Alligood v. Lasaracina, 30406.

• Decision Date: 13 July 2010
• Docket Number: No. 30406.,30406.
• Citation: 999 A.2d 836,122 Conn.App. 473
• Parties: Gary H. ALLIGOOD et al.v.Anthony LASARACINA et al.
• Court: Connecticut Court of Appeals

122 Conn.App. 473

999 A.2d 836

Gary H. ALLIGOOD et al.v.Anthony LASARACINA et al.

No. 30406.

Appellate Court of Connecticut.

Argued Dec. 9, 2009.

Decided July 13, 2010.

James Colin Mulholland, for the appellants (plaintiffs).

Mark E. Block, Norwich, with whom, on the brief, was Gary W. Huebner, for the appellees (defendants).

GRUENDEL, ROBINSON and ALVORD, Js.

ROBINSON, J.

The plaintiffs, Gary H. Alligood and Holly J. Alligood, appeal from the judgment of the trial court in favor of the defendants, Anthony LaSaracina and Shelene LaSaracina. The plaintiffs claim that the court improperly found that the defendants could unilaterally obstruct the plaintiffs' right-of-way over the defendants' property. We agree and reverse the judgment of the trial court.

The following facts and procedural history are uncontested.¹ The plaintiffs are fee owners of the property located at 30 Eden Park Drive in Salem. The defendants are fee owners of an adjacent parcel of property located at 29 Eden Park Drive. The plaintiffs acquired their property by an executor's deed on December 21, 2000. The defendants acquired their property by a warranty deed duly recorded on July 17, 1995. The plaintiffs' property is landlocked and can only be accessed by crossing the defendants' property. As a result, the defendants' property is subject to a right-of-way in favor of the plaintiffs for the purpose of ingress and egress. The right-of-way was first created by a warranty deed duly recorded on August 29, 1980.² It extends from Route 82 to the defendants' property where it terminates in a circular turnaround.³ In or about 2000, just before the plaintiffs closed on their purchase of 30 Eden Park Drive, the defendants eliminated the circular turnaround at the end of the right-of-way.⁴

On May 30, 2001, the plaintiffs filed a complaint alleging that the defendants unlawfully altered the dimensions of the right-of-way and seeking temporary and permanent injunctions.⁵ On September 16, 2008, following an evidentiary hearing, the court found that “[t]he right-of-way ends with a loop, and the defendants have obstructed one side of the loop.” The court nevertheless found that “[t]he plaintiffs continue to have full access to their property from the other side of the loop” and denied the plaintiffs' request for an injunction, concluding that the defendants had “not unduly restricted the plaintiffs' use of the right-of-way....” This appeal followed.

On appeal, the plaintiffs claim that the standard of law applied by the court was incorrect and argue that, absent their consent, the defendants' alteration of the location and dimensions of the right-of-way was improper.⁶ We agree.

Whether the court applied the appropriate legal standard presents a question of law subject to our plenary review. See Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83, 931 A.2d 237 (2007). Although not yet directly decided in Connecticut, the general rule is that “once the location of an easement has been selected or fixed, it cannot be changed by either the landowner or the easement owner without the other's consent.” 25 Am.Jur.2d, Easements and Licenses § 69 (2004). The majority of jurisdictions to consider the issue have adopted the general rule. See, e.g. Edgell v. Divver, 402 A.2d 395, 397-98 (Del.Ch.1979) (“[t]he general rule is well established that an easement may not be relocated without the consent of the owners of both the dominant and servient estates”); Carrollsburg v. Anderson, 791 A.2d 54, 61 (D.C.2002) ( “as a general rule, the location of an easement, when once established, cannot be changed or the easement relocated without the mutual consent of the owners of the dominant and servient estates” [internal quotation marks omitted] ); Herren v. Pettengill, 273 Ga. 122, 123, 538 S.E.2d 735 (2000) (“[t]he majority rule in the United States is that an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement”).

In contrast, a minority of jurisdictions have taken an alternative approach endorsed by the Restatement (Third), Property, Servitudes § 4.8(c)(3) (2000).⁷ See e.g. Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229, 1236-37 (Colo.2001); M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91, 809 N.E.2d 1053 (2004); Lewis v. Young, 92 N.Y.2d 443, 451-52, 705 N.E.2d 649, 682 N.Y.S.2d 657 (1998). Pursuant to the Restatement approach, the owners of a servient estate may unilaterally change the location or dimensions of an easement if the changes do not significantly lessen the utility of the easement, increase the burden on the easement holder or frustrate the purpose of the easement. See Restatement (Third), supra, § 4.8, comment (f). The Restatement rule “is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder.” Id.

We conclude that the approach adopted by the majority of jurisdictions is a logical extension of current Connecticut case law. See Coughlin v. Anderson, 270 Conn. 487, 509, 853 A.2d 460 (2004) (owner of dominant estate may not vary location of fixed easement without consent of owner of servient estate); Mackin v. Mackin, 186 Conn. 185, 439 A.2d 1086 (1982) (affirming trial court's determination that defendants' relocation of right-of-way improper but setting aside judgment with respect to damages). Accordingly, we adopt the majority approach.

Like many of the jurisdictions faced with this question, we believe that the attributes of the majority rule, namely, uniformity, stability, predictability and judicial economy, outweigh any increased flexibility offered by the Restatement approach. See Herren v. Pettengill, supra, 273 Ga. at 124, 538 S.E.2d 735 (majority rule provides certainty in land ownership); Sweezey v. Neel, 179 Vt. 507, 517-18, 904 A.2d 1050 (2006); Crisp v. VanLaecken, 130 Wash.App. 320, 325-26, 122 P.3d 926 (2005) (judicial relocation of established easements would introduce uncertainty in real estate transactions and invite endless litigation); AKG Real Estate, LLC v. Kosterman, 296 Wis.2d 1, 23, 717 N.W.2d 835 (2006) (Restatement approach is catalyst for increased litigation and means for servient estate to reap windfall at expense of dominant estate). Moreover, unlike the Restatement approach, the majority rule encourages property owners to bargain for and consent to alterations that maximize the development and utility of both the dominant and...