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*********************************************** 
WESTON STREET HARTFORD, LLC v.

ZEBRA REALTY, LLC

(AC 40415)

DiPentima, C.J., and Sheldon and Moll, Js.*

Syllabus

The plaintiff sought a temporary and permanent injunction prohibiting the

defendant from, inter alia, maintaining a parking lot within an easement

granting the plaintiff a right-of-way over certain property owned by the

defendant. The defendant filed a counterclaim, seeking, inter alia, a

judgment declaring that it had the right to relocate the right-of-way at

its own expense provided that it would be similar in size to the existing

right-of-way and that it would not impose any additional burden on the

plaintiff, as well as a permanent injunction directing the plaintiff to

release the right-of-way upon its relocation by the defendant. The trial

court rendered judgment for the defendant on the plaintiff’s complaint,

concluding that the plaintiff was not entitled to injunctive relief because

it had failed to establish that the defendant’s actions were interfering

with the plaintiff’s use of the right-of-way. The court also rejected the

defendant’s counterclaim insofar as the defendant sought a right to

relocate the existing right-of-way and an order directing the plaintiff to

release the right-of-way upon its relocation. Thereafter, the defendant

appealed, and the plaintiff filed a cross appeal with this court. Held:

1. The trial court properly rendered judgment for the plaintiff on the counts

of the defendant’s counterclaim relating to the defendant’s request to

relocate the right-of-way and for an order directing the plaintiff to release

the right-of-way; notwithstanding the defendant’s claim to the contrary,

there was no meaningful difference between the unilateral modification

of an easement that this court in Alligood v. LaSaracina (122 Conn.

App. 473) found to be improper and the unilateral relocation of an

easement that the defendant sought in the present case, as either change

is improper without the mutual consent of the landowner and the easement owner, and this court rejected the defendant’s claim that Alligood

was inconsistent with Supreme Court precedent and declined to overrule Alligood.

2. The plaintiff could not prevail on its claim that the trial court improperly

rendered judgment in the defendant’s favor on the plaintiff’s complaint

and denied the plaintiff’s request for injunctive relief: in concluding that

the plaintiff had failed to demonstrate that its inability to use the rightof-way would necessarily result but for the issuance of the requested

injunction, and, thus, was not entitled to its requested injunctive relief,

the trial court applied the correct standard of law set forth in Karls v.

Alexandra Realty Corp. (179 Conn. 390), which requires a party seeking

injunctive relief to show that there a substantial probability that but for

the issuance of the injunction, the party seeking it will suffer irreparable

harm; moreover, the court did not abuse its discretion in denying the

plaintiff’s request for injunctive relief under the circumstances of the

case and in light of the extraordinary nature of injunctive relief, as the

court fully acknowledged that parking in the right-of-way would interfere

with the plaintiff’s access to the right-of-way but that this harm was not

likely to befall the plaintiff but for the issuance of the requested

injunction.

Argued January 22—officially released October 15, 2019

Procedural History

Action for, inter alia, a temporary and permanent

injunction prohibiting the defendant from maintaining

a parking lot within a right-of-way, and for other relief,

brought to the Superior Court in the judicial district

of Hartford, where the matter was transferred to the

judicial district of Tolland; thereafter, the defendant

filed a counterclaim; subsequently, the matter was tried
to the court, Bright, J.; judgment for the defendant

on the complaint and in part for the plaintiff on the

counterclaim, from which the defendant appealed and

the plaintiff cross appealed to this court. Affirmed.

Steven Lapp, with whom, on the brief, was Daniel

J. Klau, for the appellant-cross appellee (defendant).

Mario R. Borelli, with whom, on the brief, was Frank

A. Leone, for the appellee-cross appellant (plaintiff).
Opinion

MOLL, J. The present case arises from a dispute

between the plaintiff, Weston Street Hartford, LLC, and

the defendant, Zebra Realty, LLC, concerning a rightof-way easement held by the plaintiff that runs over

property owned by the defendant. The defendant has

appealed and the plaintiff has cross appealed from the

judgment rendered, after a court trial, on the plaintiff’s

complaint and the defendant’s counterclaim. On appeal,

the defendant claims that the trial court, in rendering

judgment in favor of the plaintiff on counts one and

two of the counterclaim, incorrectly determined that

Alligood v. LaSaracina, 122 Conn. App. 473, 999 A.2d

836 (2010), applies to the present case and prohibits

any landowner from relocating an easement without

the consent of the easement holder. In the alternative,

the defendant contends that the Restatement (Third),

Property, Servitudes § 4.8 (3) (c), is a more logical

extension of Connecticut easement law than the rule

adopted by this court in Alligood.

1 On cross appeal, the

plaintiff claims that, upon finding that the defendant’s

use of the servient estate interfered with the plaintiff’s

intended use of the easement, the court should have

rendered judgment in its favor on its complaint and

granted its request for an injunction prohibiting interference by the defendant. We disagree with both parties’

claims and, accordingly, affirm the judgment of the

trial court.

The following procedural history and facts, as found

by the trial court, are relevant to the parties’ claims.

