Jordan v. Biller

• Decision Date: 24 March 2017
• Docket Number: MMXCV136013438
• Court: Connecticut Superior Court
• Parties: Russell Jordan et al. v. Jon D. Biller et al

Russell Jordan et al. v. Jon D. Biller et al

No. MMXCV136013438

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

March 24, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Julia L. Aurigemma, J.

The plaintiffs seek damages in relation to their real property after the defendants caused a large number of trees to be removed from that real property. The defendants claim that they had a valid view easement which permitted the removal of the trees. In a counterclaim the defendants seek an injunction against the plaintiffs, a judgment determining the rights of the parties in the License and View Easement and an order quieting title regarding said easement.

After trial the court finds the following facts. The plaintiffs Russell Jordan and Lorraine Jorsey, inherited 2 Cove Road East Haddam, Connecticut via a quitclaim deed from the Estate of Mary Campbell, their mother. That deed is dated December 22, 2010 and recorded at Volume 879, Page 85 of the East Haddam Land Records (" 2 Cove Road"). The 2 Cove Road property was part of a 101-acre parcel of land in East Haddam owned by Paul and Mary Campbell, which had extensive frontage on Salmon Cove.

The Campbells lived in a ranch house at 6 Cove Road on the 101-acre parcel of property. In 1986 Paul and Mary Campbell sold the house with 89 acres of that property to Damon and Brian Navarro, who were real estate developers. During the negotiations to purchase the property from the Campbells Damon and Brian Navarro asked the Campbells to grant them a view easement over the land which the Campbells retained to the Salmon Cove from the house at 6 Cove Road. Richard Shea Jr., the Navarro's counsel, requested language in the purchase and sale contract for the property, which provided that the view easement would run with the property and be binding upon the sellers' (Campbells') heirs, successors and assigns. The Campbells refused to grant a view easement which ran with the property, or bound their successors and assigns. The sales contract, or Bond for Deed, dated June 23, 1986 stated: " This right is personal to the buyers and the spouses of the buyers."

The Campbells conveyed the property via warranty deed to Damon and Brian Navarro on September 25, 1986. At the time the parties executed a document entitled LICENSE AND VIEW EASEMENT . which provides, in pertinent part:

THIS AGREEMENT is made and entered into this 25th day of September 1986, by and between PAUL J. CAMPBELL and MARY E. CAMPBELL, both of the Town of Punta Gorda, County of Charlotte and State of Florida, hereinafter referred to as " SELLERS, " or " OWNERS" and DAMON NAVARRO, of the Town of Marlborough, County of Hartford and State of Connecticut, and BRIAN NAVARRO, of the Town of Hartford, County of Hartford and State of Connecticut, hereinafter referred to as the " BUYERS" or " LICENSEES."

* * * *

2. VIEW EASEMENT : SELLERS also hereby grant to the BUYERS the right to thin and trim the trees on the land retained by the SELLERS lying west of the land purchased by the BUYERS to permit a view of Salmon Cove from the ranch house on the land purchased by the BUYERS. The area in which the BUYERS shall have such right is on that portion of SELLERS' retained land which lies between the extension westerly of the northerly and southerly boundary lines of the meadow as the same is now constituted on the land purchased by the BUYERS, which meadow lies to the west of said ranch house and is approximately two hundred fifty (250) feet in width from its northerly to its southerly boundary lines. The BUYERS hereby agree to bear the total cost of such tree trimming and tree removal, to perform or have performed the work in a good and workmanlike manner, and to remove or have removed any wood resulting from the thinning and/or trimming from the SELLERS' land immediately after the said thinning and/or trimming. It is strictly agreed and understood, however, that no thinning and/or trimming shall be performed without the agreement of the SELLERS, which agreement shall not be unreasonably withheld .

Emphasis added.

The License and View Easement set forth above was recorded in the East Haddam Land Records in Volume 219, Page 201.

