DocketNumber: No. CV 00 0273689 S
Citation Numbers: 2002 Conn. Super. Ct. 13469
Judges: GILARDI, JUDGE.
Filed Date: 10/22/2002
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiffs filed suit on August 15, 2000. The verified complaint alleges interference with the flow of water (count one), trespass (count two), an action to settle title to the land (count three). title to an express easement (count four), title to the easement by implication (count five), and title to the easement by prescription (count six). The defendants filed a counterclaim on February 9, 2001. In the counterclaim, they seek to quiet title with respect to the common boundary line and claim trespass of their property.
From the trial testimony and evidence presented, the court finds the following facts. The Agnellos and the Urbanos currently own adjacent pieces of property, which were originally owned by one person. The Urbanos purchased the property known as 144 Cook Hill Road in November of 1987. This property fronts Cook Hill Road in Wallingford. The Agnellos purchased the rear parcel of land known as 142 1/2 Cook Hill Road in October 1988. Access to the Agnello property is by means of a twenty-five foot right-of-way for "ingress and egress" which is noted on the deeds to both properties.
Both the Agnello and the Urbano properties are downhill from a parcel of land owned by a Mr. and Mrs. Celentano, who are not parties in this case. CT Page 13470
The difficulty between the plaintiffs and the defendants began in 1999. At that time the defendants removed an old split rail fence located between the two properties and constructed a new fence. The plaintiffs believed that the new fence was moved from the original boundary line and intruded five feet onto their property. They hired a surveyor, Rosalind Page of Winterbourne Land Services, to survey their property. She verified that they were correct and that the new fence did intrude upon their property.
Around this time, the plaintiffs were having trouble with their cable television reception. When the cable company came to repair a probable break in the line, which was located underground, in the right-of-way, the defendants refused to allow them access to the cable. The poor reception has persisted to this day.
In addition, the defendants placed various materials within the 25 foot right-of-way. These materials limited access to an eight-foot paved area, thus depriving the plaintiffs use of thirteen feet of the easement.
The Agnellos testified that the utilities which service their residence have been located underground. within the right-of-way, since they purchased the property in 1998. The residence was constructed in 1980 and the court credits the uncontradicted testimony of Mrs. Agnello that the utilities have been located in the right-of-way since the home was constructed.
Because of the configuration of the three parcels of land, surface rain water from the Celentano property flowed down to and onto both the Agnello and Urbano properties. After the dispute over the split-rail fence. the defendants constructed a cinder block wall along the boundary of the Celentano property. which resulted in a deflection of the surface water onto the plaintiff's property. Simultaneously, the defendant placed boards and mulch against the new split rail fence as a barrier that prevented the diverted surface water from flowing from the Agnello property back onto the Urbano property.
As part of the initiation of this matter, the plaintiffs requested a temporary restraining order before trial. On August 21, 2000. the court,Levine, J., imposed the restraining order the defendants which specifically ordered the following: (1) immediately cease placing any mulch, fill, a cinder block barrier and any and all other obstructions which clause surface water which flow to the north to the plaintiffs property; (2) immediately cease interfering with a natural flow of the CT Page 13471 surface waters coming from the west of the parties properties; (3) immediately cease closing in. obstructing our interfering with the right-of-way and from any manner interfering or attempting to prevent the plaintiffs from passing over or using the right-of-way; (4) immediately cease interfering with the actions of the plaintiffs arising from the repair. replacement or maintenance of the driveway contained within the right-of-way; (5) immediately cease planting vegetation and trees within the right of-way; and (6) immediately cease trespassing on the plaintiffs property.
Subsequent to the granting of the restraining order, the Celentanos determined that the cinder block wall was constructed on their property and they had it removed. Without seeking court permission, the defendants rebuilt the cinder block wall along their boundary line and continued to place mulch. fill and shrubbery as an additional barrier along their boundary line along the Agnello property. In addition, the defendants placed materials within the 24 foot right-of-way.
The court finds that the defendants' actions violated the second branch of the Tide Water test. The defendants improved their land and caused the water to impermissibly flow upon the plaintiffs' property.
