Center Drive-In Theatre, Inc. v. City of Derby

• Decision Date: 18 June 1974
• Docket Number: DRIVE-IN
• Citation: 166 Conn. 460,352 A.2d 304
• Court: Connecticut Supreme Court
• Parties: CENTERTHEATRE, INC. v. CITY OF DERBY et al.

Page 304

352 A.2d 304

166 Conn. 460

CENTER DRIVE-IN THEATRE, INC. v. CITY OF DERBY et al.

Supreme Court of Connecticut.

June 18, 1974.

George J. Jaser, Milford, for appellant (defendant J. M. Rosa Construction Company).

James E. Cohen, Corp. Counsel, Derby, with whom, on the brief, was Foster M. Young, Derby, for appellant (named defendant).

Howard F. Zoarski, New Haven, for appellee (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The plaintiff corporation, Center Drive-In Theatre, Inc., was the owner of a drive-in theater in the city of Derby. In this action for damages the plaintiff claimed that the defendants failed to restore a break in a dike after installing a sewer pipeline within an easement on the plaintiff's land and that they caused other damage to the property. The plaintiff prevailed in a trial to the court and received a judgment of $5700, from which the defendants appealed.

The court found the following facts: ¹ The plaintiff owned approximately 18.3 acres of land which were used for the operation of a drive-in theater in the city of Derby. To the east of this land lies the Naugatuck River. After that river flooded in 1955, the United States Army Corps of Engineers constructed a dike on the plaintiff's property to provide flood control protection. The defendant city of Derby contracted with the defendant J. M. Rosa Construction Company, hereinafter called the defendant contractor, to install sewer pipelines, which in part traversed the plaintiff's property. P. Genovese and Associates, an independent engineering consulting firm, worked for the city of Derby on the sewer project. At the request of P. Genovese and Associates, the defendant contractor assured the plaintiff in a letter dated October 10, 1967, that 'your property will be restored to as good or better when we are finished (sic).' The plaintiff subsequently granted an easement to the defendant city of Derby in a written agreement. In the process of constructing the sewer pipelines and in order to proceed across the Naugatuck River to a pumping station, the defendant contractor breached the dike. The breach was 100 feet long, 60 feet wide and approximately 15 feet high. Part of the earth removed from the dike went into the river and part remained on the plaintiff's property. The breach in the dike was not repaired or replaced by either defendant. The contract drawings furnished by the defendant city of Derby to the defendant contractor required restoration of the dike to its 'existing condition.' The dike was not repaired because the defendant city of Derby told the contractor not to repair it. The city of Derby received a $500 credit from the contractor for its order that the breach in the dike be allowed to remain. The breach in the dike existed from the fall of 1967 until March of 1969, when the plaintiff had it refilled by an independent contractor.

The defendants argue that as the agreement regarding the easement lacks any requirement that the dike be restord after the sewer was constructed, there can be no liability for failing to do so. The basic provisions of the interest granted to the city of Derby are as follows: '(A) permanent easement and right-of-way, including the perpetual right to enter upon the real estate hereinafter described, at any time that . . . (the city of Derby) may see fit, and construct, maintain, and repair sewer pipelines and syphon chambers for the purpose of conveying sewage over, across, through, and under the lands hereinafter described, together with the right to excavate and refill ditches and/or trenches for the location of said sewer pipelines and syphon chambers, and the further right to remove trees, bushes, undergrowth, and other obstructions interfering with the location, construction, and maintenance of said sewer pipelines and syphon chambers.' The easement thereafter describes the plaintiff's land and then states that '(t)he easement and right of way hereby granted covers a strip of land 20 feet in width over and across the above described land . . .. Said easement consisting of a permanent right-of-way and temporary construction easement.' The course of the easement is described in the instrument and is shown in a map on file in the land records office of the city clerk. The permanent easement is described as 'a strip of land not exceeding 7.15 feet each side of the center line of the sewer with the exception of the dosing chamber . . . where the right-of-way would be 12.50 feet each side of the center of the chamber, said width prevailing a total distance of 23 feet centered about the dosing chamber.' The temporary construction easement is described as 'a strip of land not exceeding 20 feet each side of the center line of the sewer and/or dosing chamber.' The point which is the central issue of this appeal, whether the city of Derby was obligated to refill the breach in the dike, is not expressly covered in the instrument.

