Stefanoni v. Duncan

• Decision Date: 01 November 2005
• Docket Number: (AC 25844)
• Citation: 92 Conn. App. 172,883 A.2d 1271
• Court: Connecticut Court of Appeals
• Parties: CHRISTOPHER STEFANONI ET AL. v. IAN M. DUNCAN.

92 Conn. App. 172

883 A.2d 1271

CHRISTOPHER STEFANONI ET AL. v. IAN M. DUNCAN.

(AC 25844)

Appellate Court of Connecticut.

Argued April 26, 2005

Officially released November 1, 2005

McLachlan, Gruendel and Harper, Js.

Margaret Stefanoni, pro se, and Christopber Stefanoni, pro se, the appellants (plaintiffs).

Donald Bruce Hill, for the appellee (defendant).

Opinion

GRUENDEL, J.

The plaintiffs, Christopher Stefanoni and Margaret Stefanoni, appeal from the judgment of the trial court, rendered after a trial to the court, concerning the existence of a prescriptive utility easement over a portion of their property and the extent of both a view restriction on and an access easement over the property of the defendant, Ian M. Duncan. On appeal, the plaintiffs claim that the court improperly held that (1) the defendant possesses a prescriptive utility easement over a portion of their property, (2) their easement over the defendant's property "for access to the waters of Holly Pond" does not include the rights to install a walkway and a dock, and to use for recreational purposes a widened portion of their easement, and (3) the language "the southwest bedroom" in the deeded view restriction¹ means their second floor master bedroom rather than their ground floor southwest bedroom. We disagree with the plaintiffs' first claim, but agree with their second and third claims. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts, as found by the court, are relevant to our resolution of the plaintiffs' appeal. "Holly Pond is a body of salt water forming a part of Long Island Sound located between the city of Stamford and the town of Darien. In the early part of the twentieth century, a dam was erected across the outlet where the pond empties into the sound. The dam prevents the waters of the pond from completely draining into Long Island Sound at low tide. However, the dam does not inhibit the waters of Long Island Sound from entering the pond as the tide rises. Accordingly, the level of Holly Pond is still subject to tidal variations. At low tide, the level of the water in the pond is two feet above the National Geodetic Vertical datum of 1929 (the standard reference elevation for the area). At mean high tide, the level of the water is 4.2 feet above the same datum. Although the pond is shallow, it is used for boating, to some extent.

"Holly Pond is irregularly shaped. The defendant's property is situated on a cove consisting of several lobes on the eastern shore of the pond. From the defendant's property, the main body of Holly Pond is visible through the channel connecting the cove to the main body and, to some extent, over the low-lying land of the peninsulas forming the cove. Except as blocked by the defendant's residence and trees, the plaintiffs enjoy a similar (albeit, more distant) view of the main body of the pond from the area of their residence. In front of the defendant's lot, the area of the foreshore² is very gently sloped, and it is approximately eighty feet in width. That area is largely covered with tussocks of tidal marsh grasses and, although firm, is somewhat uneven in contour.

"In 1972, Elizabeth Wall was the owner of property then known as 77 Nearwater Lane. The property then consisted of the residence now owned by the plaintiffs and situated on a narrow lot approximately 525 feet long by 82 feet wide. The lot was bounded on the east by Nearwater Lane, on the south by property of Margaret Weed Gioseffi, on the west by the waters of Holly Pond and on the north by property now owned by Calby. On June 27, 1972, Elizabeth Wall purchased the Gioseffi property, taking title in her name and in the name of her attorney, David S. Maclay, as trustee. The Gioseffi property was also a narrow lot approximately 580 feet long by 76 feet wide. That lot was bounded on the east by Nearwater Lane, on the south by a private road and property now owed by Judge, on the west partially by the waters of Holly Pond and by other property, and on the north by the property of Elizabeth Wall.

