273 Conn. 217 | Conn. | 2005
Opinion
The principal issue in this certified appeal
The record reveals the following facts and procedural history relevant to our disposition of this appeal. Hall’s
Hall retained the land upstream from the dam, which included all or most of the pond bed, until July, 1987, when Hall conveyed it to the plaintiffs’ predecessors in title. In July, 1996, that parcel subsequently was conveyed to Willington, LLC, which then conveyed all but one-half acre of the pond bed to Ace in September, 1996. Each of the relevant deeds describe the pond bed in metes and bounds, and it is undisputed that the plaintiffs obtained, pursuant to the deeds, at least 99 percent of the land beneath the pond. Ace licenses the pond for recreational fishing to Willington, Inc., for its members only, of which there are no more than thirty-five, and Willington, Inc., in turn stocks the pond with fish. Ace and Willington, Inc., never have opened the pond to the public, and the plaintiffs never have given the Buccinos permission to use the pond for recreational purposes.
Although the extent of the Buccinos’ industrial use of the pond is unclear from the record, it reflects that
In January, 2000, the plaintiffs commenced this action, seeking, inter alia, injunctive relief from the defendants from entering onto or using the pond for recreational purposes, a declaratory judgment prohibiting the defendants from trespassing on the plaintiffs’ property, a declaratory judgment that the Buccinos own no part of the pond bed, and damages. In the spring of 2000, the plaintiffs erected a twelve foot wide fence along the edge of the pond, located approximately twenty-two feet from the pond’s edge, and have since taken similar steps leading to the obstruction of the defendants’ access to their right-of-way and the pond. The defendants denied the plaintiffs’ allegation that the Buccinos owned no part of the pond bed, and filed a counterclaim seeking injunctive relief to bar the plaintiffs from interfering with the defendants’ recreational use of the pond, and access to the pond generally, a declaratory judgment as to their right to use the pond for recreational purposes, and damages. Thereafter, the plaintiffs moved for summary judgment on their complaint, and the defendants moved for summary judgment on their counterclaim. The trial court denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion as to liability only, declaring
The plaintiffs subsequently appealed to the Appellate Court, which affirmed the trial court’s judgment. Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 587. The Appellate Court, relying on the Restatement (Second) of Torts, Riparian Rights § 843
The plaintiffs claim that the defendants do not have a riparian right to use the pond for recreational purposes solely by virtue of the Buccinos’ ownership of abutting property because the plaintiffs’ ownership of the entire pond bed grants them exclusive riparian rights under our case law applying to a body of water that is nonnavigable and man-made. The plaintiffs further claim that, irrespective of a riparian right, the Buccinos’ deed prohibits them from entering and using the pond for recreational purposes because its language restricts their use of the pond to industrial purposes. In response, the defendants contend that: (1) the pond has become a natural body of water because it has existed for a long period of time, thus our case law applying to man-made bodies of water does not apply; (2) the pond’s navigability or lack thereof is irrelevant; and (3) the Buccinos’ easement flowage rights and duties as owners of the dam that enables the pond’s existence afford the defendants the right to use the pond for recreational purposes. We agree with the plaintiffs.
Turning to the merits of the present case, we begin with an undisputed and essential fact. Because the plaintiffs obtained their ownership of the pond and the underlying pond bed by way of a deed describing their property in terms of metes and bounds, they have ownership in severalty
Connecticut consistently has followed the common-law rule. See, e.g., Adams v. Pease, 2 Conn. 481, 483 (1818) (holding, with respect to littoral ownership, adjoining property owners have exclusive rights in non-navigable bodies); Chapman v. Kimball, 9 Conn. 37, 40 (1831) (holding, with respect to nonnavigable bodies, owners have same exclusive property rights as over other real estate); Turner v. Selectmen of Hebron, 61 Conn. 175, 188, 22 A. 951 (1891) (holding, where natural,
We acknowledge that there is a minority civil law rule, which provides that owners of land beneath a body of water have the right to reasonable use and enjoyment of the entire body and that this ownership does not include the right to exclude abutting owners. We also recognize, however, that the few states to have followed this rule have an extensive number of natural lakes, and therefore understandably have adopted a policy favoring maximum recreational use. See Beacham v. Lake Zurich Property Owners Assn., 123 Ill. 2d 227, 231-32, 526 N.E.2d 154 (1988) (adopting civil law rule based on impractical consequences of establishing boundary lines underwater and desire to promote recreational use and enjoyment of lakes); Johnson v. Seifert, 257 Minn. 159, 167-69, 100 N.W.2d 689 (1960) (adopting civil law rule based in part on Minnesota’s extensive waters of recreational and commercial value); R. Johnson, note, 28 Ore. L. Rev. 267, 281 (1949) (“[t]he minority view stems from jurisdictions with great numbers of inland waterways where hunting and fishing have become major industries”); see also Beach v. Hayner, 207 Mich. 93, 95-98, 173 N.W. 487 (1919); Elder v. Delcour, 364 Mo. 835, 847-48, 269 S.W.2d 17 (1954); Snively v. Jaber, 48 Wash. 2d 815, 821-22, 296 P.2d 1015 (1956).
