Foldeak v. Incerto

Decision Date05 June 1970
Docket NumberNo. CV-1-688-15535,CV-1-688-15535
Citation6 Conn.Cir.Ct. 416,274 A.2d 724
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesFrederick J. FOLDEAK et al. v. Frank INCERTO et al.

Francis J. DiScala, Norwalk, for appellants (defendants).

Thomas A. Flaherty, Norwalk, for appellees (plaintiffs).


In their complaint the plaintiffs set forth two counts and rely on General Statutes §§ 52-480 and 52-570. The second count will be considered under part II and alleges a spite fence. In their first count they allege that they owned and occupied certain property, with a dwelling thereon, located in the rear of the defendants' property and dwelling, the latter property fronting on William Street in the town of Norwalk, a public highway, and that ingress and egress to and from the plaintiffs' property were by and over a driveway extending from William Street to their property. This driveway was located, by mutual agreement, partly on the property of the defendants and partly on a fifteen-foot strip, owned by the plaintiffs, extending from the plaintiffs' property to William Street and paralleling the easterly side of the defendants' property. The plaintiffs claim that the defendants blocked their use of the driveway by excavating a trench across it. The plaintiffs sought injunctive relief and damages under this count. The defendants answered by way of a general denial and, judgment having been rendered for the plaintiffs after a court trial, the defendants have appealed, assigning error in the finding, in the court's conclusions, and in the court's summary.

We first consider the assignment of errors directed to the court's refusal to correct the finding as it relates to both counts. So far as it sets forth facts, the finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. Practice Book § 435. The defendants have not established any failure by the trial court to include in its finding any fact which was material and was admitted or undisputed. Drazen Lumber Co. v. Casner, 156 Conn. 401, 403, 242 A.2d 754. Other facts sought to be deleted are fully supported by the evidence. The testimony was highly conflicting, and in such a situation the trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534. We find nothing in the appeal which requires us to disturb the finding as it relates to the first count and the second count.


The court found the following facts pertinent to the first count. On or about September 19, 1963, the plaintiffs entered into a contract with Ulysses H. Cerulli for the purchase of a lot, and the dwelling thereon, situated in the rear of the defendants' home, the latter fronting on William Street. Both lots were originally owned by the You-See Land Company, Inc., in which corporation Ulysses H. Cerulli and the defendant Frank Incerto were principals. Both Incerto and Cerulli had purchased their respective lots from the corporation. On a map of the company's land, the defendants' lot was designated as lot 4, and the lot purchased by the plaintiffs from Cerulli was designated as lot 3. It appears from the map that a fifteen-foot strip, designated as an accessway, connected lot 3 with William Street. This strip was a part of lot 3 as conveyed to the plaintiffs, and the strip paralleled and adjoined the easterly boundary of the defendants' property. The easterly side of the strip was the boundary line of adjoining property owners; that is, the strip, approximately 135 feet in length, was bounded on the west by the defendants and on the east by others. By contract with the plaintiffs, Cerulli was obligated, at his own cost, to construct a proposed crushed stone driveway over the strip, thus providing a driveway from William Street to the plaintiffs' proeprty. Shortly before Cerulli sold lot 3 to the plaintiffs, he had constructed a dwelling house and garage on the property. During the construction of the house Cerulli had, in going to and from the construction work, traveled or passed over and along part of the strip and also over the property of the defendants which paralleled the strip. Such a route by Cerulli was with the acquiescence of the defendants. Shortly after October 10, 1963, the closing date for conveyance by Cerulli to the plaintiffs, the plaintiffs and the defendants, together with Cerulli, met on the property for the purpose of discussing the exact location of a driveway to the plaintiffs' property. As a result of the discussion, it was orally agreed by the parties that Cerulli would instal, at no expense to any party, a crushed stone driveway twelve feet in width extending northerly from William Street to the plaintiffs' property, the driveway to be located partly on the property of the defendants and partly on the fifteen-foot strip of the plaintiffs. It, in effect, followed the route that Cerulli had used during the construction of the plaintiffs' house. Such a driveway would benefit both the defendants and the plaintiffs, for it was agreed that a single driveway would be more attractive than two driveways placed side by side, particularly since there was a third driveway a short distance easterly serving the adjoining owner. Furthermore, a single driveway partly on both properties alleviated a backup situation for the defendants in utilizing their garage. The common use of the driveway was to continue for an indefinite period.

