*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
CHARLES FITCH ET AL. v. ERIC

FORSTHOEFEL ET AL.

(AC 41846)

Lavine, Moll and Devlin, Js.

Syllabus

The plaintiffs brought this action seeking a declaratory judgment and to

quiet title relating to the scope of an ingress and egress easement in

favor of the defendants, which was located on a shared driveway on

the plaintiffs’ property. Following a trial to the court, the trial court

rendered judgment in favor of the plaintiffs, from which the defendants

appealed to this court. Held:

1. The defendants could not prevail on their claim that the declaratory

judgment rendered by the trial court did not provide the plaintiffs with

any practical relief and, thus, did not solve a justiciable controversy,

which was based on their claim that because the parties agreed that

the easement was limited to ingress and egress, the plaintiffs were in

the same position they were in prior to the commencement of the

action; the plaintiffs’ action alleged the overburdening of an easement,

specifically, that the scope of permissible uses of the easement by the

dominant estate was limited to ingress and egress and that any other

use would overburden the easement, the defendants claimed that there

was no cause of action for minor, infrequent use of the easement unrelated to ingress and egress, and the court’s judgment, which adjudicated

the rights of the parties with respect to the scope of the easement,

effectively adopted the plaintiffs’ position, and, consequently, the plaintiffs were not in the same position as they were prior to the commencement of the action, and the claimed controversy was justiciable.

2. The defendants’ claim that the trial court applied the wrong standard in

determining that they had overburdened the easement was unavailing;

although the defendants claimed that the court improperly proscribed,

contrary to a reasonableness standard, trivial and infrequent conduct,

such as the defendants’ children writing with chalk on the easement

area, given the clear and unequivocal language of the easement, the

defendants’ rights thereunder were expressly limited to ingress and

egress, the defendants acknowledged that their rights under the easement were limited to ingress and egress, and because the record supported the court’s finding that the defendants’ children engaged in activities on the driveway unrelated to ingress and egress, the trial court

properly evaluated the scope of the easement.

Argued September 10—officially released November 5, 2019

Procedural History

Action seeking, inter alia, a declaratory judgment

with respect to certain real property, and for other

relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Wahla, J.; judgment for the plaintiffs, from which the defendants

appealed to this court. Affirmed.

Peter J. Royer, for the appellants (defendants).

Charles S. Fitch, self-represented, with whom, on the

brief, was MaryAnn Fitch, self-represented, the appellees (plaintiffs).
Opinion

MOLL, J. The defendants in this declaratory judgment

and quiet title action, Eric Forsthoefel and Sarah

Sweeney, appeal from the judgment of the trial court,

rendered after a court trial in favor of the plaintiffs,

Charles Fitch and MaryAnn Fitch. The parties’ dispute

relates to the scope of an ingress and egress easement

located on the plaintiffs’ property. The defendants claim

that (1) the declaratory judgment rendered by the trial

court provided the plaintiffs with no practical relief

and, therefore, did not solve a justiciable controversy,

and (2) the trial court applied the wrong standard in

determining that the defendants had overburdened the

easement. We disagree and, accordingly, affirm the

judgment of the trial court.

The trial court found the following facts. The parties

own adjoining parcels of residential property on Sarah

Drive in Avon. The plaintiffs have resided at 45 Sarah

Drive for approximately thirty years. The defendants

and their three children moved to 49 Sarah Drive in

June, 2015. Located on the plaintiffs’ property, specifically, on a portion of an approximately twelve foot wide

driveway, is an express easement appurtenant in favor

of the defendants’ property for the purposes of ingress

and egress.1 The easement is described in relevant part

as follows: ‘‘The unrestricted, permanent and irrevocable right to pass and repass, on foot and with motorized

vehicles and equipment, over, upon and across a certain

portion of [the plaintiffs’ property] . . . for all uses and

purposes necessary, convenient or incidental to the use

of [the easement] as an access way for ingress and

egress to and from [the defendants’ property] to Sarah

Drive . . . .’’2

Shortly after the defendants moved into their home,

Charles Fitch informed Sweeney that there was a problem, namely, that the defendants’ children were playing

on the easement area and that they were not permitted

to do so because the easement was limited to ingress

and egress. The defendants believed that they could

use the easement area without restriction in a typical

way that any family would use a driveway. Among other

activities, MaryAnn Fitch observed the defendants’ children playing with scooters, bicycles, and skateboards

on the easement area, which encompasses a curve and

so-called blind spots. As a result of the children’s activities, the plaintiffs feared for the safety of the children

and had concerns about their own liability should the

children be injured on the easement area.

