218 Conn. 474 | Conn. | 1991
The plaintiff, Expressway Associates II (Expressway), brought an action against Friendly
After a trial, the trial court determined that Expressway’s claimed right-of-way was contingent upon Expressway giving notice to Friendly’s that Expressway was about to commence construction of a building on its site, the dominant estate, which was served by the right-of-way. The trial court found that such notice was required by the documents creating the right-of-way and that no such notice had been given. It further found that construction had not been commenced on Expressway’s land and that construction could not be commenced because Expressway, to that point, had been unable to obtain the necessary permits from the town. The trial court concluded that because the contingency necessary to inaugurate the right-of-way had not occurred, Expressway had failed to show that it had been irreparably harmed by Friendly’s incursions and denied Expressway an injunctive remedy. The trial court also found that Expressway had failed to prove that it was entitled to damages. The trial court’s decision effectively allowed Friendly’s to continue to use the area of the designated right-of-way for its own purposes pending notice from Expressway that it was about to begin construction on its property.
We granted certification limited to a single issue: “Was the Appellate Court correct in including further proceedings with respect to damages in the remand when the plaintiff failed to prove damages at trial and conceded that it was entitled only to nominal damages?” Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 216 Conn. 811, 580 A.2d 56 (1990).
It is axiomatic that the burden of proving damages is on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987); Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983); Dixon v. Trubisz, 17 Conn. App. 216, 217-18, 551 A.2d 1259 (1988). When damages are claimed they are an essential element of the plaintiff’s proof and must be proved
In order to be entitled to more than nominal damages for Friendly’s interference with its right-of-way, Expressway was required to demonstrate at trial either the diminution in the value of its property because of Friendly’s interference with its easement; Kelly v. Ivler, 187 Conn. 31, 47, 450 A.2d 817 (1982); see Buckley v. Maxson, 120 Conn. 511, 519, 181 A. 922 (1935); the cost to return the easement to its original state; Kelly v. Ivler, supra; see Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 467-68, 352 A.2d 304 (1974); or the difference in the value of the easement before the interference and its value after it was obstructed. Kelly v. Ivler, supra; see generally System Fuels, Inc. v. Barnes, 363 So. 2d 747, 749 (Miss. 1978); 28 C. J.S., Easements § 114 (a). Expressway, despite opportunity, failed to produce evidence at trial to prove any of these factors.
The parties to this case were notified by the court on January 19,1989, that it was to be tried on February 10, 1989, and it was actually tried on that date. There is no indication in the notice scheduling the matter for trial that it was assigned only for a hearing on Expressway’s claim for injunctive relief. Further, there is nothing in the record to suggest that the issue of dam
We conclude in this case, as we did in Loew’s Enterprises, Inc. v. International Alliance of T.S.E., 127 Conn. 415, 421-22, 17 A.2d 525 (1941), that “[tjhe plaintiff was in effect seeking as its sole remedy an injunction. There is no basis in its claims or in the facts proven which would justify a remand of the case for a retrial of issues in a claim for damages.”
The Appellate Court noted in its decision, however, that it was undisputed that Friendly’s had laid out parking spaces and had placed obstacles in Expressway’s right-of-way. It concluded that it was clear, therefore, that Expressway had proven that Friendly’s had interfered with its rights in the designated area. Express
The judgment of the Appellate Court is reversed, therefore, to the extent that it ordered further proceedings to determine the amount of damages to be awarded to Expressway and the case is remanded to the Appellate Court with direction to remand it to the trial court with direction to render a judgment for Expressway for $1 in damages.
In this opinion the other justices concurred.