Andrew Levine et al. v. Mary Schneeberger (2012)

MEMORANDUM OF DECISION

This action was brought by Andrew Levine and Jordana Levine against the defendant, Mary Schneeberger.   It came on for trial before the court on March 6, 2012.   The essence of the dispute is whether or not the plaintiffs have the right, over defendant's objection, to pave a driveway/right-of-way which runs over the defendant's property.

In 1961, Ms. Schneeberger purchased a parcel of property in Redding, Connecticut.   The parcel was generally rectangular in shape with the front boundary on Picketts Ridge Road being somewhat wider than the rear boundary of the property.   In 1986, the defendant subdivided her property and created a back lot referred to as “Lot 2.” Lot 2 was sold to a couple known as the Wurstles about 1986.   In order for lot 2 to have access to Picketts Ridge Road, defendant granted a right-of-way across her property, the “Front Lot” or “Lot 1.” Subdivision maps certified as Class A–2 surveys showed the course and location of the right-of-way across the front lot owned by the Schneebergers to its joinder with lot 2. The subdivision map, plaintiff's exhibit 2, contains a note indicating that “lot 2 shall have a permanent easement for ingress and egress over the right-of-way on lot 1.” In 1989, in what may have been a correcting or clarifying instrument, the defendant executed an “easement” for the benefit of the Wurstles, their heirs, successors and assigns of an “easement and right-of-way in common with others for ingress and egress only over, across, and upon the right-of-way shown on the 1986 map.”

The easement in question comes onto lot 1 from Picketts Road and traverses lot 1 in a sweeping fashion.   The first hundred feet or so of the easement are used as a common driveway.   It is currently paved in asphalt.   After approximately one hundred feet, the path splits, part of it turning to the left which is also paved and serves as the driveway for lot 1. The branch turning right constitutes the right-of-way leading toward lot 2. It is not paved but consists rather of crushed gravel and stone.   It turns gently toward the rear of lot 1 and continues until it enters lot 2 toward the right-hand boundary of these lots.   Upon entering the rear lot, the path, now serving as the driveway of lot 2, becomes paved again with asphalt similar in nature to that used on the front lot.   Both the testimony and photographs showing the right-of-way show that the middle portion, lying between the common driveway and the lot 2 driveway, runs through a lightly wooded section quickly turning and sloping with one significant rise in elevation as it approaches lot 2. The base consists of packed earth with packed gravel on top.   The gravel is similar in color to the asphalt with which the common driveway is paved.   The right-of-way has portions, such as the tire tracks and turns, where the gravel has been worn through and displaced.   In some of those portions there are shallow potholes where puddles and standing water form.   In the area of such standing water, there are patches where crushed stone of a different color has apparently been used to patch or fill the shallow potholes.

In 2009, the plaintiffs acquired lot 2 and the residential building located thereon.   Both lot 1 and lot 2 are used as residences and the parties agree that this portion of Redding, Connecticut is tending toward rural in nature.

The plaintiffs are a couple with two children, a six-year-old son and four-year-old daughter.   They describe their home as a traditional center hall colonial residential though it appears to have been rebuilt or updated just prior to their purchase in 2009.   There is no dispute that when the plaintiffs purchased their driveway, the right-of-way was gravel and that the plaintiffs have the duty to repair and maintain the right-of-way drive.   To date, this has been done by having an outside contractor drop gravel and then grade it smooth.   On occasion, Mr. Levine has patched the right-of-way himself using bags of crushed stone.   The roadway is not used for any utilities, which run separately via underground access along the right-hand edge of the two properties.

There is also no dispute that at various points in time the right-of-way has been sufficient for building and home improvement contractors, oil delivery trucks and other service and delivery vehicles.   The right-of-way is also used by the plaintiffs and their friends, family and other visitors to their home.

Plaintiffs have described their desire to pave the current portion of the right-of-way which is now unpaved.   The evidence would indicate that, for the most part, the gravel path works well enough in providing access to the plaintiffs' property.   However, the evidence shows that during severe weather, particularly a recent severe winter where frequent and heavy snows occurred, access on the right-of-way became perilous.   Mr. Levine testified that, having two young children he naturally is concerned with access for emergency vehicles during periods of inclement weather.   For these reasons, the plaintiffs sought the agreement of defendant to pave what is now the gravel portion of the right-of-way.   When they could not reach agreement, this action was brought which seeks the declaratory judgment of this court that plaintiffs may, under their easement, pave that portion of the right-of-way between the common drive and their property line.

The defendant contends that the right-of-way is limited solely to ingress and egress and that an unpaved gravel path has always been sufficient heretofore.   The defendant's evidence indicated that while the common driveway and the continuation driveway serving lot 1 were paved about 1980, that was done because the town was requiring the apron of each drive off a town road to be paved.   Defendant and her son basically paved the rest of their driveway at the same time.

