Ace Equipment Sales, Inc. v. Buccino

• Citation: 273 Conn. 217,869 A.2d 626
• Decision Date: 05 April 2005
• Docket Number: (SC 17226).
• Court: Supreme Court of Connecticut
• Parties: ACE EQUIPMENT SALES, INC., ET AL. v. THOMAS BUCCINO ET AL.

273 Conn. 217

869 A.2d 626

ACE EQUIPMENT SALES, INC., ET AL. v. THOMAS BUCCINO ET AL.

(SC 17226).

Supreme Court of Connecticut.

Argued January 13, 2005.

Officially released April 5, 2005.

Borden, Norcott, Katz, Vertefeuille and Zarella, Js.

Kirk D. Tavtigian, Jr., with whom was David F. Sherwood, for the appellants (plaintiffs).

Francis A. Miniter, for the appellee (named defendant).

Robert Hisey, pro se, Peter Latincsics, pro se, and Jerzy Debski, pro se, the appellees (defendant Robert Hisey et al.), filed a brief.

Donald E. Frechette, William E. Lohnes, Ben Robbins, pro hac vice, and Andrew Grainger, pro hac vice, filed a brief for the New England Legal Foundation as amicus curiae.

Opinion

KATZ, J.

The principal issue in this certified appeal¹ is whether the owners of property abutting a man-made, nonnavigable pond have the right to use the pond for recreational purposes when the majority of the land beneath the pond is privately owned by another party. The plaintiffs, Ace Equipment Sales, Inc. (Ace), Willington Fish and Game Club, LLC (Willington, LLC), and Willington Fish and Game Club, Inc. (Willington, Inc.), appeal from the judgment of the Appellate Court that affirmed the judgment of the trial court rendering summary judgment in favor of the defendants. Ace Equipment Sales, Inc. v. Buccino, 82 Conn. App. 573, 848 A.2d 474 (2004). The plaintiffs claim that the Appellate Court improperly concluded that the defendants, Thomas Buccino and Irma Buccino,² have a riparian right to use the pond for recreational purposes as abutting landowners. They further claim that, irrespective of a riparian right, the Buccinos' deed prohibits them from entering and using the pond for recreational purposes because its language restricts their use of the pond to industrial purposes.³ We agree with the plaintiffs and, accordingly, we reverse the judgment of the Appellate Court.

The record reveals the following facts and procedural history relevant to our disposition of this appeal. Hall's Pond (pond) is a twenty acre body of water in the town of Willington that was formed by the erection of a dam and spillway at its southwesterly end, thereby impounding the waters of a nonnavigable brook flowing from the Willimantic River. Until the 1950s, Gardiner Hall, Jr., Company (Hall), owned all of the property under and abutting the pond. In December, 1955, Hall conveyed the dam and mill property downstream of the pond to the Buccinos' predecessors in title, and the Buccinos thereafter acquired the dam and mill property in February, 1967. The deed by which the Buccinos acquired the dam and mill property conveyed easement flowage rights to use pond water for industrial purposes and for the needs of the mill and factory on the property, along with the obligation to maintain the dam and the water level of the pond. The deed also conveyed a twenty-five foot wide right-of-way over Hall's property to the mill.

Hall retained the land upstream from the dam, which included all or most of the pond bed, until July, 1987, when Hall conveyed it to the plaintiffs' predecessors in title. In July, 1996, that parcel subsequently was conveyed to Willington, LLC, which then conveyed all but one-half acre of the pond bed to Ace in September, 1996. Each of the relevant deeds describe the pond bed in metes and bounds, and it is undisputed that the plaintiffs obtained, pursuant to the deeds, at least 99 percent of the land beneath the pond. Ace licenses the pond for recreational fishing to Willington, Inc., for its members only, of which there are no more than thirty-five, and Willington, Inc., in turn stocks the pond with fish. Ace and Willington, Inc., never have opened the pond to the public, and the plaintiffs never have given the Buccinos permission to use the pond for recreational purposes.

