Ace Equipment Sales, Inc. v. Buccino

• Citation: 848 A.2d 474,82 Conn. App. 573
• Decision Date: 27 April 2004
• Docket Number: (AC 23383)
• Court: Appellate Court of Connecticut
• Parties: ACE EQUIPMENT SALES, INC., ET AL. v. THOMAS BUCCINO ET AL.

82 Conn. App. 573

848 A.2d 474

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

(AC 23383)

Court of Appeals of Connecticut.

Submitted on briefs October 20, 2003.

Officially released April 27, 2004.

Schaller, Bishop and Dupont, JS. Kirk D. Tavtigian, Jr., filed a brief for the appellants (named plaintiff et al).

Mark W. Dietz filed a brief for the appellant (plaintiff Wallington Fish and Game Club, LLC).

Robert B. Cohen and Joseph B. Sappington filed a brief for the appellees (defendant Thomas Buccino et al.).

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

Opinion

DUPONT, J.

The dispositive issue in this appeal is whether the owners of property abutting a pond, originally created by the erection of a dam and a spillway to impound the waters of a nonnavigable brook,¹ who are required to maintain the dam, have the right of shared, reasonable recreational use of the entire pond. The plaintiffs, Ace Equipment Sales, Inc. (Ace), Willington Fish and Game Club, LLC (WFGC, LLC), and Willington Fish and Game Club, Inc. (WFGC, Inc.), appeal from the summary judgment rendered by the trial court on the counterclaim of the defendants, Thomas Buccino, Irma Buccino (Buccinos),² the Hall's Pond Fly Fishing Club, Inc., Willington Industries, Inc., Jerzy Debski, Robert Hisey and Peter Latincsics.³

Both the plaintiffs and the defendants sought summary judgment. The plaintiffs, in their complaint, and the defendants, in their counterclaim, sought injunctive relief, a declaratory judgment⁴ and damages. The court, Sferrazza, J., denied the plaintiffs' motion for summary judgment and granted the defendants' motion, allowing the defendants reasonable recreational use of the body of water known as Hall's Pond in Willington and prohibiting the plaintiffs from interfering with such reasonable use. The court also ordered a hearing to determine the specifics of injunctive relief and damages. After a hearing, the court, Levine, J., awarded the defendants common-law damages of $2 against the plaintiffs WFGC, LLC, and WFGC, Inc., and as injunctive relief, ordered those same plaintiffs to remove any obstructions, including a fence that was constructed along a right-of-way of the Buccinos.⁵

The issues to be resolved on appeal are whether the Buccinos, owners of property adjacent to Hall's Pond, who have the obligation to maintain the dam, may use its waters for recreational purposes regardless of (1) whether they own the pond bed, (2) whether the pond is artificial or natural and (3) whether their deed is silent as to that specific use. We affirm the judgment of the trial court granting the motion for summary judgment in favor of the defendants.

Summary judgment shall be rendered 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. Practice Book § 17-49. "Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). In this case, a basic disagreement of the parties lies in what is or is not a material fact and whether such a fact is in dispute. We begin our discussion, therefore, with the undisputed facts found to be material by the trial court.

Ace, WFGC, LLC, and the Buccinos are successors in title to property surrounding Hall's Pond, a twenty acre body of water. Until the 1950s, Gardiner Hall, Jr., Co. (Hall) owned all of the property under the pond and all of the property abutting the pond. Hall's Pond is a man-made, nonnavigable pond. It was created by placing a dam in Conat Brook, some time prior to the conveyance by Hall of any of the land to the predecessors of the parties. Hall conveyed the property presently owned by the Buccinos to their predecessors in title in 1955. Hall conveyed the property presently owned by the plaintiffs to their predecessors in title in 1987. Ace, WFGC, LLC, and the Buccinos are the only owners of land abutting Hall's Pond.

WFGC, LLC, and WFGC, Inc., use the property for recreational fishing. WFGC, LLC, and WFGC, Inc., stock the pond with fish and use the pond for fishing, a right leased by WFGC, LLC, to WFGC, Inc. The defendants Hall's Pond Fly Fishing Club, Inc., Debski, Hisey and Latincsics began to use the Buccinos' property for access to fishing and other recreational uses of the pond, with the permission of the Buccinos.

