Correction v. Cole-
man, 303 Conn. 800, 810, 38 A.3d 84 (2012), cert. denied
sub nom. Coleman v. Arnone, 568 U.S. 1235, 133 S. Ct.
1593, 185 L. Ed. 2d 589 (2013).
A
First, we address the plaintiff’s argument that the
court applied the incorrect legal standard when
determining whether the plaintiff was entitled to injunc-
tive relief. Specifically, the plaintiff argues that the court
erroneously relied upon Karls v. Alexandra Realty
Corp., 179 Conn. 390, 426 A.2d 784 (1980), to require that
it demonstrate an ‘‘actual disturbance’’ of its easement
right in order to establish irreparable harm, even though
Connecticut law requires only that the holder of an
easement right demonstrate the existence of a substan-
tial probability of interference with such right. There-
fore, according to the plaintiff, it demonstrated irrepara-
ble harm by virtue of the court’s finding that parking
in the right-of-way by the defendant’s employees and
customers will interfere with the plaintiff’s intended
use of the right-of-way.
The following legal principles and precedent are rele-
vant to the plaintiff’s argument. It is well established
that ‘‘[a] party seeking injunctive relief must demon-
strate that: (1) it has no adequate remedy at law; (2) it
will suffer irreparable harm absent an injunction; (3) it
will likely prevail on the merits; and (4) the balance of
equities tips in its favor.’’ (Internal quotation marks
omitted.) Wellswood Columbia, LLC v. Hebron, 327
Conn. 53, 59 n.5, 171 A.3d 409 (2017). ‘‘[T]he owner of
[an] easement is entitled to [injunctive] relief only if he
can show that he will be disturbed or obstructed in the
exercise of his right to use it.’’ (Internal quotation marks
omitted.) Welles v. Lichaj, 136 Conn. App. 347, 354, 46
A.3d 246, cert. denied, 306 Conn. 904, 52 A.3d 730 (2012).
In Karls, the trial court issued an injunction
restraining the defendant14 from using a fourteen foot
wide right-of-way, which provided access to the plain-
tiffs’ and defendant’s properties, after concluding, inter
alia, that the construction of the defendant’s house vio-
lated certain zoning ordinances. Karls v. Alexandra
Realty Corp., supra, 179 Conn. 393–94. ‘‘The plaintiffs’
central complaint [was] that the right-of-way [was] inad-
equate for use by six families and that such an excessive
use would result in irreparable injury to them.’’ Id., 395.
On appeal, our Supreme Court considered, inter alia,
whether the injunction issued by the trial court was
improper in light of the facts found. Id., 399.
In making its determination, our Supreme Court was
guided by several key legal principles governing the
issuance of injunctions: ‘‘The issuance of an injunction
is the exercise of an extraordinary power which rests
within the sound discretion of the court, and the justi-
ciable interest which entitles one to seek redress in an
action for injunctive relief is at least one founded on
the imminence of substantial and irreparable injury.’’
(Internal quotation marks omitted.) Id., 401. In other
words, ‘‘[t]he 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 issu-
ance of the injunction, the party seeking it will suffer
irreparable harm.’’ Id., 402. ‘‘The plaintiff seeking injunc-
tive relief bears the burden of proving facts which will
establish irreparable harm as a result of that violation.’’
Id., 401.
In consideration of the foregoing legal principles and
the facts found by the trial court, our Supreme Court
in Karls concluded that it could not agree with the
court’s conclusion that the plaintiffs had satisfied their
burden of proving the substantial likelihood that irrepa-
rable harm would result from the defendant’s violation.
Id., 401–402. Our Supreme Court reasoned: ‘‘[A]lthough
the plaintiffs have shown that they may possibly suffer
irreparable harm, i.e., emergency vehicles blocked by
a car stuck in the right-of-way, they have failed to dem-
onstrate that such harm is imminent or that it will
necessarily be caused by the defendant’s violation of the
zoning regulations. In the absence of such a showing,
an injunction cannot be issued.’’ (Emphasis added.) Id.
According to our Supreme Court, the harm complained
of was not imminent in light of the trial court’s finding
that the alleged harm was only a possibility and the
fact that the injunction would not become effective
until one year after it was issued. Id., 403.
In the present case, the trial court concluded, inter
alia, that ‘‘parking in the right-of-way by the defendant’s
employees and customers will interfere with the plain-
tiff’s reasonably intended use of the right-of-way, at
least during Specialty’s hours of operation,’’ but deter-
mined that the plaintiff did not establish irreparable
harm. The court explained: ‘‘In this case, it is undisputed
that the plaintiff’s rights have not yet been disturbed.
