Robin Hirtle v. Gregory Zupkus et al. (2011)

RULING ON PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTION (# 100.34)

This matter was heard by the court in January 2011.   Thereafter, the parties filed simultaneous briefs and reply briefs.   The parties came before the court for oral argument on April 7, 2011.   Robin Hirtle (“the plaintiff”), moves for a temporary injunction preventing the defendants, Gregory Zupkus, Paul Corey, and BNE Energy, Inc. from using a shared driveway for commercial purposes.   The motion is denied.

PROCEDURAL HISTORY

The plaintiff asserts that the defendants have violated an easement that affects a driveway in the town of Colebrook, Connecticut.   The defendants own property known as 29 Flagg Hill Road in Colebrook;  the plaintiff owns property known as 29–A Flagg Hill Road in Colebrook.   The plaintiff accesses her property pursuant to an easement that allows her to use a driveway that crosses 29 Flagg Hill Road. The defendants, in turn, access property adjacent to the plaintiff's property by first traveling along the driveway on their own land located at 29 Flagg Hill Road. They then travel along a short-section of that same driveway that crosses the plaintiff's land at 29–A Flagg Hill Road. After the driveway enters the plaintiff's property it divides and one branch leads to the plaintiff's house;  the other branch, used by the defendants, takes them over the plaintiff's property and onto their own land.

The plaintiff's complaint ¹ alleges, in the first count, that there is a common driveway that first crosses the defendants' property, then crosses the plaintiff's property and, finally, provides access to a portion of the defendants' property on which they constructed a wind tower in or about February 2009.   The plaintiff claims that the driveway is subject to a single easement, which she also refers to as a “mutual easement,” that binds both the plaintiff and the defendants.   The plaintiff alleges that the easement limits use of the entire driveway to residential use only, and that the defendants have used, and continue to use, the driveway for commercial purposes.   The second count of the complaint alleges that the defendants' conduct overburdens the driveway and the easement upon it.   In the third count, the plaintiff claims that the defendants' conduct has, and will, cause irreparable injury to the plaintiff.   The plaintiff alleges that the defendants' conduct, in constructing the wind tower, was malicious and intended to injure and annoy the plaintiff.²  Finally, in her fourth count, the plaintiff claims that she has asked the defendants to make repairs to the driveway pursuant to the terms of the easement, but they disclaim responsibility for such repairs.

The plaintiff moved for a temporary, ex parte injunction on November 3, 2010;  on November 5, 2010, the court ordered a show cause hearing.   That hearing took place on January 3, 2011 and was continued on January 19, 2011.   On January 18, 2011, the defendants applied for discharge of a lis pendens that the plaintiff recorded against the defendants' property.

DISCUSSION OF THE FACTS

At the hearing on January 3, 2011, and again on January 19, 2011, the court heard testimony from the plaintiff, defendant Gregory Zupkus, defendant Paul Corey and from Robert Hirtle, father of the plaintiff and the attorney who drafted the easement at issue.   The credible evidence elicited at the hearing established that the plaintiff owns real property located at 29–A Flagg Road in Colebrook, Connecticut.   She resides on that property, having first acquired the property in 2001 with Robert Dziedzic, to whom she was married at that time.   Her property abuts land owned by the defendants along the northern boundary line of the plaintiff's property.   The defendants acquired their property in November 2007 from Theodore V. Wilber.

On December 20, 2002, Wilber and the plaintiff entered into a driveway and utility easement agreement (“easement agreement”).   The easement provides in relevent part:

“Wilber and Dziedzic desire to create an easement for the unobstructed use by Wilber and Dziedzic of a driveway ․ The easement runs from the westerly line of Flagg Hill road in a general westerly and southwesterly direction ․ (the “Easement Area”).

1. Wilber does hereby grant to Dziedzic, their heirs and assigns, in the Easement Area located on the Wilber Property, a nonexclusive easement for the maintenance, repair and/or replacement of underground utilities servicing the Dziedzic property.

2. Wilber does hereby grant to Dziedzic, their heirs and assigns, in the Easement Area on the Wilber Property, the right, in common with Wilber, for ingress and egress by foot or vehicle from Flagg Hill Road to the Dziedzic Property.

