William Karosi et al. v. Rose Kovarovics (2011)

MEMORANDUM OF DECISION

This case involves a boundary dispute and a dispute over the location of a right-of-way, between neighbors.   The plaintiffs, William and Jeanette Karosi, live at 40 Karosi Road in Ashford, CT. Their neighbor in this dispute, the defendant, Rose Kovarovics, is their former sister-in-law.   She is the widow of William's deceased brother.   She lives at 30 Karosi Road, Ashford, CT. For years, the parties paid little attention to the boundaries.   After William's brother died, and Rose remarried, the dispute arose.   The Karosis complain that they have a right-of-way over Rose's driveway, and that in 2007, Rose erected a fence blocking that right-of-way.   Moreover, they complain that part of her fence is on their property.   Pending before the court is plaintiffs' application for temporary injunction, asking the court to order the defendant to cease and desist from obstructing their right-of-way, and to remove the fence.   For the following reasons, the application is denied.

I

The standards applicable to applications for temporary injunction are well settled.   The purpose of a temporary injunction is “to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits ․” (Citation omitted.)  Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 457, 493 A.2d 229 (1985).  “It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances ․ [T]he issuance of an injunction rests in the sound discretion of the trial court.”  (Citations omitted;  internal quotation marks omitted.)  Anderson v. Latimer Point Management Corporation, 208 Conn. 256, 262, 545 A.2d 525 (1988).   To prevail on an application for a temporary injunction, the burden is on the applicant;  Hartford v. American Arbitration Ass'n, 174 Conn. 472, 476, 391 A.2d 137 (1978);  to establish (1) a reasonable degree of probability of success on the merits;  (2) irreparable harm with no adequate remedy at law;  and (3) the harm likely to be suffered by the applicants is greater than that which will result in the interference occasioned by an injunction.   See Griffin Hospital v. Commission on Hospitals & Health Care, supra, 196 Conn. 457–58;  see also Walton v. New Hartford, 223 Conn. 155, 167, 612 A.2d 1153 (1992).   Injunctions are liberally granted in cases of continuing trespass.  Walton v. New Hartford, supra, 223 Conn. 166, citing Hartford Rayon Corporation v. Cromwell Water Co., 126 Conn. 194, 199, 10 A.2d 587 (1940).  “The scope of a temporary injunction will depend on the nature of the case, the evidence presented in the hearing and the relief sought.”  (Citations omitted;  internal quotation marks omitted.)   Hartford Div., Emhart Industries, Inc. v. Amalgamated Local Union 376, 190 Conn. 371, 407, 461 A.2d 422 (1983).

The remedy of injunction has long been available in cases where the plaintiff claims obstruction to a private right-of-way.  Dewire v. Hanley, 79 Conn. 454, 65 A. 573 (1907).   The burden is on the party seeking injunctive relief to prove the existence of facts essential to the claim.  Branch v. Occhionero, 239 Conn. 199, 205–06, 681 A.2d 306 (1996).

II

The court heard evidence concerning this application on October 25, November 8, December 13 and 20, 2010 and on February 23 and March 18, 2011.   It also viewed the site on March 24, 2011, with the parties, counsel, and court personnel.   The court heard testimony from the following witnesses:  Stephen Filip, land surveyor;  Jeffrey Stefanik, land surveyor;  William Karosi, plaintiff;  Matthew Karosi, plaintiff's son;  Steve Karosi, plaintiff's son;  Helen Kucharski, plaintiff's sister;  Rose Kovarovics, defendant;  and Deborah Smith, defendant's daughter.   The court also reviewed 59 maps, photographs, deeds and other exhibits.   Briefs and reply briefs were filed by counsel for the parties in support of their respective positions.

The complaint alleges that the plaintiffs have a right-of-way over the defendant's driveway by virtue of an express grant in a 1949 deed.   They allege that since October 2007, the defendant has been encroaching on their rights because she erected a fence that is partly on their property, and it blocks their use of their right-of-way.   They seek injunctive relief, money damages, punitive damages and attorneys fees.