On July 11, 2016, the plaintiffs commenced this action

by way of a two count complaint against the defendants

relating to the scope and use of the easement. The

plaintiffs alleged, inter alia, that after the defendants

had purchased their property, the defendants allowed

their children and guests to occupy and loiter in the
easement area. That conduct, they alleged, unduly burdened the easement. The first count sought a declaratory judgment to determine ‘‘the existence, proper location, and the extent of permissible uses and users of

the [e]asement.’’ The second count sought to quiet title

by determining the rights of the parties under the easement pursuant to General Statutes § 47-31.3 The matter

was tried before the court on June 29 and October

26, 2017.

On June 22, 2018, the trial court issued its memorandum of decision, ruling in favor of the plaintiffs on both

counts of their complaint. The court concluded that the

‘‘terms of the [e]asement [were] clear and unequivocal,

allowing the owners of the dominant estate, the defendants, to use the [e]asement area solely for ‘ingress and

egress’ to the defendants’ property and to access the

public road beyond.’’ In addition, the court determined

that although there was a substantial dispute in the

evidence regarding the frequency with which the children had played on the easement area, it was ‘‘not

disputed by [the parties] that the . . . children have,

in fact, engaged in conduct other than ingress and

egress in the [e]asement area, including loitering, leaving toys in the easement, and making chalk drawings,

among other activities.’’ Because such activities were

not permitted by the easement, the court declined to

‘‘determine with finality the entire history of the children’s activities’’ and concluded that the easement had

been overburdened by the defendants’ activities. This

appeal followed. Additional facts and procedural history will be set forth as necessary.4

I

The defendants first claim that the declaratory judgment rendered in favor of the plaintiffs did not afford

the plaintiffs with any practical relief, and therefore did

not solve a justiciable controversy, because the parties

agreed that the easement was limited to ingress and

egress only.5 The defendants contend that the plaintiffs

are in the same position as they were in prior to the

commencement of the action and, therefore, the judgment should be reversed and the complaint should be

dismissed. We are not convinced.

‘‘A court will not resolve a claimed controversy on

the merits unless it is satisfied that the controversy is

justiciable. . . . Justiciability requires (1) that there be

an actual controversy between or among the parties to

the dispute . . . (2) that the interests of the parties be

adverse . . . (3) that the matter in controversy be

capable of being adjudicated by judicial power . . .

and (4) that the determination of the controversy will

result in practical relief to the complainant. . . . As we

have recognized, justiciability comprises several related

doctrines, namely, standing, ripeness, mootness and the

political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudi-
cate a particular matter. . . . Finally, because an issue

regarding justiciability raises a question of law, our

appellate review is plenary.’’ (Citation omitted; internal

quotation marks omitted.) Shenkman-Tyler v. Central

Mutual Ins. Co., 126 Conn. App. 733, 738–39, 12 A.3d

613 (2011).

Our Supreme Court has recognized that the purpose

of a declaratory judgment action is to ‘‘secure an adjudication of rights where there is a substantial question

in dispute or a substantial uncertainty of legal relations

between the parties.’’ Connecticut Assn. of Health Care

Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d

743 (1986). ‘‘[A] declaratory judgment action must rest

on some cause of action that would be cognizable in a

nondeclaratory suit.’’ Wilson v. Kelley, 224 Conn. 110,

116, 617 A.2d 433 (1992).

Mindful of the foregoing principles, we conclude that

the claimed controversy in the present case is justiciable. As an initial matter, we observe that the plaintiffs’

declaratory judgment action rests on a cause of action

for the overburdening of an easement. See Abington

Ltd. Partnership v. Heublein, 257 Conn. 570, 577, 778

A.2d 885 (2001). Contrary to the defendants’ claim that

the declaratory judgment rendered by the trial court

provides no practical relief because the defendants

agree that their rights under the easement are limited

to ingress and egress, the record reveals an actual controversy among the parties. That is, the plaintiffs have