Specialty’s buses are still parked on former Lot 13. The
plaintiff has not constructed its planned parking lot.
Nor is there any evidence that Specialty will take advan-
tage of the fifty parking spaces [that] the plaintiff has
committed to provide under the lease amendment. The
position of the plaintiff here is similar to that of the
plaintiffs in Karls. While it is entirely possible that its
access to the right-of-way may be impaired, such impair-
ment is not imminent. In fact, it is contingent on a
number of events that have yet to occur. In addition,
the court has no way of knowing if the defendant will
still be operating in the manner it has been if and when
the planned parking lot is built and is being used by
Specialty’s employees. For these reasons, the plaintiff
is not entitled to the injunctive relief it has requested.’’15
(Emphasis added.)
The foregoing explanation demonstrates that the
court correctly applied Karls to the factual circum-
stances of the present case. Essentially, relying on
Karls, the trial court concluded that the plaintiff had
failed to demonstrate that the alleged harm (i.e., the
plaintiff’s inability to use of the right-of-way because
of the defendant’s use of its parking lot within the right-
of-way) would necessarily result but for the issuance
of the requested injunction; not only was the parking
lot not yet constructed on former Lot 13, it was unclear
to the court whether Specialty would ever use any of
the parking spaces afforded to it under the amended
lease; see footnote 7 of this opinion; or whether the
defendant would be operating its business in the same
manner once the parking lot was actually constructed.
Accordingly, we conclude that the trial court applied
the correct standard of law when determining whether
the plaintiff was entitled to injunctive relief.16
B
We next address the plaintiff’s alternative argument
that the trial court abused its discretion when it denied
the plaintiff’s request for injunctive relief. The plaintiff
argues that a fair balancing of the equities supports the
conclusion that an injunction should have been issued
by the court in the present case.
The following legal principles are relevant to the
plaintiff’s argument. ‘‘The granting of an injunction rests
within the sound discretion of the trial court and [i]n
exercising its discretion, the court . . . may consider
and balance the injury complained of with that which
will result from interference by injunction. . . . The
relief granted must be compatible with the equities of
the case. . . . The action of the trial court will not be
disturbed unless it constitutes an abuse of discretion.’’
(Internal quotation marks omitted.) Waterbury v. Phoe-
nix Soil, LLC, 128 Conn. App. 619, 627–28, 20 A.3d 1(2011); see also Baruno v. Slane, 151 Conn. App. 386,
397 n.9, 94 A.3d 1230 (‘‘[T]he granting of injunctive
relief, which must be compatible with the equities of
the case, rests within the trial court’s sound discretion.
. . . Those equities should take into account the gravity
and wilfulness of the violation, as well as the potential
harm to the defendants.’’ [Emphasis omitted; internal
quotation marks omitted.]), cert. denied, 314 Conn. 920,
100 A.3d 851 (2014). ‘‘In determining whether there has
been an abuse of discretion, every reasonable presump-
tion should be given in favor of the correctness of the
court’s ruling. . . . Reversal is required only [when]
an abuse of discretion is manifest or [when] injustice
appears to have been done.’’ (Internal quotation marks
omitted.) Wethersfield v. PR Arrow, LLC, 187 Conn.
App. 604, 645, 203 A.3d 645, cert. denied, 331 Conn. 907,
202 A.3d 1022 (2019).
In the present case, as described previously, the court
initially determined that ‘‘parking in the right-of-way by
the defendant’s employees and customers will interfere
with the plaintiff’s reasonably intended use of the right-
of-way, at least during Specialty’s hours of operation.’’
In making this determination, the court acknowledged,
inter alia, that ‘‘the plaintiff’s intended use of former
Lot 13 as a parking lot [was] far from theoretical’’—
due to the plaintiff’s removal of the three utility poles
obstructing the right-of-way, the plaintiff’s submission
of detailed site plans to the city, the city’s approval of
the revised site plan, and the creation of the amended
lease with Specialty—and, ‘‘[t]hus, it [was] reasonably
expected that the plaintiff may someday make use of
the former Lot 13 as a parking lot for Specialty’s employ-
ees and will use the right-of-way for access to that lot.’’
(Emphasis added.) Thereafter, the court found that it
was possible that the plaintiff’s access to the right-of-
way may be impaired but concluded that such impair-
ment was not imminent because ‘‘it [was] contingent
on a number of events that [had] yet to occur,’’ such
as Specialty’s use of fifty new parking spaces that it
was provided under the amended lease agreement.