The plaintiff is the owner of real property located at

170 Weston Street in Hartford, and the defendant is the

owner of adjacent real property located at 145 West

Service Road in Hartford. The properties are located

in an area zoned for commercial or industrial use. When

facing Weston Street, the back right corner of the plaintiff’s property abuts the rear of the defendant’s property.

The portion of the plaintiff’s property that abuts the

defendant’s property was formerly known as Lot 13.

In 1979, Gennaro Russo transferred his ownership of

145 West Service Road to Dalchard Warehouse, Inc.

(Dalchard Warehouse), by deed, which provided in relevant part that 145 West Service Road was subject to a

right-of-way in favor of what was then Lot 13 (right-ofway).2 At the time of this transfer, Russo still owned

the lots that would become 170 Weston Street as it

exists today, namely, Lots 6 through 13 of an area known

as the Fox Press Subdivision. In 1980, Russo’s ownership of Lots 6 through 12 was transferred to Charter

Oak Bank & Trust Company (Charter Oak) by way of

foreclosure by sale, and, thereafter, Russo transferred

his ownership of Lot 13 to Charter Oak by quitclaim

deed. The combined transferred parcels eventually

became known as 170 Weston Street. Consequently, Lot

13 no longer exists as a separate lot.
In April, 1998, Dalchard Warehouse quitclaimed its

interest in 145 West Service Road to Bechard, LLC. In

November, 2006, Belchard, LLC, transferred the property to the defendant by warranty deed, which provided

in relevant part that 145 West Service Road was encumbered by ‘‘[a] Right-of-Way, 25 feet in width, as reserved

in a deed dated August 29, 1979 and recorded in Volume

1723 at Page 277 of the Hartford Land Records.’’

In June, 2011, the plaintiff acquired 170 Weston

Street. The deed transferring ownership of 170 Weston

Street to the plaintiff specifically references the rightof-way, describing it as follows: ‘‘[T]he right to use a

25 foot right-of-way for the benefit of that portion of

these premises previously known as Lot No. 13, for

ingress and egress to West Service Road as reserved

in a deed from Gennaro A. Russo, Debtor in Possession

to Dalchard Warehouse, Inc. Dated August 29, 1979 and

recorded in Volume 1723, Page 277 of the Hartford

Land Records.’’

In August, 2011, the plaintiff entered into a three

year lease agreement with Capitol Transportation, LLC

(Capitol Transportation), pursuant to which Capitol

Transportation was to use a portion of the plaintiff’s

property at 170 Weston Street as a school bus terminal

and storage and transportation facility. Thereafter,

approximately 135 school buses and/or vans, which

were used to transport students enrolled in the Hartford

public and magnet schools, were regularly parked on

the plaintiff’s property in an area that includes, but is

not limited to, former Lot 13. At this time, the defendant

operated and continued to operate an adult entertainment establishment and night club, known as the Mynx

Cabaret, on its property at 145 West Service Road. The

parking lot surrounding the Mynx Cabaret contained

eighty-five parking spaces, including twenty-five to

thirty of which were located in the right-of-way.

In September, 2011, the plaintiff commenced an

action against the defendant, seeking a temporary and

permanent injunction prohibiting and restraining the

defendant from maintaining a parking lot on the rightof-way or from obstructing the plaintiff’s right to pass

over the right-of-way. See Weston Street Hartford, LLC

v. Zebra Realty, LLC, Superior Court, judicial district

of Hartford, Docket No. CV-11-6025475-S (first action).

The defendant filed a counterclaim, seeking, inter alia,

a permanent injunction enjoining the plaintiff from

asserting any right to use the right-of-way and a declaratory judgment with respect to the parties’ rights to the

right-of-way. See id.

On March 11, 2013, in the first action, the trial court

rendered judgment, after a court trial, in favor of the

defendant on the plaintiff’s complaint and in favor of

the plaintiff on the defendant’s counterclaim. In its

memorandum of decision, the court concluded that the
plaintiff had established the existence of the right-ofway but had failed to prove that the defendant’s actions

or inactions were materially interfering with the plaintiff’s use of the right-of-way because one particular utility pole, which was located in the public right-of-way,

was obstructing the right-of way, and the plaintiff had

not established that the utility pole could be relocated.

The court also concluded that the plaintiff’s intended

use would overburden the right-of-way because some

of the buses that would be utilizing it would do so to

travel to and from property not intended to be benefitted by the right-of-way, i.e., property other than former

Lot 13, and, therefore, such use was not permitted.

Additionally, the court rendered a declaratory judgment

that the plaintiff was still the owner of the right-of-way

and specified as follows: ‘‘The right-of-way shall run

with the land benefitted, that being former Lot 13, and

the land burdened, that being 145 West Service Road,

whether there is other access to former Lot 13. The

right-of-way to be maintained by the owner or owners

of former Lot 13. The right-of-way may not be used to

benefit any other property into which former Lot 13

was merged.’’3

Following the conclusion of the first action, the plaintiff began considering alternative uses for former Lot 13

involving the right-of-way. Between July and November,

2014, the plaintiff arranged for and paid over $60,000

to move three utility poles outside of the right-of-way,

including the utility pole that was in the city of Hartford’s (city) control. In March or April, 2015, the plaintiff

notified the defendant that it was developing a new

plan for former Lot 13.