Thereafter a crushed stone driveway was installed by Cerulli at his expense. From the time of the agreement of the parties until June 23, 1968, the driveway was used jointly by the parties. In the fall of 1964, by agreement of the parties, the crushed stone driveway was blacktopped, and the cost was shared equally by the parties. The cost of maintenance was equally shared, including repairing and snow removal. The blacktop was installed pursuant to instructions given the contractor by Frank Incerto. On or about June 23, 1968, the defendants, without the plaintiffs' consent, excavated a trench across the driveway on their rear property line, thereby preventing the use of the driveway by the plaintiffs. As a result, the plaintiffs were obligated to circumvent the driveway at the point of excavation and travel over a grassed area and between trees on their property to reach their garage. During this period the defendants called the Norwalk police department and complained about the plaintiffs' use of the driveway, and an investigation resulted.

The court concluded that the parties had reached a valid and binding agreement relative to the construction and maintenance of a driveway over an agreed easement extending in part across the defendants' property. The plaintiffs acted in reliance on the oral agreement for an easement and expended moneys for the improvement and maintenance of the driveway. The plaintiffs entertained a sincere belief that the parties had entered into a valid and binding agreement for an easement over the defendants' premises. The plaintiffs' partial performance took the agreement out of the Statute of Frauds, and estoppel came into operation. Use of the common driveway was of substantial value to the plaintiffs' premises and likewise would have value for future owners. It was the intention of the parties to create a permanent easement in favor of the plaintiffs across the defendants' premises. The plaintiffs' easement runs with the land, including all rights incident or necessary to its proper enjoyment, and constitutes a permanent right or claim of the plaintiffs and their heirs, successors and assigns. Use of the easement by the plaintiffs was not subject to interference by the defendants or revocation, termination or modification, directly or indirectly, by the unilateral acts of the defendants in 1968, or at any time thereafter. The plaintiffs, the court further concluded, are entitled to injunctive relief.

The defendants have challenged the court's conclusions. In addition, a summary was set forth by the trial court which we treat as a part of the court's conclusions and which the defendants have challenged. The summary sets forth the injunctive relief granted by the court, hereinafter reviewed. The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law. Schurgast v. Schumann, 156 Conn. 471, 478, 242 A.2d 695. The defendants contend that the court erred in its application of the law in that it found an easement existed. In this respect they claim (1) there was no writing; (2) fifteen years had not elapsed; (3) the plaintiffs had not abandoned their own right of way; and (4) there was no agreement with respect to an easement.

The general rule is that an easement, being an interest in land, may be created only by grant, express or implied, or by prescription, and cannot be created by parol. 'Despite the general rule, however, it has been recognized by the courts that an easement may exist by virtue of an estoppel, or an agreement.' 25 Am.Jur.2d 430, Easements and Licenses, § 17. The court concluded that in the instant case an easement arose by way of estoppel. 'Estoppel rests upon the misleading conduct of one party to the prejudice of the other.' Franke v. Franke, 140 Conn. 133, 139, 98 A.2d 804, 807; Tradesmens National Bank of New Haven v. Minor, 122 Conn. 419, 424, 190 A. 270, and cases cited. An easement by estoppel arises when a grantor voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that such servitude is permanent and in reliance upon that belief either does something he would not otherwise have done or refrains from doing something that he would otherwise have done. United States v. Thompson, D.C., 272 F.Supp. 774, 784. 'In case there is an attempted...

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  • State v. Anonymous (1971-4)
    • United States
    • Connecticut Circuit Court
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  • Walton v. Town of New Hartford
    • United States
    • Connecticut Supreme Court
    • July 28, 1992
    ... ... 229, 231 n. 3, 504 A.2d 550 (1986) ... 10 The two cases were Birdsey v. Kosienski, 140 Conn. 403, 101 A.2d 274 (1953), and Foldeak v. Incerto, 6 Conn.Cir.Ct. 416, 274 A.2d 724 (1970). In Birdsey v. Kosienski, supra, 140 Conn. at 412, 101 A.2d 274, we held that an oral easement ... ...
  • Mellon v. Century Cable Management Corp.
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    ... ... called to our attention the only reported case in which any court in the state of Connecticut has ever considered an easement by estoppel, Foldeak v. Incerto, 6 Conn. Cir. Ct. 416, 274 A.2d 724, cert. denied, 160 Conn. 567, 269 A.2d 293 (1970). Even if Foldeak were binding authority upon this ... ...
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    • December 23, 1983
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