author: BISHOP, J.

text:
    CAS CONSTRUCTION COMPANY, INC. v. TOWN OF EAST HARTFORD
    (AC 23143)
    Dranginis, Bishop and McLachlan, Js.

      Argued December 3, 2003 —
    officially released April 20, 2004

      Lawrence G. Rosenthal, for the appellant (plaintiff).

      Richard M. Quinlan, assistant corporation counsel, for the appellee (defendant).
   Opinion

BISHOP, J.

This appeal arises from the trial of a dispute involving a road reconstruction project in East Hartford. On May 21, 1997, the plaintiff, CAS Construction Company, Inc., entered into a written contract with the defendant town of East Hartford for the reconstruction of Forest Street. The project was funded by the department of transportation. Pursuant to the contract, the plaintiff agreed to remove and to replace the storm drainage systems under Forest Street, and the defendant agreed, in return, to pay for the plaintiffs services on the basis of the unit prices contained in the defendant’s solicitation of bids.

Work on the project began in June, 1997, and was completed by June, 1998. A dispute arose after the defendant rejected several requisitions submitted by the plaintiff for payment for various units of work. Thereafter, the plaintiff commenced this action. In count one of its complaint, the plaintiff alleged breach of contract for failure to make payments in excess of $71,729.90 for work contained in the contract specifications. In count two, the plaintiff claimed nonpayment in an amount exceeding $105,204.17 for extra work not contained in the contract specifications. In count three, the plaintiff alleged delays to contract performance caused by the defendant that resulted in additional unspecified costs to the plaintiff. In response, the defendant denied that the amounts claimed were due and filed five special defenses.

After a trial to the court, judgment was rendered for the plaintiff on counts one and two of the complaint in the amounts of $28,722 and $5008.28, respectively. Judgment was rendered for the defendant on count three.

On appeal, the plaintiff claims that the court improperly (1) interpreted the parties’ contract by concluding that the plaintiff was not entitled to additional compensation for (A) remobilization costs associated with the defendant’s suspension of work, (B) costs associated with the reconnection of pipes to the newly installed catch basins and (C) services provided by the plaintiff beyond the contractual horns of operation; (2) found that the plaintiff failed to prove its damages with reasonable certainty; and (3) concluded that the defendant was not hable for compensation claimed by the plaintiff for the extra costs incurred by a subcontractor. We affirm the judgment of the trial court. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that the court improperly interpreted the contract by concluding that the plaintiff was not entitled to additional compensation because (A) the contract provisions governing the suspension of work encompassed a provision for making a claim for remobilization costs, (B) the contract unit price for each catch basin included the costs incurred by the plaintiff in reconnecting the pipes to the catch basins and (C) the contract limited the paid hours of operation.

A

The plaintiff challenges the court’s conclusion that the contract barred its claim for additional compensation for the costs associated with the defendant’s suspension of work.

The following additional facts are relevant to our disposition of the plaintiffs claim. On November 24, 1997, the defendant notified the plaintiff that it was suspending work on the project for the winter months and that the project was to resume no later than April 1, 1998. In its complaint, the plaintiff alleged that it suffered monetary damages as a result of the suspension. Specifically, the plaintiff alleged that as a result of the defendant’s suspension of work, all of its equipment from the site was “demobilized” and in April, when the project resumed, it had to “remobilize” the equipment again. At trial, the plaintiff claimed that this “remobilization” cost it an additional $20,000.

The court denied the plaintiffs claim for remobilization costs and, in its memorandum of decision, stated: “[T]he defendant acted reasonably, lawfully and in accordance with the rules and procedures authorizing a winter closure. The plaintiff failed to conform to CT DOT Form 814A, § 1.08.06, and did not submit ‘. . . to [the defendant], in writing, a request for a contract adjustment within seven calendar days of receipt of a notice to resume work.’ ”

On appeal, the plaintiff contends that the court improperly applied the contractual requirements of the suspension of work provisions to its claim for remobili-zation costs. We are not persuaded.

We begin by articulating the appropriate standard of review. In the present case, the parties do not dispute that the interpretation of the language of § 1.08.06 of the contract’s Standard Specifications for Roads, Bridges and Incidental Construction, Form 814A (1995) (Standard Specifications), as promulgated by the department of transportation, presents a question of law over which we exercise plenary review. “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . [B]ecause the trial court relied solely upon the written [agreement] in ascertaining the intent of the parties, the legal inferences properly to be drawn from the [document is a] question of law, rather than fact.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 227, 828 A.2d 64 (2003).

The plaintiff contends that the court misconstrued the contract in concluding that the defendant was entitled to order a winter shutdown. On appeal, however, the plaintiff acknowledges that the defendant was, in fact, entitled to order a suspension of work. In that regard, the plaintiffs brief states in relevant part: “The contract terms were clear, [the plaintiff] was to proceed with work with no winter shutdown. [The defendant] decided to suspend the Project. [The defendant] has a contractual right to suspend the work (CTDOT 814A, Section 1.08.06 . . .) but it must pay [the plaintiff] for the costs of such a suspension, such as idle equipment, utility and rental costs.”

The plaintiffs acknowledgment that the defendant was entitled to order a shutdown of the work is correct. The contract language at issue unambiguously provides that the parties intended to give the defendant the authority to suspend work under certain circumstances. Accordingly, we conclude that the court’s con-elusion that the defendant was entitled to suspend work on the project during the winter months was legally correct.

The plaintiff also challenges the court’s conclusion that it was not entitled to recover the extra remobilization costs it incurred because it did not submit to the defendant a written request for a contract adjustment within seven calendar days of the plaintiffs receipt of the defendant’s notice to resume work. The plaintiff contends that even if the defendant had the contractual right to order the suspension of work, the plaintiff was entitled to recover the additional costs it incurred in remobilizing its equipment regardless of whether it submitted a timely written request for additional compensation. In support of that contention, the plaintiff posits that the court incorrectly relied on § 1.08.06 of the contract specifications. According to the plaintiff, a cost adjustment was provided for in the contract because the contract contained a unit price line item for mobilization. The plaintiff further argues that because the requirements of § 1.08.06 (3) do not apply if a cost adjustment already is provided for under any other term of the contract, it was not required to make a written request for an adjustment within the time specified. In sum, the plaintiff claims that the provision for mobilization costs in the contract assured it payment for remobi-lization costs and without the necessity of a timely supplemental requisition. We disagree.

The contract provided a $20,000 lump sum line item for “mobilization.” It did not, however, provide a lump sum line item for “remobilization.” Because there was no line item for “remobilization,” the court correctly determined that the plaintiffs claim for remobilization was, in fact, one for “extra costs” incurred during the defendant’s suspension of work. Thus, it was governed by the requirements of § 1.08.06 of the contract. Section 1.08.06 (1) provides that if the plaintiff believes that additional compensation is due as a result of the defendant’s suspension of work, the plaintiff must “submit to the [defendant] in writing a request for a Contract adjustment within 7 calendar days of receipt of notice to resume work. . . .” Section 1.08.06 (3) further provides that “[n]o Contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed.” The court’s determination that the plaintiffs claim for remobilization costs would be denied unless it filed a request for adjustment within the specified time is, therefore, legally correct.

Because we conclude that the court’s conclusions were legally and logically correct and find support in the record, the plaintiffs first argument is unavailing.

B

The plaintiff next challenges the court’s interpretation of the contract provisions concerning the plaintiffs installation of catch basins.

