Lawrence H. Buck et al. v. Town of Berlin (2012)

MEMORANDUM OF DECISION RE DEFENDANT, TOWN OF BERLIN'S MOTION TO STRIKE

I. NATURE OF THE PROCEEDINGS

This is an action by the plaintiffs relating to the use of a trail or unimproved road which they claim is the sole means of vehicular access to their property.   According to the complaint, the road in question begins within a residential subdivision in the Town of Berlin, then continues across parcels of undeveloped land acquired by the defendant Town of Berlin for purposes of open space, then crosses over the border into the Town of Middletown toward the plaintiffs' property.   It is alleged that since approximately June of 1997 the defendant Town of Berlin has obstructed the road, preventing vehicular access to the plaintiff's property.

The Complaint is in seven counts.   Count One asserts a claim for inverse condemnation;  Count Two seeks a permanent injunction preventing the Town of Berlin from interfering with the plaintiffs' access rights;  Count Three alleges that the plaintiffs have acquired an easement by prescription;  Count Four alleges that the plaintiffs are entitled to an easement by necessity;  Count Five alleges that the plaintiffs are entitled to an easement by implication;  Count Six alleges negligent or tortious interference with contract;  and Count Seven alleges that the defendant Town of Berlin has “intentionally interfered” with the plaintiffs' right to use the access road.

Pursuant to Practice Book section 10–39, the defendant Town of Berlin has moved to strike Counts Three, Four, Five and Seven of the Plaintiffs' Amended Complaint.

II. STANDARD OF REVIEW

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted.”  (Citations omitted;  internal quotation marks omitted).  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

“[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Id., 252.   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citation omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

III. DISCUSSION

A. Counts Three, Four and Five:  Nonjoinder of Necessary or Indispensable Parties

The defendant Town of Berlin has moved to strike Counts Three Four and Five because the plaintiffs have failed to include indispensable parties, namely two private property owners over whose land an easement by prescription, by necessity or by implication, for purposes of ingress and egress is being claimed.

As required by Practice Book section 10–39(b) the defendant has provided in its pleadings information regarding the particular property owners claimed to be necessary parties.   Examining the documentary evidence attached to the motion,¹ it appears that the “road” over which the plaintiffs claim an easement runs through land now or formerly owned by Kevin and Lisa Budney at 73 Quincy Trail, and Paul and Sally Prior at 74 Quincy Trail.   On those properties, there exists a twenty-foot-wide easement from the property owners to the Town of Berlin “for pedestrian and emergency vehicle access.”   The defendant Town of Berlin has only easement rights and does not holds any title to the “road” in that area ․ This particular area is also specifically referenced in the plaintiffs amended complaint.   Paragraph 19 of Count One (which is incorporated by reference into Counts Three, Four and Five) states that a right of access is claimed over “Middle Road a.k.a. Woods Road” which has its beginnings in a “20' easement to the Town of Berlin for Pedestrian and Emergency Vehicle Access extending from the Quincy Trail Turnaround ․”

The exclusive vehicle for challenging the nonjoinder of necessary and indispensable parties is by a motion to strike.  George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980);  see also Practice Book § 11–3;  Practice Book § 10–39(a)(3).

“Necessary parties ․ are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it ․ [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties In Re Devon B., 264 Conn. 572, 580, 825 A.2d 127 (2003).   A party is necessary if its presence is absolutely required in order to assure a fair and equitable trial.”  Id.;

[A] court may refuse to proceed with litigation if a claim cannot properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome ․ Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience ․ Due process requires that such parties be given notice and opportunity to protect their interests by making them a party to the action.

Hilton v. City of New Haven, 233 Conn. 701, 722, 661 A.2d 973 (1995).

In response to the defendant's argument that the property owners at 73 and 74 Quincy Trail are necessary and indispensable parties to this litigation, the plaintiffs assert that any property owners other than the defendant Town of Berlin are not needed as parties to the action because, of all the property owners in the area where the easement is sought, only the Town of Berlin has sought to block access to the road.