The foregoing discussion by the trial court demon-
strates that it fully acknowledged that parking in the
right-of-way would interfere with the plaintiff’s access
to the right-of-way but also recognized that this harm
was not likely to befall the plaintiff but for the issuance
of the requested injunction. Under these circumstances,
and in light of the extraordinary nature of injunctive
relief, we cannot say that the court abused its discretion
when it denied the plaintiff’s request for an injunction.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
On the appeal form filed by the defendant, the defendant indicated that,
in addition to the trial court’s judgment with respect to its counterclaim, it
is appealing from the trial court’s determination that the plaintiff’s intended
use of the easement at issue does not overburden the easement or the
defendant’s property. In its principal appellate brief, the defendant recog-
nizes that it raised the matter of overburdening as a special defense to the
plaintiff’s complaint and that it was not aggrieved by the trial court’s judg-
ment on the plaintiff’s complaint, which was rendered in its favor. The
defendant nonetheless explains that it ‘‘intends to brief its claims of error
arising from the trial court’s analysis and decision on the issue of overburden-
ing, as alternative grounds for affirmance’’ of the court’s judgment on the
plaintiff’s complaint. In its appellate brief on the cross appeal, the defendant
briefs, inter alia, these claims of error. Because we affirm the judgment of
the trial court with respect to the plaintiff’s complaint, we need not reach
the defendant’s alternative grounds for affirmance.
2
Specifically, the 1979 deed provided that 145 West Service Road was
‘‘[s]ubject to a Right-of-Way in favor of that piece of real property designated
Lot No. 13 on said map, said Right-of-Way being more particularly bounded
and described as follows:
‘‘NORTHERLY: By Lot No. 14B, as shown on said map, 341.63 feet,
more or less;
‘‘EASTERLY: By West Service Road, 25 feet;
‘‘SOUTHERLY: By the non-burdened portion of Lot No. 14A, 345 feet,
more or less; and
‘‘WESTERLY: By Lot No. 13, as shown on said map, 25 feet,
more or less.
‘‘Said Right-of-Way is for the purpose of providing ingress and egress for
all purposes, to said Lot No. 13 and shall run with the land benefited and
the land burdened regardless whether there is other access to Lot No. 13.
Said Right-of-Way to be maintained by the owner or owners of said Lot
No. 13.’’
3
The plaintiff did not appeal from the court’s judgment in the first action.
4
The defendant requested the following additional relief: a declaratory
judgment that it has the right to use its property in any manner that does
not unreasonably interfere with the plaintiff’s use of the right-of-way, includ-
ing using the area for parking subject to certain conditions; a declaratory
judgment that the plaintiff has no right to make unnecessary alterations
and/or modifications to the defendant’s property to access the right-of-way,
the plaintiff’s intended alterations and/or modifications are unnecessary,
and the defendant has no duty to sign curb cut permit applications or
otherwise authorize the plaintiff to make unnecessary alterations and/or
modifications to its property to access the right-of-way; a permanent injunc-
tion prohibiting the plaintiff from making unnecessary alterations and/or
modifications to the defendant’s property to access the right-of-way; costs;
and such other relief deemed fair, just, and equitable by the court.
5
The city returned the plaintiff’s curb cut application and noted that it
required the submittal of full A-2 surveys for the plaintiff’s and the defen-
dant’s lots. The plaintiff submitted an A-2 survey, but the defendant did not.
Thus, the city never reconsidered the plaintiff’s curb cut application.
6
A curb does not obstruct access from West Service Road to the right-
of-way, and, according to the trial court, the area at issue in the curb cut
application appears to be traversable.
7
Under the August 12, 2014 lease executed by the plaintiff and Specialty,
Specialty had the full right to use and occupy former Lot 13. The trial court
found that, pursuant to the terms of a February 29, 2016 amendment to that
lease, however, ‘‘the plaintiff can require Specialty to remove its buses and
vans from former lot 13 in exchange for Specialty having the right to utilize,
for employee parking, a maximum of fifty of the [seventy-nine planned]
parking spaces to be constructed.’’
8
See footnote 1 of this opinion.
9
The defendant argues that Alligood does not, and should not, prevent a
servient landowner from prospectively obtaining court relief to compel the
relocation of an easement over the unreasonable opposition of the easement
holder. We disagree. If granted, such relief would be contradictory to the
majority rule, which provides that the location of an easement cannot be
changed without consent from both the landowner and the easement holder
once the location of an easement has been selected or fixed.
10
Furthermore, the defendant cites no authority, and we are aware of
none, supporting the application of § 4.8 (3) (c) of the Restatement (Third)
of Property in this manner.