The following additional facts are pertinent to our discussion of the plaintiffs claim. As previously stated, the purpose of the project was to remove and to replace the existing storm drainage system under Forest Street. To fulfill its obligation under the contract, the plaintiff was required to replace a number of the existing catch basins. To do so, the plaintiff had to disconnect the pipes from the old catch basins, install the new catch basins and then reconnect the pipes to the newly installed catch basins.

Section 5.07 of the Standard Specifications governed the installation of those catch basins and designated the work that was to be included in the contract unit price for each catch basin. It provides in relevant part: “Catch Basins . . . will be paid for at the contract unit price . . . for . . . ‘Catch Basin,’ of the type specified . . . complete in place, which price shall include all materials, equipment, tools, and labor incidental thereto.” (Emphasis added.) That provision does not, however, expressly include the reconnection of pipes in the contract unit price for catch basins.

At trial, the plaintiff alleged that it is entitled to $37,100 for its reconnection of the pipes to the newly installed catch basins. The plaintiff claims that because the contract did not expressly provide for the reconnection of pipes, such services were “extra work” as defined in § 1.04.05 of the contract, and, thus, it was entitled to additional compensation for such work. Section 1.04.05, entitled “Extra Work,” allows for additional compensation for work performed by the plaintiff that is necessary to complete an improvement for which no price is provided in the contract. The defendant, however, contended that those services were not “extra work,” but rather were included in the work to be performed under the contract, and because it already had paid the contract unit price for each catch basin, it was not liable for them.

Agreeing with the defendant, the court denied the plaintiffs claim, stating in its memorandum of decision: “Nothing should be more apparent than when it becomes necessary to disconnect existing pipes to replace a catch basin, the existing pipes would have to be reconnected to the new catch basins. The court expressly finds that this item was an integral and essential element of the cpntract and that the plaintiff is owed no further payments for same.”

On appeal, the plaintiff claims that the court’s interpretation of the contract was incorrect because the reconnection of pipes was not expressly included in the work to be performed by the plaintiff under the agreement. We disagree.

We begin our analysis by reiterating the legal framework that governs our review. As previously stated, the question of contract interpretation is a question of the parties’ intent. Grass v. Grass, 47 Conn. App. 657, 662, 706 A.2d 1369 (1998). Ordinarily, that is a question of fact. Id. If, however, the language of the contract is clear and unambiguous, the court’s determination of what the parties intended in using such language is a conclusion of law. Id. “In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Id.

In the present case, § 5.07.05 of the contract’s Standard Specifications contains language concerning the contract unit price of each catch basin. It provides in relevant part: “These structures will be paid for as follows .... Catch Basins . . . complete in place, which price shall include all materials, equipment, tools and labor incidental thereto. ...” (Emphasis added.) Although that language is broad and enveloping, when read in the context of the entire contract, it is also amply plain. It conveys a palpable intent to include the plaintiffs “reconnection of pipes” as labor incidental to the installation of each catch basin. See Foley v. Huntington Co., 42 Conn. App. 712, 729, 682 A.2d 1026 (“ ‘law is clear that a contract includes not only what is expressly stated therein but also what is necessarily implied from the language used’ ”), cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

We reach that conclusion by considering the contractual language in light of the purpose the parties sought to accomplish in making the contract. The contract provided for the removal and replacement of the storm drainage system existing under Forest Street, which included the replacement of existing catch basins. Pursuant to § 5.07.05 of the contract, each catch basin would be paid for if “complete in place . . . .” The function of each catch basin is to admit surface water and to discharge it into the storm drainage system. That function cannot be accomplished if the previously disconnected pipes are not reconnected. A catch basin could not, therefore, be “complete in place” unless the pipes were reconnected to it. Viewed against that backdrop, it is apparent that the contract permits only one reasonable interpretation in that regard. To construe it otherwise — that a catch basin is “complete in place” even if the outlet pipes are disconnected — would make nonsense of plain language. See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674, 791 A.2d 546 (2002) (“law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous”). We therefore conclude that the language of the contract is unambiguous and, as a consequence, our review of the court’s interpretive determinations concerning such language is plenary.

Accordingly, we apply the well established principle of contract interpretation that contracts are construed in accordance with what we conclude to be the understanding and intention of the parties as determined from the language they used interpreted in the light of their situation and the circumstances connected with the transaction. When, as here, the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. According to the plain language of the contract, the plaintiffs reconnection of the pipes to the newly installed catch basins is encompassed by § 5.07 as labor incidental to the complete installation of each catch basin and is, therefore, included in the contract unit price of each catch basin. The court’s interpretive determination in that regard was, therefore, legally and logically correct. Consequently, the plaintiffs second claim fails.

C

The plaintiffs third claim regarding extra payment for work beyond the contracted hours of work is similarly unavailing. Pursuant to § 9.70.01 of the Standard Specifications, the plaintiff was required to provide the services of “uniformed trafficmen” (trafficmen) at the construction site to control and direct vehicular traffic and pedestrians. According to that provision, payment for those services would be measured by the hours of service rendered. Section 9.70.04, however, further provides in relevant part that “[tjrafficmen furnished by the Contractor . . . beyond the period for which the Engineer deems such trafficmen necessary to the proper completion of the project . . . will not be measured for payment.” Section 1.08 of the contract restricted the necessary working hours of the traf-ficmen to a specified period of time.

At trial, the plaintiff claimed that the defendant breached the contract by paying only for the services of the trafficmen rendered between the contractual start of the workday and the contractual end of the workday, and by refusing to pay for the work performed by the trafficmen beyond the hours of work set forth in the contract. The court concluded, however, that the defendant had no obligation to pay for those extra services, as they were “outside the parameters of the working hours as set forth in the contract.”

On appeal, the plaintiff asserts that the court’s conclusion was incorrect because the contract cannot be interpreted as limiting the paid hours of operation.

Because the contract contained definitive language concerning the issue, our review of the court’s conclusion that the defendant had no contractual obligation to pay for the extra services of the traffic control officers is plenary. Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 227.

“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Fusco v. Fusco, 266 Conn. 649, 655, 835 A.2d 6 (2003). As previously stated, § 9.70.04 of the contract explicitly provides in relevant part that “[t]rafficmen furnished by the [plaintiff] . . . beyond the period for which the [defendant] deems such trafficmen necessary . . . will not be measured for payment.” The contract defined the period for which such trafficmen were necessary in an express provision entitled, “Limitation of Operations.” When read together, those provisions clearly establish that the parties intended that any work performed by trafficmen outside of the period specified by the “Limitations of Operations” would not be paid by the defendant. Consequently, the court’s determination that the plaintiff was not entitled to be paid for work performed by trafñcmen outside the working hours specified in the contract was legally and logically correct. Accordingly, the plaintiffs third challenge must also fail.

II

The plaintiff next assails the court’s factual findings that led it to the conclusion that the plaintiffs damages were not proven with reasonable certainty. The plaintiff contends that the evidence it adduced to meet its burden of proof was sufficient. We disagree. Because the plaintiff is challenging the court’s factual findings, our review is limited to deciding whether such findings are clearly erroneous. See Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 539, 767 A.2d 1169 (2001).

“Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating then-amount in money with reasonable certainty.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308-309, 685 A.2d 305 (1996). Thus, “[t]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount.” Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974).