III

As to the merits, the court finds the facts as follows:  The plaintiff;  William Karosi, his brother, Joseph, and their other siblings grew up on a farm that their parents purchased on Karosi Road in Ashford, CT. Their parents, Joseph and Helen, owned about 20 acres.   The parents built a home on their property that became 30 Karosi Road. They also built a barn on their property, to the north of their new home.

In 1949, the parents divided their land, giving that barn, with a plot of land around it, to William and his wife, Jeanette.   William and Jeanette converted the barn into a home.   That became 40 Karosi Road. The lot was small, and it was surrounded by the parents' land on three sides.   It had 150 feet of frontage on Karosi Road, and was 75 feet deep.

It was described as bounded as follows:

Commencing at a stone bound on the East side of the highway and extending Northerly in the East line of the highway about 150 feet to a stone bound;  Thence extending Easterly about 75 feet to a stone bound;  Thence extending Southerly about 150 feet to a stone bound;  Thence extending Westerly about 75 feet to a stone bound at the place of commencing;  Containing by estimation 11,250 square feet.   Bounded West by highway and bounded North, East and South by other land of Joseph and Helen Karosi.

1949 Deed.

The conveyance was limited in rights.   It specified:  “The grantees herein shall not sell or convey the above described property during the life time of either of the grantors without the written consent of the grantors herein or the survivor of them.”

The lot was so small, it did not include a driveway to the barn.   There was a dirt or gravel driveway nearby, starting on Karosi Road and then running straight east along the south side of the barn and continuing into the parents' farm land beyond.   It was a wide driveway.   It is helpful to the issues in this case to describe it being about two lanes wide.   The parents included a right-of-way over that driveway with the following language:  “Together with a right to use the driveway on the south side of the barn.”   The barn faced this driveway.   So, this driveway ran along the front of the barn.   After the barn was converted into William and Jeanette's home, it could be described as running along the front of William and Jeanette's home.

The deed description to the right-of way would be clear and unambiguous if there was only one driveway nearby;  but, there were two nearby.   In addition to the driveway south of the barn heading easterly, there was also a horseshoe-shaped driveway that intersected with it running north and south.   That horseshoe-shaped driveway was to the west of the parent's home at 30 Karosi Road. That driveway was in the front of the parents' home.   Thus, the grant of the right-of-way to the driveway in the 1949 deed was unclear as to whether it gave William and Jeanette only use of the driveway to the south of the barn, or whether it also included the horseshoe-shaped portion in front of their parents' house.   This creates what the law classifies as a latent ambiguity.   See Mackie v. Hull, 69 Conn.App. 538, 542, 795 A.2d 1280, cert. denied, 261 Conn. 916, 806 A.2d 1055, cert. denied, 261 Conn. 917, 806 A.2d 1055 (2002).

The details were of no concern to the Karosi family in 1949.   The land was all family owned and everybody used whatever they wanted to use whenever they wanted to use it, on occasion with permission.   William and Jeanette continued to improve their property.   Today, they have a large and beautiful country home.

In 1958, the parents granted more land to William and Jeanette, by deed.   This deed added a strip 25 feet wide along the eastern side of William and Jeanette's land, and most importantly for the issues in this case, another 23 feet along the southern side.   William testified that this extra land to the south was intended, in part, to give him more room to park vehicles in front of his home.   Indeed, it gave him what could be visualized as one lane of the two-lane driveway that ran along the southern side of his property in front of his home.   The new conveyance from the parents stated:

We ․ do, give, grant bargain, sell and confirm unto the said William Karosi and Jeanette Karosi, their heirs assigns forever, a certain parcel of land situated in the southwesterly part of the Town of Ashford, County of Windham and State of Connecticut, and bounded and described as follows:

Commencing at a stone bound in the east line of the highway at the southwest corner of other land of William and Jeanette Karosi, thence running easterly 75 feet to the southeast corner of said land of William and Jeanette Karosi;  thence northerly 150 feet to the northeast corner of said land of William and Jeanette Karosi;  thence easterly 25 feet to a stone bound;  thence southerly 173 feet to a stone bound;  thence westerly 100 feet to a stone bound;  thence northerly 23 feet along the east line of the highway to the point of beginning;  bounded easterly and southerly by other land of the grantors.