In August, 2015, the plaintiff commenced the present

action against the defendant. In its complaint, the plaintiff alleged, inter alia, that it was the owner of the rightof-way, that the defendant materially interfered and

continues to materially interfere with the plaintiff’s use

of the right-of-way by maintaining a parking lot in the

right-of-way and by failing to sign an application or a

letter of authorization enabling the plaintiff to obtain

a curb cut permit from the city, and that such interference has caused and will continue to cause irreparable

injury to the plaintiff. The plaintiff sought the following

relief: (1) a temporary and permanent injunction prohibiting and restraining the defendant from maintaining a

parking lot within the right-of-way or from obstructing

the plaintiff’s right to use the right-of-way; (2) an order

requiring the defendant to sign documentation that may

be required to enable the plaintiff to obtain a curb cut;

and (3) costs.

On November 20, 2015, the defendant filed an answer,

special defenses, and a five count counterclaim. As part

of its first special defense, the defendant alleged that

the plaintiff’s intended use will overburden and constitutes an impermissible misuse of the right-of-way. In
its counterclaim, the defendant alleged, inter alia, that:

it has a right to relocate the right-of-way (count one);

it would be equitable to deny the plaintiff’s request for

injunctive relief and to enter injunctive relief in favor

of the defendant, compelling the plaintiff to release the

right-of-way upon its relocation by the defendant (count

two); the defendant was not materially interfering with

the plaintiff’s use of the right-of-way (count three); the

defendant has no duty to sign curb cut permit applications or otherwise authorize the plaintiff to make unnecessary alterations and/or modifications to the defendant’s property to make use of the right-of-way (count

four); and a permanent injunction should enter prohibiting the plaintiff from making unnecessary alterations

and/or modifications to the defendant’s property to

access the right-of-way (count five). The defendant

sought a variety of relief, most relevantly: (1) a declaratory judgment that it has the right to relocate the rightof-way on its property, at its own cost and expense, such

that the relocated right-of-way is substantially equal in

dimension, utility, and convenience to the plaintiff as

the current right-of-way and that the relocated right-ofway would not impose any additional burden on the

plaintiff; and (2) a permanent injunction ordering the

plaintiff to release the right-of-way upon its relocation

by the defendant in the manner described previously.4

Meanwhile, in October, 2015, the plaintiff submitted

a curb cut application to the city, which the city deemed

unacceptable.5 A curb cut was not necessary for the

plaintiff to gain access to the right-of-way.6

In November, 2015, with the assistance of a surveyor, the plaintiff

began preparing a site plan for former Lot 13 upon

which the plaintiff intended to construct a parking lot

that would be accessed using the right-of-way.

In January, 2016, the defendant prepared two concept

plans to relocate the right-of-way on its property. The

defendant intended to reconfigure its parking area to

maintain approximately the same number of parking

spaces utilized by patrons while also providing the

plaintiff with access across its property to former Lot

13. The plaintiff had no interest in either alternative,

however, and would not consider any alternative to the

right-of-way. The defendant did not establish that the

city would approve these alternative concept plans.

On March 15, 2016, the plaintiff submitted a planning

and zoning application to the city for approval of its

site plan. According to the site plan, former Lot 13

would serve as a parking lot, containing seventy-nine

parking spaces, and would be fenced off from the

remainder of 170 Weston Street such that the only

means of access to the parking lot would be by way of

the right-of-way. The plaintiff’s current tenants, Specialty Corporation, Inc. (Specialty),7 and Hertz Corporation (Hertz), which operate a school bus depot and sell

out of service rental cars, respectively, would use the
parking lot as an accessory to their principal uses of

170 Weston Street. On June 20, 2016, the plaintiff submitted a revised site plan. Per the revised site plan, the

plaintiff intended for the parking lot to be used for

passenger vehicle parking for tenants, employees, and

invitees of Specialty and Hertz, and as passenger vehicle

parking for concert and sporting event attendees. On

July 12, 2016, the city approved the revised site plan.

The plaintiff did not establish that it obtained from the

city a permit or license to utilize former Lot 13 as a

parking lot for public use, however.

On April 18, 2017, following a court trial held on July

12 and 13, 2016, and the submission of posttrial briefs

from both parties, the court issued a memorandum of

decision. With respect to the plaintiff’s complaint, the

court rendered judgment in favor of the defendant, concluding, inter alia, that the plaintiff was not entitled to

injunctive relief because it had failed to establish that

the defendant’s actions were causing imminent harm

or currently interfering with the plaintiff’s use of the

right-of-way. With respect to the defendant’s counterclaim, the court rendered judgment in favor of the plaintiff on counts one, two, and five, dismissed the third

count, and, with respect to the fourth count, issued a

declaratory judgment that, on the basis of the facts as

they existed before the court, the defendant had no

duty or obligation to assist the plaintiff in obtaining a

curb cut permit.

On May 5, 2017, the defendant appealed from the

court’s judgment on the first and second counts of its

counterclaim.8 On May 11, 2017, the plaintiff filed a

cross appeal from the court’s judgment on its complaint.

Additional facts and procedural history will be provided

as necessary.