It is the view of the court that the imposition of an easement—be it by prescription, by necessity, or by implication—over property of a landowner invokes due process considerations.   There is little doubt that if the easement or right of access sought by the plaintiffs is granted over property of landowners that are not parties to this action, those landowners' “substantive rights and interests” in their property will have been materially affected by the outcome of this lawsuit.   Whether they have—in the past or in the present—asserted those substantive rights by blocking access is, in the view of the court, immaterial.   The crucial consideration is that if the relief sought by the plaintiffs is granted by this court, they will have lost those rights permanently and irrevocably.   It seems self-evident that a landowner should receive notice and a meaningful opportunity to be heard before a court undertakes to enter a binding judgment that would grant permanent, legally enforceable rights to others in that landowner's property, and would impose permanent, legally enforceable obligations upon the landowner himself.

For that reason, the court concludes that any person who currently holds record title to any property over which the plaintiffs claim an easement by prescription, by necessity, or by implication for purposes of ingress and egress, is a necessary and indispensable party to this litigation.²

B. Count Seven—Intentional Interference with Passage Rights.

Count Seven of the Complaint incorporates practically all of the allegations of the prior counts in the complaint, then alleges that a Superior Court decision in the matter of James Tighe v. Town of Berlin, 259 Conn. 83 (2002) “required that access to the roadways set forth in the complaint be open to abutters and their guests.”  (Count Seven, Para. 39.)   Count Seven further alleges that the defendant Town of Berlin “has intentionally and repeatedly attempted to stop Plaintiffs' access to his [sic.] property and to stop Plaintiffs [sic.] right to use the access roads all to Plaintiffs' detriment.”  (Count Seven, Para. 40.)

The Defendant initially moved to strike this count because there is no recognized cause of action in Connecticut for “intentional interference with passage rights.”  (Defendant's March 14, 2012 Memorandum of Law in Support of Motion To Strike, at pp. 11–12.)   In response, the plaintiffs argued that Count Seven, when construed “broadly and realistically,” sets forth a common-law private nuisance cause of action.  (Plaintiffs' March 28, 2012 Objection to Motion To Strike, at pp. 10–11.)   Defendant maintains that, even if construed as an action in common-law nuisance, Count Seven should still be stricken because the plaintiffs have no ownership of the property in question and therefore cannot plead a cause of action for private nuisance.   (Defendant's April 2, 2012 Reply to Plaintiffs' Objection to Motion to Strike, at p. 6.)

The defendant misstates the law of nuisance to a slight degree.   A fair reading of the controlling authority, Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939), defines the class of persons who may claim injury by reason of a private nuisance somewhat more broadly.   In Webel, the Supreme Court held that “[a] private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land.   In the modern authorities it [private nuisance] includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure.”  (Internal quotation marks omitted;  emphasis added.)  Webel v. Yale University, supra, 125 Conn. 525.   Claims of private nuisance are therefore not necessarily limited to “owners” of property.

Notwithstanding that clarification, there is still a legitimate question as to whether the plaintiffs in this action—who allege denial of a vague “right” of access over the defendant's property purportedly arising from a civil judgment in another case—have a legally recognized interest sufficient to permit a claim for private nuisance.   That may be an issue for another day, however, since it appears that the present motion can be decided strictly on the basis of the sufficiency of the pleadings.

“A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land ․ The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ․ The essence of a private nuisance is an interference with the use and enjoyment of land.”  (Citations omitted;  internal quotation marks omitted.)  Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).

A plaintiff must prove four elements to succeed in a nuisance cause of action:  (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created was a continuing one;  (3) the use of the land was unreasonable or unlawful;  and (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages.  Id., 355.

The court has closely reviewed the allegations of Count Seven, sifting through the incorporated allegations from prior counts, and finds that, even when construed “broadly and realistically” ³ in the pleader's favor, Count Seven does not sufficiently allege a claim for private nuisance as that cause of action has been defined in Pestey v. Cushman, supra.