Meaning to extend the lot originally belonging to William Karosi and Jeanette Karosi 25 feet in an easterly direction and 23 feet in a southerly direction.

1958 Deed

Significantly, this deed made no mention of the right-of-way over the driveway.   In 1968, the parents sold 30 Karosi Road (their home) and the surrounding remaining acres, to William's brother, Joseph Karosi, and Joseph's wife, the defendant Rose. The deed from the parents expressly made it clear that it did not include the two prior conveyances that the parents had granted to William and Jeanette.   It, also, made no mention of the right-of-way over the driveway.

There were no property line disputes for many years.   In 1974, Joseph died and, in 1979, Rose remarried.   Still, there were no property line disputes.   In fact, in 1984, Rose had the property surveyed and pinned and she had a map drawn by land surveyor Stephen Filip in order to give William and Jeanette's son, Robert, a lot adjacent to and behind William and Jeanette's lot.   That 1984 map (the Filip map) included a depiction of the boundary line between William and Jeanette and Rose now in dispute.   It also depicted a right-of-way in favor of William and Jeanette along the south side of their lot, but not over the horseshoe-shaped driveway in front of Rose's house.   William saw the Filip map and pins outlining his borders and rights, and made no objection.   In fact, William and Jeanette used the same surveyor (Filip), and his map, in 1997 when they transferred some land to their other son, Matthew, who acquired a lot next to William and Jeanette along Karosi Road. They used the Filip map to depict their borders and get zoning approval for Matthew's lot.

The parties continued to use their respective properties without dispute, for a while.   William and Jeanette generally stayed on their side of the boundary, and Rose stayed on her side, although there was enough crossing over both driveways by both to keep the grass from completely growing over the driveways at the border.   There was a rustic, split post and rail fence along parts of the border, but there was an opening in the fence to permit traffic to cross from one driveway to the other as the parties had become accustomed.   Nevertheless, Rose and her family primarily used the horseshoe-shaped driveway in front of her house to park cars and equipment and materials, and William and Jeanette primarily used only the driveway in front of their home and they did not use Rose's driveway.

In 2004, disputes arose.   William began complaining about Rose parking her cars in her driveway, claiming that it interfered with his right-of-way.   He also had his son, Matthew, start plowing Rose's driveway—something rarely done in the past.   One day, William put a note on Rose's new husband's car demanding that the car not be parked in the driveway in front of her home.   Rose refused to comply.   The police were called, but Rose still refused to comply.   Finally, in 2007, Rose escalated the dispute by having the fence changed to prevent any crossing between the properties at the intersection of the driveways.   She also extended the same rustic split post and rail fence all along the border, with one break.   William tried to get the surveyor, Filip, to change his map to show that Rose was interfering with his right-of-way and that the fence was on his property, but Filip refused.   William then hired a new land surveyor, Jeffrey Stefanik, and had Stefanik draw a new map, in 2009.   The Stefanik map drew the border differently, so as to depict parts of Rose's fence on William and Jeanette's property.   It also depicted a right-of-way in favor of William and Jeanette over the horseshoe-shaped driveway in front of Rose's house.

Plaintiffs argue that the defendant is creating a safety hazard for the plaintiffs by requiring the plaintiffs to only use their own driveway to get on and off their lot.   They argue that they must use Rose's driveway to get on and off Karosi Road safely.   The court viewed the locations and road in issue in this case.   The evidence does not support plaintiffs' driving safety concerns.

IV

This lawsuit was commenced in 2010.   The case essentially asks the court to resolve whether the Filip or Stefanik map accurately describes the boundary, and whether William and Jeanette have a right-of-way by deed ¹ over the horseshoe-shaped driveway in front of Rose's home.   Pending litigation, plaintiffs' motion for temporary injunction asks the court to order the defendant to cease and desist from obstructing their right-of-way, and to remove the fence.   Keeping in mind that the court is only being asked to evaluate the likelihood of the plaintiffs being successful at a future trial in this case, at this early stage in the litigation, and for the following reasons, the court believes that it is not likely that William and Jeanette will prevail.   The court believes that it is more likely that it will be found that the border and right-of-way is correctly depicted on the Filip map, and that Rose is not interfering with the plaintiffs' property rights.   The application for temporary injunction, therefore, is denied.