I

We first address the defendant’s claim on appeal. The

defendant argues that, in rendering judgment in favor

of the plaintiff on the defendant’s counterclaim, the trial

court erred in concluding that Alligood v. LaSaracina,

supra, 122 Conn. App. 473, was controlling precedent.

Specifically, the defendant contends that Alligood

should be limited to its facts and should not be broadly

applied so as to preclude the relocation, as opposed to

the modification, of any right-of-way by the owner of

servient land without the consent of the owner of the

dominant estate. In the alternative, the defendant contends that Alligood is inconsistent with controlling Connecticut Supreme Court precedent, which has relied

on the Restatement (Third) of Property in Connecticut

easement cases, and that § 4.8 (3) (c) of the Restatement

(Third) of Property is more consistent with general

principles of Connecticut easement law and public policy. We disagree.

Central to the defendant’s claim is the question of
whether a servient landowner must obtain consent from

the owner of the dominant estate to relocate an easement on the servient estate. As this is a question of law,

our review is plenary. See Abrams v. PH Architects,

LLC, 183 Conn. App. 777, 788, 193 A.3d 1230, cert.

denied, 330 Conn. 925, 194 A.3d 290 (2018) (‘‘[i]t is

axiomatic that matters of law are entitled to plenary

review on appeal’’).

To answer this question, we first turn to Alligood. In

Alligood, the defendants unilaterally altered a section

of the plaintiffs’ right-of-way across the defendants’

property by eliminating the circular turnaround at the

end of the right-of-way. Alligood v. LaSaracina, supra,

122 Conn. App. 475. On appeal, and in agreement with

the plaintiffs, this court determined that the trial court

applied the incorrect standard of law to the plaintiffs’

request for injunctive relief and that the defendants’

unilateral alteration of the location and dimensions of

the right-of-way was improper. Id., 476. In so holding,

we adopted and applied the general rule adhered to

by a majority of jurisdictions, namely, that ‘‘once the

location of an easement has been selected or fixed,

it cannot be changed by either the landowner or the

easement owner without the other’s consent.’’ (Internal

quotation marks omitted.) Id.

Our adoption of the majority approach was not

dependent upon any distinction between the relocation

or modification of an easement. See id., 476–77 (collecting cases applying majority rule to easement modification and relocation). Rather, we adopted the majority

approach, over that set forth in § 4.8 (3) (c) of the

Restatement (Third) of Property, which provides:

‘‘Unless expressly denied by the terms of an easement,

as defined in § 1.2, the owner of the servient estate is

entitled to make reasonable changes in the location or

dimensions of an easement, at the servient owner’s

expense, to permit normal use or development of the

servient estate, but only if the changes do not . . .

(c) frustrate the purpose for which the easement was

created.’’ We reasoned: ‘‘[W]e believe that the attributes

of the majority rule, namely, uniformity, stability, predictability and judicial economy, outweigh any

increased flexibility offered by the Restatement

approach.’’ Alligood v. LaSaracina, supra, 122 Conn.

App. 478. Applying the majority rule to the factual circumstances of the case, we determined that the defendants’ alteration of the plaintiffs’ right-of-way was

improper because ‘‘[t]he defendants did so without the

plaintiffs’ consent.’’ (Emphasis added.) Id., 478–79.

Accordingly, per our legal precedent, no meaningful

difference exists between the unilateral modification

of an easement, as in Alligood, and the unilateral relocation of an easement, as sought by the defendant in the

present case; under the majority rule, either change is

improper without consent from both the landowner and

easement owner.9
Moreover, although the defendant contends that we

should distinguish Alligood from the present case on

the basis that Alligood involved the modification, rather

than a relocation, of an easement—and, therefore, apply

§ 4.8 (3) (c) of the Restatement (Third) of Property

instead of the majority rule—§ 4.8 (3) (c) does not support such distinction. As recited previously, § 4.8 (3)

(c) of the Restatement (Third) of Property provides in

relevant part: ‘‘Unless expressly denied by the terms of

an easement . . . the owner of the servient estate is

entitled to make reasonable changes in the location or

dimensions of an easement, at the servient owner’s

expense, to permit normal use or development of the

servient estate, but only if the changes do not . . .

(c) frustrate the purpose for which the easement was

created.’’ (Emphasis added.) As demonstrated by its

express terms, § 4.8 (3) (c) does not distinguish

between the relocation and modification of an

easement.10

Likewise, the defendant’s contention that Alligood

is inconsistent with our Supreme Court precedent is

unsupported, as the defendant points to no case in

which our Supreme Court has adopted § 4.8 of the

Restatement (Third) of Property or suggested that § 4.8

is a necessary corollary to sections upon which our

Supreme Court has relied, namely, §§ 4.9,11 4.10,12 and

8.313 of the Restatement (Third) of Property, which concern the use and enforcement of servitudes. Moreover,

in Alligood, we expressly acknowledged the intended

purpose of § 4.8 of the Restatement (Third) of Property,

namely, ‘‘to permit development of the servient estate

to the extent it can be accomplished without unduly

interfering with the legitimate interests of the easement

holder,’’ while rejecting it in favor of the majority rule.

