Walton v. Town of New Hartford

• Decision Date: 28 July 1992
• Docket Number: No. 14318,14318
• Citation: 223 Conn. 155,612 A.2d 1153
• Court: Connecticut Supreme Court
• Parties: Robert L. WALTON, et al. v. TOWN OF NEW HARTFORD, et al.

Page 1153

612 A.2d 1153

223 Conn. 155

Robert L. WALTON, et al. v. TOWN OF NEW HARTFORD, et al.

No. 14318.

Supreme Court of Connecticut.

Argued April 3, 1992.

Decided July 28, 1992.

Robert K. Wynne, Bristol, for appellants (third party defendants).

Steven B. Kaplan, Hartford, for appellees-cross-appellants (plaintiffs).

Robert E. Pace, Hartford, for appellees (defendants-third party plaintiffs).

John W. Pickard, Torrington, for cross-appellee (defendant town of New Hartford).

Before CALLAHAN, GLASS, COVELLO, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

This appeal arises from an amended complaint filed by the plaintiffs, Robert L. Walton and Linda M. Walton, against the defendants, the town of New Hartford (New Hartford) and Alan and Karen Habig (Habigs), alleging damage to the plaintiffs' real property caused by water drainage, and from a third party complaint filed by the Habigs against the third party defendants, James A. and Joann K. Parsons (Parsons), seeking indemnification. The Parsons appeal from the judgment of the trial court rendered in favor of the Habigs on the Habigs' third party complaint. The plaintiffs cross appeal from the trial court's denial of the plaintiffs' motion to open and modify the judgment of the trial court rendered in favor, in part, of the plaintiffs.

The Parsons claim that the trial court improperly: (1) concluded that the plaintiffs had granted to them a license, rather than an easement, over the plaintiffs' property; and (2) granted the plaintiffs injunctive relief. ¹ In their cross appeal, the plaintiffs claim that the trial court improperly denied the plaintiffs' motion to open and modify the judgment rendered, in part, in their favor. We affirm the trial court's judgment.

The relevant facts are as follows. The plaintiffs own property known as lot 16 on Lair Road in New Hartford. The plaintiffs' property is contiguous with and downhill from the Habigs' property, known as lot 17 on Lair Road in New Hartford. The Habigs purchased their property from the Parsons. ² At the time the plaintiffs purchased their home, in March, 1986, substantial surface water drained onto the plaintiffs' property from Lair Road and from two drainage pipes owned by New Hartford that were located on the plaintiffs' property. ³ At approximately the same time, James A. Parsons discovered a four inch diameter pipe that ran underneath his property. The pipe emptied water that had collected from curtain drains on the Parsons' property onto the plaintiffs' property. Parsons then informed the plaintiffs of the existence of the pipe.

After discussions with the Parsons and with New Hartford officials about ways to solve their water drainage problems, the plaintiffs decided to install an underground water drainage system on their property designed to divert water away from their septic system. The water drainage system was installed in August, 1986, and consisted of two long pipes connected to two catch basins that carried drainage water to the rear of the plaintiffs' property. The first catchbasin was located approximately forty feet west of Lair Road. A thirty inch diameter pipe connected to that catch basin and ran northwesterly underground approximately ninety feet, connecting to a second catch basin located at the bottom of the plaintiffs' driveway. A thirty-six inch diameter pipe connected to the second catch basin and ran in a northwest direction underground approximately 120 feet to the rear of the plaintiffs' property. This pipe had a flared end and emptied the drainage water that collected from the various pipes connected to the drainage system directly onto the plaintiffs' property.

On September 10, 1986, shortly after the water drainage system was installed, the plaintiffs granted to New Hartford a written easement permitting the town to discharge water onto the plaintiffs' property from its two drainage pipes. The easement required, inter alia, that New Hartford construct on the plaintiffs' property the first catch basin into which the two pipes would connect, and maintain the catch basin and discharge system. ⁴ The plaintiffs also agreed to allow the Parsons to connect, into the water drainage system, the pipe that ran underneath the Parsons' property. This pipe connected into the plaintiffs' second catch basin. ⁵ Their agreement however, was never reduced to writing.

On December 2, 1988, the plaintiffs notified the Parsons that since "[n]o written easement was granted [to the Parsons, they were to] ... stop ... directing the flow of water by pipe into [the plaintiffs'] ... catchbasin." The Parsons never responded to the letter. On December 19, 1988, the Parsons sold lot 17 to the Habigs without disclosing their dispute with the plaintiffs concerning the pipe. ⁶ On September 22, 1989, the plaintiffs notified New Hartford that substantial erosion had occurred on the plaintiffs' property due to the town's failure to maintain the discharge system as required by the easement. The plaintiffs requested that New Hartford "cure the deficiency that exists in the drainage system" or they would terminate the easement. New Hartford did not respond.