In its memorandum of decision, the court stated: “Items 1,6,7 and 8. Gas main obstruction. The plaintiffs claim that for these items it is owed $13,025.56. . . . [T]he plaintiff did not offer any documented proof, but relied on its subjective and speculative opinion as to cost. The court expressly finds that the plaintiff has failed to prove its claims under items 1, 6, 7 and 8. . . . Item 28,29. Topsoil and turf establishment. The plaintiff claims that the [defendant] owes $1631 for topsoil that was needed in an area near Oak Street and is owed $2260 for seeding. The plaintiff has provided no documentation or detail, and relies on its subjective and speculative opinion as to these items. The [defendant] cannot pay these claims.”

On the basis of our thorough review of the record, we conclude that the court’s determination that the plaintiff failed to adduce sufficient evidence of damages was not clearly erroneous. Although the plaintiff did introduce some evidence of its damages, we agree with the court’s assessment that such evidence was founded on mere speculation. Speculative evidence is not sufficient evidence for the trier to make a fair and reasonable estimate of the plaintiffs damages. See Bronson & Townsend Co. v. Battistoni, supra, 167 Conn. 326-27. Accordingly, the plaintiffs second claim must fail.

Ill

The plaintiffs final claim is that the court incorrectly concluded that the defendant was not liable for compensation claimed by the plaintiff for the extra costs incurred by one of its subcontractors, Coppola Construction Company, Inc. (Coppola). At trial, the plaintiff alleged that Coppola had incurred these costs due to delays caused by the defendants. Because we conclude that the plaintiff lacked standing to bring that claim directly, we decline to address its merits.

“It is a fundamental concept of judicial administration that no person is entitled to set the machinery of the courts into operation unless [it is] for the purpose of obtaining redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity. ... A plaintiff can recover only by proving that he himself is entitled to prevail on the cause of action alleged. It is not enough that he prove that some other person, not a party to the case, would be entitled to recover on that cause of action.” (Citations omitted; internal quotation marks omitted.) Wexler Construction Co. v. Housing Authority, 149 Conn. 602, 605, 183 A.2d 262 (1962).

Our careful examination of the record reveals, however, that the plaintiff has neither been injured nor threatened with injury due to the alleged nonpayment to Coppola because it has not paid Coppola’s extra costs, nor has Coppola instituted or threatened to institute an action against the plaintiff to recover such costs. Thus, the plaintiff has failed to bring itself within “any exception to the usual rule denying a right of recovery to a plaintiff who has neither suffered nor been threatened with injury.” Id., 607. We therefore conclude that the plaintiff lacked standing to bring the underlying claim. “Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” (Internal quotation marks omitted.) Ardito v. Olinger, 65 Conn. App. 295, 300, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001). In view of the court’s absence of jurisdiction, the plaintiffs final claim is dismissed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The contract incorporated by reference the department of transportation’s Standard Specifications for Roads, Bridges and Incidental Construction, Form 814A (1995).

       In a unit price contract, the contractor’s bid is not determined as a single overall price, but is an accumulation of costs for each unit item of work, the submitted bid being subsequently determined by the number of such units required under the bid specifications and to be installed by the contractor. See Maskel Construction Co. v. Glastonbury, 158 Conn. 592, 593-94, 264 A.2d 557 (1969).

       In its special defenses, the defendant claimed that (1) the plaintiff had failed to provide proper invoices as required under the contract (first special defense), (2) the plaintiffs own actions had contributed to the alleged delays (second special defense), (3) the defendant had no obligation to pay subcontractors (third special defense), (4) the plaintiff had not submitted a certified statement as to the items of work completed (fourth special defense) and (5) the plaintiff had failed to pay its subcontractors from the proceeds it received from the defendant (fifth special defense).

       Section 1.08.06 of the contract, entitled “Suspensions of Work Ordered by the Engineer,” provides in relevant part: “The Engineer shall have the authority to suspend the work wholly or in part, for such period or periods as he considers to be in the best interests of the State, or in the interest of public necessity, convenience or safety. ... (1) If the performance of all or any portion of the work is suspended or delayed by the Engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation and/or Contract time due as result of such suspension or delay, the Contractor shall submit to the Engineer in writing a request for a Contract adjustment within 7 Calendar days of receipt of the notice to resume work. The request shall set forth the specific reasons and support for such adjustment. ... (3) No Contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed.”

       Notably, the plaintiff makes no claim challenging the court’s conclusion that the defendant’s reason for suspending work, i.e., the onset of winter, was not authorized by § 1.08.06 (1) of the contract.

       We note that the plaintiff does not challenge the court’s factual finding that the plaintiff failed to comply with the requirements of the subject provision.

       A catch basin is a subterranean chamber or well that admits surface water for discharge into a storm drain system.

       Section 9.70.04 provides in relevant part: “Services of trafficmen will be measured for payment by the number of hours for each person rendering services in accordance with the orders of the Engineer. . . . Trafficmen furnished by the Contractor . . . beyond the period for which the Engineer deems such trafficmen necessary to the proper completion of the project . . . will not be measured for payment.”

       Section 1.08 provides in relevant part that “the Contractor shall not be permitted to perform any work which will interfere with normal traffic operations on Forest Street during the following periods: On Monday through Friday between 6 a.m. and 9 a.m. and between 3 p.m. and 6 p.m.”

       The plaintiff introduced as evidence of damages various letters it sent to the defendant requesting additional compensation for these extra costs. These letters were written by William Coons, vice president and owner of the plaintiff. As the plaintiff contends, the letters indicate how each request was arrived at, i.e., 170LF x $42 = $7140, however, nothing in the letters indicates how each individual term was reached. Furthermore, as to the plaintiffs claim regarding items one, six, seven and eight, Coons testified that he “just listed what [he] thought was a fair number.”

       Appellate courts may conduct an independent review of the question of standing. See, e.g., Grabowski v. Bristol, 64 Conn. App. 448, 450, 780 A.2d 953 (2001) (“Appellate courts, as well as trial courts, must examine an issue implicating subject matter jurisdiction. The question of standing may be raised by any of the parties, or by the court, sua sponte, at any time during judicial proceedings.”).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    CRABTREE REALTY COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WESTPORT CRABTREE REALTY COMPANY v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT
    (AC 23709)
    Dranginis, Bishop and Peters, Js.

      Argued February 19 —
    officially released April 20, 2004

      John F. Fallon, for the appellant (plaintiff).

      Patricia C. Sullivan, with whom, on the brief, was Barbara M. Schellenberg, for the appellees (defendants).
   Opinion

PETERS, J.

Pursuant to General Statutes § 8-3 (g), a local zoning commission may deny a site plan application only if the proposed plan “fails to comply with requirements already set forth in [applicable zoning or inlánd wetlands] regulations.” In this case, a commercial landowner was denied approval of plans to construct and to access new off-street parking spaces on adjacent commercial property. In its appeal contesting these denials, the landowner argues that its proposals would neither have enlarged a preexisting nonconforming use nor have violated zoning regulations for residential zones. Like the trial court, we find these arguments unpersuasive. Accordingly, we affirm the judgments of the court dismissing the landowner’s appeals.

The plaintiff, Crabtree Realty Company, owns property located at 777 Post Road East in Westport and leases contiguous property located at 785 Post Road East. It appealed to the trial court from two decisions of the defendant planning and zoning commission of the town of Westport (commission) denying its site plan applications (1) to use part of newly leased property at 785 Post Road East for twenty additional parking spaces for its employees and customers and (2) to construct an access road between the two properties. The commission defended its decisions.