"In 1974, through a series of quitclaim deeds prepared by attorney Maclay, Elizabeth Wall and David S. Maclay, as trustee, transferred portions of the former Wall and Gioseffi properties among themselves. After the exchange of deeds, Elizabeth Wall owned the lot now owned by the plaintiffs while Elizabeth Wall and David S. Maclay, trustee, owned the lot now owned by the defendant. These deeds created both the utility easement³ and the access easement.⁴

"In late 1975, Elizabeth S. Wall and David S. Maclay, trustee, sold the lot now owned by the defendant to Doris Proctor and Barton Proctor. The deed conveying the lot was prepared by attorney Maclay. It described the property as shown on map no. 3915 recorded in the Darien land records. At that time, Elizabeth S. Wall was still the sole owner of the lot presently owned by the plaintiffs. The warranty deed to the Proctors included the utility easement as an appurtenance and noted that it was subject to the access easement. Map no. 3915 depicted the property now owned by the plaintiffs, the property now owned by the defendant, the location of the utility easement and the location of the access easement. The map also contained a notation showing that all of the defendant's property within 100 feet of the mean high water line was a `Restricted Area (under sect; 486.2 of the Darien zoning regulations).' The deed to the Proctors also contained the following reservation creating the view restriction: `Subject to the restriction that as viewed from a point 5 feet above the elevation of the existing floor of the southwest bedroom of the dwelling located on land of the grantors⁵ adjoining the above described premises, the view of the water of the main body of Holly Pond shall not be significantly obstructed by any vegetation or structure (other than an open wire fence) at any point within an area 50 feet wide, running along the full length of the northerly boundary of said premise hereby conveyed.'

"The deed [to the Proctors, the defendant's predecessors in title] further recited that the property was conveyed `together with riparian and littoral rights in the land lying below the mean high water mark of Holly Pond.' After this conveyance, Elizabeth S. Wall retained no interest in any property bordering Holly Pond and possessed no riparian or littoral rights with respect to the waters of Holly Pond.

"The Proctors erected a residence on their property and installed underground sewer, water and electric lines from Nearwater Lane to their property through the Wall property, a distance of approximately 260 feet. At Nearwater Lane, the utility lines were located within the ten foot wide deeded utility easement. However, approximately 120 feet from Nearwater Lane, the route of the utility line left the easement and continued through the Wall property to the Proctors' property. At the property line, the route of the utility lines was approximately twenty-five feet north of the northerly boundary of the utility easement.

"After installation of the Proctors' utility lines, the presence of the lines was evidenced above the ground by four sewer cleanouts, one manhole and an electrical box. The manhole, one of the cleanouts and the electrical box were located within the utility easement. One of the cleanouts was located in the Proctors' lot. Two of the cleanouts were located on the Wall property outside of the bounds of the utility easement. One of these cleanouts was within five feet of the northerly boundary of the easement, and the other was ten to fifteen feet north of the easement boundary. Each of the cleanouts was a vertical metal pipe six inches in diameter capped with a cover and rising approximately eighteen inches to two feet above ground level. At the time of the installation of the Proctors' utilities, plans were filed in the Darien building department showing that the underground utilities were located partially outside the deeded utility easement.

"In June, 1977, Elizabeth S. Wall sold the lot now owned by the plaintiffs to Stephen G. Bayer II. The warranty deed to Bayer was not prepared by attorney Maclay. That deed included both the access easement and the view restriction as appurtenances and recited that the premises conveyed were subject to the utility easement. The deed also contained the following additional language: `[T]ogether with riparian and littoral rights in the land lying below the mean high water mark of Holly Pond appurtenant to the premises.'⁶

"On November 12, 1985, the defendant purchased his property from the Proctors. His warranty deed reflected the existence of the two easements and the restriction at issue in this case. At the time the defendant purchased his property, the entire neighborhood, including the plaintiffs' property and the defendant's property, was heavily wooded. The access easement was no more than a pathway through that wooded area.

"In 1998 and again in 2000, the defendant had water main problems and called his plumber, Kevin Ortega, to perform repairs within the utility easement. Ortega had no problem in 1998 in locating the utility lines because of the visible manhole cover and the aboveground electrical box and sewer cleanouts. However, in 2000, Ortega found that the plaintiffs had buried the electrical box and placed sod over the sewer cleanouts located on their lot.

"On March 1, 1999, the plaintiff Margaret Stefanoni purchased the Bayer property.⁷ In late February, 2000, while the defendant was out of town, he received word from friends and neighbors regarding activities being performed by the plaintiffs. Without notice to their neighbors or obtaining the approvals required by the Darien zoning regulations, the plaintiffs undertook a massive clear cutting of the trees and vegetation on their property. In addition to the plaintiffs' work on their own property, the contractors hired by the...