That is not to say there is no basis for disagreement.   The boundary location is difficult to ascertain because the starting point in the boundary description in the original deed to William and Jeanette was a “stone bound.”   Whatever and wherever that was, the parol evidence showed it no longer exists and no one can remember it or where it was located, if it ever existed.   Indeed, none of the stone bounds referenced in the deed were found nor could their positions be recreated.   The evidence was that the father used the stones in the area as materials in construction.   Thus, the only certain landmarks are the old barn—now William and Jeanette's home—and the road.   As noted earlier, this parol evidence creates a latent ambiguity in the deed description.   A latent ambiguity disclosed by parol evidence can be removed by parol evidence.  Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 598, 448 A.2d 157 (1982).   Where the boundaries in the field cannot be clearly found following the language in the deed, the quest becomes to ascertain the intent of the original parties.   Finding their intent essentially requires the court to review the evidence of the history, facts and circumstances.   See Koennicke v. Maiorano, 43 Conn.App. 1, 8, 682 A.2d 1046 (1996).

That evidence showed that, in 1984, before the parties were in disagreement, Mr. Filip drew a map with boundaries of William and Jeanette's lot so as to contain the old barn, and he drew the lines parallel with the stone walls in the area that were in existence since 1948.   Filip could also observe the driveways in the area.   Considering the physical landmarks, deed language, relationship between the deeds, and the physical evidence of use of the land, he drew the boundary line between the Karosi and Kovarovic properties approximately through the middle of the driveway, and he put in pins.   There was no objection for years.   William and Jeanette's acceptance of that boundary over the years would bind them to it under the equitable doctrine of acquiescence.   See Lowndes v. Wicks, 69 Conn. 15, 30, 36 A. 1072 (1897);  cf.  DelBuono v. Brown Boat Works, Inc. 45 Conn.App. 524, 533, 694 A.2d 1271, cert. denied, 243 Conn. 906, 701 A.2d 328 (1997).   Moreover, William and Jeanette's use of the Filip map in 1997 for their own legal purposes would constitute an admission by adoption of the boundary line depicted on the map.   See Falker v. Samperi, 190 Conn. 412, 426, 461 A.2d 681 (1983).

It was only after disputes arose between the parties that William Karosi claimed that the boundary line depicted on the Filip map was inaccurate.   In 2009, he told his surveyor, Stefanik, that the boundary line started about ten feet further south on Karosi Road than as depicted by Filip, and that it should be angled slightly further to the south, essentially pivoting it toward Rose's house.   He claimed this based on a railroad spike that he said his father put in the driveway along the south side of the barn in 1949, marking the original boundary.   The court does not believe that his testimony as to the origin of railroad spike will be found to be credible.   The railroad spike was not mentioned in the 1949 deed, it was not mentioned in the 1958 deed, it was not mentioned or observed in 1984 when Filip was doing his survey for Rose, and no other family member remembers it.   It was not mentioned or observed in 1997, when Filip was doing his survey work for William and Jeanette.   When William tried to get Filip to change his map after disputes arose years later, William told Filip that he (William) put the railroad spike in the driveway.   William's testimony as to the location of several other pins and landmarks was, at times, inaccurate and inconsistent.   William is most likely incorrect as to the origin of the railroad spike.

Even if his memory is accurate, the existence of the railroad spike does not solve the case.   The court observed the spike when it visited the property at the site visit.   The railroad spike is in the middle of the driveway in front of William and Jeanette's house.   It is not along the road or near the corner of the lot.   Its location cannot resolve the starting point of the deed description, or the accuracy of the angle of the boundary line.   It is on a point near the old boundary before the extra 23 feet were added.   It is not necessarily inconsistent with Filip map.

In fact, as to the location of the boundary line between the plaintiffs' and defendant's land at its starting point on Karosi Road, the Filip and Stefanik maps are very similar.   They are only about 10 feet apart at that starting point.   Using either starting point, the start of Rose's fence is not on William and Jeanette's side of the line under either map.   The major difference between the maps is in the angle of the pivot.   If the Filip map is used, then Rose's fence remains on her side.   If the Stefanik map is used, then Rose's fence is on William and Jeanette's side.

