Kelley v. Tomas

Citation66 Conn. App. 146,783 A.2d 1226
Decision Date09 October 2001
Docket Number(AC 19934)
CourtAppellate Court of Connecticut
PartiesJOSEPH KELLEY v. JOSEPH TOMAS ET AL.

Foti, Dranginis and Hennessy, JS. Anthony M. Modugno, with whom was Frank Modugno, for the appellant (plaintiff).

Jeffrey A. Blueweiss, with whom, on the brief, was David J. Robertson, for the appellees (defendants).

Opinion

FOTI, J.

The present appeal involves a boundary dispute between two adjacent landowners. The plaintiff, Joseph Kelley, appeals from the judgment, rendered after a trial to the court, in this action to quiet title to certain real property at 230-232 Main Street, Norwalk. The court found that the defendants, Joseph Tomas and Mary J. Tomas, have an easement over that property.

On appeal, the plaintiff claims that the court improperly (1) failed to find that he is the fee simple owner of the subject property, (2) allowed certain stairs to continue to encroach on his property, (3) granted an injunction against him, (4) found that the defendants had acquired an easement by necessity and by prescription, (5) failed to provide subordinate facts pursuant to General Statutes § 47-31 (f) in support of the judgment and in response to his motions for articulation, (6) conducted an improper ex parte investigation of facts that were disputed at trial, (7) determined that the defendants had acquired a prescriptive easement when the court could not determine the metes and bounds of the easement with reasonable certainty, (8) found that the defendants had acquired an easement by prescription, (9) found that the defendants had acquired an easement by necessity, (10) allowed the defendants to introduce evidence that contradicted their answer to the complaint and their answers to the plaintiffs requests for admissions, and to introduce evidence that the defendants had failed to provide in response to his interrogatories, (11) denied his motion for default for the defendants' alleged failure to comply with his discovery requests, (12) granted the defendants' motion to amend their answer, (13) failed to grant him a permanent, mandatory injunction that would have forced the defendants to remove the encroachment on his property and restore it to its original condition, and (14) allowed the defendants to amend their response to his requests for admissions. We affirm the judgment of the trial court.

The court reasonably could have found the following facts that are relevant to our resolution of the plaintiffs appeal. The plaintiff owns certain real property on which a building is located at 230-232 Main Street. The defendants own the adjacent premises at 244 Main Street to the north on which a building is located. The owners of the respective properties rent the apartments in the buildings to individuals. The plaintiffs building has six apartments, and the defendants' building has four apartments.

The defendants' property is landlocked, and parking is not permitted on Main Street in front of the premises. In 1973, the defendants took title to 244 Main Street and, ever since, they and their tenants have always and without interruption parked their vehicles behind the building. To park their cars, however, the defendants and their tenants have had to cross over the rear of the plaintiffs property at 230-232 Main Street. The defendants never asked for or received permission to do so. The defendants believed that they had the right to use the plaintiffs property for that purpose. The plaintiff was fully aware that the defendants and their tenants crossed over his property on a regular basis to park their cars and observed them doing so. The plaintiff never told the defendants to stop crossing over his property for ingress and egress. Without the right to cross the plaintiffs property, there would be no place for the defendants, their tenants or others to access the defendants' property by car.

After parking their cars, the defendants and their tenants, as well as the plaintiffs tenants, would climb a set of stairs that were between 230-232 Main Street and 240 Main Street. Originally, there were two sets of stairs between the two buildings, one used by the plaintiff and his tenants, the other used by the defendants and their tenants. The stairs were used for people to walk between Main Street and the parking lots in the rear of each of the respective properties.

The stairs had been in existence for many years, and the steps were cracked and uneven. In 1990, as part of a renovation of their apartment building, the defendants tore down and removed both sets of stairs. The defendants did not request permission from the plaintiff prior to removing the stairs. The defendants replaced the old stairs with one new set by replacing the steps, landings and railing. The new stairs encroach onto the plaintiffs property; however, the stairs are used by both the plaintiff and the defendants as well as each parties' tenants.