Moreover, even if the second branch were not violated, the court finds that the defendants did not employ a reasonable use of the surface water. The defendants only constructed the cinder block fence after the plaintiffs complained about the split rail fence. Also, the Wallingford city engineer testified that there was a method of diverting the water from the defendants' property without adversely impacting the plaintiffs' property. Accordingly, they are liable on the first branch as well.
In the present case, the plaintiffs have proven that they have title to the triangular parcel of property which is in dispute. The parties employed experts to determine where the boundary line existed. "It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony. and can construe such evidence in a manner different from the parties' assertions." (Internal quotation marks omitted.) State v. Cuesta,
Although both parties proffered expert testimony, it is the opinion of the court that the more credible evidence was provided by the plaintiffs expert. Rosalind Page. The court therefore finds that the boundary line between the plaintiffs' and the defendants' property is found as defined in Plaintiffs' Exhibit NN.
The defendants also filed a counterclaim seeking to quiet title. The court has found that issue in favor of the plaintiffs. Accordingly, the court finds that the defendants have failed to prove their counterclaim.
The claimed trespass occurred when the defendants placed a fence and the mulch and materials in the triangular-shaped area of land. As discussed in Part I B, the plaintiffs had ownership of the property. The defendants intentionally placed the materials on the plaintiffs' property. first after being informed of the potential dispute over the land and, second. after the issuance of the temporary restraining order. The intrusion has caused direct injury in the form of intruding upon the plaintiffs' use of their own property. Accordingly, the defendants have committed trespass.
The fourth count alleges an easement conveyed by deed. The fifth count alleges easement by implication. The sixth count alleges easement by prescription. CT Page 13474
The deeds of both properties reference a "Right-of Way, 25 ft. in width for purposes of ingress and egress" over the Urbano property. It is the opinion of the court that no credible evidence provided for a deviation of this express easement of twenty-five feet for access to and from the plaintiffs property. Accordingly, the plaintiffs have proven an express easement for the purposes of "ingress and egress."
The plaintiffs have also alleged title to an easement for the purpose of utilities, specifically the underground cable line. There is no express easement, however, the plaintiffs have also claimed an easement by implication. "There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." (Internal quotation marks omitted.) Gemmell v. Lee,
The intention of the parties is shown by the fact that the cable line has been under the easement since the construction of the plaintiffs' home. Moreover, though the defendants interfered with the repair of the cable line, they have not asked the plaintiffs to remove the cable line. The court also finds that the easement is necessary for the normal enjoyment of the dominant estate. The plaintiffs use the estate as their residence and it is normal and reasonably necessary for a residence to be allowed utilities, such as cable television.
Even if the plaintiffs had failed to prove an easement by implication, the plaintiffs have also proven an easement by prescription. "To establish an easement by prescription in accordance with General Statutes §
The use of the easement for a cable line has been open and visible. As proof, when the line needed repair. the plaintiffs openly called the cable company to repair it. As for continuous and uninterrupted use for over fifteen years. the right-of-way has been used for the cable television line since 1980. Finally, the plaintiffs have shown that they believed that they had a right to the use of the easement for utilities. CT Page 13475
The defendants are ordered to remove the split rail fence and all the materials placed in the contested triangular area this court has determined is owned by the plaintiffs. The defendants shall also restore the surface of the land to the conditions which existed prior to the installation of the split rail fence.
"[I]njunction is the proper remedy to stop interference with an owner's use and enjoyment of an easement." (Internal quotation marks omitted.) DiSorbo v. Grand Associates One Ltd. Partnership,
Because this relief makes the plaintiffs whole, the court declines to order damages for the trespass. The court notes that, as to this injunctive relief, it has continuing jurisdiction over the matter. SeeAvalonbay Communities v. Planning Zoning Commission,
The Court
by Gilardi, J.
Peterson v. Town of Oxford , 189 Conn. 740 ( 1983 )
Page Motor Co. v. Baker , 182 Conn. 484 ( 1980 )
Ferri v. Pyramid Construction Co. , 186 Conn. 682 ( 1982 )
Tide Water Oil Sales Corporation v. Shimelman , 114 Conn. 182 ( 1932 )
Adams v. Vaill , 158 Conn. 478 ( 1969 )
Taylor v. Conti , 149 Conn. 174 ( 1962 )
Abington Ltd. Partnership v. Talcott Mtn. Sci. , 43 Conn. Super. Ct. 424 ( 1994 )