Conway v. American Excavating, Inc.

676 A.2d 881, 41 Conn. App. 437, 1996 Conn. App. LEXIS 263
CourtConnecticut Appellate Court
DecidedMay 28, 1996
Docket14525
StatusPublished
Cited by11 cases

This text of 676 A.2d 881 (Conway v. American Excavating, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conway v. American Excavating, Inc., 676 A.2d 881, 41 Conn. App. 437, 1996 Conn. App. LEXIS 263 (Colo. Ct. App. 1996).

Opinion

SHEA, J.

The plaintiffs, Roger J. Conway and Robin Conway, have appealed from a judgment of the trial court in favor of the defendants, American Excavating, [439]*439Inc. (American), a Connecticut corporation; Robert Doolittle, its president; and the owners of two properties served by an easement providing access to a public highway for their benefit and that of the property owned by the plaintiffs.1 The principal claim of the plaintiffs is that the court, in effect, ignored a provision of the easement and maintenance agreement, to which all the properties crossed by the easement were subject, requiring that the common roadway be restored to its original condition if it should be “disturbed or damaged.” They also maintain that certain rulings on evidence were erroneous and that the court’s finding of implied consent to a trespass on their property is unsupported by the evidence. We conclude that the judgment must be reversed in part.

There is no substantial dispute about the following facts. On April 19,1991, American conveyed to the plaintiffs lot forty in a subdivision of four lots numbered thirty-seven, thirty-eight, thirty-nine and forty, situated on the south side of Maryland Drive, a public highway in the town of Middlefield. American had completed construction of a house on lot forty pursuant to a contract with the plaintiffs executed on October 10, 1990. All the lots are bounded on the north by Maryland Drive, but only lot thirty-seven, the lot farthest to the east of the four, had direct access thereto because the other three lots ascend very steeply to that highway. The four lots were subject to a “Declaration of Easements and Maintenance Agreement” that had been recorded in the Middlefield land records by one of American’s predecessors in title who had created the subdivision. This document provided for a twenty foot wide easement over a strip of land extending from lot forty, the plaintiffs property, east to Maryland Drive and crossing sequentially lots thirty-nine, thirty-eight and a minuscule part [440]*440of lot thirty-seven, as shown on the recorded subdivision map. The easement was created for the benefit of lots thirty-eight, thirty-nine and forty to provide access to Maryland Drive. Ingress to or egress from those lots was expressly restricted to that easement. The owners of those lots were made responsible for all repairs, snow plowing and other maintenance of the easement, the expense to be shared equally.

The plaintiffs moved into their home in April, 1991, and the graveled roadway providing access to Maryland Drive was then satisfactory, being aligned in a straight line with the driveway leading to their garage and sloping moderately uphill to Maryland Drive. In August of that year, American began the construction of a house on lot thirty-eight for the defendants Michael Chappell and Joyce Chappell and lowered the surface of the roadway in front of their property slightly so that their driveway would be less steep. Although that change in the roadway resulted in some increase in its slope as it approached Maryland Drive, the plaintiffs raised no objection because the effect on their use of the roadway was not significant.

Some time prior to May, 1992, American began construction of a house on lot thirty-nine, lying between the plaintiffs’ land and that of the Chappells, to be purchased by the defendants, Thomas Rowe and Robin Rowe. On May 22, 1992, the plaintiffs returned from a trip and discovered that the roadway, which was undisturbed at the time of their departure earlier that month, had been altered in several respects and that a portion of the driveway to their garage had been relocated in such a manner as to destroy part of their lawn.

The plaintiffs presented evidence to prove that the roadway, where it crossed lot thirty-nine, had been moved several feet northward toward the embankment rising to Maryland Drive and that its surface had been [441]*441lowered, apparently for the purpose of decreasing the slope of the driveway for the house being constructed on that lot. They claimed that the travel surface of the roadway had been narrowed and that its slope to Maryland Drive had become substantially steeper, thus creating problems of access to that highway. They presented photographs demonstrating problems they had encountered as a result of the reconstruction of the roadway, such as erosion of the embankment between the roadway and Maryland Drive, and the construction of an open ditch across the graveled surface of the roadway to drain water that accumulates along its north side, opposite the Rowes’ house on lot thirty-nine. They claimed that the roadway no longer led straight into their garage, as it did formerly, and that part of their lawn had been destroyed when American changed the location of their driveway so that it would meet the relocated roadway.2

The defendant Doolittle, who was called as a witness by the plaintiffs, testified that, as president of American, he had instructed one of its employees to perform the work involved in relocating the driveway on the plaintiffs’ property so that it would join the relocated roadway. He admitted that permission to enter their lot had never been requested. He also testified that American had performed the work necessary to relocate the roadway. He claimed, however, that the original location of the roadway that the plaintiffs had used for more than one year prior to May, 1992, was not within the easement area shown on the development map. He termed that roadway an “access road.”

The trial court concluded that the plaintiffs had failed to sustain their burden of proving that the original loca[442]*442tion of the roadway was within the easement area shown on the development map and that, therefore, they had no right to object to its relocation or to the other changes made by American in their absence. The court had excluded the testimony of a civil engineer offered by the plaintiffs, as well as the map he had helped to prepare in order to establish the location of the relocated roadway, for the reason that he was not a licensed land surveyor. The testimony of the registered land surveyor who had prepared the map, offered for the same purpose, was excluded because the plaintiffs had failed to identify him properly in accordance with Practice Book § 220 (D).

The plaintiffs claim that the trial court has ignored the import of paragraph three of the declaration of easements, which provides: “In the event said driveway has been constructed prior to the commencement of the construction of a dwelling by any party, and in the process of construction, the ‘20 [foot] driveway easement’ is disturbed or damaged, the party owning the lot upon which such construction takes place shall restore the ‘20 [foot] driveway easement’ to its condition as it existed immediately prior to the commencement of such construction.” They claim that provision imposed on American the obligation of restoring the access roadway to the condition that existed prior to May, 1992, before American began the construction of a house on lot thirty-nine for the Rowes.

Although the memorandum of decision does not mention paragraph three, the court did indicate, in a colloquy with counsel during trial, that it interpreted that provision to be inapplicable to the roadway as originally constructed unless the plaintiffs first proved that it was within the area of the “20 [foot] driveway easement” as delineated on the subdivision map referred to in the declaration of easements.

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Cite This Page — Counsel Stack

Bluebook (online)
676 A.2d 881, 41 Conn. App. 437, 1996 Conn. App. LEXIS 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conway-v-american-excavating-inc-connappct-1996.