The trial court, agreeing with the commission, dismissed the plaintiffs appeals. It declined to overturn the commission’s substantive determinations that the site plan applications did not conform to the applicable Westport zoning regulations. The court further held that the board’s improper reliance on evidence not disclosed at a public hearing was harmless error.

Having obtained certification to do so, the plaintiff filed the present appeal, in which it renews the arguments that it presented to the trial court. The plaintiff maintains that the commission (1) should have approved the site plan application for construction of additional parking at 785 Post Road East because it intensified but did not enlarge its preexisting nonconforming use of 777 Post Road East, (2) should have approved the site plan application for an access road because this use of its property was not forbidden by the town zoning regulations and (3) acted illegally in relying on evidence that had not been presented at a public hearing. Because each argument raises issues of law, our review of the court’s judgment is plenary. Barbieri v. Planning & Zoning Commission, 80 Conn. App. 169, 174, 833 A.2d 939 (2003).

I

NONCONFORMING USE

The plaintiffs first argument for reversal is a challenge to the commission’s determination that construction of parking spaces on adjoining property would enlarge rather than intensify its existing nonconforming use of its own property. We agree with the trial court that the commission had the authority to decide as it did.

Although existing nonconforming uses are protected by statute; General Statutes § 8-2; public policy favors their abolition “as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 740, 626 A.2d 705 (1993). Accordingly, § 6-1.2 of the Westport zoning regulations prohibits the expansion or relocation of an existing nonconforming use. The determination of whether a proposed project is an illegal expansion of an existing use is a question of fact. Wood v. Zoning Board of Appeals, 258 Conn. 691, 708, 784 A.2d 354 (2001). Our examination of the relevant facts persuades us that the commission had the authority to deny the plaintiffs first site plan application.

The record discloses that the plaintiff owns a car dealership and an adjacent parking area located at 777 Post Road East in Westport. This property is located in a general business district in which off-street parking is a permitted use. An automobile dealership is not, however, a permitted use but is authorized for this plaintiff as a preexisting nonconforming use.

Due to the absence of space for additional parking for its employees and customers at 777 Post Road East, the plaintiff leased adjoining property at 785 Post Road East, which had room for the construction of twenty additional parking spaces. Like 777 Post Road East, the property at 785 Post Road East is located in a general business district in which off-street parking is a permitted use.

The commission denied the plaintiffs proposal to construct this parking lot. It did not question the legitimacy of the plaintiffs quest for additional off-street parking for its employees and customers. For the commission, the dispositive fact was that, in the plaintiffs past operations of its dealership at 777 Post Road East, it had never used any part of 785 Post Road East. This fact led the commission to decide that the proposed construction would illegally expand the plaintiffs nonconforming use in violation of § 6-1.2 of the Westport zoning regulations.

According to the plaintiff, § 6-1.2 is inapplicable because the proposed project was a permissible intensification of a nonconforming use. In support, the plaintiff cites Zachs v. Zoning Board of Appeals, 218 Conn. 324, 589 A.2d 351 (1991), in which the installation of additional antennae on an existing radio communications tower was held to be permissible as an intensification rather than an enlargement of an existing use. Id., 331-32. Concededly, addition of the new antennae in Zachs did not involve any enlargement of the land on which the tower stood.

The commission argues that Zachs is not applicable under the circumstances of this case. It notes that the court’s opinion in Zachs did not address, and consequently should not be construed as having overruled, a line of cases that hold the addition of new land to be an illegal expansion of an existing nonconforming use. See, e.g., Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, 311 A.2d 77 (1972); Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 457, 462, 254 A.2d 868 (1969).

As Professor Terry Tondro has observed, the case law governing expansion of nonconforming uses is not entirely consistent. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 158-60. In our view, this inconsistency can best be addressed by heeding the oft-repeated observation that “[t]he legality of an extension of a nonconforming use is essentially a question of fact. ” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 708; Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 225 Conn. 744.

From this vantage point, we agree with the trial court that the commission was entitled to deny the plaintiffs application because the proposed use of 785 Post Road would have added new land to the plaintiffs nonconforming use of 777 Post Road East. We agree with the court that Zachs is factually distinguishable.

The plaintiff reminds us, however, that Zachs was not limited to a factual determination that additional use of the radio tower was merely a permissible expansion of an existing nonconforming use. In reaching its conclusion, the Supreme Court set out three criteria for determining the scope of an existing nonconforming use. These criteria are (1) the nature and purpose of the existing use, (2) the extent to which the proposed use would change the character, nature and kind of use involved and (3) the impact of the proposed use on the neighborhood. Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332.

According to the plaintiff, application of the Zachs criteria in this case requires us to order reversal of the commission’s denial of its site plan application. In its view, the first criterion is met because there is no dispute about the nature and purpose of the existing use of its own property for an automobile dealership. The second criterion is met because the proposed use of 785 Post Road East would not change the character, nature and kind of use of the automobile dealership property. Additional parking spaces would merely augment existing parking spaces for employees on its own property. Lastly, the third criterion is met because additional off-street parking will benefit the community by relieving congestion of Post Road East. We are not persuaded.

The plaintiffs analysis is flawed because it assumes the very facts that are at issue. The commission did not decide, and did not have to decide, whether adding additional parking would be advantageous to the plaintiffs dealership. In effect, it decided, and had the right to decide, that an addition to the property of the existing nonconforming use was a change in its nature. It would be elevating form over substance if we were to overturn its decision for failure to use the precise wording of the second Zachs criterion.

Because the proposed use of 785 Post Road East would result in a physical change of the property under the plaintiffs control, the commission reasonably could decide that granting the plaintiffs proposed use of 785 Post Road East would result in the illegal expansion of its preexisting nonconforming use. The trial court properly upheld this decision.

II

LAND USE IN A RESIDENTIAL ZONE

The plaintiff also challenges the commission’s denial of its site plan application to construct an access road to enable its employees and customers to make use of the new parking spaces at 785 Post Road East. It is undisputed that the proposed access road would intrude, in part, into a residential zone. The commission decided that construction of this access road would violate the Westport zoning regulations that govern residential zones. Like the trial court, we are persuaded that the commission had the authority to rule as it did.

In its argument for reversal, the plaintiff asks us to consider the importance of three facts that the commission’s decision did not address specifically. The plaintiff emphasizes that (1) the proposed intrusion into the residential zone is small, (2) the access road will not itself be used for parking or other commercial development and (3) there is no feasible off-street alternative to access 785 Post Road East.

The difficulty with this fact based argument is that the commission based its decision entirely on its interpretation of the Westport zoning regulations and development plan. Even if accurate, the facts cited by the plaintiff do not affect the validity of the commission’s legal analysis.

The principal reason for the commission’s denial of the plaintiffs application was that “[t]he proposed plan is not in conformance with the 1987 Town Plan of Development, which states that ‘[t]here should be no commercial encroachment into residential zones .... The character of residential areas should be maintained and commercial development should be limited to those areas zoned for such development.’ ” In addition, the commission determined that “[t]he creation of an access lane from 777 Post Road East to 785 Post Road East that crosses a residential zone is not permitted since it represents a commercial use in a residential zone (§ 3 and § 11-2 [of the zoning regulations]).”