(Internal quotation marks omitted.) Alligood v. LaSaracina, supra, 122 Conn. App. 477.

By arguing further that Alligood is inconsistent with

the general principles of Connecticut easement law and

public policy, the defendant essentially asks that we

overrule Alligood. ‘‘[I]t is axiomatic that one panel of

this court cannot overrule the precedent established by

a previous panel’s holding. . . . As we often have

stated, this court’s policy dictates that one panel should

not, on its own, [overrule] the ruling of a previous panel.

The [overruling] may be accomplished only if the appeal

is heard en banc.’’ (Internal quotation marks omitted.)

LM Ins. Corp. v. Connecticut Dismanteling, LLC, 172

Conn. App. 622, 632–33, 161 A.3d 562 (2017); see also

Graham v. Commissioner of Transportation, 330

Conn. 400, 417, 195 A.3d 664 (2018) (‘‘[t]he doctrine of

stare decisis counsels that a court should not overrule

its earlier decisions unless the most cogent reasons and

inescapable logic require it’’ [internal quotation

marks omitted]).

In the present case, relying on the majority rule
adopted in Alligood, the trial court rejected the first

and second counts of the defendant’s counterclaim, in

which the defendant sought both a declaratory judgment that it has the right to relocate the right-of-way

unilaterally and an injunction requiring the plaintiff to

release its rights in the existing right-of-way if the relocated right-of-way were substantially equal in dimension, utility, and convenience. In accordance with our

adoption of the majority approach in Alligood, and in

light of our foregoing discussion, we decline to limit

Alligood in the manner requested by the defendant,

and we conclude that the trial court properly rendered

judgment in favor of the plaintiff on counts one and

two of the defendant’s counterclaim.

II

We turn now to the plaintiff’s cross appeal. The plaintiff claims that, upon finding that the defendant’s use

of the servient estate interfered with the plaintiff’s

intended use of the easement, the trial court should

have rendered judgment in the plaintiff’s favor on its

complaint and granted its request for an injunction prohibiting additional interference by the defendant. In

support of its claim, the plaintiff argues that the court

erred by holding the plaintiff to an incorrect and more

burdensome standard with respect to whether it would

suffer irreparable harm to its easement rights. The plaintiff argues in the alternative that the court abused its

discretion when it denied its request for injunctive

relief. We disagree.

We are mindful of the following standard of review.

‘‘A prayer for injunctive relief is addressed to the sound

discretion of the court and the court’s ruling can be

reviewed only for the purpose of determining whether

the decision was based on an erroneous statement of

law or an abuse of discretion. . . . Therefore, unless

the trial court has abused its discretion . . . the trial

court’s decision must stand. . . . How a court balances

the equities is discretionary but if, in balancing those

equities, a trial court draws conclusions of law, our

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

marks omitted.) Commissioner of Correction v. Coleman, 303 Conn. 800, 810, 38 A.3d 84 (2012), cert. denied

sub nom. Coleman v. Arnone, 568 U.S. 1235, 133 S. Ct.

1593, 185 L. Ed. 2d 589 (2013).

A

First, we address the plaintiff’s argument that the

court applied the incorrect legal standard when

determining whether the plaintiff was entitled to injunctive relief. Specifically, the plaintiff argues that the court

erroneously relied upon Karls v. Alexandra Realty

Corp., 179 Conn. 390, 426 A.2d 784 (1980), to require that

it demonstrate an ‘‘actual disturbance’’ of its easement

right in order to establish irreparable harm, even though

Connecticut law requires only that the holder of an
easement right demonstrate the existence of a substantial probability of interference with such right. Therefore, according to the plaintiff, it demonstrated irreparable harm by virtue of the court’s finding that parking

in the right-of-way by the defendant’s employees and

customers will interfere with the plaintiff’s intended

use of the right-of-way.

The following legal principles and precedent are relevant to the plaintiff’s argument. It is well established

that ‘‘[a] party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it

will suffer irreparable harm absent an injunction; (3) it

will likely prevail on the merits; and (4) the balance of

equities tips in its favor.’’ (Internal quotation marks

omitted.) Wellswood Columbia, LLC v. Hebron, 327

Conn. 53, 59 n.5, 171 A.3d 409 (2017). ‘‘[T]he owner of

[an] easement is entitled to [injunctive] relief only if he

can show that he will be disturbed or obstructed in the

exercise of his right to use it.’’ (Internal quotation marks

omitted.) Welles v. Lichaj, 136 Conn. App. 347, 354, 46

A.3d 246, cert. denied, 306 Conn. 904, 52 A.3d 730 (2012).

In Karls, the trial court issued an injunction

restraining the defendant14 from using a fourteen foot

wide right-of-way, which provided access to the plaintiffs’ and defendant’s properties, after concluding, inter

alia, that the construction of the defendant’s house violated certain zoning ordinances. Karls v. Alexandra

Realty Corp., supra, 179 Conn. 393–94. ‘‘The plaintiffs’

central complaint [was] that the right-of-way [was] inadequate for use by six families and that such an excessive

use would result in irreparable injury to them.’’ Id., 395.

On appeal, our Supreme Court considered, inter alia,

whether the injunction issued by the trial court was

improper in light of the facts found. Id., 399.