3. Dziedzic does hereby grant to Wilber, his heirs and assigns, in the Easement Area located on the Dziedzic Property, a nonexclusive easement for the maintenance, repair and replacement of underground utilities servicing the Dziedzic property.

4. Dziedzic does hereby grant to Wilber, his heirs and assigns, in the Easement Area on the Dziedzic Property, the right, in common with Dziedzic, for ingress and egress by foot or vehicle from the Easement Area located on the Wilber Property to the remainder of the Wilber Property.   Such right of ingress and egress shall be limited to the [sic] use by one single family residence.

5. Wilber and Dziedzic agree for themselves and their heirs and assigns, not to obstruct, impede or interfere or permit the obstruction, impedance or interference with the reasonable use of the aforesaid rights.

6. Wilber and Dziedzic agree for themselves and their heirs and assigns, to share equally in the cost of snow and ice removal in the Easement Area. Each party shall be solely responsible for any repairs, replacement or maintenance of any utility lines located in the Easement Area that services that party's premises only.   Upon completion of such repairs, replacement or maintenance of a utility line serving either party, that party shall be responsible for the full restoration of the driveway improvements.   Any damage to the Driveway caused by the negligence of either party shall be repaired at that party's expense.   Each party shall be fully responsible for the maintenance, repairs and replacement of the Driveway located on its property (except for snow and ice removal).

7. The easement herein granted shall be limited to residential use exclusively.

The plaintiff relies on the terms of the easement agreement for her claim that there is a single easement to which all parties are subject.   She claims that the single easement runs from Flagg Road, across the defendants' property, then across the plaintiff's property where the driveway divides.

The plaintiff did not present credible evidence that the defendants are in violation of the easement agreement.   To the extent that the erection of the temporary meteorological tower (“met tower”) ³ involved the use of the driveway for other than residential purposes, that event occurred in December 2008, nearly two years before the plaintiff sought her injunction.   The plaintiff acknowledged that she was aware of the presence of the tower at least as early as February 2009.   The plaintiff did not present significant evidence that there was driveway use, subsequent to the construction of the met tower, that would require the conclusion that the defendants are using the easement across her property for other than residential purposes.   On the contrary, the evidence shows that passenger vehicles occasionally use that easement and, on limited occasions, larger, commercial vehicles used the easement.   The court credits the evidence that those larger vehicles were present for road repair, maintenance of the road and for cleaning up the defendants' property.   Indeed, on several occasions the larger vehicles were present for the purpose of carrying out driveway maintenance pursuant to the plaintiff's own request.

The defendants contend that the plaintiff's action was brought for the purpose of attempting to halt the defendants' effort to proceed with a wind turbine project on their property.   There is insufficient evidence to mandate such a conclusion, but the court does note that 1) the plaintiff's action was brought some two years after the met tower was constructed;  2) that the plaintiff's action was brought at a time that the defendants are seeking siting council approval to construct wind turbines;  and 3) that the plaintiff's action was brought at a time that the defendants' use of the driveway is limited and sporadic.

The defendants purchased the property subject to the easement agreement set forth, supra, but when they took title to the property, the defendants were not aware that their property was subject to the easement agreement until they were served with the plaintiff's suit.   The defendants did, however, know that the driveway was shared with their neighbor, the plaintiff, and they accepted responsibility for shared driveway maintenance expenses.   There is no evidence that the defendants took any action to interfere with the plaintiff's access to her property.   On the contrary, there is substantial evidence that the defendants have repaired the driveway upon request by the plaintiff.   The evidence that the driveway suffered any damage due to vehicle traffic is minimal and the level of damage depicted in the plaintiff's exhibits amounts to little more than an occasional rut at the side of the driveway.   Such damage would not materially interfere with the plaintiff's access to her property.

The defendants represented that now that they are aware of the terms of the easement agreement, they have no intention of using the easement across the plaintiff's property for other than residential purposes.   The defendants testified convincingly that if they are permitted to proceed with their wind turbine project, they will use an alternate means of access to their property.   If the defendants are not permitted to proceed with their wind turbine project, they will consider constructing private residences on their property.