Without taking issue with the regulations cited by the commission, the plaintiff claims that the commission failed to recognize that the regulations, as the plaintiff reads them, do not expressly forbid its proposed use of its property in the residential zone. In the plaintiffs view, in the absence of an express prohibition, the commission was required to approve its application to build the access road.

The plaintiffs argument draws on Connecticut case law holding that zoning regulations may not be interpreted to include or to exclude by implication anything that is not clearly within their express terms. This proposition is supported by cases such as Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988), and Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

As the commission notes, the common thread in these cases is that they concerned zoning regulations that were ambiguous. The plaintiff has not identified any linguistic ambiguity in the text of Westport’s plan of development or its zoning regulations.

It is possible, of course, to find latent ambiguity in omissions in applicable regulatory texts, and that is the main thrust of the plaintiffs argument. The validity of this argument depends on whether the regulations are as incomplete as the plaintiff alleges them to be. We do not think they are.

The property at issue is located in a Residence A district. Section 13.2 of the Westport zoning regulations defines “Permitted Uses” in that district as “[a]ny use permitted in a Residence AAA District . . . .” Section 11-2 sets out the “Permitted Uses” in a Residence AAA district. It provides in relevant part that “no land, building, or structure shall be used . . . unless otherwise provided in these regulations except for one (1) or more of the following uses . . . .’’An access road linking two commercial properties is not a listed exception.

It is difficult to see how much more explicit regulations would need to be to preclude the access road proposed by the plaintiff. We need not rely, however, on our own interpretation of §§ 13-2 and 11-2. In Bradley v. Zoning Board of Appeals, 165 Conn. 389, 334 A.2d 914 (1973), our Supreme Court, construing a similar provision in prior Westport zoning regulations, held that only those uses expressly specified in the regulations are permitted. Id., 394. Bradley definitively refutes the plaintiffs suggestion of a lacuna in the Westport zoning regulations.

Without addressing Bradley, the plaintiff contends that the controlling case is Barbieri v. Planning & Zoning Commission, supra, 80 Conn. App. 169. Bar-bieri does not, however, purport to limit Bradley.

It is true that there are some similarities between this case and Barbieri. As in this case, Barbieri involved the propriety of an access road between two nonresidential properties. Also as in this case, Barbieri involved the propriety of locating part of that access road on property that was in a residential zone. Id., 170-71.

Two facts, however, distinguish Barbieri from this case. The first is that, under the East Windsor zoning regulations at issue in Barbieri, only specified uses of a grass strip in a buffer zone were forbidden. Id., 175. The second is that the East Windsor planning and zoning commission determined that its regulations permitted use of the buffer zone for a gravel driveway even though pavement was forbidden at that location. Id., 174 n.4.

Over the protest of a neighbor of the defendant business owner, we upheld the judgment of the trial court that affirmed the decision of the East Windsor commission. Reviewing the applicable regulations, we concluded that the commission had the discretion to make the distinctions that it did. Id., 176.

Our conclusion in Barbieri does not require reversal of the commission’s action in this case. “Recent decisions of [the Supreme] [C]ourt . . . have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations.” (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020 (2002); Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-31, 711 A.2d 675 (1998); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.4, p. 160.

We conclude, therefore, that the trial court properly upheld the decision of the commission to deny the plaintiffs application for site plan approval for its proposed access road. It was the commission’s prerogative to exercise its discretion to decide that, under the circumstances of this case, the applicable Westport regulations did not permit even a small intrusion into a residential zone.

Ill

DUE PROCESS

In the commission’s statement of the reasons for its denial of each of the plaintiffs site plan applications, it included “[t]he aerial photograph of 1975 and 1991 does not show a driveway or developed lot.” Because this photograph had neither been presented at the public hearing nor disclosed thereafter, the plaintiff was unaware of its existence.

The parties agree that the commission should not have taken this photograph into consideration in its denial of the plaintiffs site plan applications. “Before [a commission] may lawfully rely on material nonrecord facts . . . [that] it has learned through investigation, it must allow a party adversely affected thereby an opportunity to rebut at an appropriate stage in the proceedings.” Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 139 n.9, 439 A.2d 282 (1981); Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980). “[D]ue process of law requires that the parties involved have an opportunity to know the facts on which the [board] is asked to act . . . and to offer rebuttal evidence.” (Internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 480, 778 A.2d 61 (2001); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974).

The parties disagree on the consequences of this due process violation. The plaintiff maintains that the decisions of the commission must be set aside because, knowing of the photograph’s existence, the plaintiff might have established “that the lot was previously developed or that the residentially zoned property in question had previously been used as an unimproved access way between the two commercial lots . . . .” The commission maintains that, under the circumstances of this case, the impropriety was harmless.

The trial court agreed with the commission. It held that “[t]he aerial photo was relevant only to the issue of a preexisting condition which was not the basis upon which the commission relied in making its decision.” We agree with the court.

We know of no rule of law that requires a judgment or administrative decision automatically to be set aside because of the receipt or preclusion of a single piece of evidence in violation of the requirements of due process. Even in criminal cases, the law inquires into whether the taint resulting from the improper admission was harmful in light of the record as a whole. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The same rule applies to administrative hearings; Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 110, 671 A.2d 349 (1996); and to zoning cases. Dram Associates v. Planning & Zoning Commission, 21 Conn. App. 538, 543, 574 A.2d 1317, cert. denied, 215 Conn. 817, 576 A.2d 544 (1990).

In this case, it is difficult to see in what manner the commission’s improper reference to the photograph could have affected its decision that constructing parking spaces on adjacent property was an expansion of the plaintiffs existing nonconforming use of its own property. The plaintiff never claimed that it had previously used the property at 785 Post Road East for any purpose whatsoever. The possible existence of an access road linking the two properties was therefore irrelevant. The plaintiff does not seriously argue to the contrary.

The plaintiff does argue that inspection of the photograph might have played a role with respect to its application to construct an access road in the residential zone. We are not persuaded.

All that the photograph showed was that there had not been “a driveway or a developed lot” in the property at issue. The plaintiff never claimed before the commission that it had previously used the residential property for an access road. It now suggests, however, that, having seen the photograph, it might have explored the possibility of a prior use of the property as a roadway by someone else. This is a perplexing suggestion. We fail to see the logic in an argument that a picture of nonuse could reasonably be expected to lead to evidence of use.

We conclude, therefore, that under the circumstances of this case, the commission’s impermissible use of evidence does not require us to overturn its decisions. We do not mean to minimize the importance of compliance with the due process rights of applicants for land use permits. Nonetheless, in this case, the commission’s departure from these well established principles was harmless.

For the reasons stated, the plaintiff cannot prevail. The trial court properly dismissed the plaintiffs appeal because (1) the plaintiffs proposal to construct new parking spaces on newly leased property violated the policy against the expansion of nonconforming uses and (2) its proposal to construct an access road within a residential zone violated applicable zoning regulations. Furthermore, the court properly rejected the plaintiffs contention that the commission’s improper reliance on an undisclosed photograph was harmful to the plaintiffs presentation of its case.

The judgments are affirmed.

In this opinion the other judges concurred.

       See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 2.2, p.19.

       During the pendency of the plaintiffs appeal to the trial court, the plaintiff began excavation in the residentiaily zoned part of its property at 777 Post Road East in Westport and parked some of its vehicles at 785 Post Road East. The Westport zoning board of appeals denied the plaintiffs appeal from the order of a zoning enforcement officer requiring the plaintiff to discontinue these activities. The plaintiff filed a second appeal, and the parties agreed at trial and agree here that the judgment in the plaintiffs appeal from the decision of the zoning commission would govern the plaintiffs appeal from 1he decision of the zoning board of appeals.

