Burke-Tarr Co. v. Ferland Corp., 97-460-Appeal.

• Decision Date: 10 February 1999
• Docket Number: No. 97-460-Appeal.,97-460-Appeal.
• Parties: BURKE-TARR COMPANY v. FERLAND CORPORATION.
• Court: Rhode Island Supreme Court

724 A.2d 1014

BURKE-TARR COMPANY v. FERLAND CORPORATION.

No. 97-460-Appeal.

Supreme Court of Rhode Island.

February 10, 1999.

Eugene J. McCaffrey, Jr., Warwick, for Plaintiff.

Jon G. Hagopian, Providence, for Defendant.

Present LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

GOLDBERG, Justice.

This case arose from a complaint filed by the plaintiff, Burke-Tarr Company (Burke-Tarr), to enjoin the defendant, Ferland Corporation (defendant or Ferland), from using a right-of-way across Burke-Tarr's property. Following a trial without the intervention of a jury, a Kent County Superior Court trial justice denied Burke-Tarr's petition for injunctive and declaratory relief. In addition, the trial justice denied Ferland's claim that it had acquired a prescriptive easement over the right-of-way, and after a separate trial on damages, awarded Burke-Tarr $66,706.24 for the fair market value of Ferland's continued and expanded use of the right-of-way. After a recitation of the facts, we shall address all three rulings seriatim.

The record discloses that on January 25, 1911, a deed was recorded in the land evidence records acknowledging the conveyance of land situated in Warwick from John Cassidy (Cassidy) to the Moduc Club. The deed declared a right-of-way seventeen and onehalf feet in width, extending from what is now Warwick Avenue over the subject parcel, which is presently owned by Burke-Tarr, and to a cottage on the adjacent property, through which Cassidy reserved a right-of-access until April 1, 1911.

In 1958, Burke-Tarr acquired the subject property, subject to the right-of-way onto the adjacent property of the Moduc Club. In 1967, Alphage Ferland & Sons, Inc., defendant's predecessor in name, acquired the Moduc Club property, and along with additional parcels that were subsequently acquired by Ferland, eventually developed a 191-unit apartment complex. According to counsel at oral argument, this apartment complex consisted of two buildings comprised of fortytwo apartment units on the dominant estate, while the remaining units were located on the subsequently acquired parcels. Access to the apartment complex was restricted to the seventeen and one-half foot right-of-way, which is the subject of this dispute, as well as to an additional seven and one-half foot strip of land that Ferland leased from Burke-Tarr in 1970, "so as to constitute a twenty-five (25) foot roadway, leading from Warwick Avenue to [Ferland's] land."

According to the fifteen-year lease that the parties executed, Burke-Tarr agreed to lease the seven and one-half foot strip of land to Ferland in exchange for its promises to cause the twenty-five foot roadway to be lighted, maintained, and swept. In addition, Ferland contracted to pave Burke-Tarr's parking lot, promised to provide for the snow plowing of the twenty-five foot roadway, as well as Burke-Tarr's parking lot, and agreed to pay any increase in taxes for the roadway that would be occasioned by: (1) a revaluation of the land constituting the twenty-five foot roadway, (2) improvements placed thereon, or (3) an increase in the tax rate. Annual rent for the first five years was $1,000 per year, increasing to $1,200 per year for the following five years, and finally increasing to $1,400 per year for the final five years. Shortly after the execution of this lease, Ferland installed a six-inch water line under the seventeen and one-half foot right-of-way in order to provide water to its apartment complex. However, it is significant that the water line also apparently encroached upon the adjacent seven and one-half foot strip of leased land. We note that the fifteen-year lease did not provide for the terms of its eventual expiration, and that the lease was also silent with regard to the installation of underground water and utility lines. Consequently, when the lease expired in 1985, this dispute arose.¹

Burke-Tarr instituted an action for trespass and ejectment in the District Court with regard to the seven and one-half foot strip of land. On December 17, 1986, judgment for possession of the strip was entered in favor of Burke-Tarr, along with monetary damages. On February 11, 1987, this judgment became final upon the filing of a stipulation that dismissed Ferland's appeal to the Superior Court.

