Kuras v. Kope

• Decision Date: 24 November 1987
• Docket Number: Nos. 13107,13108,s. 13107
• Citation: 533 A.2d 1202,205 Conn. 332
• Court: Connecticut Supreme Court
• Parties: , 79 A.L.R.4th 585 Chester A. KURAS et al. v. Walter R. KOPE et al. Walter R. KOPE et al. v. Chester A. KURAS et al.

Page 1202

533 A.2d 1202

205 Conn. 332, 79 A.L.R.4th 585

Chester A. KURAS et al. v.Walter R. KOPE et al.

Walter R. KOPE et al. v.Chester A. KURAS et al.

Nos. 13107, 13108.

Supreme Court of Connecticut.

Argued Oct. 2, 1987.

Decided Nov. 24, 1987.

Thomas P. Arvantely, Enfield, for appellants(defendants in the first case, plaintiffs in the second case).

Richard P. Weinstein, West Hartford, for appellees(plaintiffs in the first case, defendants in the second case).

Before HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

These appeals involve the disputes concerning an easement by prescription in favor of Walter and Helen Kope over a right-of-way, approximately 1900 feet long, on real property in Suffield owned by Chester and Sarah Kuras.A Superior Court judgment in 1982¹ decreed that the Kopes' predecessors in title, Ara and Martha Dildilian, had established an easement by prescription over a dirt road on the Kurases' property and in doing so, it enjoined the Kurases from interfering with the Kopes' right to use the right-of-way.In 1984, the Kurases brought an action against the Kopes in which they sought a declaratory judgment defining the width, scope and nature of the improvements to the easement that the Kopes could make, injunctive relief restraining the Kopes from expanding, improving or broadening the scope of the easement, monetary damages and other relief.Shortly thereafter the Kopes instituted an action against the Kurases seeking injunctive relief, monetary relief and other equitable relief for their alleged interference with the Kopes' use of the right-of-way.Both cases were tried together in the trial court, O'Neill, J., and argued together in this court.

The Kuras parcel is farm property located on the southerly side of Mountain Road, a town highway, in Suffield.The Kope parcel, which is 30.53 acres, abuts the southerly side of the Kuras parcel.The Kope parcel has no frontage on any highway but it does have access to Mountain Road by virtue of the right-of-way in dispute.The Kopes purchased this property in 1983 after the 1982Superior Court judgment had established the right-of-way in the Dildilians and "their heirs and assigns."The court's, Bernstein, J., memorandum of decision in 1982 discloses, inter alia, that the Whipples purchased the dominant property (now owned by the Kopes) in 1925, that the Whipples constructed a "dwelling" on it shortly thereafter, that the Whipples sold to the Dildilians in 1946 and that "[i]n all the years that the Whipples and Dildilians owned it, no one, including the neighbors and defendants[the Kurases], questioned their right to use the road."²That memorandum also noted that when the bridge over the stream that crossed the right-of-way as it entered the Kopes' parcel "washed out the [Dildilians] re-planked it."When the Kurases fenced off the right-of-way with a gate "occasionally to fence in his cattle he[Chester Kuras] notified [the Dildilians] so that they would in no way be inconvenienced."

The trial court, O'Neill, J., opined that the 1982 judgment found that the right-of-way was a "dirt road" and that it was subject to "flood."It also noted that the 1982court"specifically found that the road 'was never much wider than a common wagon backroad subsequently made accessible by auto; and it was always subject to climatic conditions.' "The trial court, O'Neill, J., pointed out that the 1982court's "ultimate finding was that Kopes' predecessors in title 'their heirs, and assigns have a right of way over the land of ... [Kuras] along the path indicated in ... [a] survey done by W.E. Savage, Jr., Land Surveyor ... [which was in evidence in the present trial].' "The "path" in the Savage survey was, the trial court said, shown by dotted lines "clearly not drawn to scale" with the "path" appearing at its "widest" to be 25 feet and at its "narrowest," about six feet.The trial court, O'Neill, J., rejected the Savage survey and used that of Charles E. Davis, a licensed surveyor, who testified at the trial.In doing so, the trial court found that the right-of-way was "but 10 feet" as shown on the Davis survey and not "up to 20 feet" as the Kopes claimed.It recognized that the Kopes had obtained a variance ³ from the Suffield zoning board of appeals allowing them to construct a year-round residence on their parcel and that that variance was required because the Kopes parcel had no frontage on Mountain Road.That court determined that the zoning board of appeals had "concluded" that the Kopes' right-of-way across the Kuras parcel was "adequate for the granting of the variance" to which no conditions had been attached.