Damon and Brian Navarro subdivided the property as part of a subdivision known as Scoville Landing. In 1989 Damon and Brian Navarro quitclaimed a thirty-acre portion of the property identified as Lot 19 of Scoville Landing to Anne Navarro. In 1992 Anne Navarro sold that property to Rolf H. Olson and Sioux S. Olson by a warranty deed. Schedule A to the warranty deed contained the property description which referred to the property as 6 Cove Road and included the following language after the property description: " Together with any and all assignable rights of Grantor to a license and view easement from Paul J. Campbell and Mary E. Campbell to Damon Navarro and Brian Navarro dated September 25, 1986 and recorded in the East Haddam Land Records in Volume 219, Page 201."

In 2012 Sioux Olson sold the 6 Cove Road property to the defendants, Jon D. Biller and Jacqueline Biller via warranty deed dated August 1, 2012. Schedule A to the warranty deed contained the following language after the property description: " Together with any and all assignable rights of Anne W. Navarro to a license and view easement from Paul J. Campbell and Mary E. Campbell to Damon Navarro and Brian Navarro date September 25, 1986 and recorded in Volume 219 at Page 201 of the East Haddam Land Records."

Jon Biller, who is an attorney, testified that the view easement was crucial to his decision to purchase the 6 Cove Road property. He relied on the realtor's representation that the view easement was valid. Prior to purchasing the property, Attorney Biller never obtained any legal opinion that the easement was valid and never even read the License and View Easement.

There was no evidence that at any time between 1986 and the date on which the Billers purchased the 6 Cove Road property that any other owner of that property had thinned or cut any trees on the 2 Cove Road property, now owned by the plaintiffs.

The plaintiffs had been trying to sell their property since they inherited it from their mother. They considered that the property had three unique characteristics: over 1500 feet of direct water front, privacy from the surrounding old forest and a deep water area in front of the property at which large ocean-going vessels could dock.

The plaintiffs initially offered the property for sale for $3.5 million and then for $2.8 million. The plaintiffs received no offers to purchase the property at either price.

In the late fall of 2012, the defendants removed approximately 80 trees from the plaintiffs' property in the area of the direct sight line from the house at 6 Cove Road to the Salmon Cove. Approximately 50 of the felled trees had trunk diameters of more than 6 inches. The area from which the trees were removed is approximately 100 feet by 225 feet. Prior to the removal of the trees, the plaintiffs' house was surrounded by 70-80-year-old forest.

The defendants did not request permission from the plaintiffs prior to cutting down the trees. Jon Biller testified that he had not even read the License and View Easement prior to cutting down all the trees on the plaintiffs' property. He admitted that he did not realize that that document required the person cutting down trees to obtain permission before doing so. Since the plaintiffs did not reside at the 2 Cove Road property, they were not aware that the trees had been cut down until several months later.

Joseph Mendler, a real estate developer based in New York City, had met Russell Jordan through an antique car club to which they both belonged. Mr. Mendler was looking to acquire property on the Connecticut River that he could use as a vacation home. Mr. Mendler testified that in the summer of 2012 he saw the plaintiff's property before the trees were cut down. He found that it was unique among the many riverfront properties he had evaluated. He was looking for riverfront property large enough to build a second home for use by his daughters. He testified that the dense woods provided much privacy for the existing house and the house he wished to build.

Mr. Mendler testified that he and Mr. Jordan discussed a price of $2.2 million for the property in 2012. Mr. Mendler needed his wife to see the property before he made an offer. When he returned in 2013 he saw the area where the trees had been cut. The property no longer afforded the privacy which he wanted for a family compound. He testified that he offered Mr. Jordan $1, 000, 000 for the property after the trees were cut down. There was no evidence that this offer or the $2.2 million dollar offer were in writing. In any event, Mr. Jordan did not accept the later offer.

The plaintiffs introduced the testimony of Michael DiFranco, a licensed arborist. Mr. DiFranco was engaged to provide an opinion as to the cost to replace the trees that had been cut. His report was admitted in evidence. It described his observations of the property after the trees had been cut as follows:

I observed a large flat cut area on the property located on a beautiful sweeping slope overlooking the Connecticut River below . . . During the initial walk through, I saw a large number of various sized and species stumps which most were cut down to the basal flare level of the previously existing trees. There also remained a substantial amount of brush wood, debris and trees strewn about the site. The affected area was later measured by me to be approximately 100 feet wide by approximately 225 feet long . . .

On May 13, 2014, I returned to the site with an assistant, Michael P. DiFranco Jr. for the purpose of collecting data,

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