Manley v. Pfeiffer
| Decision Date | 30 January 1979 |
| Citation | 409 A.2d 1009,176 Conn. 540 |
| Court | Connecticut Supreme Court |
| Parties | Barbara C. MANLEY v. Ralph A. PFEIFFER, Jr., et al. |
William Rossmoore, Greenwich, with whom was Samuel J. Murray, Greenwich, for appellants (defendants).
Daniel W. Moger, Jr., Greenwich, for appellee (plaintiff).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
The plaintiff, Barbara C. Manley, brought an action against the defendants, Ralph A. Pfeiffer, Jr., and Jane C. Pfeiffer, seeking to enjoin the defendants from constructing and maintaining a fence along the line of an easement over her property. The defendants counterclaimed, seeking (1) an injunction against continuing trespasses by the plaintiff, (2) damages, and (3) a declaratory judgment to determine the rights of the parties in the portion of the plaintiff's property subject to the easement in favor of the defendants. The trial court rendered judgment granting the plaintiff's request for an injunction, denying the relief sought in the defendants' counterclaim and denying the defendants' request for a declaratory judgment. From that judgment the defendants have appealed, assigning error in the court's action (1) in failing to find facts claimed to be admitted or undisputed; (2) in reaching conclusions not supported by the finding; and (3) in overruling their claims of law.
Assignments of error which are not briefed are treated as abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809 (1973). Because the defendants failed to brief their claims of error as to the refusal of the court to find facts claimed to be admitted or undisputed we will treat those claims as abandoned.
The court's finding, which is therefore deemed to be unchallenged, reveals the following facts: The plaintiff and defendants own neighboring properties in Greenwich, Connecticut. The defendants' property (hereinafter referred to as Lot A) faces north and fronts on a road, while the plaintiff's property (hereinafter referred to as Lot B) is located behind the defendants' property and is reached from the road by a driveway. The "front" of the plaintiff's lot faces the "back" of the defendants' lot while the back of the plaintiff's lot borders on Long Island Sound to the south.
Both parties took title from Francis M. Gerli, the prior owner of both Lots A and B. The deed from Gerli to the defendants conveying Lot A was first, being dated and recorded on September 11, 1975. The deed provided that the defendants were to have "an exclusive easement" over a designated portion of Lot B, as well as "the exclusive right to the use of the dock adjacent to the easement area." The deed also provided that the grantee (the defendants) had "the affirmative obligation to keep the grassy area in which the Grantee has said right of easement cut and maintained, and shall further have the affirmative obligation to maintain the septic system or fields located within the easement area and serving Lot A." Elsewhere the deed provided: "The portion of Lot B on said map dated July 25, 1975, which is subject to the easement of the Grantee shall be maintained as a grassy area and neither the Grantor nor the Grantee without the permission of the other shall construct any improvements upon said portion of Lot B."
A little over a month later Gerli conveyed title to Lot B to the plaintiff. This deed provided that the plaintiff acquired "(a)ll the rights, privileges and benefits retained by or accruing to the benefit of the Grantor (Gerli)" in the deed to the defendants but "subject nevertheless to restrictive covenants, agreements and provisions binding upon the Grantor" in the earlier deed. In the course of trial, Barbara Manley testified that the purchase price of Lot B was $225,000 and that she had obtained a mortgage in the amount of $80,000 from a Stamford bank in connection therewith.
In late November or early December of 1976, the defendants had a fence built along the northerly and easterly boundaries of their property. This fence, of wooden rail construction, continued across the plaintiff's property along the area subject to the exclusive easement held by the defendants. At no time did the defendants obtain permission from the plaintiff to build the fence.
The trial court found that the fence constituted an "improvement" within the meaning of the Gerli deed and that the erection of the fence was illegal. The court refused, however, to issue a declaratory judgment on the ground that the parties had failed to join all persons having an interest in the subject matter of the suit, i. e., mortgagees, as required by § 309(d) of the Practice Book.
In their appeal the defendants claim that the court erred (1) in finding that the fence was illegal; (2) in granting an injunction in the absence of a showing of irreparable harm; (3) in refusing to render a declaratory judgment; and (4) in denying the defendants' counterclaim.
Any and all rights which the defendants have in the plaintiff's property are derived from the Gerli deed of September 11, 1975. That deed, by its terms, expressly made the defendants' rights subject to certain express limitations and conditions, i. e., that the easement area must be maintained as a grassy area and that no improvements shall be constructed without the permission of the owners of Lot B. In effect, the deed provides that any departure from a grassy condition as to the easement area requires mutual consent.
In Black's Law Dictionary an "improv...
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