November 7, 2017
for, inter alia, a temporary and permanent injunction
ordering the defendants to remove certain structures from the
plaintiff's real property, and for other relief, brought
to the Superior Court in the judicial district of Danbury,
where the case was tried to the court, Truglia, J.;
judgment in part for the plaintiff, from which the defendants
R. Marcus, with whom were Barbara M. Schel-lenberg and
Alexander Copp, for the appellants (defendants).
L. Cordani, Jr., with whom, on the brief, was Richard L.
Street, for the appellee (plaintiff).
Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn,
appeal arises from an action in which the plaintiff,
FirstLight Hydro Generating Company, alleged that the
defendants, Allan Stewart and Donatella Arpaia, were
trespassing on property that the plaintiff owned along the
shore of Candlewood Lake (lake). The trial court rendered
judgment for the plaintiff in part. On appeal, the defendants
claim that (1) there was insufficient evidence to prove the
plaintiff's ownership of the subject property, and (2)
the trial court abused its discretion by ordering injunctive
relief that was overly broad and exceeded the scope of the
relief sought by the plaintiff. We conclude that there is
sufficient evidence to support the trial court's finding
that the plaintiff owned the subject property and, thus, that
the trial court properly found that the defendants had
trespassed on the plaintiff's property. We further
conclude that the scope of the trial court's injunctive
relief is not overly broad. Accordingly, we affirm the
judgment of the trial court.
following relevant facts and procedural history are set forth
in the trial court's memorandum of decision.
‘‘The plaintiff is a public utility corporation
with a principal office located in New Milford . . . that
operates hydroelectric power generation facilities in this
state pursuant to licenses from the Federal Energy Regulatory
Commission. . . .
of the plaintiff's facilities is a pumped storage
hydroelectric power facility . . . known as the Rocky River
development. [The lake], which covers an area of
approximately 5650 acres in New Milford, Danbury, New
Fairfield, Sherman and Brookfield, serves as the reservoir
for the Rocky River [development]. . . .
plaintiff's predecessor in interest, the Connecticut
Light & Power Company (CL&P), began construction on
[the lake] in 1920 and completed it in 1927. CL&P
acquired title to the lands forming the bed and shoreline of
[the lake] through a series of conveyances during the 1920s
and thereafter. . . . The natural elevation of the . . . lake
is approximately 200 feet above sea level. When the lake was
created, CL&P purchased all of the land constituting the
shoreline of the lake sufficient to allow it to raise the
water level in the lake by an additional 230 feet. The
elevation of approximately 440 feet above sea level, i.e.,
the maximum height of the lake's surface when completely
flooded, was memorialized as part of [a document known as
the] ‘1927 Rocky River datum.' This elevation is .
. . commonly referred to as the ‘440 [foot] contour
elevation line' or sometimes more simply as the
‘440 contour.' ...
. . . 2000, CL&P conveyed all of its right, title, and
interest in and to the Rocky River [development] to the
plaintiff, then known as Northeast Generation Company, by way
of a quit claim deed . . . . This quit claim deed conveyed
all of the land comprising the bed and shoreline of [the
lake] . . . excepting therefrom prior conveyances from
CL&P to other grantees . . . .
1934, CL&P conveyed a portion of the land it had acquired
to complete [the lake] and its surrounding shoreline to
Oenoke Holding Corporation [by deed]. . . . The 1934 deed
describes the eastern and western boundaries of the tract
conveyed . . . by reference to the ‘ Rocky River
datum more particularly described in an instrument recorded
[on page 213 of volume 12] of the New Fairfield land
records.' The 1934 deed also delineates the [tract
conveyed] by a complete metes and bounds description with
reference to permanent surveyors' marks. The 1934 deed
also refers to ‘[a monument on the] 440 [foot] contour
elevation line.' ...
1934 deed makes clear that the land conveyed to Oenoke
Holding Corporation was, and is, immediately contiguous to
the land retained by CL&P along the 440 foot contour
elevation line. The 1934 deed also grants to Oenoke Holding
Corporation and its successors and assigns rights of use and
access to the waters of [the lake]. The . . . waters referred
to in the 1934 deed cover the adjacent land retained by
CL&P at the time of the 1934 conveyance. . . .
. . . 1961, the Bogus Hill Development Corporation recorded a
subdivision map [relating to] a portion of the land deeded to
Oenoke Holding Corporation by CL&P. . . . [L]ots 51 and
52 [of that subdivision] were conveyed to Arthur Namm by
warranty deed . . . . The legal description contained in the
deed to Namm describes the southerly boundary [those lots] as
running along ‘[the 440 foot contour elevation line of
the 1927] Rocky River datum [and] thence along . . . said 440
foot contour elevation line [following a series of specific
courses and distances].' The identical metes and bounds
description set forth in [this] deed is shown on . . . town
of New Fairfield map no. 1026 . . . .
