DocketNumber: No. CV98 0163554 S
Citation Numbers: 2001 Conn. Super. Ct. 12241
Judges: D'ANDREA, JUDGE TRIAL REFEREE.
Filed Date: 8/17/2001
Status: Non-Precedential
Modified Date: 4/17/2021
As found by the ATR, the defendants own an express easement by grant, thirty feet in width and approximate 290 feet long, over the most easterly portion of Lot 2, the plaintiffs' property. The easement is for CT Page 12242 purposes of ingress and egress from Middlebrook Farm Road to and from Lot 3 of the defendants. In count one of their complaint, the plaintiff's claim that the defendants' construction of an approximately twelve foot wide stone driveway within the easement area and the parking of motor vehicles thereon constitute an impermissible expansion of the defendants' easement which has caused the plaintiff's irreparable harm. In count two, the plaintiffs allege that the construction of the driveway was malicious and performed with the intent to annoy and harass the plaintiffs, constituting a malicious construction pursuant to Connecticut General Statutes §
In their claims for relief the plaintiffs, as to the first count, requested a temporary and permanent order restraining the defendants from expanding the use of the easement and from "installing utility easements," claiming damages, and "such other relief as in equity may pertain." As to the second count, alleging malice, the plaintiff's claim a temporary and permanent order restraining the defendants from maintaining the driveway, and damages within the jurisdiction of the court.
The ATR found that the defendants had altered a stone wall on the plaintiffs' property, removed a Shagbark Hickory tree standing within the defendants' easement, installed a stone driveway and parked cars on the driveway. The ATR concluded that these acts were not reasonable and were not as minimally burdensome to the servient estate as the nature of the defendants' easement and its purpose would permit. Kuras v. Kope,
In the second count, brought pursuant to Connecticut General Statutes §
The Supreme Court has set forth this court's scope of review of an attorney trial referee's report. The court held that "[a] reviewing authority may not substitute its findings for those of the trier of fact. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443 [currently § 19-17] . . . The factual findings of a [trial referee] on an issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence on the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted). Elgar v. Elgar,
"This court has two tasks to perform in reviewing attorney trial referees' reports. The first task is to determine whether the ``referee's findings of facts were supported by the evidence'. The second task is to ascertain whether ``the conclusions drawn therefrom were legally or logically correct.'" Guice v. Milk Cookies, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV99 0169843 (August 9, 2000, Lewis, J.). The ATR found in favor of the plaintiffs on both the first and second counts, and recommends that the court issue five separate orders against the defendants. He does not, however, precisely articulate to which of the two counts in the plaintiffs' complaint each order relates. Nevertheless, the court will discuss each of the recommended orders in light of the plaintiffs' complaint and claims for relief. The court will address the legal issues CT Page 12244 raised by each count and begin the discussion with the allegations of the second count.
In the second count the plaintiffs seek an "order restraining the defendants from maintaining the driveway." The ATR and both parties construed this as a claim for an order requiring the defendants to remove the stone driveway and to restore the land to its former condition. The plaintiff's base this claim for relief upon Connecticut General Statutes §
Some additional facts are relevant to the disposition of the issues. Although the defendants originally began work for the construction of the driveway without proper permits, all necessary permits were later applied for and received. In their application for a driveway permit, the defendants stated "no building construction is planned at this time." Approval was also required by the Inlands Wetlands Commission of the town of Wilton because the easement area is within 100 feet of a brook. After public hearings, approval was granted for a "construction of a house, septic system and driveway and associated grading . . . "The installation of the driveway, and its present existence, was and is lawful in every respect. The easement in question, now with the town approved driveway, is the only legal access to the defendants' Lot No. 3, if it is to be used as a building lot.
"Under certain conditions, damage done by a landowner to the land of an adjoining owner, which at common law raised no liability, is made a legal damage, and a liability to pay that damage is created. These conditions are: A structure erected on the owner's land; a malicious erection of the structure; an impairment thereby to the value of adjacent land; an intent by means of the structure to injure the adjacent owner in the enjoyment or disposition of his land. Briefly stated, [Connecticut General Statutes §§
The court will, in this case, consider the stone driveway as a structure, since it was treated as such by the parties and by the referee. The question of whether or not a driveway is a "structure" as contemplated by the statute was not raised at the trial and is not addressed further here.