In making its determination, our Supreme Court was

guided by several key legal principles governing the

issuance of injunctions: ‘‘The issuance of an injunction

is the exercise of an extraordinary power which rests

within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an

action for injunctive relief is at least one founded on

the imminence of substantial and irreparable injury.’’

(Internal quotation marks omitted.) Id., 401. In other

words, ‘‘[t]he extraordinary nature of injunctive relief

requires that the harm complained of is occurring or

will occur if the injunction is not granted. Although an

absolute certainty is not required, it must appear that

there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer

irreparable harm.’’ Id., 402. ‘‘The plaintiff seeking injunctive relief bears the burden of proving facts which will

establish irreparable harm as a result of that violation.’’

Id., 401.

In consideration of the foregoing legal principles and

the facts found by the trial court, our Supreme Court
in Karls concluded that it could not agree with the

court’s conclusion that the plaintiffs had satisfied their

burden of proving the substantial likelihood that irreparable harm would result from the defendant’s violation.

Id., 401–402. Our Supreme Court reasoned: ‘‘[A]lthough

the plaintiffs have shown that they may possibly suffer

irreparable harm, i.e., emergency vehicles blocked by

a car stuck in the right-of-way, they have failed to demonstrate that such harm is imminent or that it will

necessarily be caused by the defendant’s violation of the

zoning regulations. In the absence of such a showing,

an injunction cannot be issued.’’ (Emphasis added.) Id.

According to our Supreme Court, the harm complained

of was not imminent in light of the trial court’s finding

that the alleged harm was only a possibility and the

fact that the injunction would not become effective

until one year after it was issued. Id., 403.

In the present case, the trial court concluded, inter

alia, that ‘‘parking in the right-of-way by the defendant’s

employees and customers will interfere with the plaintiff’s reasonably intended use of the right-of-way, at

least during Specialty’s hours of operation,’’ but determined that the plaintiff did not establish irreparable

harm. The court explained: ‘‘In this case, it is undisputed

that the plaintiff’s rights have not yet been disturbed.

Specialty’s buses are still parked on former Lot 13. The

plaintiff has not constructed its planned parking lot.

Nor is there any evidence that Specialty will take advantage of the fifty parking spaces [that] the plaintiff has

committed to provide under the lease amendment. The

position of the plaintiff here is similar to that of the

plaintiffs in Karls. While it is entirely possible that its

access to the right-of-way may be impaired, such impairment is not imminent. In fact, it is contingent on a

number of events that have yet to occur. In addition,

the court has no way of knowing if the defendant will

still be operating in the manner it has been if and when

the planned parking lot is built and is being used by

Specialty’s employees. For these reasons, the plaintiff

is not entitled to the injunctive relief it has requested.’’15

(Emphasis added.)

The foregoing explanation demonstrates that the

court correctly applied Karls to the factual circumstances of the present case. Essentially, relying on

Karls, the trial court concluded that the plaintiff had

failed to demonstrate that the alleged harm (i.e., the

plaintiff’s inability to use of the right-of-way because

of the defendant’s use of its parking lot within the rightof-way) would necessarily result but for the issuance

of the requested injunction; not only was the parking

lot not yet constructed on former Lot 13, it was unclear

to the court whether Specialty would ever use any of

the parking spaces afforded to it under the amended

lease; see footnote 7 of this opinion; or whether the

defendant would be operating its business in the same

manner once the parking lot was actually constructed.
Accordingly, we conclude that the trial court applied

the correct standard of law when determining whether

the plaintiff was entitled to injunctive relief.16

B

We next address the plaintiff’s alternative argument

that the trial court abused its discretion when it denied

the plaintiff’s request for injunctive relief. The plaintiff

argues that a fair balancing of the equities supports the

conclusion that an injunction should have been issued

by the court in the present case.

The following legal principles are relevant to the

plaintiff’s argument. ‘‘The granting of an injunction rests

within the sound discretion of the trial court and [i]n

exercising its discretion, the court . . . may consider

and balance the injury complained of with that which

will result from interference by injunction. . . . The

relief granted must be compatible with the equities of

the case. . . . The action of the trial court will not be

disturbed unless it constitutes an abuse of discretion.’’

(Internal quotation marks omitted.) Waterbury v. Phoenix Soil, LLC, 128 Conn. App. 619, 627–28, 20 A.3d 1

(2011); see also Baruno v. Slane, 151 Conn. App. 386,

397 n.9, 94 A.3d 1230 (‘‘[T]he granting of injunctive

relief, which must be compatible with the equities of

the case, rests within the trial court’s sound discretion.

. . . Those equities should take into account the gravity

and wilfulness of the violation, as well as the potential

harm to the defendants.’’ [Emphasis omitted; internal

quotation marks omitted.]), cert. denied, 314 Conn. 920,

100 A.3d 851 (2014). ‘‘In determining whether there has

been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the

court’s ruling. . . . Reversal is required only [when]

an abuse of discretion is manifest or [when] injustice

appears to have been done.’’ (Internal quotation marks

omitted.) Wethersfield v. PR Arrow, LLC, 187 Conn.