       See footnote 2.

       Apparently, the existing use of this property for an apartment building and a related parking lot would not be disturbed by the proposed construction.

       The merits of this denial may well have become a moot question in light of our affirmance of the commission’s decision that the plaintiffs proposed use of 785 Post Road East violated the Westport zoning regulations. It is difficult to see what relief we could afford the plaintiff with respect to a proposed access road to an illegal destination.
      Nonetheless, the exercise of judicial prudence counsels consideration of the plaintiffs claim. If, contrary to our view, the commission should have permitted the plaintiff to use 785 Post Road East, it might still have had the right to forbid the construction of an access road in a residential zone.

       The plaintiff also cites Dowling v. Zoning Board of Appeals, 187 Conn. 689, 694, 447 A.2d 1172 (1982); J & M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229, 233, 286 A.2d 317 (1971); Fisher v. Board of Zoning Appeals, 143 Conn. 358, 361, 122 A.2d 729 (1956); Service Realty Corp. v. Planning & Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256 (1954); Reed v.
        Planning & Zoning Commission, 12 Conn. App. 153, 158 n.7, 529 A.2d 1338 (1987), aff'd, 208 Conn. 431, 544 A.2d 1213 (1988).

       The plaintiffs brief does not address this case.

       The record does not explain why the commission referred to two different dates when citing a single photograph. We find it noteworthy, however, that both parties referred to only one photograph in their briefs.

       Perhaps the plaintiff might have been prejudiced if the photograph had shown the opposite, i.e., the existence of some prior development.


author: DUPONT, J. SCHALLER, J.,

text:
    ACE EQUIPMENT SALES, INC., ET AL. v. THOMAS BUCCINO ET AL.
    (AC 23383)
    Schaller, Bishop and Dupont, Js.

      Submitted on briefs October 20, 2003 —
    officially released April 27, 2004

      Kirk D. Tavtigian, Jr., filed a brief for the appellants (named plaintiff et al.).

      Mark W. Dietz filed a brief for the appellant (plaintiff Willington Fish and Game Club, LLC).

      Robert B. Cohen and Joseph B. Sappington filed a brief for the appellees (defendant Thomas Buccino et al.).

      Robert Hisey, pro se, Jerzy Debski, pro se, and Peter Latincsics, pro se, the appellees (defendants), filed a brief.
   Opinion

DUPONT, J.

The dispositive issue in this appeal is whether the owners of property abutting a pond, originally created by the erection of a dam and a spillway to impound the waters of a nonnavigable brook, who are required to maintain the dam, have the right of shared, reasonable recreational use of the entire pond. The plaintiffs, Ace Equipment Sales, Inc. (Ace), Will-ington Fish and Game Club, LLC (WFGC, LLC), and Willington Fish and Game Club, Inc. (WFGC, Inc.), appeal from the summary judgment rendered by the trial court on the counterclaim of the defendants, Thomas Buccino, Irma Buccino (Buccinos), the Hall’s Pond Fly Fishing Club, Inc., Willington Industries, Inc., Jerzy Debski, Robert Flisey and Peter Latincsics.

Both the plaintiffs and the defendants sought summary judgment. The plaintiffs, in their complaint, and the defendants, in their counterclaim, sought injunctive relief, a declaratory judgment and damages. The court, Sferrazza, J., denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion, allowing the defendants reasonable recreational use of the body of water known as Hall’s Pond in Willington and prohibiting the plaintiffs from interfering with such reasonable use. The court also ordered a hearing to determine the specifics of injunctive relief and damages. After a hearing, the court, Levine, J., awarded the defendants common-law damages of $2 against the plaintiffs WFGC, LLC, and WFGC, Inc., and as injunctive relief, ordered those same plaintiffs to remove any obstructions, including a fence that was constructed along a right-of-way of the Buccinos.

The issues to be resolved on appeal axe whether the Buccinos, owners of property adjacent to Hall’s Pond, who have the obligation to maintain the dam, may use its waters for recreational purposes regardless of (1) whether they own the pond bed, (2) whether the pond is artificial or natural and (3) whether their deed is silent as to that specific use. We affirm the judgment of the trial court granting the motion for summary judgment in favor of the defendants.

Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). In this case, a basic disagreement of the parties lies in what is or is not a material fact and whether such a fact is in dispute. We begin our discussion, therefore, with the undisputed facts found to be material by the trial court.

Ace, WFGC, LLC, and the Buccinos are successors in title to property surrounding Hall’s Pond, a twenty acre body of water. Until the 1950s, Gardiner Hall, Jr., Co. (Hall) owned all of the property under the pond and all of the property abutting the pond. Hall’s Pond is a man-made, nonnavigable pond. It was created by placing a dam in Conat Brook, some time prior to the conveyance by Hall of any of the land to the predecessors of the parties. Hall conveyed the property presently owned by the Buccinos to their predecessors in title in 1955. Hall conveyed the property presently owned by the plaintiffs to their predecessors in title in 1987. Ace, WFGC, LLC, and the Buccinos are the only owners of land abutting Hall’s Pond.

WFGC, LLC, and WFGC, Inc., use the property for recreational fishing. WFGC, LLC, and WFGC, Inc., stock the pond with fish and use the pond for fishing, a right leased by WFGC, LLC, to WFGC, Inc. The defendants Hall’s Pond Fly Fishing Club, Inc., Debski, Hisey and Latincsics began to use the Buccinos’ property for access to fishing and other recreational uses of the pond, with the permission of the Buccinos.

The plaintiffs erected a twelve foot high fence obstructing the Buccinos’ access to a twenty-five foot right-of-way, acquired by the Buccinos in their deed, to the Buccinos’ mill. The Buccinos have the deeded right to use the water from the pond for industrial purposes so as to operate a mill and factory downstream. The Buccinos have an obligation to maintain the dam and are the subject of an order of the department of environmental protection to keep the dam in working order. The court, in granting the motion for summary judgment in favor of the defendants, specifically stated that it did not resolve the location of the precise boundary between the Buccinos’ and Ace’s land.

The disagreement of the parties lies, in part, in what is or is not a material fact in dispute. The plaintiffs argue that ownership of the bed under the pond is a material fact in dispute. They argue that, due to their ownership of the land beneath the pond waters, they have the exclusionary right to the use of the entire pond for recreational purposes. The plaintiffs also argue that the same riparian rights that might accrue to an abutter of land on a natural body of water are not available to the Buccinos because of the plaintiffs’ alleged ownership of all of the land beneath the pond. The court determined that the ownership of the bed of the pond was a fact in dispute but was not material. The court ruled that regardless of that ownership, the Buccinos have riparian rights in the use of the waters of the pond as the owners of abutting land. The court held that, as a matter of law, owners of land abutting a nonnavigable body of water have riparian or littoral rights that are not dependent on the genesis of the body of water as artificial or natural, or on the ownership of the subaqueous land.