The issue facing the court is whether the ATR, as a matter of law, could legally and logically conclude that the placement of the stone driveway by the defendants constituted the malicious erection of a structure with an intent to injure the plaintiffs in their enjoyment or disposition of their land. Under the facts found by the ATR, and all of the undisputed evidence of this case, we find that he could not. "Plainly, the real evil [which the statutes were intended to remedy] consists in the occasional subjection of the landowner to the impairment of the value of his land by the erection of a structure which substantially serves, and is intended to serve, no purpose but to injure [the landowner] in the enjoyment of his land." Whitlock v. Uhle, supra
In applying the statutes, the ATR focused on various acts of the defendants over a period of time and especially on the timing of the driveway construction. He determined that the defendants had no intent to construct the house on their lot which the driveway was to serve, either when they installed the driveway or at the time of trial. This analysis by the referee was incomplete. "[T]he intent to injure by the erection of the structure is an intention which must be discovered mainly from the fact that the structure does impair the value of adjacent land and injures the owner in its use, from the absence of the reasonable possibility of any real advantage, whether of profit, protection, or pleasure, in the use of the land, and from the character, location and surroundings of the structure itself." Whitlock v. Uhle, supra,
The driveway is not useless to the owner, it carries out the established purpose of the easement, and gives the defendants a buildable lot. The defendants' application for a wetlands permit to construct a driveway was approved by the Inlands Wetlands Commission with this language: "The authorized activity consists of construction of a house, septic system and driveway and associated grading adjacent to a wetland and watercourse as described . . .". The Commission goes on to describe a proposed plot plan showing the 12 foot wide driveway within the 30 foot easement leading to Lot No. 3. The defendants also applied for and received a driveway permit from the Public Works Department of the Town of Wilton. The application contained the language: "No building construction is planned at this time." The referee found that this was "convincing evidence of the intention of the defendants at the time the driveway was constructed," not to use the lot for the construction of a house. Mr. Henwood testified in court "that after the conclusion of this litigation, defendants will either construct a house there and sell it, or they will sell the lot to someone to construct a house." The referee interpreted this testimony to mean that the defendants "had no clear intention to construct a house." Again, the ATR has focused on the timing of the driveway construction, as well as the defendants' motives. There is no temporal limitation on the right of the defendants to construct their driveway, except as may be limited by the expiration period of the Wetlands permit itself.3 The referee however, implies such limitation when he expresses that [T]he usefulness which the driveway as constructedmight have to the defendants if and when they or their successor in title ever construct a house on Lot #3 is irrelevant to this case." (Emphasis in the original.) The purpose of the easement and the driveway, as noted above, was to establish a buildable lot. This provides an obvious advantage to the defendants and their property, and protects the lot's status, for at least five years. This is a legitimate purpose, and the fact that a legitimate purpose could have been carried out tomorrow, does not make it illegitimate if pursued today. Whitlock instructs us that this is so even though the motivation in doing so today may be in question. Indeed, the ATR found the driveway construction "was motivatedat least in part, by malice . . . (Emphasis added). He had an obligation to further analyze the facts and circumstances as the court has done on the record, to discern the legitimate purpose clearly shown. All that need be shown to the trier is a "reasonable possibility" of [a] real advantage, whether for profit, protection or pleasure, in the use of the land . . ." Whitlock v. Uhle, supra,
To evaluate an intent to injure allegation, one must also look at the CT Page 12247 character, location and surroundings of the structure itself. The character of the "structure" in this case is a stone driveway accessing a residential lot in a residential area. It is located in an easement conveyed for the very purpose of a driveway, in the most easterly end of the plaintiffs' property, as far from the plaintiffs' house as it could be. Although the defendants own a 30 foot easement, the driveway, at its widest point is 12 feet. Thus the location, character and surroundings of the structure is consistent with its legitimate purpose. See Whitlock v.Uhle, supra
Another prong of the Whitlock test in order to find malicious construction under Connecticut General Statutes §§
Turning to the first count of the plaintiffs' complaint, the plaintiffs allege that the defendants' construction of an approximate 12 foot wide stone driveway within the easement area and the parking of motor vehicles thereon constitute an impermissible expansion of the defendants' easement, which has caused the plaintiff's irreparable harm. The defendants own an express written easement granted by deed. The nature of an easement must be discerned from the intention of the parties by considering the language of the deed, the situation of the property and surrounding circumstances. Lago v. Guerrette,
"The owners of Lot #3 shall have the right to enter CT Page 12248 upon so much of Lot #2 as is necessary for the purpose of constructing said accessway, including the installation of culverts, and said easement shall be subject to the perpetual right of the owner of Lot #3 to use said right-of-way for the purpose of ingress and egress to said Lot #3. The owners of Lot #2, their heirs and assigns, shall have no duty or obligation to maintain said accessway."
The ATR interpreted this language as excluding any right to park motor vehicles in the easement area, and the court agrees. The clear purpose of the easement was to provide ingress and egress to Lot #3 so that it would be a buildable lot. The easement language does not allow for the parking of motor vehicles in the easement area, and the court did not find either in the transcripts of the hearings or the exhibits in evidence, any claim by the defendants to the contrary.
