Michael Connole et al. v. Michele Babij (2013)

MEMORANDUM OF DECISION ON REMAND

I

PROCEDURAL AND FACTUAL HISTORY

By decision dated January 29, 2013, the Appellate Court affirmed in part and reversed in part a decision in this matter that was filed on December 29, 2010 (“Ruling”) and supplemented by a decision on February 3, 2011.   The Appellate Court directed the trial court to vacate parts of the trial court judgment.   Connole v. Babij, 140 Conn.App. 494, 498, 59 A.3d 334 (2013).   The facts that gave rise to this case are set forth in the Appellate Court opinion.

The parties disagree as to the scope of the Appellate Court order and, on April 29, 2013, this court ordered the parties to file simultaneous briefs on the issue no later than June 28, 2013.   The plaintiffs filed their brief on June 14, 2013.   On June 27, 2013, the defendant filed a motion for extension of time but failed to assert any factual or legal basis for the motion.   On July 8, 2013, the court denied that motion.   On July 12, 2013, some two weeks after the date on which briefs were to be filed, the defendant again moved for an extension of time in which to file a brief.   The court denied that motion on July 18, 2013.   The defendant failed to file any brief on the issues before the court.

II

PARTIES' ARGUMENTS

The plaintiffs contend that the Appellate Court ruling leaves the plaintiffs with unrestricted rights as to their use of the deeded right of way.   The defendant, as was stated, filed no opposition to the plaintiffs' claim.

III

DISCUSSION

The initial trial court ruling, filed on December 29, 2010, found that “the defendant is the record owner of the subject right of way based on her deeded interest.”   Ruling at 5 and 6. The trial court found that the defendant's claim of adverse possession was not proved, id. at 5, and that the plaintiffs had not established a claim to the right of way by adverse possession.  Id. at 11.   However, the trial court also found that the plaintiffs held certain prescriptive easement rights relative to the right of way.  Id. at 12.

The trial court then made the following findings:  the defendant has “the right and title to the right of way”;  the plaintiffs were enjoined from entering the right of way except as provided in the court's judgment;  and the defendant has a deeded interest in the right of way that “is vested in her by way of this judgment ․ but that title is subject to certain prescriptive rights.”  Id. at 13.

The court then imposed certain conditions ¹ on the plaintiffs.   The trial court ordered the plaintiffs to make annual payments to the defendant;  it imposed a penalty if the plaintiffs failed to make the court-ordered payments;  it ordered the plaintiffs not to “interfere with the use, enjoyment or condition of the right of way and will in no way cause or divert water over the right of way onto the other parcels of property belonging to said defendant and ․ will refrain from doing anything that would generate water diversion or erosion along the said right of way due to their use of it.   Further, the plaintiffs will refrain and desist from removing or cutting any trees, plantings and/or shrubbery from the right of way.”  Id. The trial court also ordered the plaintiffs to “do nothing to interfere with the quiet enjoyment and usage of the right of way by the defendant and her successors to include use by her of any motor vehicle to gain access to her residence and to the property north of her residence along said right of way if she so chooses as well as unobstructed access to the subject shed on the subject right of way.”  Id. at 14.

The trial court filed a supplemental judgment on February 3, 2011, allowing the plaintiffs both vehicular and pedestrian passage on the subject parcel.   The plaintiffs were further ordered to not “damage, interfere with, or in any way limit the use and enjoyment of the said right of way or any portion thereof pursuant to the said judgment, which right of way is owned by the defendant ․” Id. at 1.

In its ruling the Appellate Court found, inter alia, that the trial court incorrectly concluded that the plaintiffs had “limited passage rights” over the right of way, holding that the deeds in evidence “contain no express limitation to the abutting landowner's passage rights.”  Connole v. Babij, supra, 140 Conn.App. 496 n.3. The court declined to address the defendant's claim that the trial court erred in finding that the plaintiffs have a prescriptive easement over the right of way.   Id. n. 5. Thus, the foregoing aspect of the trial court's opinion remains in effect.   The Appellate Court found that the defendant does not hold marketable record title to the right of way and made no finding as to whether she has title in fee to the right of way.  Id. at 497 and 497 n.6. The Appellate Court left intact the trial court's finding that the defendant did not prove her claim of adverse possession relative to the right of way.  Id. at 497.   The Appellate Court held that the trial court incorrectly found a license in favor of the defendant.  Id. at 498.   The court then summarized its findings, reversing the trial court's finding that required payments to the defendant by the plaintiffs for passing over the right of way;  the trial court's finding that the plaintiffs would forfeit their rights if they did not make such payments;  and the trial court's finding that the defendant owned the fee to the right of way based on her deeded interest.   The Appellate Court directed this court to vacate the foregoing parts of the judgment.  Id.

Upon reviewing the Appellate Court's ruling in conjunction with the underlying judgment, this court hereby vacates the following aspects of the trial court judgment entered on December 29, 2010 as supplemented by the judgment entered on February 3, 2011:

1. Any limitations on the plaintiffs' passage rights over the right of way;

2. Any findings that the defendant holds marketable record title to the right of way;

3. Any findings that there exists a license in favor of the defendant;  any findings that the plaintiffs owe any payments to the defendant relative to their use of the right of way;  and any findings that the plaintiffs will forfeit any of their rights to the right of way if they do not make payments to the defendant;

4. Any and all of the maintenance conditions imposed upon the plaintiffs.

This court vacates the maintenance conditions because it is apparent that those conditions were based upon the trial court's original findings that the defendant has “the right and title to the right of way” and that the plaintiffs have “limited passage rights” over the right of way.   Since the two foregoing findings were reversed, and ordered vacated, the maintenance conditions that were dependent on those findings must also be vacated.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. For ease of reference, the court will hereafter refer to all of the conditions as “maintenance conditions.”.  FN1. For ease of reference, the court will hereafter refer to all of the conditions as “maintenance conditions.”

Danaher, John A., J.