App. 604, 645, 203 A.3d 645, cert. denied, 331 Conn. 907,

202 A.3d 1022 (2019).

In the present case, as described previously, the court

initially determined that ‘‘parking in the right-of-way by

the defendant’s employees and customers will interfere

with the plaintiff’s reasonably intended use of the rightof-way, at least during Specialty’s hours of operation.’’

In making this determination, the court acknowledged,

inter alia, that ‘‘the plaintiff’s intended use of former

Lot 13 as a parking lot [was] far from theoretical’’—

due to the plaintiff’s removal of the three utility poles

obstructing the right-of-way, the plaintiff’s submission

of detailed site plans to the city, the city’s approval of

the revised site plan, and the creation of the amended

lease with Specialty—and, ‘‘[t]hus, it [was] reasonably

expected that the plaintiff may someday make use of

the former Lot 13 as a parking lot for Specialty’s employees and will use the right-of-way for access to that lot.’’

(Emphasis added.) Thereafter, the court found that it
was possible that the plaintiff’s access to the right-ofway may be impaired but concluded that such impairment was not imminent because ‘‘it [was] contingent

on a number of events that [had] yet to occur,’’ such

as Specialty’s use of fifty new parking spaces that it

was provided under the amended lease agreement.

The foregoing discussion by the trial court demonstrates that it fully acknowledged that parking in the

right-of-way would interfere with the plaintiff’s access

to the right-of-way but also recognized that this harm

was not likely to befall the plaintiff but for the issuance

of the requested injunction. Under these circumstances,

and in light of the extraordinary nature of injunctive

relief, we cannot say that the court abused its discretion

when it denied the plaintiff’s request for an injunction.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 On the appeal form filed by the defendant, the defendant indicated that,

in addition to the trial court’s judgment with respect to its counterclaim, it

is appealing from the trial court’s determination that the plaintiff’s intended

use of the easement at issue does not overburden the easement or the

defendant’s property. In its principal appellate brief, the defendant recognizes that it raised the matter of overburdening as a special defense to the

plaintiff’s complaint and that it was not aggrieved by the trial court’s judgment on the plaintiff’s complaint, which was rendered in its favor. The

defendant nonetheless explains that it ‘‘intends to brief its claims of error

arising from the trial court’s analysis and decision on the issue of overburdening, as alternative grounds for affirmance’’ of the court’s judgment on the

plaintiff’s complaint. In its appellate brief on the cross appeal, the defendant

briefs, inter alia, these claims of error. Because we affirm the judgment of

the trial court with respect to the plaintiff’s complaint, we need not reach

the defendant’s alternative grounds for affirmance.

2 Specifically, the 1979 deed provided that 145 West Service Road was

‘‘[s]ubject to a Right-of-Way in favor of that piece of real property designated

Lot No. 13 on said map, said Right-of-Way being more particularly bounded

and described as follows:

‘‘NORTHERLY: By Lot No. 14B, as shown on said map, 341.63 feet,

more or less;

‘‘EASTERLY: By West Service Road, 25 feet;

‘‘SOUTHERLY: By the non-burdened portion of Lot No. 14A, 345 feet,

more or less; and

‘‘WESTERLY: By Lot No. 13, as shown on said map, 25 feet,

more or less.

‘‘Said Right-of-Way is for the purpose of providing ingress and egress for

all purposes, to said Lot No. 13 and shall run with the land benefited and

the land burdened regardless whether there is other access to Lot No. 13.

Said Right-of-Way to be maintained by the owner or owners of said Lot

No. 13.’’

3 The plaintiff did not appeal from the court’s judgment in the first action.

4 The defendant requested the following additional relief: a declaratory

judgment that it has the right to use its property in any manner that does

not unreasonably interfere with the plaintiff’s use of the right-of-way, including using the area for parking subject to certain conditions; a declaratory

judgment that the plaintiff has no right to make unnecessary alterations

and/or modifications to the defendant’s property to access the right-of-way,

the plaintiff’s intended alterations and/or modifications are unnecessary,

and the defendant has no duty to sign curb cut permit applications or

otherwise authorize the plaintiff to make unnecessary alterations and/or

modifications to its property to access the right-of-way; a permanent injunction prohibiting the plaintiff from making unnecessary alterations and/or

modifications to the defendant’s property to access the right-of-way; costs;
and such other relief deemed fair, just, and equitable by the court.

5 The city returned the plaintiff’s curb cut application and noted that it

required the submittal of full A-2 surveys for the plaintiff’s and the defendant’s lots. The plaintiff submitted an A-2 survey, but the defendant did not.

Thus, the city never reconsidered the plaintiff’s curb cut application.

6 A curb does not obstruct access from West Service Road to the rightof-way, and, according to the trial court, the area at issue in the curb cut

application appears to be traversable.

7 Under the August 12, 2014 lease executed by the plaintiff and Specialty,

Specialty had the full right to use and occupy former Lot 13. The trial court

found that, pursuant to the terms of a February 29, 2016 amendment to that

lease, however, ‘‘the plaintiff can require Specialty to remove its buses and

vans from former lot 13 in exchange for Specialty having the right to utilize,

for employee parking, a maximum of fifty of the [seventy-nine planned]

parking spaces to be constructed.’’