Ms. Schneeberger testified that she occasionally walks down the right-of-way but has not done so recently.   She did not describe any other real use of the right-of-way or the property on which it was located and certainly did not describe any use which would be impeded if the right-of-way were paved.   At no time did defendant introduce any evidence as to how lot 1 would have an increase in its burden or how the defendant's use of lot 1 would in any way be affected if the gravel portion of the right-of-way were paved.   Ms. Schneeberger described that while she could see the area of the right-of-way, it did not appear to the court that from her home or its curtilage, she could observe the actual roadway surface and whether it was paved or graveled.   The defendant would have to walk toward the right-of-way before she would notice its surface.   The only reason given by the defendant for her objection to paving the right-of-way was the candid statement that she would simply “like to keep it as it is.”

The right which plaintiffs enjoy as owners of lot 2, and with which the defendant, as the owner of lot 1, is burdened, is an express easement.   The description of the easement is contained or referenced in several documents filed of record in the Redding town records.   The most restrictive description of the easement is that contained in the written “easement,” plaintiffs' exhibit P–7. That document describes the easement as an “easement and right-of-way in common with others for ingress and egress only.”   The documents, including the referenced “common driveway maintenance covenant,” clearly show that the intended purpose of the easement is to serve as a driveway for access to lot 2. Defense counsel candidly admitted to the court that this description of the intended purpose of the easement was not disputed.

In Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 636, 866 A.2d 588 (2005), the Connecticut Supreme Court looked to and confirmed its prior adoption of the provisions set forth in the Restatement (Third) of Property with regard to servitudes.   There the court noted that “ § 4.1 of the Restatement (Third) ․ makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude.”   This section of the Restatement provides, “easements should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.”   As noted above, these sources as well as the frank admissions of the party, and the obvious circumstances in which the easement was created, all point to the fact that the parties intended the easement to provide owners of lot 2 with access to their property over a driveway.   It is clear to the court that nowhere in any of the recorded instruments nor the easement itself is the right of the benefitted estate to pave the right-of-way addressed.   It is certainly not precluded and it is also undisputed that, over time, all of the driveway on lot 1 has come to be paved and, insofar as plaintiffs are able, the driveway to lot 2 has been paved.

The defendant, however, argues that an easement borne by a servient estate should be strictly construed so as to minimize the burden imposed.   There are two problems with this argument.   First, this rule cannot operate unnaturally to limit or preclude the enjoyment by the benefitted estate of the very easement which was created.   This is particularly true in the case of an express easement where the grantor has the opportunity to impose any limitations he wishes to impose upon the enjoyment of the easement.   Second, this court notes that Comment A to § 4.1 clearly states that the Restatement's rule as to interpretation of servitudes “departs” from the common-law tradition of strict construction.

In those situations where the language of an express easement does not definitively delineate the scope and extent of the burden, Restatement § 4.10 instructs this court that the nature and extent of the rights conferred shall be interpreted “in a manner that is reasonably necessary for the convenient enjoyment of the servitude.”   This section also provides that the “manner [and] intensity of the use may change over time.”   By the same token, the construction of the rights conferred is limited so as not to “cause unreasonable damage to ․ or interfere with the burdened estate.”

This court finds that the intended purpose of the easement before it was to provide the owners of lot 2 with a driveway to access their property.   Such driveway was intended to provide convenient, safe and readily available access to the benefitted estate.   The court notes that the benefitted estate was located toward the rear portion of the original property and, necessarily, would require a longer and more curved roadway with at least one challenging change in elevation in order to have access to lot 2. The evidence, as well as the common experience of Connecticut residents, is that this corner of New England is blessed with wide extremes in weather and occasionally severe wintry weather which can make travel treacherous.   There is no dispute that on at least a limited number of occasions the unpaved portion of the right-of-way has proven perilous to those venturing back to lot 2. The construction which defendant advocates this court adopt is that the benefit provided was a fixed and immutable one limiting the right-of-way to the unpaved condition in which it was originally granted.   This construction ignores the principle of construction that easements may, in a natural and realistic fashion, grow, expand and modify to meet the natural development of the property.   The use of the right-of-way to lot 2 appears to have undergone the same increase in vehicular traffic that roads throughout Connecticut have suffered.   The improvement which the plaintiffs seek here for the right-of-way appears to be a natural progression and development in the nature and extent of the easement which is part and parcel of their property.   Moreover, this court does not see any evidence that the paving of the road, assuming such is done properly and professionally, will in any way detract from the defendant's enjoyment of lot 1. An asphalt paving can preserve the color, appearance, width and dimensions of the current graveled surface and avoid the wear, tear and occasionally unsightly appearance inherent in a graveled surface.

Under the facts of this case, this court determines that paving of the unpaved portion of the right-of-way, so long as such improvement does not otherwise diminish the enjoyment of the burdened estate, is within the limits of the easement and the plaintiffs, their heirs, successors and assigns have the right to pave this surface.

Done this 22nd day of March 2012.

Wenzel, J.

Wenzel, William J., J.