With these principles in mind, we turn to the present case. It is undisputed that the plaintiffs own 99 percent of the pond bed in severalty. See footnote 4 of this opinion. In accordance with the common-law principles previously outlined, therefore, the plaintiffs have exclusive control over this portion of the pond bed and the waters above it. This right permits the plaintiffs to exclude others, including the Buccinos, as abutting owners of the lake bed, by erecting a fence or other barrier to prevent others from utilizing the water which overlies the plaintiffs’ property. Accordingly, the Appellate Court improperly determined that the Buccinos had a riparian right to use the entire pond by virtue of their status as abutting landowners.
In this opinion the other justices concurred.
We granted the plaintiffs’ petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the plaintiffs, owners in fee simple of a man-made, nonnavigable pond, cannot
Thomas Buccino, Irma Buccino, the Hall’s Pond Ely Fishing Club, Inc., Willington Industries, Inc., Jerzy Debski, Robert Hisey and Peter Latincsics are the defendants in this action. The Buccinos are the owners of the abutting property, and the rights of the other defendants stem from the rights of the Buccinos as owners of that property. Hereinafter, we will refer to the Bucemos by name and we will refer to the other defendants as the licensees. References herein to “the defendants” are to the Buccinos and the licensees collectively.
The Buccinos have asserted that the plaintiffs cannot make the claim regarding the restrictive language of the deed because it is outside the scope of the certified question; see footnote 1 of this opinion; while at the same time they attempt to invoke their rights under the deed. The Buccinos cannot have it both ways. Moreover, whether the Buccinos’ rights are limited by the deed is within the scope of the certified question.
The Appellate Court embraced the following principle adopted in Minnesota and Michigan: “ ‘[Rjiparian rights ... are an incident, not of ownership of the bed of the lake, but of the ownership of the shore, and ... an abutting or riparian owner of a lake, suitable for fishing, boating, hunting, swimming, and other domestic or recreational uses to which our lakes are ordinarily put in common with other abutting owners, has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners . . . regardless also of the ownership of the bed thereof.’ Flynn v. Beisel, 257 Minn. 531, 539, 102 N.W.2d 284 (1960); see Johnson v. Seifert, 257 Minn. 159, 168-69, 100 N.W.2d 689 (1960); see also Beach v. Hayner, 207 Mich. 93, 95, 173 N.W. 487 (1919); Sterling v. Jackson, 69 Mich. 488, 508, 37 N.W. 845 (1888).” Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 582-83.
“Because the [trial] court did not grant a declaratory judgment, sought by the plaintiffs, that the Buccinos do not own any land underlying the pond, that issue, inferentially, also has not been decided. Although the issue of ownership of subaqueous land has not yet been resolved, the plaintiffs have appealed properly from a final judgment for the defendants on their counterclaim. The defendants, in their counterclaim, sought only a determination of the Buccinos’ rights to use the pond, and that issue was decided by the court, Sferrazza, J. Practice Book § 61-2 provides that a judgment that is rendered on an entire counterclaim is an appealable final judgment. The claims of title to the land beneath the pond, and the location of boundaries between the Buccinos’ land and that of [the plaintiffs] remain unresolved and pending in the plaintiffs’ complaint. See M. Kravitz & E. Amarante, ‘Key Differences Between Civil Appeals in the Second Circuit and Connecticut’s Appellate Courts,’ 76 Conn. B.J. 149, 160-61 (2002).” Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 577-78 n.7.
The Appellate Court majority relied on the Restatement (Second), which provides in relevant part: “In some cases . . . the title to the land may extend only to the edge of a watercourse or lake .... When this severance exists, the owner of the tract touching but not including the water has rights to use the surface in common with other riparian proprietors ... to use the water in any way that does not involve a trespass on the land underlying the water, and to object to an unprivileged taking or obstruction of the water by another that interferes with his use.” 4 Restatement (Second), Torts, Riparian Rights § 843, comment (e), p. 195 (1979); see Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 582. In his dissenting opinion, Judge Schaller noted that, although the Restatement (Second) would allow the use sought by the defendants, one must also realize that “the use would be severely restricted because it could not involve a trespass on the land underlying the water. . . . That would, seemingly, make ingress and egress
We note that the Restatement (Second) has been criticized for its vast departures from well established riparian rights law. 1R. Beck, Waters and Water Rights (2001 Replacement Volume) § 6.01 (c), pp. 6-85 through 6-86 (“One must be careful in relying on the Restatement (Second) ... to resolve the uncertainties that abound in most states under riparian rights theory. . . . [It] departs in significant ways from established riparian rights law. Only time will tell whether these departures will be followed by the courts of the different states.”). In the absence of persuasive justification, we decline to follow § 843 of the Restatement (Second) in the present case.