maintained their view that the scope of permissible

uses of the easement by the dominant estate is strictly

limited to those relating to ingress and egress, and that

any other use would overburden the easement. In contrast, the defendants have argued that there is no cause

of action for ‘‘innocent,’’ ‘‘trivial,’’ ‘‘temporary,’’ and/or

‘‘inadvertent’’ use of the easement unrelated to ingress

and egress. The declaratory judgment rendered by the

trial court adjudicated the rights of the parties with

respect to the scope of the easement, effectively adopting the plaintiffs’ position. Consequently, the plaintiffs

are not in the same position as they were prior to the

commencement of the action. Therefore, we conclude

that the declaratory judgment of the trial court afforded

practical relief to the plaintiffs and resolved a justiciable controversy.

II

The defendants claim on the merits that the trial court

erred in determining that ‘‘any activity beyond entry

and exit of the defendants’ property is unauthorized and

would constitute an overburdening of the [e]asement.’’

Specifically, they contend that the standard employed

by the court in rendering judgment against them

improperly proscribed, contrary to a reasonableness

standard, trivial and infrequent conduct, such as the

defendants’ children writing with chalk on the easement

area, despite it being unrelated to ingress and egress.
For the reasons that follow, we disagree with the

defendants.

We begin by setting forth the applicable standard of

review. ‘‘For a determination of the character and

extent of an easement created by deed we must look

to the language of the deed, the situation of the property

and the surrounding circumstances in order to ascertain

the intention of the parties. . . . The language of the

grant will be given its ordinary import in the absence of

anything in the situation or surrounding circumstances

which indicates a contrary intent. . . . [T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances,

presents a question of law on which our scope of review

is plenary. . . . In determining the scope of an express

easement, the language of the grant is paramount in

discerning the parties’ intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered.’’ (Citations omitted;

internal quotation marks omitted). Leposky v. Fenton,

100 Conn. App. 774, 778, 919 A.2d 533 (2007).

Guided by these principles, we begin our analysis

with the language of the easement, which gives the

dominant estate holder the ‘‘right to pass . . . over,

upon and across [the plaintiffs’ property] . . . for all

uses and purposes necessary, convenient or incidental

. . . as an access way for ingress and egress to and

from [the defendants’ property] to Sarah Drive . . . .’’

(Emphasis added.) We agree with the trial court that,

on the basis of the clear and unequivocal language of

the easement, the defendants’ rights thereunder are

expressly limited to ingress and egress.

With this conclusion as our foundation, we find this

court’s decision in Leposky v. Fenton, supra, 100 Conn.

App. 774, to be particularly instructive. In Leposky, the

plaintiffs’ property was benefitted by an express rightof-way easement over the defendants’ property for purposes of ingress and egress. Id., 776. The plaintiffs not

only used the easement for ingress and egress, but also

to park their vehicles and to store a boat thereon. Id.

Litigation ensued relating to the parties’ respective

rights under the easement. Id., 777. With respect to

the plaintiffs’ use of the right-of-way for parking and

storage, the trial court held that such use ‘‘constitutes

a reasonable use within the scope of the easement for

ingress and egress.’’ Id. This court reversed the judgment of the trial court, concluding, ‘‘on the basis of the

clear language of the deed, that the plaintiffs’ rights

under the easement are limited to ingress and egress

. . . .’’ Id. Thereupon, this court held that ‘‘[b]ecause

the right-of-way is not granted in general terms, the

[trial] court’s reliance on the doctrine of reasonable use

to expand the easement to include parking and storage

rights was misplaced.’’ Id., 779; see also Hall v. Alto-
mari, 19 Conn. App. 387, 390–91, 562 A.2d 574 (1989)

(interpreting right-of-way granting defendant right to

travel ‘‘to and from’’ the public road over plaintiff’s

property as limited to ingress and egress without right

to park because right-of-way was not granted in general

terms [internal quotation marks omitted]). As in Leposky, the rights conferred by the easement in the present case explicitly limit the defendants’ activities to

those that relate to ingress and egress.

Notably, the defendants acknowledge that their rights

under the easement are limited to ingress and egress.

They nonetheless contend that their children’s minor,

infrequent use of the easement, other than for ingress

and egress purposes, does not constitute overburdening

when considered under a standard of reasonableness.