The court finds the Filip map to be more accurate on all issues.   The line in the Filip map is consistent with the credible oral history described by the witnesses and the physical evidence of use of the driveway and topography.   It is parallel with the ancient stone walls in the area.   It is parallel and consistent with old fencing depicted in old photographs.   It was satisfactory to the parties for years.   It was used by William and Jeanette to define their borders in the past.   It is likely that it will be found that William and Jeanette's recent disagreement is based on an honest, but mistaken, recollection of the past.   It is likely to be found that Rose has built her fence on her own side of the border.

The other issue concerns the right-of-way.   Where a right-of-way is not described in precise metes and bounds in the deeds, other evidence can be used to define it.   Thus, it has been held that an unspecified right to pass and repass across the land of another becomes limited and qualified by the ordinary and historical use by which that right is exercised.   See, e.g., Simonds v. Shaw, 44 Conn.App. 683, 690–91, 691 A.2d 1102 (1997).   Also, it has been held that where a reservation of a right-of-way is merely described in general terms, later maps may be used to fix the location of the easement if physical evidence supports the depiction on the later-drawn maps.  Mastronardi v. Infante, 34 Conn.App. 584, 589–91, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994);  Sobaski v. Bernier, Superior Court, judicial district of Tolland, Doc. No. CV 07–5001651 (January 6, 2009, Sferrazza, J.) [47 Conn. L. Rptr. 32].

Again, the maps reflect the differing positions of the parties as to whether the right-of-way includes the driveway on the west side of Rose's house.   The Filip map shows no right-of-way there.   The Stefanik map shows a right-of-way in favor of William and Jeanette in front of Rose's house.   The court is persuaded, again, that it is likely that it will be found that William and Jeanette are mistaken as to the location of the right-of-way.   Considering the 1949 deed description and the credible history described by the witnesses, it is most likely that the 1949 deed gave William and Jeanette a right-of-way only as to the driveway on the south side of the barn.   It was granted because the 1949 deed did not include enough room on the south side of the barn for a driveway.   The right-of-way gave them a right to use that driveway only.   The father gave only a right-of-way because the father used that driveway to get to his fields from Karosi Road. An additional strip of land was granted in 1958, giving William and Jeanette full ownership of the one lane of that driveway closest to their house so that cars could be parked on their own driveway in front of their house, rather than in the right-of-way.   Significantly, this 1958 deed granting the additional land no longer mentioned the right-of-way, perhaps, because it was no longer necessary.   Now William and Jeanette had their own driveway.   They still had a right-of-way over the father's lane of the old driveway under the 1949 deed, but it was no longer critical.   William and Jeanette now owned one lane of the old driveway outright, and they retained a right-of-way over the other lane.   On the other hand, there is no credible history or physical evidence suggesting that William and Jeanette ever had a right-of-way over the driveway on the west side of his father's (now Rose's) house, and there is no justification for reading the deeds to include such a right-of-way.   Accordingly, by building a fence along the boundary and blocking the intersection between the driveways, it is not likely to be found that Rose is interfering with William and Jeanette's right-of-way.

Therefore considering all of the facts and circumstances in evidence, and considering the legal tests for the granting of an application for a temporary injunction, the court concludes that the application should be denied.   No attorneys fees will be awarded.   Both sides shall be responsible for their own attorneys fees.

V

For all of the foregoing reasons, the plaintiffs' application for temporary injunction is denied.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. In their reply brief, plaintiffs alternatively argue that they have a right to use the driveway in front of defendant's house by prescriptive easement.   There is no such claim in the complaint.   Therefore, that argument cannot be considered.   See Stamford Landing Condominium Assn. v. Lerman, 109 Conn.App. 261, 271, 958 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).  (“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint”)..  FN1. In their reply brief, plaintiffs alternatively argue that they have a right to use the driveway in front of defendant's house by prescriptive easement.   There is no such claim in the complaint.   Therefore, that argument cannot be considered.   See Stamford Landing Condominium Assn. v. Lerman, 109 Conn.App. 261, 271, 958 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).  (“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint”).

Vacchelli, Robert F., J.