Water Street Associates Ltd. Partnership v. Innopak Plastics Corp.

• Decision Date: 16 August 1994
• Docket Number: No. 14912,14912
• Citation: 646 A.2d 790,230 Conn. 764
• Court: Connecticut Supreme Court
• Parties: WATER STREET ASSOCIATES LIMITED PARTNERSHIP v. INNOPAK PLASTICS CORPORATION et al.

Page 790

646 A.2d 790

230 Conn. 764

WATER STREET ASSOCIATES LIMITED PARTNERSHIP v. INNOPAK PLASTICS CORPORATION et al.

No. 14912.

Supreme Court of Connecticut.

Argued June 8, 1994.

Decided Aug. 16, 1994.

Jeffrey J. Mirman, for appellants (defendant United Progress, Inc., et al.).

Thomas J. Riley, with whom, on the brief, was Robert D. Tovin, for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and PALMER, JJ.

CALLAHAN, Justice.

The appeal in this declaratory judgment action ¹ requires us to review the trial court's determination of the boundary line separating the areas of Stonington Harbor (harbor) over which the plaintiff, Water Street Associates Limited Partnership, and the defendant, Harbor Point Associates, ² claim littoral rights. ³ The defendant appealed to the Appellate Court from the trial court's judgment determining the location of the boundary line. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The areas of the harbor involved in this appeal and the littoral boundary as determined by the trial court are depicted on the defendant's exhibit C, a map entitled, "Stonington Harbor Shoreline and Littoral Line Between Property of Water Street Associates Limited Partnership and Property of Harbor Point Associates" prepared by Total Technology, Inc., and dated October 22, 1991. The map is reproduced on p. 793. It is undisputed that both the plaintiff and the defendant possess littoral rights in the harbor appurtenant to their land.

The plaintiff is the owner of three parcels of real estate located in the town of Stonington on the west side of Water Street and on the east side of the harbor. Approximately ninety lineal feet of the plaintiff's property is water frontage facing westerly into the harbor. ⁴ The plaintiff operates two restaurants on its property and maintains a dock extending from its westerly shore into the harbor, where patrons of the restaurant may secure their boats.

The defendant's property is located between Water Street and the harbor and abuts the southern border of the plaintiff's property. There is a factory building located on its property and it has approximately 530 lineal feet of frontage facing westerly on the harbor.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Immediately to the south of the defendant's property is a breakwater, which is a navigational aid constructed by the federal government and completed in 1832. The breakwater extends approximately 525 feet in a northwesterly direction into the harbor. The town of Stonington owns property known as the "Town Dock" located at the northerly end of the harbor. The Town Dock extends westerly into the harbor and has been in existence for more than 100 years in its present configuration.

Boats in the harbor have access to Fisher's Island Sound, located to the south of the harbor, through a navigation channel maintained by the federal government. The channel is located to the west of the plaintiff's dock and the breakwater, and runs from the Town Dock at the northern end of the harbor into Fisher's Island Sound. Most of the water located to the west of the defendant's shoreline between the bearing N 60? 30' 34" E, and the breakwater is at least ten feet deep at mean low water. The remainder of the water in that area is eight to ten feet deep at mean low water, except for water immediately adjacent to the shoreline and the breakwater.

The plaintiff brought this action seeking a declaratory judgment to determine the location of the boundary line between the parties' respective littoral areas. After hearing testimony and reviewing maps of the harbor and the adjacent land area submitted as exhibits, the trial court found that the shape of the relevant shoreline was concave. The court also found that the arc defining the cove extended along the shoreline from the westerly end of the Town Dock to the base of the breakwater and that the chord of this arc runs along the bearing S 29? 29' 26" E, based on the Connecticut State Grid System.

The court then rendered judgment determining the littoral boundary line to be a line originating at the upland boundary line between the parties' property at the high water mark and perpendicular to the chord of the arc. The line, as determined by the court, extends southwesterly from the parties' upland border at the high water mark and runs along the bearing N 60? 30' 34" E, based on the Connecticut State Grid System. Although the defendant claimed that this boundary line creates an inequitable distribution of littoral rights between the parties, the trial court denied the defendant's request to modify the location of the littoral boundary line. This appeal by the defendant followed.

I

The defendant first claims that the trial court improperly determined that the shape of the shoreline was concave, and not a straight line. We disagree.