DISCUSSION

1. The Nature of the Easement

The plaintiff makes the novel argument that the driveway is subject to something that might be characterized as a “mutual easement,” which, she argues, restricts the defendants from using the driveway over their own property for anything other than residential purposes.   In so arguing, the plaintiff is asserting that the owner of the servient estate, the defendants, hold an easement on their own property—a concept that is in direct conflict with fundamental principles regarding the nature of easements.

An easement “creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement ․ [T]he benefit of an easement ․ is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose ․ [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose ․” (Citations omitted;  emphasis added;  internal quotation marks omitted.).  Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000).   See J. Bruce & J. Ely, Jr., The Law of Easements and Licenses in Land (2011) § 3:11, pp.   3–34–3–35 (“An easement is by definition a nonpossessory interest in land of another.   Thus, it is axiomatic that a landowner cannot obtain an easement in the landowner's own property.   Several states have codified this rule by enacting identically worded statutes that provide:  ‘A servitude thereon cannot be held by the owner of the servient tenement.’ ”).

The plaintiff argues that in this case the parties agreed to subject themselves to restrictions that may not normally exist when easements are created.   As support for this proposition the plaintiff relies on the terms of the easement agreement that she and Wilber signed in December 2002.   The analysis, therefore, turns to the terms of that easement agreement.   See Hare v. McClellan, 234 Conn. 581, 593, 662 A.2d 1242 (1995).

“In construing a deed, a court must consider the language and terms of the instrument as a whole ․ The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances.”  (Internal quotation marks omitted).  Il Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 510–11, 757 A.2d 1103 (2000).

In this case, it is difficult to determine what was intended in the easement agreement that is at issue.   The document occasionally refers to “the easement” in the singular, such as in paragraph seven, but it clearly creates separate easements in paragraphs two and four.   The latter easements conform to the normal understanding of the law relative to easements, i.e., that an owner of property can give an easement on his property to another person and he cannot subject himself to an easement on his own property.   The situation is further complicated, in this case, by the fact that although paragraphs two and four of the easement agreement are generally reciprocal, paragraph four expressly prohibits Wilber (and his heirs and assigns) from crossing the Dziedzic property for other than residential purposes, but paragraph two does not carry a similar limitation on Dziedzic.   However, paragraph seven seems to limit both parties from using “the easement” [sic] for other than residential uses.   Thus, the inartfully worded easement agreement is, in the end, ambiguous in multiple respects.

When an agreement is ambiguous, it must be construed against the drafter.   Hartford Electric Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 182, 363 A.2d 135 (1975).   Here, the drafter of the document was the plaintiff's father and her counsel.   The other signatory to the easement agreement, Wilber, was unrepresented and played no role in drafting the easement.   The appropriate course, then, is to construe any ambiguities against the plaintiff and to find that the easement agreement creates two separate and reciprocal easements.

The court finds that the plaintiff holds an easement that permits her to cross the defendants' property for the purpose of access to, and egress from, her property.   The court also finds that the defendants hold an easement that permits them to cross the plaintiff's property for the purpose of access to, and egress from, their property.   Both parties are limited to using the easements that they hold for residential purposes.   Both parties are, however, free to use the common driveway for other than residential purposes when, first, such use is on the party's own property and, second, to the extent that the use does not interfere with the other party's right of access to, and egress from, the other party's own property.

The latter conclusions are, first, the product of resolving ambiguities against the drafter of the document at issue and, second, consistent with basic principles regarding easements.   See Somers v. LeVasseur, 230 Conn. 560, 564, 645 A.2d 993 (1994) “The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.”  (Internal quotation marks omitted);  see also Stefanoni v. Duncan, 282 Conn. 686, 923 A.2d 737 (2007).   Second, regardless of whether the parties attempted to create restrictions that go beyond, or are other than, those that normally exist when easements are created, such an attempt must be rejected.   The easement agreement is clearly intended to create easements.   The parties, or at least one of them, characterized the agreement, throughout, with reference to, and reliance on, the term “easement,” a legal term that incorporates a panoply of well established principles.   The parties, and their heirs and assigns, are entitled to rely on the existence and operation of those well understood principles.   By creating an “easement agreement,” the parties invoked, and are bound by, the principles that are associated with easements.

