Lichteig v. Churinetz

519 A.2d 99, 9 Conn. App. 406, 1986 Conn. App. LEXIS 1182
CourtConnecticut Appellate Court
DecidedDecember 30, 1986
Docket4025
StatusPublished
Cited by39 cases

This text of 519 A.2d 99 (Lichteig v. Churinetz) 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
Lichteig v. Churinetz, 519 A.2d 99, 9 Conn. App. 406, 1986 Conn. App. LEXIS 1182 (Colo. Ct. App. 1986).

Opinion

Hull, J.

This case involves a dispute over a nine foot right of way. The plaintiff, the owner of the servient estate, sought injunctive relief against the defendants William W. Churinetz (hereinafter the defendant), the owner of the dominant estate, and the estate of Joan M. Churinetz, for claimed misuse of the right of way. After a trial to the court, judgment was rendered for the plaintiff.

The court concluded as follows: (1) that the present use of the easement was unreasonable and overburdening; (2) that the defendant should be enjoined from using the easement except as access to and from the dominant estate, and by no more than two vehicles; (3) that the right of the defendant to use the easement for two vehicles was in the nature of a personal easement in gross; and (4) that the defendant should also be enjoined from using a three foot strip of land on the north side of the dominant estate. The defendant appealed, claiming that the court erred (1) in holding that the defendant’s use of the nine foot easement was unreasonable, (2) in limiting the use of that easement, (3) in enjoining the defendant from interfering with the three foot right of way over the plaintiff’s property when the plaintiff had not requested such relief, (4) in [408]*408granting injunctive relief to the plaintiff, and (5) in considering parol evidence when the terms of the easement were clear and unequivocal.

The court found the following facts which are not in dispute. The plaintiff is the owner of property known as 497 Ocean Avenue in the town of West Haven. The defendant is the owner of property known as 489 and 499 Ocean Avenue, West Haven. A well defined nine foot strip of land on the north side of the plaintiff’s property serves as an easterly access route to the defendant’s property at 499 Ocean Avenue and as access to a three foot passageway running from 499 Ocean Avenue to Long Island Sound.

The deed to 497 Ocean Avenue describes the property as having a nine foot strip of land on the north side of the property “subject to a right of way for all purposes, whatsoever, in, through, over and upon each and every portion of the same.” The deed to 499 Ocean Avenue conveyed that right of way to the grantee. 499 Ocean Avenue is therefore the dominant estate and 497 Ocean Avenue is the servient estate.

The defendant and his adult daughter reside at 489 Ocean Avenue. That property has been owned and occupied by members of the defendant’s family since 1967. The defendant owns the property at 499 Ocean Avenue and rents it to tenants. That property has been in the defendant’s family since 1978. The yard at 499 Ocean Avenue, lying to the rear of that property, accomodates about ten automobiles, and is used for parking.

Until 1978, when 499 Ocean Avenue was purchased, the defendant’s family parked cars on the public highway and did not use the easement. The easement was used only as access to 499 Ocean Avenue. In 1978, after purchasing 499 Ocean Avenue, the defendant’s family began using the easement as access to 489 Ocean Ave[409]*409nue as well as to 499 Ocean Avenue. On any given day, five to seven automobiles used the easement to gain access to the two properties owned by the defendant. The defendant’s first claim is that the trial court erred in finding that the use of the easement was unreasonable. His second claim is that the court erred in limiting the use of the easement. The defendant’s fourth claim is that the court erred in granting injunctive relief. As these three claims are related, we will consider them together.

The court found that “[t]he traffic on the nine foot easement has increased materially since 1978. There are two automobiles connected with the occupants of Parcel 499. There appear to be four cars related to the defendant and family residing on Parcel 489. The easement on the plaintiff’s land has been accomodating these vehicles in addition to those of visitors, guests, and service persons of the defendants and of their tenants on Parcel 499. A daily average of the number of cars using the easement and parking on Parcel 499 appears to be from five to seven automobiles .... On special occasions, such as parties and in the summer time, the number of vehicles parked on Parcel 499 has been known to number as many as fourteen.” The court went on to state that “it is an overburden of said easement on the plaintiff’s land and an excess and unreasonable use of it for the parking on said premises on Parcel 499 of any motor vehicle belonging to any person or party other than the residential occupants except [for two vehicles belonging to the defendant.]” The court also stated that the defendant’s right to use the driveway for the two vehicles is an easement in gross, and will not run with the property. We disagree.

“The issue of reasonable use is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as [410]*410the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting.” Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983). The right of way in this case is one created by grant and not by prescription, the latter being more limited in nature. See Birdsey v. Kosienski, 140 Conn. 403, 412, 101 A.2d 274 (1953). Moreover, it is one created in general terms and without any restrictions on its use. Such a grant is to be construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant. The reasonable uses of the dominant estate in connection with which the easement may be used are not limited to those to which the land was being put when the easement was granted. Id., 412-13; see also Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982).

Our courts have upheld as reasonable uses which were not contemplated by the original grant. A new sand and gravel business was held to be reasonably utilizing an easement even when the business had not been contemplated by the grant. Birdsey v. Kosienski, supra. Our Supreme Court also held reasonable the increased vehicular use of an easement for truck loading and unloading, despite the original grant referring only to farming uses. Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 443-44, 440 A.2d 935 (1981). In the present case, the use that was deemed unreasonable was in fact contemplated by the original grant. The deed contemplated access to and from a residential dwelling. That is the only use that has ever been made of the property. The minimal amount of harm that might have been done by the additional traffic over the years was foreseeable, and the utility outweighed any burden to the plaintiff. From the facts [411]*411found by the trial court, we find that the result reached was erroneous. We conclude that the defendant’s use of the easement as access to and from 499 Ocean Avenue was reasonable.

We also disagree with the court’s ruling that the easement was in gross.

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Bluebook (online)
519 A.2d 99, 9 Conn. App. 406, 1986 Conn. App. LEXIS 1182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lichteig-v-churinetz-connappct-1986.