Kelly v. Ivler

• Citation: 450 A.2d 817,187 Conn. 31
• Court: Supreme Court of Connecticut
• Decision Date: 04 May 1982
• Parties: Daniel M. KELLY et al. v. William M. IVLER et al.

Page 817

450 A.2d 817

187 Conn. 31

Daniel M. KELLY et al. v. William M. IVLER et al.

Supreme Court of Connecticut.

Argued Feb. 10, 1982.

Decided May 4, 1982.

James F. Simon, Stamford, with whom, on the brief, was Franklin Melzer, Stamford, for appellees-appellants (plaintiffs).

William M. Ivler, Stamford, for appellants-appellees (defendants).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

This matter arises out of a dispute over the use of and interference with certain easements existing across both parties' properties in Stamford. The plaintiffs brought an action seeking damages and an injunction in an attempt to force the defendants to remove certain improvements from an easement which runs across the southerly portion of the defendants' property and to enjoin them from interfering with their use of that easement. The defendants counterclaimed and alleged that the plaintiffs had no easement across the defendants' property and also that the plaintiffs have interfered with easements of the defendants which run across the westerly and southerly portions of the plaintiffs' property. The trial court found certain issues for both parties from which the defendants appealed and the plaintiffs cross appealed.

The plaintiffs are owners of two parcels of land, each with a house situated thereon, located in the Shippan area of Stamford. (See Appendix.) Each parcel fronts on a 29.58 foot strip of land, owned in fee by the plaintiffs, which extends northerly from Ocean Drive East and which has been designated as the "right of way." The parties and the trial court have designated these parcels as Lots 1 and 2 with Lot 1 being to the north of Lot 2. Directly to the east of Lot 1 and abutting the same is another lot with a house situated thereon, designated as Lot 3, which the defendants own. Lot 3 is bounded on the east by Long Island Sound. Neither of the plaintiffs' properties has any direct access to Long Island Sound. The plaintiffs do, however, claim an easement, reserved in a deed by a predecessor in title, of six feet in width along the southerly boundary of the defendants' Lot 3 to the waters of Long Island Sound (hereinafter "the Long Island Sound easement").

The defendants, on the other hand, have no direct access to Ocean Drive East or to the plaintiffs' 29.58 foot right of way which extends to its north. The plaintiffs concede, however, that the defendants' access to Ocean Drive East is by way of the 29.58 foot right of way described above. Also conceded is the fact that access to the defendants' property from the 29.58 foot right of way is by way of an easement, nine feet in width, running from west to east along the southerly boundary of the plaintiffs' Lot 2 ("the nine foot easement") and by another connecting easement, six feet in width, running from south to north along the easterly boundary of the same lot ("the six foot easement"). Both parties agree that the six foot and nine foot easements, as they exist today, are represented by a driveway leading from Ocean Drive East to the defendants' house on Lot 3. Additionally, the defendants have title to a parking space located within the 29.58 foot right of way, the use of which is in dispute, as well as the right to park other vehicles within the right of way.

The defendants have erected a fence along the southerly boundary of their property allegedly encroaching upon the plaintiffs' Long Island Sound easement. The defendants have installed a catch basin at the westerly boundary of that easement and, in the process, removed a step from a stone stairway which had previously existed. The defendants also installed drainage pipes which empty into that easement thereby changing the flow of surface water on their property. This has caused excess water to flow into the Long Island Sound easement greatly increasing the erosion thereon. Within the nine and six foot easements, the defendants have installed, and the plaintiffs have removed, mushroom-type lights, apparently to make the driveway safer for nighttime travel. The plaintiffs, meanwhile, have built a speed bump in the nine foot easement and have placed cement blocks along the perimeter of the defendants' parking space located in the 29.58 foot right of way.