Although the extent of the Buccinos' industrial use of the pond is unclear from the record, it reflects that their recreational use amounted to fishing in the pond twice—both times from the land—and swimming in the pond once. In 1999, the Buccinos began leasing the rights to use the pond for recreational purposes to the licensees; see footnote 2 of this opinion; and their tenants and guests. Although the Buccinos have no further intention of using the pond themselves for recreational purposes, they have indicated that they would be willing to license as many as 200 people to use the pond for such purposes. Consistent with their intended recreational use, either the Buccinos or the licensees placed a boat dock on the pond, from which they have launched boats and fished in the pond.

In January, 2000, the plaintiffs commenced this action, seeking, inter alia, injunctive relief from the defendants from entering onto or using the pond for recreational purposes, a declaratory judgment prohibiting the defendants from trespassing on the plaintiffs' property, a declaratory judgment that the Buccinos own no part of the pond bed, and damages. In the spring of 2000, the plaintiffs erected a twelve foot wide fence along the edge of the pond, located approximately twenty-two feet from the pond's edge, and have since taken similar steps leading to the obstruction of the defendants' access to their right-of-way and the pond. The defendants denied the plaintiffs' allegation that the Buccinos owned no part of the pond bed, and filed a counterclaim seeking injunctive relief to bar the plaintiffs from interfering with the defendants' recreational use of the pond, and access to the pond generally, a declaratory judgment as to their right to use the pond for recreational purposes, and damages. Thereafter, the plaintiffs moved for summary judgment on their complaint, and the defendants moved for summary judgment on their counterclaim. The trial court denied the plaintiffs' motion for summary judgment and granted the defendants' motion as to liability only, declaring that the defendants had the right to use the pond for recreational purposes and prohibiting the plaintiffs from interfering with such use.⁴ The court then ordered a hearing to determine the scope of injunctive relief and damages. After the hearing, the trial court, Levine, J., awarded the defendants common-law damages of $2, and ordered the plaintiffs to remove any obstructions interfering with the defendants' access to the pond and mill.

The plaintiffs subsequently appealed to the Appellate Court, which affirmed the trial court's judgment. Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 587. The Appellate Court, relying on the Restatement (Second) of Torts, Riparian Rights § 843⁵ and case law on riparian rights from Minnesota and Michigan,⁶ concluded that the trial court properly had determined that ownership of property abutting the pond is sufficient to establish a riparian right to use the pond for reasonable recreational purposes. Id., 582-83. The court noted that the right to use the pond for such purposes also could stem from the Buccinos' ownership and maintenance of the dam that controls the pond's existence. Id., 581-82. The court further concluded that there is no distinction between the riparian rights afforded to a landowner whose property abuts a natural body of water and the rights afforded to a landowner whose property abuts a man-made body of water, at least to the extent that the man-made body has existed for a long period of time. Id., 585. The Appellate Court held that, because the pond had existed for nearly one-half century, it had become a natural waterway. Id., 584. Thus, the court reasoned that the Buccinos' riparian rights were not limited based on whether the pond was man-made when it was created. Id., 585. Finally, the Appellate Court rejected the plaintiffs' claim that the defendants' deed prohibited their use of the pond for recreational purposes. This certified appeal followed.

The plaintiffs claim that the defendants do not have a riparian right to use the pond for recreational purposes solely by virtue of the Buccinos' ownership of abutting property because the plaintiffs' ownership of the entire pond bed grants them exclusive riparian rights under our case law applying to a body of water that is nonnavigable and man-made. The plaintiffs further claim that, irrespective of a riparian right, the Buccinos' deed prohibits them from entering and using the pond for recreational purposes because its language restricts their use of the pond to industrial purposes. In response, the defendants contend that: (1) the pond has become a natural body of water because it has existed for a long period of time, thus our case law applying to manmade bodies of water does not apply; (2) the pond's navigability or lack thereof is irrelevant; and (3) the Buccinos' easement flowage rights and duties as owners of the dam that enables the pond's existence afford the defendants the right to use the pond for recreational purposes. We agree with the plaintiffs.⁷

Before addressing the merits of the plaintiffs' claims, we set forth the applicable standard for our review. "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.. . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . A material fact . . . [is] a fact which will make a difference in the result of the case. . . . Finally, the scope of our review of the trial court's...