Argued
January 22, 2019
Appeal
from the Superior Court, Judicial District of Rockville,
William H. Bright, J.
Page 845
[Copyrighted Material Omitted]
Page 846
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 plaintiffs complaint and the
defendants 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
Page 847
Alligood .[1] On cross appeal, the [193 Conn.App.
545] plaintiff claims that, upon finding that the defendants
use of the servient estate interfered with the plaintiffs
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 plaintiffs property abuts the rear of the
defendants property. The portion of the plaintiffs property
that abuts the defendants 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, Russos 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,
Page 848
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 plaintiffs
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 plaintiffs
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
plaintiffs 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 plaintiffs complaint and in favor of the plaintiff on
the defendants 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 defendants actions or inactions were materially
interfering with the plaintiffs 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 plaintiffs 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. ...