Robert D. Marchenko et al. v. Robert M. Graham et al. (2014)

MEMORANDUM OF DECISION

The plaintiffs, Robert D. Marchenko and Deborah H. Marchenko, brought this action to quiet title to a strip of land adjoining their home in Watertown which they claim to have adversely possessed for more than 15 uninterrupted years.   The defendants are Robert M. Graham, the Town of Watertown (“Town”) and “unknown parties in interest.”   John G. O'Neill and Kathleen O'Neill (“O'Neill”), owners of land adjoining the strip of land, have moved to be added as party defendants (# 130).   The defendant, Town of Watertown, has filed a separate motion (# 132) that the plaintiffs be required to cite in John G. O'Neill, Jr. as a defendant.   There appears to be no dispute that the John G. O'Neill, Jr. referred to in the Town's motion is the same as the John G. O'Neill in motion # 130.   The plaintiffs have objected to both motions.   The motions and the objections were argued on November 12, 2013.   For the reasons given the motions to cite in are denied.

The undisputed facts are that the plaintiffs own a home at 51 Glen Hollow Road in Watertown.   Their property is known as Lot 27 in Section Three of the Woodpark subdivision developed by the defendant, Robert M. Graham.   The subdivision map is dated August 1973 and was recorded in the Watertown land records in September 7, 1973.   The plaintiffs' property has 63.51 feet of frontage on Glen Hollow Road, a town road which ends in a cul-de-sac which provides access to the plaintiffs and four other lots in the subdivision. 176.35 feet of the eastern boundary of the plaintiffs' land borders a strip of land (“Graham strip”) marked “Reserved For Street 50' “ on the subdivision map.   The northerly end of the Graham strip bounds on the cul-de-sac on an arc of 56.77 feet.   The other end of the Graham strip bounds for 52.85 feet the property of O'Neill.   The other side of the Graham strip bounds another lot in the subdivision for 109.12 feet.   The defendant, Robert M. Graham, remains the record owner of the Graham strip.   The O'Neill property is not part of the Woodpark subdivision.   The plaintiffs allege in their complaint that for more than 15 uninterrupted years they have exclusively used, maintained and possessed the Graham strip under a claim of right.

The O'Neill motion to be joined as a defendant states that it is based upon General Statutes § 52–102 and Practice Book § 9–6 et seq.   The Town's motion states that it is based upon General Statutes § 52–107 and Practice Book § 9–18.   Despite this disparity, the court will consider both motions under the provisions of General Statutes § 52–107 and Practice Book § 9–18 as they appear to be the proper sections.¹

“The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court ․ It must be kept in mind, however, that the rules on intervention should be liberally construed, in order to avoid multiplicity of suits and settle all related controversies in one action ․ A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene.   The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct, and immediate interest that will be affected by the judgment.   An applicant for intervention has a right to intervene ․ whe[n] the applicant's interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.”  (Citations omitted.   Internal quotation marks omitted.)  Franco v. East Shore Development, Inc., 271 Conn. 623, 631 (2004).

O'Neill's motion to be joined as a defendant states his interest as follows:  “Should the Plaintiffs succeed in establishing title in themselves as alleged in their complaint, the Graham Property will no longer be available as intended for use as a future street, thereby denying to the Movants a potential means of ingress/egress to their property.”   The Town's motion to add O'Neill as a defendant states that:  “If Mr. O'Neill is not made a party to this action, the potential exists for Mr. O'Neill to become “land locked” without his knowledge.   The plaintiffs argue that the reasons given by O'Neill and the Town are frivolous and should be rejected.   The plaintiff's two main arguments will be discussed below.

The plaintiffs argue that because the Graham strip abuts a permanent cul-de-sac, O'Neill will never be able to use it as a means of ingress and egress to his property.   If the Graham strip were to be adopted by the Town as a municipal road it would be an extension of the cul-de-sac which the plaintiffs claim is impossible.   The plaintiffs cite a quotation from Hillcrest Orchards, LLC v. Southington Planning and Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV–07–4015092–S (March 6, 2009) that:  “Permanent cul-de-sacs will never be connected to other roads.”   The citation for this quotation is to LePage Homes v. Planning & Zoning Commission, 74 Conn.App. 340, 349–50 (2002).   In LePage, the Appellate Court was interpreting the specific language of the Southbury subdivision regulations.   I do not read it to say that no permanent cul-de-sac can ever be extended under all subdivision regulations and under all factual circumstances.   Accordingly, this reason for denying O'Neill's intervention in this case is rejected.

The plaintiffs' second argument has more merit.   They argue that O'Neill has no legal interest in the Graham strip as a means of ingress or egress, and therefore, O'Neill is not an indispensable and necessary party.   The plaintiffs cite Denny v. Tomei, 129 Conn.App. 544 (2011).   The holding of that case is that the plaintiff did not have standing to bring a declaratory judgment action to declare that the plaintiff, a landowner abutting a subdivision, had the right to build a road on a strip of land shown on the subdivision map as “for future highway purposes.”   The plaintiff did not have standing because the subdivision map did not create an easement by implication in his favor for two reasons:  (1) his land was never part of the subdivision and it can be presumed that the developer of the subdivision intended to provide a benefit to owners of property in the subdivision and not to outsiders;  and (2) the plaintiff did not allege that construction of a road over the strip reserved for future highway purposes was reasonably necessary for the use and normal enjoyment of his own property.  (Emphasis in the original.)  Id., 551–52.

Here, the O'Neill land was not part of the Woodpark subdivision.   It can be presumed that the developer, Robert M. Graham, intended to benefit the owners of lots in the subdivision when he retained the Graham strip as “reserved for street.”   Also, O'Neill has not alleged that he wants to build a road over the Graham strip or that such a road is reasonably necessary for the use and normal enjoyment of his property.   His only allegation is that if the plaintiffs are successful, the Graham strip will no longer be available as a future street, thereby denying him a potential means of ingress and egress.   The Town adds the allegation that “the potential exists” for the O'Neill land to become landlocked.   These allegations are a far cry from an allegation that construction of a road over the Graham strip is reasonably necessary for the use and normal enjoyment of the O'Neill land.

The court is mindful that it should exercise its discretion liberally in order to avoid a multiplicity of suits and to settle all related controversies in one action.   But, the reasons given by O'Neill and the Town do not convince the court that O'Neill has any interest which he could raise in a separate suit or which will be affected by a judgment in this case.   Accordingly, the court will not exercise its discretion to grant the motions to make O'Neill a defendant in this case.   Motions 130 and 132 are denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Practice Book Section 9–6 “concerns only parties that the plaintiff can join as defendants in the original complaint.   Adding defendants after the action is brought is governed by Sections 9–18 to 9–22.”   W. Horton and K. Knox, Connecticut Practice Series, Volume 1, Superior Court Civil Rules, authors' comments, Section 9–6.  General Statutes Section 52–107 is virtually identical to Practice Book Section 9–18..  FN1. Practice Book Section 9–6 “concerns only parties that the plaintiff can join as defendants in the original complaint.   Adding defendants after the action is brought is governed by Sections 9–18 to 9–22.”   W. Horton and K. Knox, Connecticut Practice Series, Volume 1, Superior Court Civil Rules, authors' comments, Section 9–6.  General Statutes Section 52–107 is virtually identical to Practice Book Section 9–18.

Pickard, John W., J.