The plaintiffs erected a twelve foot high fence obstructing the Buccinos' access to a twenty-five foot right-of-way, acquired by the Buccinos in their deed, to the Buccinos' mill.⁶ The Buccinos have the deeded right to use the water from the pond for industrial purposes so as to operate a mill and factory downstream. The Buccinos have an obligation to maintain the dam and are the subject of an order of the department of environmental protection to keep the dam in working order. The court, in granting the motion for summary judgment in favor of the defendants, specifically stated that it did not resolve the location of the precise boundary between the Buccinos' and Ace's land.⁷ The disagreement of the parties lies, in part, in what is or is not a material fact in dispute. The plaintiffs argue that ownership of the bed under the pond is a material fact in dispute. They argue that, due to their ownership of the land beneath the pond waters, they have the exclusionary right to the use of the entire pond for recreational purposes. The plaintiffs also argue that the same riparian rights that might accrue to an abutter of land on a natural body of water are not available to the Buccinos because of the plaintiffs' alleged ownership of all of the land beneath the pond. The court determined that the ownership of the bed of the pond was a fact in dispute but was not material. The court ruled that regardless of that ownership, the Buccinos have riparian rights in the use of the waters of the pond as the owners of abutting land. The court held that, as a matter of law, owners of land abutting a nonnavigable body of water have riparian or littoral rights that are not dependent on the genesis of the body of water as artificial or natural, or on the ownership of the subaqueous land.

With respect to the defendants' counterclaim, we must determine whether, on the undisputed material, facts, the defendants were entitled to a judgment as a matter of law. We are solely concerned with whether the Buccinos have the right to shared reasonable use of nonnavigable water for recreational purposes, such as swimming, boating and fishing, as the owners of land abutting the water, regardless of the ownership of the water's bed or how the body of water was created, or whether a deed specifically granted that right, where the level of the body of water must be maintained by the abutting owner. No Connecticut appellate case has definitively decided that issue. Cases involving the ownership of the water itself (right to take ice), or ownership of the subaqueous land over which the water flows (right to mine, salvage or extract sand and gravel) or the use of the bed (right to construct docks or wharves) are not controlling. See Schroder v. Battistoni, 151 Conn. 458, 199 A.2d 10 (1964); Mad River Co. v. Pracney, 100 Conn. 466, 123 A. 918 (1924); Turner v. Selectmen of Hebron, 61 Conn. 175, 22 A. 951 (1891); Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462 (1867); Wadsworth v. Tillotson, 15 Conn. 366 (1843). We are also not concerned with a dispute about what is a reasonable use of surface waters when two or more owners share the use of a body of water. See Lake Williams Beach Assn. v. Gilman Bros. Co., 197 Conn. 134, 496 A.2d 182 (1985).⁸

Owners of property abutting a water surface are often called riparian owners or, alternatively, littoral owners.⁹ This opinion refers to the rights of the Buccinos as riparian rights. See R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources (1967) p. 24. In Connecticut, a riparian right to use nonnavigable water does not create ownership of the water, but rather allows the use of the water for bathing and other recreational uses. Harvey Realty Co. v. Wallingford, 111 Conn. 352, 360, 150 A. 60 (1930).

I

The plaintiffs claim that ownership of the pond bed under a nonnavigable lake or pond gives the owner exclusionary rights of use. The plaintiffs claim that the court incorrectly concluded that although there was a genuine factual dispute as to the ownership of the pond bed, it was not a material fact. The court determined that the "issue of ownership of subaqueous land is not dispositive," and relied on the fact that the Buccinos own the land on which the dam creating the pond is constructed and that the land abuts the pond. The court relied on Harvey Realty Co. v. Wallingford, supra, 111 Conn. 352, to hold that the Buccinos' status as abutters of the pond gave them the right to recreational use of the pond.¹⁰

In general, each riparian owner, his intimates and guests, are given the right of reasonable use of the entire body of water, subject to the rights of the other riparian owners. Id., 359; 4 Restatement (Second), Torts, Riparian Rights § 843 (1991). Riparian rights are usually given to the owners of lands that touch on the watercourse. Harvey Realty Co. v. Wallingford, supra, 111 Conn. 359. No Connecticut appellate decision has squarely ruled on the rights of riparian owners to use surface waters for recreational purposes if others own the vast majority or all of the pond bed, nor has any appellate court decision foreclosed the issue of whether ownership of subaqueous land is a material fact in issue when summary judgment is sought in a riparian rights case. In this case, the Buccinos did not seek a determination of the ownership of the bed of the pond, but solely sought a...