In support of this claim, they principally rely on Lichteig

v. Churinetz, 9 Conn. App. 406, 409–10, 519 A.2d 99

(1986), in which this court explained that the reasonable

use of an easement depends on ‘‘the 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.’’ (Internal quotation

marks omitted.) The defendants’ reliance on Lichteig

is misplaced. The easement at issue in Lichteig, unlike

here, granted a general right-of-way. See Lichteig v.

Churinetz, supra, 9 Conn. App. 410 (‘‘[the right-of-way]

is one created in general terms and without any restrictions on its use’’). In the context of an easement granted

in general terms, we have applied the reasonable use

factors to ascertain its proper scope because it is well

settled that ‘‘a right-of-way granted in general terms

may be used for any purpose reasonably necessary for

the party entitled to use it.’’ (Emphasis added.) Hagist

v. Washburn, 16 Conn. App. 83, 86, 546 A.2d 947 (1988).

In sum, because the easement is expressly limited to

ingress and egress, and the record supports the trial

court’s finding that the defendants’ children engaged in

some activity on the shared driveway unrelated to

ingress and egress,6 we conclude that the trial court

properly evaluated the scope of the easement.

The judgment is affirmed.

In this opinion the other judges concurred.

1 At trial, the parties filed a stipulated chain of title. There is no dispute

as to the validity of the easement, which is recorded on the Avon land

records at volume 173, page 796.

2 Therefore, the defendants’ property is considered the dominant estate

and the plaintiffs’ property the servient estate. See Il Giardino, LLC v. Belle

Haven Land Co., 254 Conn. 502, 512, 757 A.2d 1103 (2000).

3 General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may

be brought by any person claiming title to, or any interest in, real or personal

property . . . against any person who may claim to own the property . . .

or to have any interest in the property, or any lien or encumbrance on it,

adverse to the plaintiff, or against any person in whom the land records

disclose any interest, lien, claim or title conflicting with the plaintiff’s claim,

title or interest, for the purpose of determining such adverse estate, interest

or claim, and to clear up all doubts and disputes and to quiet and settle the

title to the property. . . . ’’
4 The plaintiffs filed a motion for rectification on August 3, 2018, requesting

the trial court to correct alleged errors in its memorandum of decision. The

trial court issued an order on October 18, 2018, granting in part and denying

in part the motion. No motion for review of that ruling was filed; see Practice

Book § 66-7; and the correction made as a result thereof has no effect on

our analysis.

5

In response to the defendants’ argument before the trial court that the

action was moot because their children had ceased activity on the easement

area, the trial court concluded that this action was not moot because there

was a possibility that such activity could occur again in the future. In their

posttrial brief, the defendants also argued that the rendering of a declaratory

judgment would be ‘‘redundant’’ of the easement itself because the easement

was express and unambiguous. Because the trial court did not specifically

address this latter argument, we normally would decline to reach it. See

Inland Wetlands and Watercourses Commission v. Andrews, 139 Conn.

App. 359, 363, 56 A.3d 717 (2012). However, because justiciability implicates

subject matter jurisdiction; Liberty Mutual Ins. Co. v. Lone Star Industries,

Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009); and we may ‘‘review the issue of

subject matter jurisdiction at any time’’; (internal quotation marks omitted)

Tirado v. Torrington, 179 Conn. App. 95, 100, 179 A.3d 258 (2018); we

proceed to review the defendants’ claim.

6

In their principal appellate brief, the defendants take issue with the trial

court’s finding that ‘‘what is not disputed by either party is that the defendants’ children have, in fact, engaged in conduct other than ingress and

egress in the [e]asement area, including loitering, leaving toys in the easement, and making chalk drawings, among other activities,’’ and the court’s

determination that, because the children’s actions were not permitted by

the easement, the court did ‘‘not feel it necessary . . . to determine with

finality the entire history of the children’s activities . . . .’’ In light of our

conclusion herein, the trial court did not need to determine the precise

extent of the defendants’ impermissible use of the easement. We pause,

however, to comment on the trial court’s use of the term ‘‘loitering.’’ Because

the trial court’s decision does not explain what activity of the defendants’

children is captured by its use of the undefined term ‘‘loitering,’’ we do not

adopt that finding. For purposes of our decision herein, it is sufficient

that the trial court found, on the basis of evidence in the record, that the

defendants’ children had engaged in conduct unrelated to ingress and egress.