The trial court, O'Neill, J., viewed the property in March, 1986, traversing it in part in a four-wheel drive vehicle and in part on foot.Running south-southeast on the westerly side of the "right-of-way area for a considerable distance is a ditch."The land to the west of the "right-of-way area" is almost uniformly higher than the "right-of-way area," whereas the land to the east of the "right-of-way area" is almost uniformly lower than the "right-of-way area."The right-of-way is about 70 percent to 80 percent grass or weeds and is crowned in the middle "in large part."There are tracks that are 5 to 5 1/2 feet apart within the right-of-way and there are many potholes in the tracks with some of them being 12 to 15 inches deep.Moreover, even disregarding the potholes, "there are certain stretches where the tracks are as much as 10 to 15 inches lower than the crown of the right-of-way."In certain places, the distance between the westerly upslope and the easterly downslope or between an old tree or large rock on one side and a drop-off or upslope on the other side is only 10 to 12 feet.There is a "dump"⁴ area along one of the narrow stretches of the right-of-way and in that stretch the Kopes had recently deposited some sand and stone for a distance of less than 100 feet.With this exception, no gravel, processed stone or any other material has been added to the right-of-way.

Although the Kurases maintain fencing parallel to a considerable portion of the right-of-way, that fencing, as it presently exists, is not a source of obstruction to the use of the right-of-way.Kuras had maintained a large water tank on the westerly side of the right-of-way and a pipe from that tank, running across the road to the east, had been removed at the time the court viewed the area.In the "northerly portions" of the right-of-way, the Kurases have a pole gate from which they have removed the poles.

There is a stream that runs roughly east and west across the right-of-way a few hundred feet south of the northerly terminus of the right-of-way.The northerly terminus is the terminus nearest Mountain Road.In order to cross this stream, a person, animal or vehicle must "ford" it and the drop from the bank to the low point in that ford is not less than two feet.

Near the southerly terminus of the right-of-way, about where the Kopes' parcel is situated, there is another stream that once had a wooden bridge across it, but the wooden crossing members of the bridge are "almost totally gone."The stone abutments that supported the crossing members of this bridge are still present "and appear capable, with some tidying, of supporting new crossing members."

Further, the trial court determined that "the right-of-way appears not to have been formed by any agency of man other than use" and that it could find "no indication on the site that the right-of-way had ever been graded or that a plow had been used for snow removal."It also pointed out that two vehicles could not pass on the claimed right-of-way between the physical impediments on each side of the area over most of the length of the right-of-way.

After conducting the trial and viewing the locus in quo, the trial court made a number of determinations: ⁵ Because the Kopes' right to the use of the "dirt road" was established by prescription, it was limited to the use that established it.The Kopes were only entitled to a right-of-way about ten feet in width, and, therefore, the Kurases were entitled to an injunction rejecting the Kopes' claim of a right-of-way twenty feet in width.It decided that the Kopes' legal rights to injunctive relief were "essentially" the same as those of the Kurases which would include the enjoining of the Kurases from interfering with the use of the right-of-way by the Kopes.

It further ordered that the right-of-way was defined as set forth in the Davis survey ("about 10 feet wide") except that the curve at the "southerly end" was found "not to curve out to the west but to continue N 32? -10'-07 E i.e. across the old bridge area."⁶The ditches were not part of the right-of-way nor was any area to its east or west "as depicted on the survey [Davis] which is in many places relatively flat."

Although deciding that the right-of-way could be used at all times of the year, it found that the Kopes had no right to construct a bridge on the northerly portion of the right-of-way to cross the stream they"ford" and had no right "to add either above or below ground, any poles, wires, pipes or other materials for the transportation or transmission of any materials, electricity, or communication."Although the Kopes had the right to "maintain" the right-of-way as a "dirt road,"they could not add stone, gravel or sand to it but only fill the "potholes" with "dirt."They could not grade the "present crown nor raise the tracks" although they could trim bushes and tree branches along the right-of-way that interfered with their use.In addition, the Kopes had no right to build "slopes" on the area along the right-of-way.They had, however, in the building of their residence, the right "to bring in the normal equipment and materials to be used to erect a residence" as well as "rubber tired vehicle[s] necessary construction equipment such as...