With respect to the defendants’ counterclaim, we must determine whether, on the undisputed material facts, the defendants were entitled to a judgment as a matter of law. We are solely concerned with whether the Buccinos have the right to shared reasonable use of nonnavigable water for recreational purposes, such as swimming, boating and fishing, as the owners of land abutting the water, regardless of the ownership of the water’s bed or how the body of water was created, or whether a deed specifically granted that right, where the level of the body of water must be maintained by the abutting owner. No Connecticut appellate case has definitively decided that issue. Cases involving the ownership of the water itself (right to take ice), or ownership of the subaqueous land over which the water flows (right to mine, salvage or extract sand and gravel) or the use of the bed (right to construct docks or wharves) are not controlling. See Schroder v. Battistoni, 151 Conn. 458, 199 A.2d 10 (1964); Mad River Co. v. Pracney, 100 Conn. 466, 123 A. 918 (1924); Turner v. Selectmen of Hebron, 61 Conn. 175, 22 A. 951 (1891); Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462 (1867); Wadsworth v. Tillotson, 15 Conn. 366 (1843). We are also not concerned with a dispute about what is a reasonable use of surface waters when two or more owners share the use of a body of water. See Lake Williams Beach Assn. v. Gilman Bros. Co., 197 Conn. 134, 496 A.2d 182 (1985).

Owners of property abutting a water surface are often called riparian owners or, alternatively, littoral owners. This opinion refers to the rights of the Buccinos as riparian rights. See R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources (1967) p. 24. In Connecticut, a riparian right to use nonnavigable water does not create ownership of the water, but rather allows the use of the water for bathing and other recreational uses. Harvey Realty Co. v. Wallingford, 111 Conn. 352, 360, 150 A. 60 (1930).

I

The plaintiffs claim that ownership of the pond bed under a nonnavigable lake or pond gives the owner exclusionary rights of use. The plaintiffs claim that the court incorrectly concluded that although there was a genuine factual dispute as to the ownership of the pond bed, it was not a material fact. The court determined that the “issue of ownership of subaqueous land is not dispositive,” and relied on the fact that the Buccinos own the land on which the dam creating the pond is constructed and that the land abuts the pond. The court relied on Harvey Realty Co. v. Wallingford, supra, 111 Conn. 352, to hold that the Buccinos’ status as abutters of the pond gave them the right to recreational use of the pond.

In general, each riparian owner, his intimates and guests, are given the right of reasonable use of the entire body of water, subject to the rights of the other riparian owners. Id., 359; 4 Restatement (Second), Torts, Riparian Rights § 843 (1991). Riparian rights are usually given to the owners of lands that touch on the watercourse. Harvey Realty Co. v. Wallingford, supra, 111 Conn. 359. No Connecticut appellate decision has squarely ruled on the rights of riparian owners to use surface waters for recreational purposes if others own the vast majority or all of the pond bed, nor has any appellate court decision foreclosed the issue of whether ownership of subaqueous land is a material fact in issue when summary judgment is sought in a riparian rights case. In this case, the Buccinos did not seek a determination of the ownership of the bed of the pond, but solely sought a determination of their right to use the surface waters of the pond for recreational purposes as riparian owners.

Although no definitive appellate case has decided the precise issue before us, some are instructive. Mill owners can obtain the right to raise the waters of a watercourse by constructing a dam to furnish water power to run a mill when they do not own the land over which the waters run. See, e.g., Turner v. Selectmen of Hebron, supra, 61 Conn. 186-87. Those owners, then, apodictically, have the right to keep the soil of the pond covered with water, at least for industrial purposes.

In Gager v. Carlson, 146 Conn. 288, 290, 150 A. 2d 302 (1959), the defendant, by way of counterclaim, sought an injunction to prevent the plaintiff from interfering with his use of water, created by a dam, for boating, swimming and fishing. The defendant owned a sawmill, operated by water power, and had the rights to make repairs to the banks of the watercourse and to maintain the level of the water. Neither he nor the owner of the bed of the water had exclusive rights to the use of the water, but both had the right to use and to enjoy the water as long as the property over which the water flowed was not damaged or altered. Id., 295. In Gager, the defendant did not prove that he owned any of the land under the water. It was nevertheless held, on the basis of the facts of the case, that the defendant had nonexclusive recreational use of the pond. Also, the owner of a flowage easement has a shared, nonexclusive right to recreational use, with the owners of the submerged land. See Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 11 A.2d 396 (1940).

Riparian rights exist as inherent rights incident to ownership of land contiguous to or traversed by a watercourse, and each riparian owner has an equal right with other such owners to make reasonable use of it for recreational purposes. 78 Am. Jur. 2d, Waters §§ 32-34 (2002). A riparian owner has the right of reasonable use of water with other riparian owners. Lake Williams Beach Assn. v. Gilman Bros. Co., supra, 197 Conn. 139.

The owner of a dam usually can create an artificial pond or enlarge a natural one. He may “use the water for any purpose, provided he does not thereby interfere with the rights of other proprietors either above or below him. Such a dam and water-privilege, with its incidental rights, constitutes property favored by the law since earliest times.” DeWitt v. Bissell, 77 Conn. 530, 535, 60 A. 113 (1905).

If title extends only to the edge of a private watercourse but does not include the water, the titleholder has a right to use the surface in common with other riparian owners in any way that is not a trespass on the bottom of the water and can object to any obstruction of the water by another that interferes with his use. 4 Restatement (Second), supra, § 843, comment (e).

On the basis of Connecticut cases and relevant authority previously cited, we adopt the following language of a Minnesota case, that “riparian 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).

The case law of Minnesota and Michigan is most similar to the appellate case law in Connecticut. We conclude that owners of subaqueous land under a pond or lake may not prevent the use, by abutting owners, who control the existence of the pond itself, for recreational purposes of the surface water above the bed of a pond that they own.

The court correctly held that the ownership of the bed of Hall’s Pond was not a material fact in this case and that the defendants have the right to use the pond for reasonable recreational purposes in common with the owners of the bed of the pond.

II

The plaintiffs claim that riparian rights do not attach to merely abutting landowners, no matter the natural or artificial character of the lake or pond, if no portion of the bed of the pond is owned by an abutting landowner. They further allege that an abutting landowner could acquire the right of the continuation of the existence of a man-made body of water only if the landowner can show estoppel and detrimental reliance on the existence of a claimed riparian right.

The court, in its memorandum of decision, correctly stated that “if a natural stream is damned so as to form a lake or pond permanently or for an extended period of time, the artificial lake or pond is treated the same as a natural one as far as riparian rights are concerned.” We conclude that Connecticut decisional law indicates that because of the long-term existence of Hall’s Pond for nearly half of a centrny, the pond became a natural waterway.

Both natural and artificial lakes have been used historically in Connecticut to generate power to run mills. If a natural stream is damned for an extended period of time, the resulting lake is treated in the same way as a natural pond for riparian rights. See DeWitt v. Bissell, supra, 77 Conn. 535. The owner of land on which a dam is constructed may “use the water for any purpose, provided he does not thereby interfere with the rights of other proprietors either above or below him. Such a dam and water-privilege, with its incidental rights, constitutes property favored by the law since earliest times.” Id. An artificial body of water may become natural by its existence in the altered condition for a long period of time. Adams v. Manning, 48 Conn. 477, 488 (1881).

We agree with the trial court that there is no distinction to be made between a natural and an artificial body of water and the riparian rights that accrue, at least if the “artificial” body has existed for a long period of time. We conclude that the recreational riparian rights of the Succinos, who must maintain the dam to achieve the resultant impoundment of water, are not obliterated because the pond may have been artificial when created.

