Schroder v. Battistoni
| Decision Date | 04 March 1964 |
| Citation | 199 A.2d 10,151 Conn. 458 |
| Court | Connecticut Supreme Court |
| Parties | Charles SCHRODER et al. v. Harry J. BATTISTONI et al. Supreme Court of Errors of Connecticut |
Monroe S. Gordon, New Britain, for appellants (defendants).
Paul W. Orth, Hartford, with whom was Robert A. Argazzi, Berlin, for appellees (plaintiffs).
Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.
The plaintiffs, who owned lots bordering Lake Garda, maintained docks extending into it. On April 15, 1962, the defendant Harry J. Battistoni, hereinafter referred to as the defendant, acting as agent of the defendant Lake Garda Water Company, Inc., hereinafter referred to as the defendant corporation, removed two of these docks by the use of a bulldozer and threatens to remove the remaining docks and any docks hereafter built, unless those who maintain them pay to the defendant corporation certain nominal rentals. There is no finding as to the value of any of the docks except the two which the defendant destroyed. These were found to have a total value of $70. The plaintiffs brought this action, claiming that they had rights to maintain docks by virtue of easements by implication or prescription. They sought (1) a declaratory judgment that they had such rights without obligation to make any payment for their exercise, (2) injunctive relief to restrain the defendants from interfering with any docks, and (3) damages. From an adverse judgment the defendants have appealed to this court. The plaintiffs claim that the judgment of the court can be supported on three grounds.
The first ground is that the plaintiffs had implied easements to erect and use docks extending out into Lake Garda from their adjacent waterfront lots. In May, 1936, the Lake Garda Company, Inc., conveyed some 200 acres of land surrounding and including, Lake Garda, to Ron-Day, Inc., the developer of the area. In October, 1945, Ron-Day, Inc., conveyed the lots it had been unable to sell, together with the lake itself, to the defendant, and in June, 1946, the defendant conveyed that property to the predecessor in title of the defendant corporation. The plaintiffs Ralph M. and Antoinette B. Gezelman purchased their land from Ron-Day, Inc., in 1937, and the plaintiffs Charles and M. E. Mildred Schroder made their purchase from the same grantor in 1940. There is nothing in the finding to indicate that Ron-Day, Inc., intended to grant to the Gezelmans, the Schroders or the predecessors in title of the other plaintiffs, easements to build docks extending into the lake; or that the circumstances existing at the time of the sales were such that such an intention could be presumed. Nor is there any finding that the easements claimed were reasonably necessary for the use and normal enjoyment of any of the properties conveyed to the plaintiffs. In the case of the plaintiffs other than the Gezelmans and the Schroders, an additional and greater infirmity exists in that they purchased their respective properties after 1950 from various third parties. There is no finding that these grantors possessed casements, express or implied, to construct docks extending into the lake. These remaining plaintiffs could acquire, from their respective grantors, no rights to build docks on the lake bottom when the grantors themselves held no such rights. There is no basis for the conclusion that any of the plaintiffs had easements by implication to erect and maintain docks. Gager v. Carlson, 146 Conn. 288, 293, 150 A.2d 302; D'Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586; Rischall v. Bauchmann, 132 Conn. 637, 643, 46 A.2d 898, 165 A.L.R. 559; Whiting v. Gaylord, 66 Conn. 337, 348, 34 A. 85; 1 Thompson, Real Property (Perm.Ed.1940) §§ 409-411.
The plaintiffs claim in their brief that the Schroders and the Gezelmans have casements by prescription to build and maintain docks on the lake bottom. It is not claimed that the court based its decision on such a ground, and, indeed, there is nothing in the finding to indicate that it did, or to support a decision on that ground, had it been made. It may be noted, however, that Gezelman built his original dock with the express permission of Ron-Day, Inc., and with lumber furnished by the defendant. This is wholly inconsistent with his acquisition of any prescriptive right to maintain the dock. See cases such as Loewenberg v. Wallace, 151 Conn. ----, 197 A.2d 634.
Schroder built his first dock at some undesignated time 'early in 1947'. It was partially destroyed in 1955, and he built another dock a year later. There is no finding that even...
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