Stefanoni v. Duncan

• Decision Date: 19 June 2007
• Docket Number: No. 17585.,17585.
• Citation: 923 A.2d 737,282 Conn. 686
• Court: Connecticut Supreme Court
• Parties: Christopher STEFANONI, et al. v. Ian M. DUNCAN.

923 A.2d 737

282 Conn. 686

Christopher STEFANONI, et al. v.Ian M. DUNCAN.

No. 17585.

Supreme Court of Connecticut.

Argued November 22, 2006.

Decided June 19, 2007.

Donald Bruce Hill, for the appellant(defendant).

Margaret Stefanoni, pro se, with whom was Christopher Stefanoni, pro se, the appellees(plaintiffs).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

This appeal arises from an action brought by the plaintiffs, Christopher Stefanoni and Margaret Stefanoni, seeking injunctive and other relief with regard to an access easement and a view restriction over a portion of the real property of their neighbor, the defendant, Ian M. Duncan.The defendant now appeals following our grant of certification,¹ from the judgment of the Appellate Court, which reversed in part the judgment of the trial court, concluding that the plaintiffs are permitted to install a proposed metal walkway and dock within the scope of their rights under an access easement and that the view restriction encumbering the defendant's property is to be measured from the bottom floor of the plaintiffs' residence.Stefanoni v. Duncan,92 Conn. App. 172, 198-99, 203, 883 A.2d 1271(2005).We reverse the judgment of the Appellate Court.

The Appellate Court's decision sets forth the following relevant facts."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 [Doug Calby and Karen Calby].On June 27, 1972, [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 owned by [the Judge family], on the west partially by the waters of Holly Pond and by other property, and on the north by the [Wall property].

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

"In late 1975, [Wall] and [Maclay], [as]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, [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.Mapno. 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 § 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 [five] 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 [fifty] 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, [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."(Internal quotation marks omitted.)Id., at 175-78, 883 A.2d 1271.

"In June, 1977, [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 [utility and access] easements and the restriction. . . .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. . . .

"On March 1, 1999 . . . Margaret Stefanoni purchased the Bayer property.⁷In 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 plaintiffs performed considerable cutting within the access easement, on other portions of the defendant's lot and on the neighboring Calby property.Although the plaintiffs deny that the cutting was done with the intention of improving their view of Holly Pond, the cutting had that result.

"The plaintiffs' activities took place within 1000 feet of the mean high water line of Holly Pond and consequently were in a regulated coastal area management zone under the Darien zoning regulations.Those regulations require that prior approval from the Darien planning and zoning commission be obtained for such activities within a coastal area management zone.On February 25, 2000, David J. Keating, the Darien zoning enforcement officer, wrote to Margaret Stefanoni, calling her attention to violations of the Darien zoning regulations.In the same letter, Keating demanded that steps be taken to prevent erosion, and that a restoration plan be presented to the planning and zoning commission for approval.

"Enforcement proceedings were subsequently brought by the town of Darien.The defendant and the Calbys intervened as parties to those proceedings.In September, 2000, those proceedings were settled by the parties.Under the terms of the settlement, the plaintiffs agreed, at their sole expense, to landscaping and planting on their property, the defendant's property and the neighboring Calby property in accordance with a plan approved by the town, the Calbys and the defendant.The plaintiffs implemented that plan, including the installation of stepping stones within the access easement.Before the stepping stones were placed, the defendant informed the plaintiffs that he no longer wanted them installed and requested that the surface of the access easement be left alone.However, the plaintiffs installed the stepping stones. . . .

"In the early summer of 2002, the plaintiffs and the defendant made some efforts to put their differences aside and avoid future controversies.The plaintiffs had acquired an outboard motorboat and expressed a desire to install a permanent dock four and one-half feet wide and forty feet long extending into Holly Pond from the defendant's property and to tie up their boat to the dock.The defendant agreed to the erection of such a...