2. The Motion for Temporary Injunction

The “purpose of a temporary injunction is to preserve the status quo” until final determination of the parties' rights after a hearing on the merits.   Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270, 655 A.2d 814 (1995), quoting Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941).   The court must consider the following factors:  (1) In the absence of a temporary injunction, will the plaintiff suffer irreparable and imminent injury;  (2) Does the plaintiff lack an adequate remedy at law;  (3) Is the plaintiff likely to succeed, ultimately, on the merits of her claim;  (4) Does a balancing of the equities favor granting the injunction.  Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994).

The “extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted.   Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.”  Tighe v. Town of Berlin, 259 Conn. 83, 87–88, 788 A.2d 40 (2002).   The issuance of an injunction is left to the discretion of the trial court.  “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.”  Kelley v. Tomas, 66 Conn.App. 146, 155, 783 A.2d 1226 (2001).   See Waterbury v. Phoenix Soil, LLC, 128 Conn.App. 619 (2011).

Having considered the foregoing principles and based upon the evidence presented, the court finds as follows.   First, the plaintiff has not met her burden of showing that she will suffer irreparable and imminent injury absent the issuance of a temporary injunction.   Second, in the absence of evidence that the plaintiff will suffer such injury, the question of whether she has an adequate remedy at law is irrelevant.   Third, the plaintiff is unlikely to succeed on the merits of her claim.   Finally, the equities clearly militate against the issuance of a temporary injunction.⁴  Therefore, the motion for a temporary injunction is denied.

3. The Lis Pendens.

The court has rejected the plaintiff's theory that both parties are subject to a single or mutual easement.   Further, the court has rejected the claim that the defendants have interfered with the plaintiff's right of access to, and egress from, her own property.   Thus, it is clear that the plaintiff's only complaint involves activity that arguably took place, or could take place in the future, on her own property.   Consequently, there is nothing alleged in the plaintiff's complaint that can affect the defendants' real property.   Therefore, there is no basis for the recordation of a lis pendens on the defendants' property.   See General Statutes § 52–325;  Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988).   The plaintiff has failed to make the probable cause showing necessary to support the recordation of the lis pendens.   Accordingly, the lis pendens must be, and is, discharged.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The plaintiff's complaint was filed on November 3, 2010.   A substituted complaint, correcting technical errors, was filed on December 30, 2010..  FN1. The plaintiff's complaint was filed on November 3, 2010.   A substituted complaint, correcting technical errors, was filed on December 30, 2010.

FN2. The plaintiff did not offer any evidence in support of this claim.   Accordingly, the allegations of the third count will not be considered relative to the motion for temporary injunction..  FN2. The plaintiff did not offer any evidence in support of this claim.   Accordingly, the allegations of the third count will not be considered relative to the motion for temporary injunction.

FN3. A temporary meteorological tower is used to measure wind resources at a given location..  FN3. A temporary meteorological tower is used to measure wind resources at a given location.

FN4. The defendants contend that the plaintiff comes before the court with unclean hands and so is not entitled to injunctive relief.  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).   In view of the findings of fact and law, it is not necessary to reach the claim that the plaintiff has “unclean hands.”   The court does note, however, that the defendants introduced compelling evidence that the plaintiff, together with her husband, used the easement across the defendants' property for commercial purposes.   The activity, which the plaintiff termed a “hobby,” involved customers, use of a variety of vehicles, and generated significant income that the plaintiff and her ex-husband jointly reported to the Internal Revenue Service.   Such activity is clearly commercial in nature..  FN4. The defendants contend that the plaintiff comes before the court with unclean hands and so is not entitled to injunctive relief.  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).   In view of the findings of fact and law, it is not necessary to reach the claim that the plaintiff has “unclean hands.”   The court does note, however, that the defendants introduced compelling evidence that the plaintiff, together with her husband, used the easement across the defendants' property for commercial purposes.   The activity, which the plaintiff termed a “hobby,” involved customers, use of a variety of vehicles, and generated significant income that the plaintiff and her ex-husband jointly reported to the Internal Revenue Service.   Such activity is clearly commercial in nature.

Danaher, John A., J.