Weston Street Hartford, LLC v. Zebra Realty, LLC

         Argued January 22, 2019

         Appeal from the Superior Court, Judicial District of Rockville, William H. Bright, J.

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[Copyrighted Material Omitted]

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          Steven Lapp, Hartford, with whom, on the brief, was Daniel J. Klau, for the appellant-cross appellee (defendant).

         Mario R. Borelli, with whom, on the brief, was Frank A. Leone, East Hartford, for the appellee-cross appellant (plaintiff).

         DiPentima, C.J., and Sheldon and Moll, Js.^[*]

          OPINION

         MOLL, J.

         [193 Conn.App. 544] The present case arises from a dispute between the plaintiff, Weston Street Hartford, LLC, and the defendant, Zebra Realty, LLC, concerning a right-of-way easement held by the plaintiff that runs over property owned by the defendant. The defendant has appealed and the plaintiff has cross appealed from the judgment rendered, after a court trial, on the plaintiff’s complaint and the defendant’s counterclaim. On appeal, the defendant claims that the trial court, in rendering judgment in favor of the plaintiff on counts one and two of the counterclaim, incorrectly determined that Alligood v. LaSaracina, 122 Conn.App. 473, 999 A.2d 836 (2010), applies to the present case and prohibits any landowner from relocating an easement without the consent of the easement holder. In the alternative, the defendant contends that the Restatement (Third), Property, Servitudes § 4.8 (3) (c), is a more logical extension of Connecticut easement law than the rule adopted by this court in

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Alligood .^[1] On cross appeal, the [193 Conn.App. 545] plaintiff claims that, upon finding that the defendant’s use of the servient estate interfered with the plaintiff’s intended use of the easement, the court should have rendered judgment in its favor on its complaint and granted its request for an injunction prohibiting interference by the defendant. We disagree with both parties’ claims and, accordingly, affirm the judgment of the trial court.

          The following procedural history and facts, as found by the trial court, are relevant to the parties’ claims. The plaintiff is the owner of real property located at 170 Weston Street in Hartford, and the defendant is the owner of adjacent real property located at 145 West Service Road in Hartford. The properties are located in an area zoned for commercial or industrial use. When facing Weston Street, the back right corner of the plaintiff’s property abuts the rear of the defendant’s property. The portion of the plaintiff’s property that abuts the defendant’s property was formerly known as Lot 13.

         In 1979, Gennaro Russo transferred his ownership of 145 West Service Road to Dalchard Warehouse, Inc. (Dalchard Warehouse), by deed, which provided in relevant part that 145 West Service Road was subject to a right-of-way in favor of what was then Lot 13 (right-of-way).^[2] At the time of this transfer, Russo still owned [193 Conn.App. 546] the lots that would become 170 Weston Street as it exists today, namely, Lots 6 through 13 of an area known as the Fox Press Subdivision. In 1980, Russo’s ownership of Lots 6 through 12 was transferred to Charter Oak Bank & Trust Company (Charter Oak) by way of foreclosure by sale, and, thereafter, Russo transferred his ownership of Lot 13 to Charter Oak by quitclaim deed. The combined transferred parcels eventually became known as 170 Weston Street. Consequently, Lot 13 no longer exists as a separate lot.

          In April, 1998, Dalchard Warehouse quitclaimed its interest in 145 West Service Road to Bechard, LLC. In November,

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2006, Belchard, LLC, transferred the property to the defendant by warranty deed, which provided in relevant part that 145 West Service Road was encumbered by "[a] Right-of-Way, 25 feet in width, as reserved in a deed dated August 29, 1979 and recorded in Volume 1723 at Page 277 of the Hartford Land Records."

          In June, 2011, the plaintiff acquired 170 Weston Street. The deed transferring ownership of 170 Weston Street to the plaintiff specifically references the right-of-way, describing it as follows: "[T]he right to use a 25 foot right-of-way for the benefit of that portion of these premises previously known as Lot No. 13, for ingress and egress to West Service Road as reserved in a deed from Gennaro A. Russo, Debtor in Possession to Dalchard Warehouse, Inc. Dated August 29, 1979 and recorded in Volume 1723, Page 277 of the Hartford Land Records."

          In August, 2011, the plaintiff entered into a three year lease agreement with Capitol Transportation, LLC (Capitol Transportation), pursuant to which Capitol [193 Conn.App. 547] Transportation was to use a portion of the plaintiff’s property at 170 Weston Street as a school bus terminal and storage and transportation facility. Thereafter, approximately 135 school buses and/or vans, which were used to transport students enrolled in the Hartford public and magnet schools, were regularly parked on the plaintiff’s property in an area that includes, but is not limited to, former Lot 13. At this time, the defendant operated and continued to operate an adult entertainment establishment and night club, known as the Mynx Cabaret, on its property at 145 West Service Road. The parking lot surrounding the Mynx Cabaret contained eighty-five parking spaces, including twenty-five to thirty of which were located in the right-of-way.

          In September, 2011, the plaintiff commenced an action against the defendant, seeking a temporary and permanent injunction prohibiting and restraining the defendant from maintaining a parking lot on the right-of-way or from obstructing the plaintiff’s right to pass over the right-of-way. See Weston Street Hartford, LLC v. Zebra Realty, LLC, Superior Court, judicial district of Hartford, Docket No. CV-11-6025475-S (first action). The defendant filed a counterclaim, seeking, inter alia, a permanent injunction enjoining the plaintiff from asserting any right to use the right-of-way and a declaratory judgment with respect to the parties’ rights to the right-of-way. See id.

         On March 11, 2013, in the first action, the trial court rendered judgment, after a court trial, in favor of the defendant on the plaintiff’s complaint and in favor of the plaintiff on the defendant’s counterclaim. In its memorandum of decision, the court concluded that the plaintiff had established the existence of the right-of-way but had failed to prove that the defendant’s actions or inactions were materially interfering with the plaintiff’s use of the right-of-way because one particular utility pole, which was located in the public right-of-way, was obstructing the right-of way, and the plaintiff had [193 Conn.App. 548] not established that the utility pole could be relocated. The court also concluded that the plaintiff’s intended use would overburden the right-of-way because some of the buses that would be utilizing it would do so to travel to and from property not intended to be benefitted by the right-of-way, i.e., property other than former Lot 13, and, therefore, such use was not permitted. ...