11
Section 4.9 of the Restatement (Third) of Property provides: ‘‘Except
as limited by the terms of the servitude determined under § 4.1, the holder
of the servient estate is entitled to make any use of the servient estate that
does not unreasonably interfere with enjoyment of the servitude.’’
12
Section 4.10 of the Restatement (Third) of Property provides: ‘‘Except
as limited by the terms of the servitude determined under § 4.1, the holder
of an easement or profit as defined in § 1.2 is entitled to use the servient
estate in a manner that is reasonably necessary for the convenient enjoyment
of the servitude. The manner, frequency, and intensity of the use may change
over time to take advantage of developments in technology and to accommo-
date normal development of the dominant estate or enterprise benefited by
the servitude. Unless authorized by the terms of the servitude, the holder
is not entitled to cause unreasonable damage to the servient estate or
interfere unreasonably with its enjoyment.’’
13
Section 8.3 of the Restatement (Third) of Property provides: ‘‘(1) A
servitude may be enforced by any appropriate remedy or combination of
remedies, which may include declaratory judgment, compensatory damages,
punitive damages, nominal damages, injunctions, restitution, and imposition
of liens. Factors that may be considered in determining the availability and
appropriate choice of remedy include the nature and purpose of the servi-
tude, the conduct of the parties, the fairness of the servitude and the transac-
tion that created it, and the costs and benefits of enforcement to the parties,
to third parties, and to the public.
‘‘(2) Except when failure to enforce servitudes in common-interest com-
munities or general-plan developments provides the basis for modification
or termination due to changed conditions under § 7.10, property owners
or an association of property owners may enforce the servitudes against
subsequent similar violations by the same or different parties unless, under
the circumstances then prevailing, enforcement would be unreasonable
or inequitable.’’
14
The plaintiffs filed suit against multiple defendants in Karls, but we
refer only to the defendant homeowner for ease of discussion.
15
In the preceding paragraph of its memorandum of decision, the trial
court stated: ‘‘The court agrees with the defendant that a claim of interfer-
ence with an easement or right-of-way, as opposed to breach of a restrictive
covenant, requires proof of irreparable harm, or, at the very least, that the
holder of the easement’s rights have been actually obstructed or disturbed.
In fact, even in the cases relied upon by the plaintiff, the court held that
injunctive relief was warranted because the defendant had in fact disturbed
the plaintiff’s rights.’’ In light of this particular language, the plaintiff argues
in part that the court incorrectly concluded that, in order to establish irrepa-
rable harm, the plaintiff must prove that ‘‘the holder of the easement’s
rights have been actually obstructed or disturbed.’’ (Internal quotation marks
omitted.) We disagree. Despite the court’s inclusion of the clause ‘‘at the
very least,’’ which suggests in isolation that the court believed that the
plaintiff must meet a higher legal standard than our precedent requires, the
court goes on to correctly apply Karls to the factual circumstances of the
present case.
16
In light of Karls, the plaintiff argues that interference with an easement
in and of itself is sufficient to demonstrate the existence of a substantial
probability of harm to an easement holder’s rights, and it cites multiple
cases in support, namely, Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153(1981), Gerald Park Improvement Assn. v. Bini, 138 Conn. 232, 83 A.2d
195 (1951), New London v. Perkins, 87 Conn. 229, 87 A. 724 (1913), Dewire
v. Hanley, 79 Conn. 454, 65 A. 573 (1907), Schwartz v. Murphy, 74 Conn.
App. 286, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841(2003), cert. denied, 546 U.S. 820, 26 S. Ct. 352, 163 L. Ed. 2d 61 (2005), and
Simonds v. Shaw, 44 Conn. App. 683, 691 A.2d 1102 (1997). We disagree.
In each of these cases, there was no real question as to whether the plaintiffs
would ever actually use the easements or whether the easements were or
would be obstructed by the defendants; rather, the plaintiffs had already
been using or attempting to use the easements in the manner intended and
were prevented from doing so, or it was highly likely that they would be
prevented from doing so, by the defendants’ interference. By contrast, in
the present case, the trial court was not convinced of the substantial probabil-
ity that but for the injunction the plaintiff would be prevented from using
the right-of-way in the manner intended because, although the court found
that the parking in the right-of-way by the defendant’s employees and cus-
tomers will interfere with the plaintiff’s reasonably intended use of the
right-of-way, such harm was not imminent as the plaintiff had not yet
constructed the planned parking lot on former Lot 13, there was no evidence
before the court to suggest that Specialty would use the parking spaces in
said parking lot, and the court ‘‘ha[d] no way of knowing if the defendant
[would] still be operating in the manner it [had] been if and when the planned
parking lot [was] built and [was] being used by Specialty’s employees.’’