Leabo v. Leninsky

438 A.2d 1153 (1981)

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Nature of the Case

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Facts

In 1959, the zoning commission approved a subdivision plan for property owned by the estate of George T. Sperry. The subdivision consisted of six lots and a small piece of rocky shore, known as the 'Second Piece' located southerly of Falcon Road. Falcon Road runs along the beach on Long Island Sound and westerly of a proposed private road to be known as Walden Hill Road. The estate also owned additional property not included in the subdivision plan. That was a 2.23-acre parcel on the easterly side of Walden Hill Road and a small beach, approximately 1300 square feet in area, located southerly of Falcon Road and easterly of the 'Second Piece.' The six lots, Walden Hill Road and the 'Second Piece' were sold to Falcon, Inc. The deed granted Falcon, its successors and assigns, the 'right to use the beach located easterly of the second piece hereinbefore described for the purpose of bathing only.' Falcon sold the six lots and the 'Second Piece' to various individuals. Each deed from Falcon contained the following language: 'together with the right to use in common with others, for the purpose of bathing only, the beach located easterly of the Second Piece.' Each deed conveyed 'a right of way for all purposes whatsoever, including the installation and maintenance of public utilities, in common with others, in, through, over and upon Walden Hill Road.' Ps are successors in title to the grantees of Falcon. On November 22, 1975, D purchased the 2.23-acre parcel from the successor in title of the Sperry estate. The deed referred to the beach as 'Second Piece' and included the following language: '[s]aid Second Piece is subject to rights of others of use, as of record in said Land Records will appear.' Located on the 2.23-acre parcel were four cottages. D obtained a permit to improve one of the cottages but, after he had incurred expenses in improvements, the zoning authorities revoked the permit and ordered him to desist and to restore the cottage to its original condition. D painted the cottage red, white and blue simulating the American flag and posted large signs announcing the opening of the beach for public use. The zoning commission sought a temporary injunction but was denied. The court did grant a temporary injunction as to the posted signs. D then purchased Walden Hill Road and began to widen it in order to provide accommodations for the vehicles which the public would use to get to the beach. Ps sought an injunction and compensatory and punitive damages. The court granted injunctive relief and punitive damages but denied compensatory damages because of insufficient evidence. D appealed.