IV. CONCLUSION

For the foregoing reasons, the motion to strike is granted as to Counts Three, Four, Five and Seven of the plaintiff's amended complaint.

BY THE COURT,

David Sheridan

FOOTNOTES

FN1. “The court is permitted to look at facts outside the pleadings when the basis of a motion to strike is for nonjoinder.”   Covered Wagon, Inc. v. Roubos, Superior Court, judicial district of Danbury, Docket No. 318301 (May 21, 1996, Mihalakos, J.)..  FN1. “The court is permitted to look at facts outside the pleadings when the basis of a motion to strike is for nonjoinder.”   Covered Wagon, Inc. v. Roubos, Superior Court, judicial district of Danbury, Docket No. 318301 (May 21, 1996, Mihalakos, J.).

FN2. The Defendant also moved to strike Count Three on the separate ground that, as matter of law, an easement cannot be acquired by prescription against a municipality.  (Defendant's March 14, 2012 Memorandum of Law in Support of Motion To Strike, at pp. 3–8.)   In response, the Plaintiffs have apparently conceded that, as a matter of law, an easement cannot be obtained by prescription against a municipality, to the extent that property is held for public use.   Nonetheless, the Plaintiffs argue that Count Seven alleges sufficient facts to establish open, visible, notorious and continuous use of the property over a fifteen year period prior to the Defendant Town of Berlin's acquisition of the property that ripened into an easement by prescription before the Town acquired the property.   Given the court's decision on the joinder issue the court need not reach this alternative ground to strike Count Three..  FN2. The Defendant also moved to strike Count Three on the separate ground that, as matter of law, an easement cannot be acquired by prescription against a municipality.  (Defendant's March 14, 2012 Memorandum of Law in Support of Motion To Strike, at pp. 3–8.)   In response, the Plaintiffs have apparently conceded that, as a matter of law, an easement cannot be obtained by prescription against a municipality, to the extent that property is held for public use.   Nonetheless, the Plaintiffs argue that Count Seven alleges sufficient facts to establish open, visible, notorious and continuous use of the property over a fifteen year period prior to the Defendant Town of Berlin's acquisition of the property that ripened into an easement by prescription before the Town acquired the property.   Given the court's decision on the joinder issue the court need not reach this alternative ground to strike Count Three.

FN3. It should be noted that the oft-cited guidance that pleadings are to be construed “broadly and realistically” does not have its origins in a decision on a motion to strike.   The phrase was first used in an opinion authored by then Appellate Court Judge Borden in DeMartin v. Yale New Haven Hospital, 4 Conn.App. 387, 494 A.2d 1222 (1985).  DeMartin was an appeal from a jury verdict and Judge Borden used the phrase in discussing the trial court's rulings at trial on admissibility of evidence, which were held to be based on an improperly narrow reading of the complaint.  Id., at 390.   The “modern trend” to construe pleadings broadly and realistically has since been cited over the years in a variety of contexts, but in no way has that “trend” rendered obsolete the body of authority which holds that a complaint fails to state a cause of action and is subject to a motion to strike when it omits an allegation which is essential to that cause of action..  FN3. It should be noted that the oft-cited guidance that pleadings are to be construed “broadly and realistically” does not have its origins in a decision on a motion to strike.   The phrase was first used in an opinion authored by then Appellate Court Judge Borden in DeMartin v. Yale New Haven Hospital, 4 Conn.App. 387, 494 A.2d 1222 (1985).  DeMartin was an appeal from a jury verdict and Judge Borden used the phrase in discussing the trial court's rulings at trial on admissibility of evidence, which were held to be based on an improperly narrow reading of the complaint.  Id., at 390.   The “modern trend” to construe pleadings broadly and realistically has since been cited over the years in a variety of contexts, but in no way has that “trend” rendered obsolete the body of authority which holds that a complaint fails to state a cause of action and is subject to a motion to strike when it omits an allegation which is essential to that cause of action.

Sheridan, David M., J.