139 Conn. App. 706
Conn. App. Ct.2012Background
- Plaintiff Bruce Zirinisky owns 17 Brookside Park (servient estate) and defendants Carnegie Hill Capital Asset Mgmt, LLC, Michael Jamison, and Janice Jamison own 116 Brookside Drive (dominant estate) in Greenwich, CT.
- On June 12, 1995, a map and easement were recorded granting Epstein and Candel Epstein an exclusive and perpetual easement over a 5346‑square‑foot area of the servient estate for any lawful purpose, with a prohibition on permanent structures.
- The easement explicitly permits landscaping and maintenance of the easement property by Epstein and bars erection of any permanent structure.
- In 2004 the Jamisons erected a large play system extending onto the easement, prompting the plaintiff to sue in April 2007 for removal and damages, later seeking injunctive relief.
- The trial court found the play system a permanent structure and granted removal; it also found three of the plaintiff’s planted trees within the easement formed a barrier to access to a park area and granted injunctive relief to remove those trees.
- On appeal, the court reverses in part: six trees planted by plaintiff within the easement are within the scope of the easement’s broad grant, and the play system is permanent; the case is remanded to remove all six trees, while affirming removal of the play system.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did six spruce trees inside the easement violate the easement? | Trees interfered with the dominant estate’s use and fall within 'any lawful purpose' including landscaping. | Only trees blocking access to the park violated the easement; not all six. | Six trees violation; must remove all six. |
| Is the play system a permanent structure under the easement terms? | The play system is not a permanent structure and could be curable or removable. | The play system is permanent due to size, weight, durability, and location. | Play system is permanent; injunction to remove proper. |
| How does the broad 'any lawful purpose' grant interact with the 'no permanent structures' restriction? | Easement allows many lawful activities, including landscaping; planting trees is contemplated. | Even with broad grant, permanent structures are prohibited and trees may unreasonably interfere. | Broad grant permits landscaping absent permanent structures; trees interfere with defendants' use, but six-tree issue overrides prior scope ruling. |
Key Cases Cited
- Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502 (2000) (easement interpretation; lives with the land; appurtenant vs in gross distinctions)
- Celentano v. Rocque, 282 Conn. 645 (2007) (servitude rights; noninterference with permitted uses)
- Wykeham Rise, LLC v. Federer, 305 Conn. 448 (2012) (every part of writing considered; contract interpretation)
- LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340 (2002) (definition of permanent in land use context)
- American Brass Co. v. Serra, 104 Conn. 139 (1926) (servitude rights; balance of ownership and easement)
- Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672 (2006) (dictionary definitions used to interpret permanent)
- D’Appollonio v. Griffo-Brandao, 138 Conn. App. 304 (2012) (mixed questions of fact and law; standard of review on legal conclusions)
- Smith v. Muellner, 283 Conn. 510 (2007) (permanent structures in adverse-use context)