8 See footnote 1 of this opinion.

9 The defendant argues that Alligood does not, and should not, prevent a

servient landowner from prospectively obtaining court relief to compel the

relocation of an easement over the unreasonable opposition of the easement

holder. We disagree. If granted, such relief would be contradictory to the

majority rule, which provides that the location of an easement cannot be

changed without consent from both the landowner and the easement holder

once the location of an easement has been selected or fixed.

10 Furthermore, the defendant cites no authority, and we are aware of

none, supporting the application of § 4.8 (3) (c) of the Restatement (Third)

of Property in this manner.

11 Section 4.9 of the Restatement (Third) of Property provides: ‘‘Except

as limited by the terms of the servitude determined under § 4.1, the holder

of the servient estate is entitled to make any use of the servient estate that

does not unreasonably interfere with enjoyment of the servitude.’’

12 Section 4.10 of the Restatement (Third) of Property provides: ‘‘Except

as limited by the terms of the servitude determined under § 4.1, the holder

of an easement or profit as defined in § 1.2 is entitled to use the servient

estate in a manner that is reasonably necessary for the convenient enjoyment

of the servitude. The manner, frequency, and intensity of the use may change

over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by

the servitude. Unless authorized by the terms of the servitude, the holder

is not entitled to cause unreasonable damage to the servient estate or

interfere unreasonably with its enjoyment.’’

13 Section 8.3 of the Restatement (Third) of Property provides: ‘‘(1) A

servitude may be enforced by any appropriate remedy or combination of

remedies, which may include declaratory judgment, compensatory damages,

punitive damages, nominal damages, injunctions, restitution, and imposition

of liens. Factors that may be considered in determining the availability and

appropriate choice of remedy include the nature and purpose of the servitude, the conduct of the parties, the fairness of the servitude and the transaction that created it, and the costs and benefits of enforcement to the parties,

to third parties, and to the public.

‘‘(2) Except when failure to enforce servitudes in common-interest communities or general-plan developments provides the basis for modification

or termination due to changed conditions under § 7.10, property owners

or an association of property owners may enforce the servitudes against

subsequent similar violations by the same or different parties unless, under

the circumstances then prevailing, enforcement would be unreasonable

or inequitable.’’

14 The plaintiffs filed suit against multiple defendants in Karls, but we

refer only to the defendant homeowner for ease of discussion.

15 In the preceding paragraph of its memorandum of decision, the trial

court stated: ‘‘The court agrees with the defendant that a claim of interference with an easement or right-of-way, as opposed to breach of a restrictive

covenant, requires proof of irreparable harm, or, at the very least, that the

holder of the easement’s rights have been actually obstructed or disturbed.

In fact, even in the cases relied upon by the plaintiff, the court held that

injunctive relief was warranted because the defendant had in fact disturbed

the plaintiff’s rights.’’ In light of this particular language, the plaintiff argues

in part that the court incorrectly concluded that, in order to establish irreparable harm, the plaintiff must prove that ‘‘the holder of the easement’s

rights have been actually obstructed or disturbed.’’ (Internal quotation marks

omitted.) We disagree. Despite the court’s inclusion of the clause ‘‘at the
very least,’’ which suggests in isolation that the court believed that the

plaintiff must meet a higher legal standard than our precedent requires, the

court goes on to correctly apply Karls to the factual circumstances of the

present case.

16 In light of Karls, the plaintiff argues that interference with an easement

in and of itself is sufficient to demonstrate the existence of a substantial

probability of harm to an easement holder’s rights, and it cites multiple

cases in support, namely, Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153

(1981), Gerald Park Improvement Assn. v. Bini, 138 Conn. 232, 83 A.2d

195 (1951), New London v. Perkins, 87 Conn. 229, 87 A. 724 (1913), Dewire

v. Hanley, 79 Conn. 454, 65 A. 573 (1907), Schwartz v. Murphy, 74 Conn.

App. 286, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841

(2003), cert. denied, 546 U.S. 820, 26 S. Ct. 352, 163 L. Ed. 2d 61 (2005), and

Simonds v. Shaw, 44 Conn. App. 683, 691 A.2d 1102 (1997). We disagree.

In each of these cases, there was no real question as to whether the plaintiffs

would ever actually use the easements or whether the easements were or

would be obstructed by the defendants; rather, the plaintiffs had already

been using or attempting to use the easements in the manner intended and

were prevented from doing so, or it was highly likely that they would be

prevented from doing so, by the defendants’ interference. By contrast, in

the present case, the trial court was not convinced of the substantial probability that but for the injunction the plaintiff would be prevented from using

the right-of-way in the manner intended because, although the court found

that the parking in the right-of-way by the defendant’s employees and customers will interfere with the plaintiff’s reasonably intended use of the

right-of-way, such harm was not imminent as the plaintiff had not yet

constructed the planned parking lot on former Lot 13, there was no evidence

before the court to suggest that Specialty would use the parking spaces in

said parking lot, and the court ‘‘ha[d] no way of knowing if the defendant

[would] still be operating in the manner it [had] been if and when the planned

parking lot [was] built and [was] being used by Specialty’s employees.’’