The owner of land over which an easement has been granted has, by law, all the rights and benefits of ownership consistent with the existence of the easement. American Brass Co. v. Serra, 104 Conn. 139, 150, 132 A. 565; 28 C.J.S. Easements § 91; 61 Am.Jur.2d, Pipelines, § 36; Annot., 28 A.L.R.2d 626, § 5. The owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more. Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396; 25 Am.Jur.2d, Easements and Licenses, § 72; Restatement, 5 Property § 486. Of necessity, the interests of the owner of the easement often conflict with the interest of the owner of the burdened estate. By law, however, each of the parties owes certain duties to the other. The owner of a pipeline easement has been required to repair a breach in a fence caused by construction so as to preserve the enclosure around the servient land and to guarantee the full use and enjoyment of the land to the owner thereof. M. & M. Pipe Line Co. v. Menke,45 S.W.2d 344, 345-346 (Tex.Civ.App.). Where the instrument is silent, the owner of an easement has a duty to make such repairs as are necessary for the owner of the land to have the reasonably use of his estate. 3 Powell, Real Property, 415, p. 514. The owner of an easement may be held liable for damages caused by his negligent use of the easement, and this liability extends to damages to the servient estate. Gager v. Carlson, 146 Conn. 288, 293, 150 A.2d 302; Schwab v. Charles Parker Co., 55 Conn. 370, 372, 11 A. 183; cf. Corvo v. Waterbury, 141 Conn. 719, 725, 109 A.2d 869; Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S.W.2d 331; J. M. Huber Petroleum Co. v. Yake, 121 S.W.2d 670 (Tex.Civ.App.) (liability imposed for damages resulting from failure of easement owner to refill a pipeline trench and for failing to repair fences breached during construction); Kincade v. Mikles, 144 F.2d 784 (8th Cir.) (liability imposed for damages resulting from failure of easement owner to repair fences breached during construction); 61 Am.Jur.2d, Pipelines, § 42. The owner of an easement may be held to have a duty to maintain it where failure to do so would injure the servient estate. 2 Thompson, Real Property (1961 Replacement) § 428, pp. 710-11. In some instances, the owner of the servient estate may repair a right-of-way at the expense of the owner of the easement. Annot., 20 A.L.R.3d 1026.

' The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.' 2 Thompson, op. cit. § 427, p. 699; Baker v. Pierce, 100 Cal.App.2d 224, 226, 223 P.2d 286; Doan v. Allgood, 310 Ill. 381, 384, 141 N.E. 779. In this case, the language of the instrument is broad in scope. The city was entitled to construct pipelines to convey sewage 'over, across, through, and under' the plaintiff's land. Ordinarily when opinions speak of the 'use' of an easement, it arises in right-of-way cases. Thus 'use' frequently involves the amount of traffic over the easement or alterations to the land to make it passable. Here, part of the use to which the defendant city of Derby subjected the plaintiff's land was the removal of a portion of the flood control dike. Under the provisions of the easement, the defendant city could have subjected the plaintiff's land to certain types of more burdensome uses. For example the language of the grant would have permitted laying a pipeline on top of the ground, possibly interfering with the access to some of the plaintiff's land. The defendant city, however, elected to sink the pipeline below ground level. This required breaching the dike. It is clear that the action of the defendant city in leaving the dike breached forced the plaintiff to choose between either repairing the dike or allowing the land to remain exposed to a greater risk of harm from flooding. There is no...