Approximately five years after the stairs were constructed, the plaintiff filed a five count verified complaint against the defendants. The first count sought to quiet title to the property at 230-232 Main Street. The second count alleged trespass against the defendants for unlawfully entering the plaintiffs land without permission, and removing the stairs and railings that were attached to the plaintiffs building. The complaint further alleged that the defendants had constructed the stairs on the adjoining boundary line, thereby impermissibly encroaching on the plaintiffs property. The third count sought an injunction requiring the defendants to restore the plaintiffs property to its original condition. The fourth count alleged continuous trespass on the part of the defendants, their tenants or both. Finally, the fifth count requested an injunction preventing the defendants and others from entering the plaintiffs property without permission.

The defendants filed an answer and special defenses to the plaintiffs complaint. The defendants' first special defense asserted laches on the part of the plaintiff. The defendants' second special defense asserted that they had a prescriptive easement over the plaintiffs land. The defendants' third special defense alleged equitable estoppel against the plaintiff, and the fourth special defense alleged that the defendants had acquired an easement by implication over the plaintiffs land.

After trial, the court found that the plaintiff is the owner in fee simple of a parcel at 230-232 Main Street. The court found that the defendants had an easement by prescription over the property. On the basis of the evidence presented at trial, the court could not specify the exact metes and bounds of the easement. The court also found that the defendants had acquired an easement by necessity over the plaintiffs property.

The court further found that the defendants had trespassed onto the plaintiffs property when they removed the original set of stairs. The court ordered the defendants to pay the plaintiff $100 for the trespass. The court also found that in 1990, the defendants replaced the old stairs with new ones that encroach on the plaintiffs property. The court ordered that neither the plaintiff nor the defendants are to interfere with the other's use of the steps, landings and railing located between the two buildings. The court also ordered that the plaintiff is not to interfere with the defendants' use of the rear of the plaintiffs property for ingress and egress. Finally, the court ordered that the defendants are to make reasonable use of their easement over the plaintiffs land only for the purpose of ingress and egress. Additional facts will be set forth as they become necessary to our resolution of the plaintiffs claims.

I

The plaintiff first claims that the court improperly failed to find that he is the fee simple owner of the subject property. The plaintiff claims that the court improperly concluded that he is the fee simple owner of the premises at 230-232 Main Street while at the same time concluding that his property is subject to an easement. Specifically, the plaintiff claims that the court could not properly have found a fee simple ownership when it also found that the property was subject to an easement. We disagree.

The plaintiffs claim raises a question of law, and, therefore, our review is plenary. See Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 172, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). "An easement is a property right in a person or group of persons to use the land of another for a special purpose not inconsistent with the general property right in the owner of the land.... J. Cribbet, Property Law (1962), p. 16." (Emphasis in original; internal quotation marks omitted.) Public Storage, Inc. v. Eliot Street Ltd. Partnership, 20 Conn. App. 380, 386 n.4, 567 A.2d 389 (1989). "An easement is always distinct from the right to occupy and enjoy the land itself. It gives no title to the land on which it is imposed, and confers no right to participate in the profits arising therefrom. Thus, a distinguishing feature of an easement is the absence of all right to participate in the profits of the soil charged with it.

"An easement is neither an estate in land nor the `land' itself. It is, however, property or an interest in land. Thus, an easement is real property. It is an incorporeal right or hereditament to which property is rendered subject." (Emphasis added.) 25 Am. Jur. 2d 570-71, Easements and Licenses § 2 (1996). This court has implicitly recognized that a property owner retains an interest in fee regardless of the fact that the property is burdened by an easement. See Mandes v. Godiksen, 57 Conn. App. 79, 81, 747 A.2d 47 ("[t]he plaintiffs appeal solely concerns easements over the plaintiffs land. There is no dispute as to the plaintiffs title in fee simple to his deeded parcels"), cert. denied, 253 Conn. 915, 754 A.2d 164 (2000). Indeed, "...

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