It is well established that while the state, as the representative of the public, is the owner of all land between the high and low water marks upon navigable waters, owners of adjoining upland have the exclusive, yet qualified, right and privilege to dig channels and wharf out from the owner's land in a manner that does not interfere with free navigation. Lovejoy v. van Emmenes, 177 Conn. 287, 290-91, 416 A.2d 1192 (1979); Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 624, 153 A.2d 444 (1959); Rochester v. Barney, 117 Conn. 462, 469-70, 169 A. 45 (1933). Nevertheless, when a party's upland property adjoins that of another, "each must exercise his [or her] respective littoral rights with due regard for the corresponding rights of the other.... The fundamental riparian right ⁵ on which all others depend is the right of access.... This is the most important consideration in any division of the respective rights of the parties to land under water." (Citations omitted.) Rochester v. Barney, supra, at 469, 169 A. 45.

The parties agree that the relevant standard for determining disputed littoral boundary lines of abutting shorefront property was set forth in Rochester v. Barney, supra, 117 Conn. at 469-70, 169 A. 45, in which we stated: "Where the general course of the shore is a straight line, the division of riparian rights between adjoining landowners is along a perpendicular to the straight line from the intersection of the upland boundary line between the parties with the high-water mark. Rowe v. Smith, 48 Conn. 444, 448 [1880]; New Haven Steamboat Co. v. Sargent & Co., 50 Conn. 199, 208 [1882]; Armstrong v. Wheeler, 52 Conn. 428, 432 [1885]. Where the general course of the shore is a curved convex line, the division is along the line of the radius of the curve extended from the intersection of the upland boundary line between the parties with the high-water mark. Morris v. Beardsley, 54 Conn. 338, 341, 8 [A.] 139 [1887]; Lane v. Smith Brothers, 80 Conn. 185, 188, 67 [A.] 558 [1907]. Where the general course of the shore is a broad concave curve, the division is along a perpendicular from the intersection of the upland boundary line between the parties with the high-water mark to a base line drawn across the mouth of the curve. Lowndes v. Wicks, 69 Conn. 15, 30, 36 [A.] 1072 [1897]; Moran v. Denison, 79 Conn. 325, 65 [A.] 291 [1906]." In determining the shape of the shoreline, structures may be considered part of the shoreline if they are "definite and substantial in their character [and] possess the appearance of stability and permanence...." Moran v. Denison, supra, at 331, 65 A. 291. When applied to an irregular shore, the aim of the rules is to " 'give each [upland owner] ... a fair and reasonable opportunity of access to the channel.' " Rochester v. Barney, supra, 117 Conn. at 469, 169 A. 45, quoting Lowndes v. Wick, supra, 69 Conn. at 29, 36 A. 1072.

To support its argument that the parties' properties are located on a straight shoreline, the defendant relied primarily on the testimony of its expert, Robert I. Reis. On direct examination by the defendant, Reis testified that "the base line for Stonington Harbor is what is designated on this map as the 1827 straight shoreline which is parallel to Water Street ... there is no reason to take a line beginning at the tip of the Town Dock and extend it to the base of the breakwater. It is inconsistent with all of the waterfront development that is shown on this map."

On cross-examination, the plaintiff questioned Reis concerning inconsistent testimony he had offered as an expert witness in the case of Harboredge Development Corp. v. Renehan, Superior Court, judicial district of New London, Docket No. 073363 (February 26, 1985). That case involved a littoral boundary line dispute between two abutting property owners whose land was also located in Stonington Harbor directly south of the Town Dock. For the purposes of separating the littoral rights appurtenant to the properties at issue in that case, Reis had testified that the shoreline between the westerly end of the Town Dock and the base of the breakwater in the harbor formed a concave cove. ⁶ When asked to explain the inconsistencies between his testimony in the two cases, Reis explained that before the Town Dock was constructed, the shoreline was basically a straight line and access to the harbor could best be achieved by upland owners continuing their boundary lines at right angles to Water Street. Reis acknowledged, however, that the existence of the Town Dock, which had been constructed more than 100 years ago created a situation in which some property owners would no longer be able to achieve access to the channel by continuing their littoral lines at right angles to Water Street.

The shape of the relevant portion of the shoreline is a matter of fact to be determined by the trial court, whose findings will not be disturbed unless clearly erroneous. Rochester v....