50, 51, and 52 on map no. 1026 were later reconfigured to
form, in part, lot 52 and parcel C, as shown on . . . town of
New Fairfield . . . map no. 1903. . . .
map [no.] 1026 nor map [no.] 1903 delineates the southerly
boundary of [these tracts] by reference to ‘the 440
contour' or a similar reference. Each map contains the
same metes and bounds description contained in the warranty
deed from [the] Bogus Hill Development Corporation to Namm. .
defendants are the owners of a residential parcel of land
commonly known as 24 Sunset Drive, New Fair-field . . . . The
defendants' parcel is a waterfront tract that is directly
adjacent to the shoreline of [the] lake owned by the
plaintiff. The defendants received title to their property by
warranty deed from Diana Horowitz . . . .
legal description in the defendants' deed describes the
land conveyed to them as lot . . . 52 and parcel C, as shown
and delineated on . . . map no. 1903. . . .
defendants also received title to a second tract of land,
[comprised of] 0.03 acres, as shown on [town of New Fairfield
map no. 2580] . . . . The second parcel conveyed to the
defendants was land [formally] owned by CL&P, the
plaintiff's predecessor in interest, [and is] immediately
contiguous to the southerly boundary of lots [51 and 52] as
shown on map no. 1026. . . .
defendants are the owners of the land and improvements
located within the lines of record title, as shown on [a map
created by Paul Hiro, a licensed surveyor, that was admitted
into evidence as plaintiff's exhibit
seven]. More specifically, the defendants are the
owners of the land . . . delineated by the bold lines on said
map. . . .
plaintiff is the owner of all of the land immediately
contiguous to the southerly border of the defendants'
land as shown on said map, comprising the shoreline and
intertidal zone adjacent to the defendants' property, and
the plaintiff is entitled to exclusive possession and control
over it. . . .
2013, contractors representing the defendants approached
representatives of the plaintiff seeking permission to make
improvements to the defendants' property. The defendants
required the plaintiff's permission because a portion of
the improvements were to be located partially or entirely on
the plaintiff's land. The plaintiff granted the
defendants permission to install certain improvements,
including landscaping, that would be built on the
plaintiff's land by way of a permit dated December 6,
2013. . . . The defendants signed the December 6, 2013
permit, thereby agreeing to the scope of the work allowed and
all of the other terms, conditions and limitations of the
permit. . . .
thereafter, the defendants' representatives again
approached the plaintiff seeking permission for additional
improvements to be built partially or entirely on the
plaintiff's land. The plaintiff granted a second permit
to the defendants for the additional work, dated [May] 13,
2014. . . . Stewart signed the May 13, 2014 permit in July,
2014, thereby agreeing to the scope of the work allowed and
all of the other terms, conditions and limitations of the
permit. . . .
permit issued by the plaintiff expressly prohibits ‘any
excavation, flooding, grading or filling except as
described' in the permits, and ‘construction of any
structures, fixtures or improvements except as described'
in the permits. . . .
the course of a year, the plaintiff determined that the
defendants were continuously performing work in violation of
the permits, even after being warned by the plaintiff to
discontinue the work.] On July 30, 2014, Brian Wood, the
plaintiff's land management administrator, on behalf of
the plaintiff, held an on-site meeting with the defendants.
At this meeting, Wood advised the defendants that they had to
immediately cease all work on the property because they were
constructing a significant portion of it on the
plaintiff's land in violation of the permits. Wood
advised the defendants that they had to have their property
surveyed and the lot lines staked or otherwise marked, and
that they had to bring their construction into compliance
with the permits. The defendants agreed to obtain [an
updated] survey from . . . Hiro . . . and to cease all
further work on the premises. . . .
defendants commissioned an updated survey from Hiro, [but did
not provide] Wood or any other person representing the
plaintiff with a copy of the updated survey. . . .
visited the site again on September 23, 2014, to review
compliance with the permits. Once again, Wood found the
defendants' contractors at work on the plaintiff's
property. Wood also found on this occasion that extensive
additional work had been done on the plaintiff's property
in violation of the permits, including the installation of a
water fountain.'' (Footnotes added and omitted.)
plaintiff subsequently commenced the present action,
alleging, inter alia, trespass. The plaintiff sought
injunctive relief requiring the defendants to remove all
structures from the plaintiff's property that were not
authorized by the permits issued to the defendants. At trial,
the defendants claimed that the plaintiff could not establish
its ownership or possessory interest in the property on which
the defendants were building.
trial, the court concluded as follows: ‘‘The
court finds that the plaintiff has proven by a preponderance
of the evidence that (1) the . . . line separating the
plaintiff's property and the defendants' property is
delineated by the 440 . . . contour as originally established
by the 1927 Rocky River datum and 1934 deed, and (2) the
plaintiff, as successor in interest to [CL&P], is the
owner of all of the land immediately contiguous to the
southerly boundary of the defendants' property.''
The trial court further found ‘‘that the
plaintiff has sustained damages by virtue of the substantial
permanent unauthorized improvements constructed by the
defendants on the plaintiff's land.''
trial court thereafter issued a permanent mandatory
injunction as follows: ‘‘1. The defendants are
ordered to remove immediately those portions of the following
structures that are located partially or entirely on the
plaintiff's land shown as being outside the prop- erty
boundary defined in bold as the ‘440 contour
[elevation] line per . . . map no. 1903' and
‘property line per . . . map no. 2580' [as]
depicted on plaintiff's [exhibit seven]:
‘‘a. the upper patio;
‘‘b. the masonry fireplace and hearth;
‘‘c. the masonry retaining wall abutting the
upper patio area on the . . . ...