Hirsch v. Tolonen, No. 32 34 87 (Feb. 13, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiffs and the defendant, Carol E. Tolonen, are the owners of contiguous parcels of property located on Fox Run Road in the town of Redding, Connecticut.

The dispute between these neighbors relates to the existence of overhead service wires that cross the rear area of the plaintiffs' property and service the said defendant's property with electric power, telephone and television cable.

The service wires in question have been so located since at least May of 1983 since they are depicted on a map numbered No. 3064 and recorded May 6, 1983 in the Redding Land Records at a time when both plaintiffs' and said defendant's property were in common ownership.

The section of overhead service wires is clearly depicted on said recorded map by a line broken at intervals by three dots that extends from Fox Run Road to said defendant's residence as shown on said map with five pole symbols indicating points where said service wires are supported. All poles on plaintiffs' property are there based on an easement enjoyed by plaintiffs' neighbor to the west. Thus, the burden to plaintiffs' property created by the overhead service wires to said defendant's property is to the airspace above plaintiffs' property.

The plaintiffs seek an injunction against the defendants to remove the service wires serving said defendant's residence.

The plaintiffs' title is derived from a warranty deed, dated December 23, 1992, and recorded in Volume 173 at pages 945-947 of the Redding Land Records. Said deed describes said premises as Parcel A on Map No. 3064 and states, in part, "SUBJECT, HOWEVER,TO:. . . . 3. Notes and symbols as shown on Map No. 3064 of file in the Redding Town Clerk's Office."

The certification of the surveyor on Map No. 3064 states, in part, that "there are no easements or encroachments affecting this property apparent from a careful physical inspection of the CT Page 789 same, other than those shown and depicted hereon."

The plaintiffs chose to accept a deed subject to notes and symbols shown on Map No. 3064. This included a note stating "service wires" and a line symbol showing those wires traversing the back portion of plaintiffs' property from a pole subject to another neighbor's easement to a pole on said defendant's property. In addition, a casual inspection would reveal the actual existence of said overhead service wires. Thus, this burden could presumably have been rejected or bargained away with plaintiffs' grantor. Plaintiffs did not choose that course.

For the foregoing reasons, this court finds in favor of the defendants and denies the relief requested by the plaintiffs since the court finds they have no right to interfere with the service wires as they are presently located upon the plaintiffs' property from Fox Run Road to the property of defendant, Carol E. Tolonen.

Stodolink, J.