Thereafter, the plaintiffs commenced this action against the defendants. In an amended thirteen count complaint, the plaintiffs alleged that New Hartford "breached its covenant to maintain the drainage system in accordance with the terms of the easement" and sought damages and injunctive relief. ⁷ The plaintiffs further alleged that the Habigs were trespassing and committing a nuisance since the plaintiffs had requested the Habigs' predecessors in title, the Parsons, to disconnect the pipe that discharged water onto their property. ⁸ The plaintiffs also sought damages and injunctive relief from the Habigs. The Habigs filed a third party complaint against the Parsons alleging intentional and negligent misrepresentation by the Parsons for their failure to disclose to the Habigs the dispute over the pipe. They sought indemnification from the Parsons for any judgment rendered against the Habigs in favor of the plaintiffs.

The trial court rendered judgment in favor, in part, of the plaintiffs on the plaintiffs' amended complaint against the Habigs and against New Hartford. The court further rendered judgment in favor of the Habigs on their third party complaint against the Parsons.

Regarding the plaintiffs' allegations against New Hartford, the court concluded that "the plaintiffs have sustained their burden of proof that the Town of New Hartford has failed to properly maintain 'the enclosed catchbasin and the discharge system....' " The court then concluded that "the plaintiffs are entitled to an order directing the town to periodically, as necessary, clear the catchbasin on the plaintiffs' property as well as that located on Lair Road which feeds into the easement pipes."

Regarding the plaintiffs' allegations against the Habigs, the court concluded that the plaintiffs granted to the Parsons a license to connect the pipe to the plaintiffs' water drainage system, which was revocable at the plaintiffs' will. The court then concluded that since the license had been revoked by a letter dated December 2, 1988, "Mr. and Mrs. Habig acquired no right to continue the tie-in to the [plaintiffs'] drainage system and they must therefore be enjoined from further use ... and shall cease and desist the use of the pipe leading from their property ... to the property of [the plaintiffs]...." Regarding the Habigs' allegations against the Parsons, the court concluded that by failing to disclose to the Habigs the dispute over the drainage pipe, the Parsons had "misrepresented existing fact and thereby induced the Habigs to purchase [their] home.... Accordingly, [the Parsons] are liable to [the Habigs] on the ... third party complaint ... [and are required to indemnify] the Habigs for any judgment that may be rendered against them in favor of the plaintiffs."

The Parsons appealed to the Appellate Court from the judgment rendered in favor of the Habigs on the third party complaint. The plaintiffs filed a cross appeal from the judgment rendered in their favor, in part; see footnote 8, supra; on their complaint. We transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We now affirm the trial court's judgment.

I

In their appeal, the Parsons claim that the trial court improperly concluded that the plaintiffs had granted to the Parsons a license, rather than an easement, to use the plaintiffs' property. ⁹ We disagree.

The trial court made the following findings regarding this claim. "After the granting of the easement to the Town [of New Hartford] in September, 1986, the [plaintiffs] and the Parsons entered into discussion concerning a request by the Parsons to tie into the drainage line on the [plaintiffs'] property. While orally agreed to, the permission was never reduced to writing in the form of a valid easement. The right which the Parsons claim to have obtained was an interest in the [plaintiffs'] real estate and therefore within the [S]tatute of [F]rauds.... Foot v. New Haven and Northampton Company and Others, 23 Conn. 214, 223 [1854]. What they did receive was a license to lay a pipe and connect to the discharge system on the [plaintiffs'] property. Such a right may be obtained orally. Occum Co. v. A & W Sprague Mfg. Co., 34 Conn. 529 [1868]; Tiffany Real Property, Third Ed., Vol. III, § 830.

"Since the Parsons obtained only a license, it was revocable at the will of the [plaintiffs].... 'Generally, a license to enter premises is revocable at any time by the licensor....' State v. Grant, 6 Conn.App. 24, 29 [502 A.2d 945 (1986) ].... In view of the fact that the license to the Parsons was revocable, it was not assignable to the Habigs. Prince v. Case, 10 Conn. 375 [1835]. Aside from this legal proposition, the license was revoked by letter dated December 2, 1988 from [the plain...