On June 12, 1987, Burke-Tarr filed a notice of intent with the city of Warwick disputing the creation or the existence of any rights that may have accrued to Ferland from the use of the seventeen and one-half foot right-of-way. Neither content with nor complacent about Ferland's continued use of the right-of-way, Burke-Tarr instituted this action in the Superior Court on March 18, 1988, which sought permanently to enjoin Ferland from any encroachment upon either the seventeen and one-half foot right-of-way or the seven and one-half foot strip.² Burke-Tarr subsequently amended its complaint to seek an injunction to restrain Ferland, its licensees, and its invitees from using the roadway, inter alia, because it was overburdened and excessively used by Ferland. Ferland responded by filing an answer and a counterclaim to enjoin Burke-Tarr from interfering with the continued maintenance of the utility lines and argued that its continued use had ripened into an easement by prescription.

This case was tried by a justice of the Superior Court sitting without a jury. A written decision was issued on September 11, 1995, in which the trial justice declined to grant either Burke-Tarr's request for injunctive relief or its declaration that the right-of-way be extinguished. Specifically, the trial justice found that Burke-Tarr had failed to demonstrate the existence of any irreparable harm due to Ferland's use of the right-of-way and stated that Burke-Tarr's business was in no way harmed or impeded by the contested use of the right-of-way. Furthermore, the trial justice noted that the existence of the subterranean water line upon the right-of-way "was at all times known by [Burke-Tarr] and was effected with [Burke-Tarr's] tacit knowledge and consent." As a result, the trial justice declined to award injunctive relief, which would have included the removal of electrical lines, water lines, and asphalt paving. In addition, the trial justice denied Ferland's claim that it had acquired a prescriptive easement "over and in [Burke-Tarr's] property by an open notorious and hostile taking of the property by [Ferland's] installation and maintenance of the water line, and asphalt paving over and in the right-of-way described in the 1911 deed." However, the trial justice did award Burke-Tarr $66,706.24 for the fair rental value of the seven and one-half foot strip, "plus the fair rental value of the realty for installation of the waterline, plus the adverse effect on the remainder of Burke-Tarr's fee estate as a result of the installation and use of the waterline which resulted in more noise and congestion ." Because we conclude that the trial justice erred in denying Ferland's claim for a prescriptive easement with regard to the subterranean water line, we vacate the award of monetary damages; however, we affirm the trial justice's decision with respect to the denial of Burke-Tarr's petition for declaratory and injunctive relief. We shall commence our analysis with Burke-Tarr's claim that the trial justice erred in declining to extinguish the easement over the seventeen and one-half foot right-of-way.

Extinguishment of the Easement

In this case, the trial justice declared that the easement that had been created in 1911 to access "a single cottage" had increased demonstrably due to the traffic generated by the residents of the 191 apartment units that were located on the dominant estate. Although the trial justice found that "Rio a casual observer, the right-of-way over the subject property would plainly be mistaken for a public roadway," he nonetheless determined that Burke-Tarr had cooperated with the increased intensity when it entered into the fifteen-year lease, which countenanced widening, paving, and lighting the right-of-way.

On appeal, Burke-Tarr argues that the trial justice erred by refusing to order the extinguishment of the right-of-way, and hence awarded Ferland greater rights than it had acquired through the lease. In addition, Burke-Tarr contends that the trial justice's decision to grant Ferland the right to the increased use ' of the right-of-way, in effect, awarded Ferland a greater interest in Burke-Tarr's property than was granted by the lease. These arguments are incorrect, however, and overlook the simple fact that the easement created in 1911 was an unrestricted grant to the Moduc Club to use the right-of-way in order to access the dominant estate.

The findings of fact by a trial justice sitting without a jury are entitled to great weight and shall not be disturbed on appeal unless the record shows that the findings are clearly wrong or unless the trial justice overlooked or misconceived material evidence on a controlling issue. See Thomas v. Ross, 477 A.2d 950, 953 (R.I.1984)

. After reviewing the record, we are satisfied that even though the trial justice did not overlook any material evidence, he nonetheless erred in interpreting the 1911 easement as intending to access "a single cottage."

In this case, the trial justice analogized the instant situation to Frenning v. Dow, 544 A.2d 145 (R.I.1988), where an easement was created before the widespread use of the automobile and was designed to service over one-hundred acres of farmland in the dominant tenement. Over the years, and through the acquisition of contiguous parcels of land, the size of the dominant tenement increased to 257 acres. Id. at 145. The trial justice in Frenning found that the enhanced parcel led to the increased use of the easement, and consequently, the easement had been extinguished. Id. at 146. We reversed this decision and recognized that courts of equity do not favor the extinguishment of an...