The court now turns to the specific recommendations of the ATR, that a judgment enter against the defendants as follows:
"1. Permanently enjoining the defendants from a) using the accessway for the parking of vehicles of any type, b) closing, obstructing or otherwise interfering in any way with the plaintiffs' use and enjoyment of the accessway other than as required to use the accessway for ingress and egress to Lot #3 and for maintenance, repair or replacement, c) using the easement for the installation of utilities; and d) making any unreasonable use of the accessway or any other use which is greater than the nature of the easement and its purpose requires."
The court will, as equitable relief under the first count, enjoin the defendants from using the accessway for the parking of vehicles of any type, and from using the easement for the installation of utilities.5 As to recommendation 1b), there was no evidence presented, or claims made, as to the nature and extent of plaintiffs' right to the use and enjoyment of the accessway, nor of defendants' intention to deprive the plaintiffs of such rights, if any. As to recommendation 1d), the nature of the easement and its use and the parameters thereof, are fully set forth in this decision, and there is no evidence of the defendants' intent to go beyond in the use of their easement.
"2. Ordering defendants to procure a survey of the accessway by a licensed surveyor, and to mark the boundary of the easement to the side of Lot #2 with permanent markers as deemed appropriate by the surveyor."
The court will not enter this order. There is no claim for such relief made by the plaintiffs either in their complaint or during the course of CT Page 12249 the hearings. The defendants, therefore, had no opportunity to address the issue as to the cost, necessity or reasonableness of another survey. There is no evidence that the defendants intend to engage in any conduct or perform any acts beyond the boundaries of their easement. In any event, each party is free to place legal and appropriate permanent markers on the boundaries of their respective properties.
"3. Ordering defendants to restore so much of the stonewall along Middlebrook Farm Road as is outside of the Accessway to the condition it was prior to the construction of January, 1998, and thereafter enjoining defendants from causing further disturbance to said wall."
The plaintiffs advised the court that this issue is moot because the plaintiffs have already performed the work. Plaintiffs' counsel, in his brief dated February 28, 2001, waives and abandons recommendation No. 3. No orders will issue in connection therewith. The plaintiffs' wall has been restored, and the defendants' driveway is constructed where it was intended.
"4. Ordering defendants to plant a healthy and mature Shaggy (sic) Bark Hickory tree in a location selected by plaintiffs outside of the accessway, which tree shall be no less (sic) 12 inches in diameter."
This recommendation must be rejected. "Although it is true that when the trial court reviews the attorney trial referee's report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referees' entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee's report containing legal conclusions for which there are no subordinate facts. If the attorney referee's ruling was not legally and logically correct, the trial court may reject the report." (Citations omitted; internal quotation marks omitted.) Killion v. Davies,
In addition, the recommended order would have allowed the plaintiffs to select the location of the replacement tree, without regard to how that placement might be related to the changes in the plaintiffs' property rendered by the defendants. A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of adequate remedy at law. Granger v. A. Aiudi Sons,
"5. Awarding plaintiff the sum of $1 as compensatory damages together with additional compensatory damages in an amount equal to plaintiffs' reasonable attorney's fees and disbursements in the prosecution of the instant action."
As stated earlier in this decision, the ATR should not have recommended nominal damages on the second count, because the plaintiffs did not prove the elements required under Connecticut General Statutes §
The referee goes on to recommend an award of "additional compensatory damages in an amount equal to plaintiffs' reasonable attorney's fees and disbursements in the prosecution of the instant action." Notwithstanding that he recognizes in the body of his report that attorney's fees are not authorized in this case either by statute or contract, the ATR refers to attorney's fees in his fifth recommendation as "additional compensatory damages," based upon a finding of malice. Attorney's fees may be awarded upon a showing of fraud, wantonness or malice. See Gino's Pizza of EastHartford v. Kaplan,
Punitive damages in Connecticut are limited to attorney's fees and expenses. Lord v. Mansfield,
The court notes that the plaintiff's requested in their memoranda that the court specifically retain jurisdiction for the purposes of ordering the defendants to remove the driveway if Lot 3 is not built upon within a reasonable time. This request is denied. The court's continuing jurisdiction over this matter will be determined according to law.
In summary, the court issues the following orders:
1. On the first count, judgment may enter for the plaintiffs in the amount of $1.00 as nominal damages.
2. On the first count, the defendants are permanently enjoined from using the 30 foot wide easement area from Middlebrook Farm Road to Lot No. 3 for the parking of vehicles of any type, and for the installation of utilities.
3. The case is remanded to the attorney trial referee for further proceedings to find, after hearing, the amount of attorney's fees, if any, to be awarded as punitive damages on the first count.11
4. On the second count, judgment may enter for the defendants.
5. Costs are awarded to the plaintiffs.
So Ordered.
D'ANDREA, J.T.R.