The plaintiffs and the defendants assert claims regarding the significance of the natural versus man-made status of the pond. Under our case law, however, we have not made such a distinction; instead, the navigability of a body of water is the critical factor in determining whether an owner of the land beneath the pond has exclusive rights to its use, a factual issue that is not in dispute here. See, e.g., Adams v. Pease, 2 Conn. 481, 483 (1818) (Stating that with respect to a natural body in the context of littoral ownership, “[b]y the common law ... in navigable rivers, and navigable arms of the sea, the right of fishing is common to all. In rivers not navigable, the adjoining proprietors have the exclusive right.”); Chapman v. Kimball, 9 Conn. 37, 40-1 (1831) (Stating with respect to natural body, “[a] distinction is always maintained between rivers navigable and those not navigable. . . .
When a deed conveying property abutting a body of water specifically delineates and describes the boundaries of the property, such as by metes and bounds, and that description includes a portion of the land beneath the water, that portion is owned in severalty. See Black’s Law Dictionary (8th Ed. 2004) (Defining “severalty” as “[t]he state or condition of being separate or distinct”; defining “metes and bounds” as “[t]he territorial limits of real property as measured by distances and angles from designated landmarks and in relation to adjoining properties. Metes and bounds are [usually] described in deeds and surveys to establish the boundary lines of land.”). By contrast, when a deed generally describes the abutting property as bounded by the body of water, title to the bed is based on littoral ownership, and each littoral owner impliedly owns the land under the water to the center of the body and each abutting owner is entitled to common use of the entire body. Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462, 463 (1867) (“[i]t is well settled that where land is bounded, in a deed, in general terms, on or by a river or stream not navigable, the grant extends to the center of it”); see 78 Am. Jur. 2d 391-92, Waters § 34 (2002) (“In the case of a lake suitable for domestic or recreational uses, a littoral owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners .... However, if in granting land bordering on a small lake capable of private ownership the lines are run through the lake, no littoral right to the use of the whole lake is acquired by any grantee, but
Historically, property rights in lakes were significantly different from property rights in streams, and each had a different name. 1R. Beck, Waters and Water Rights (2001 Replacement Volume) § 6.02 (b), p. 6-99. Rights in streams were “riparian,” while rights in lakes were “littoral.” Id. Although rights in the Great Lakes, and other large bodies of standing water still are treated differently from the rights of owners along the shore of smaller lakes or ponds in some jurisdictions, the two terms generally have merged and the term “riparian right” is now considered to encompass both types. Id., pp. 6-99 through 6-100.
We note that at least two of these jurisdictions that have adopted the civil law rule have held that the rule applies only to natural bodies and artificial bodies that have become natural through prescription and detrimental reliance. Lake Mille Lacs Investment, Inc. v. Payne, 401 N.W.2d 387, 389-90 (Minn. App. 1987); Greisinger v. Klinhardt, 321 Mo. 186, 193-95, 9 S.W.2d 978 (1928); see also footnote 7 of this opinion distinguishing the present case from others based on detrimental reliance.
We note that our decision comports with Connecticut’s strong public policy favoring the protection of private property rights. See Kaiser-Aetna v. United States, 444 U.S. 164, 179-80, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979) (considering rights of private pond owner where federal government sought to enforce public recreational rights in pond, court held that “the ‘right to exclude,’ so universally held to be a fundamental element of the property right, falls within [the] category of interests that the Government cannot take without compensation”). In the present case, the plaintiffs have relied on the belief that they are the sole owners of the pond and on the exclusive rights that usually accompany private ownership. When the boundary lines are clearly marked, as in the present case, we see no reason to deviate from the common-law rule when such a departure would “sweep away the reliance by property owners on the concept that ownership of all the subaqueous land conveys exclusive riparian rights.” Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 592 (Schaller, J., dissenting); see also Anderson v. Bell, supra, 433 So. 2d 1205-1206 (adopting common-law rule and discussing various economic policy concerns as well as difficulty of limiting civil law rule).
The Buccinos also mistakenly rely on this court’s decision in DeWitt v. Bissell, 77 Conn. 530, 60 A. 113 (1905), for this proposition. In that case, this court held that an owner of land bordering and beneath a natural body may erect a dam to create a pond and use the water for any purpose so long as he does not interfere with the rights of other proprietors. Id., 535. Thus, DeWitt addressed the diversion of water for one abutting property owner’s use, not that owner’s right to use another property owner’s water.
The Appellate Court interpreted the language of the Buccinos’ easement, which provides the right to “take and use water from said pond through said penstock, and the further right to take and use water from said pond that may be necessary for industrial purposes” as conveying “two separate rights, the right to use water through a penstock and the right to use water for industrial purposes.” (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn. App. 586. A penstock is a gate or sluice for controlling a flow of water. Thus, although the Appellate Court’s reading of the easement is not unreasonable, the separate right to take and use water from the penstock reasonably cannot be interpreted as a right to recreational use of the entire pond.
Our holding in the present case addresses only the 99 percent of the pond bed that the plaintiffs own undisputedly. As previously noted; see footnote 4 of this opinion; a factual dispute remains as to whether the Buccinos own the other 1 percent. On remand, the trial court must decide