The trial court held that the plaintiffs had established that the Long Island Sound easement was reserved in a deed by a predecessor in title and that it was permanent and ran with the land in favor of the plaintiffs' properties. ¹ The court ordered the removal of the drainage pipes which emptied into that easement because they interfered with and impaired the plaintiffs' use of that easement. The court also ordered the defendants to pay $500 in damages to the plaintiffs to cover the cost of the damages sustained in the Long Island Sound easement. The court additionally found, however, that the defendants' fence was only a slight encroachment which did not interfere with the plaintiffs' use of the Long Island Sound easement. As to the six and nine foot easements, the court found that the installed lighting was consistent with the use of the easements and that the speed bump was a nuisance and must be removed. The court also found that the plaintiffs' placing of cement blocks along the perimeter of the defendants' parking space interfered with the defendants' ingress and egress from their vehicle and ordered them removed. Finally, apparently in response to a matter which was raised at trial, the court stated that "[a]s to the plaintiffs' use of the land between the mean high and mean low water marks, there can be no dispute. See Conn. v. Knowles-Lombard Co., 122 Conn. 263, 265 [188 A.2d 275 (1936) ]."

The defendants have appealed and claim that the court erred (1) in holding that the plaintiffs have a permanent easement by reservation to Long Island Sound across their property, and (2) in holding that the plaintiffs were entitled to $500 in damages. The plaintiffs have cross appealed and claim that the court erred (1) in holding that the defendants' fence does not interfere with the plaintiffs' use of the Long Island Sound easement; (2) in ordering the plaintiffs to remove the cement blocks from the perimeter of the defendants' parking space within the 29.58 foot right of way; and (3) in not expressly stating that the defendants could not exclude the plaintiffs from using the beach area between the mean high and mean low water marks because said area belongs to the public. We will first address the defendants' claims of error.

I

To comprehend fully the defendants' first argument, a brief history of these pieces of property must be set out. Prior to 1916, Theodore V. Ketcham owned each of the three parcels of land now belonging to the parties along with a fourth parcel (Lot 4) which is directly to the south of the defendants' property and which also has the Long Island Sound as its easterly border. In 1916, Theodore conveyed Lot 1 to his son, Stuart Ketcham, while retaining Lots 2, 3 and 4. In 1929, Theodore simultaneously conveyed Lot 2 to Stuart and Lot 3 to his daughter, Marion MacKenzie. At the same time, Marion conveyed to Stuart, by quitclaim deed from the land about to be conveyed to her, the easement leading to Long Island Sound. The quitclaim deed described the boundaries and location of the easement and also provided: "Said right of way is granted for the benefit of any [sic] appurtenant to any and all portions of the land about to be conveyed to the grantee [Stuart] by Theodore V. Ketcham and the land [Lot 1] now owned by the grantee lying to the north of the land so to be conveyed to the grantee by the said Theodore V. Ketcham.

"To have and to hold the premises, with all the privileges and appurtenances, unto said releasee [Stuart] his heirs and assigns forever, so that neither I [Marion] the said releasor nor my heirs, nor any person under me or them shall hereafter have any claim, right or title in or to the premises, or any part thereof, but therefrom I am and they are by these presents forever barred and secluded except my fee simple ownership thereof." The defendants have conceded, and correctly so, that this 1929 deed created and granted a permanent easement (i.e., "the Long Island Sound easement") to the owners of Lots 1 and 2.

The situation remained unchanged until 1953 when two transactions occurred. On April 24, Stuart quitclaimed his interest in Lot 3 for one dollar to Marion. One minute later, Marion conveyed her entire interest in Lot 3 to Orestes LaPolla by warranty deed. ² In the April 24, 1953 quitclaim deed from Stuart to Marion, the following appeared: "reserving, however, to me the said releasor [Stuart] as appurtenant to my other land shown on said map a right of way and easement of use for any and all purposes in, over, and upon a strip of land six (6) feet in width designated as 'Right of Way' ... and lying along the southerly boundary line of [Lot 3]." The resolution of this first issue turns on the interpretation accorded to this reservation clause. The plaintiffs became the owners of Lot 1 in 1959 and of Lot 2 in 1960. The defendants became the owners of Lot 3 in 1976 after the property had changed hands twice in the interim. ³ Stuart died in 1955.

The defendants claim that the above quoted language from the 1953 quitclaim deed operated to convert the undisputed permanent Long Island Sound easement, granted in the 1929 deed, into a mere personal right of way in Stuart which terminated with his death in 1955. The defendants point out that since there were no words of limitation such as "to my heirs and assigns," the easement reserved was personal to the grantor and, therefore, the plaintiffs have no right to use the Long Island Sound easement running along the southerly portion of the defendants' property. Additionally, the defendants allege that the "surrounding circumstances" existing at the time the 1953 deed was executed do not...