Ill

The plaintiffs also claim that because the Buccinos’ chain of title grants them the right to use the pond for industrial purposes, that express grant impliedly prohibits other rights with respect to the use of the pond. We disagree.

In support of their position, the plaintiffs rely on the Succinos’ deed, which, they correctly point out, expressly grants a right to use the pond for industrial purposes. They also cite Miller v. Lutheran Conference & Camp Assn., 331 Pa. 241, 200 A. 646 (1938), in support of their proposition. In Miller, a deed granted the right to boat and fish, but not the right to bathe in a body of water. The court held that because the deed granted some rights, the deed, by implication, excluded other rights. Id., 247. Miller also stated, in dicta, that a property owner of land bordering on a nonnavigable lake or pond, the pond being located entirely on land owned by others, has no riparian rights as to the lake and that any attempt to use the lake would be just as much of a trespass as if the land were dry. Id., 246-47. Because Miller held that no riparian rights attached to landowners abutting a lake covering land owned entirely by another party, the only method for such abutting landowners to achieve any rights to the lake would be by an express grant or contract. We have concluded that the Buccinos have riparian rights by virtue of their ownership of land abutting Hall’s Pond and their obligation to maintain the dam creating the pond, not by express grant or lack thereof, and, therefore, do not agree that Miller is apposite.

Water rights appurtenant to abutting land pass by conveyance of the land even though the deed does not specifically mention water rights. 78 Am. Jur. 2d, supra, § 18. If the language of an easement, for example, to use water for industrial purposes, is broad enough to permit any reasonable use of a pond created by a dam, it may be used for recreational purposes even though at the time of the creation of the easement, the parties probably contemplated that the major purpose would be to furnish water to a sawmill for power. See Gager v. Carlson, supra, 146 Conn. 297-98.

The Buccinos’ deed gave them “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 and operations in the mill and factory buildings.” Thus, the Buccinos acquired two separate rights, the right to use water through a penstock and the right to use water for industrial purposes. Although it is not clear what the first right might encompass, it is clear that it is a right in addition to the right to use the water for industrial purposes.

The deed also states that “(t)he right to draw the pond down below the natural water mark is not granted.” (Emphasis added.) Thus, when the grantor of the Buc-emos wanted to exclude a right, it explicitly did so. There is no such exclusion in the deed for riparian rights. We interpret the entire language of the deed broadly and conclude that the deed does not impliedly preclude the defendants from using the pond for recreational as well as industrial purposes.

We conclude that there was no material fact in dispute and that the defendants were entitled to judgment as a matter of law. The defendants’ motion for summary judgment was, therefore, properly granted.

The judgment is affirmed.

In this opinion BISHOP, J., concurred.

SCHALLER, J.,

dissenting. In determining that the trial court properly rendered summary judgment in favor of the defendants, Thomas Buccino and lima Buc-cino, the majority concludes that the ownership of the subaqueous land was not a material fact. To reach that conclusion, in the absence of definitive appellate case law in Connecticut concerning recreational use of private bodies of water, the majority adopts as the law of Connecticut a doctrine known as civil law rale that has been applied by several state courts, in particular, the courts of Minnesota and Michigan. Although I agree that, given the dearth of pertinent appellate case law in Connecticut, we must look to other sources, I respectfully disagree with the majority’s choice of doctrine. I believe that, under the circumstances of this case, the appropriate doctrine is the common-law rule, which has been adopted by numerous other state appellate courts, including courts in New Jersey, Pennsylvania and Florida, and which is acknowledged in at least one state as the majority rule. See Wehby v. Turpin, 710 So. 2d 1243, 1247-50 (Ala. 1998). I believe that the common-law rule is more widely used and produces a more sensible and fair result in situations like the present one. In addition, it is fully consistent with a well reasoned Superior Court decision, Peck v. Edelman, Superior Court, judicial district of Windham at Putnam, Docket No. 56833 (July 21, 2000) (27 Conn. L. Rptr. 633) (adopting view that subaqueous land ownership necessary to obtain riparian rights).

In Baker v. Normanoch Assn., Inc., 25 N.J. 407, 136 A.2d 645 (1957), the New Jersey Supreme Court held that “[t]he rule in this jurisdiction is that the general public [has] no rights to the recreational use of a private lake, such rights being exclusive in the owner of the bed. . . . And while the test for distinguishing between public and private bodies of water is varied in the several states (the majority using the test of navigability in fact) the great weight of authority supports the proposition that small inland lakes are susceptible of private ownership, at least to the extent that the owner or owners of the bed have the sole rights to the recreational uses of the waters. Lembeck v. Nye, 47 Ohio St. 336; 24 N.E. 686, 8 L.R.A. 579 (Sup. Ct. 1890); Beckman v. Kreamer, 43 Ill. 447, 92 Am. Dec. 146 (Sup. Ct. 1867); Marsh v. Colby, 39 Mich. 626, 33 Am. Rep. 439 (Sup. Ct. 1878); Decker v. Baylor, 133 Pa. St. 168, 19 A. 351 (Sup. Ct. 1890); Turner v. Selectmen of Hebron, 61 Conn. 175, 22 A. 951, 14 A.L.R. 386 (Sup. Ct. Err. 1891); Tripp v. Richter, 158 App. Div. 136, 142 N.Y.S. 563 (App. Div. 1913); Miller v. Lutheran Conference & Camp Ass’n., 331 Pa. St. 241, 200 A. 646, 130 A.L.R. 1245 (Sup. Ct. [1938]); Akron Canal & Hydraulic Co. v. Fontaine, 72 Ohio App. 93, 50 N.E.2d 897 (Ct. App. 1943); Patton Park v. Pollack, 115 Ind. App. 32, 55 N.E.2d 328 (Sup. Ct. 1944); Annotation, ‘Inland Lakes — Boating and Fishing,’ 5 A.L.R. 1056 (1920); 2 American Law of Property, § 9.49, p. 481 (1952); 1 Thompson on Real Property, § 78, p. 93 (1939); Note, ‘Extent of Private Rights in Non-navigable Lakes,’ 5 U. of Fla. L. Rev. 166 (1952).

“There have been a few recent departures from the general rule in some of the western states. Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17, 47 A.L.R.2d 370 (Sup. Ct. 1954); Wash. U.L. Quarter., 1955, pp. 97-99; 35 Ore. L. Rev. 137 (1956), 40 Minn. L. Rev. 88 (1955); Coleman v. Schaeffer, 163 Ohio St. 202, 126 N.E.2d 444 (Sup. Ct. 1955); 30 Tul. L. Rev. 332 (1956). See also Lamprey v. Metcalf, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670 (Sup. Ct. 1893) (dicta).

“The minority view stems from jurisdictions with great numbers of inland waterways where hunting and fishing have become major industries. See 28 Ore. L. Rev. 267, 281 (1949); Note, supra, 5 U. of Fla. L. Rev. Whatever its merit under local circumstances of those jurisdictions, as previously indicated the settled proposition in this State is that the general public has no rights to the recreational use of private lakes.” (Citations omitted.) Baker v. Normanoch Assn., Inc., supra, 25 N.J. 415-16.

The Supreme Court of Pennsylvania considered the rights of abutting owners of lakes and ponds in Miller v. Lutheran Conference & Camp Assn., 331 Pa. 241, 247, 200 A.2d 646 (1938). In that case, the defendant “was the owner of a tract of ground abutting on the lake for a distance of about 100 feet . . . .” Id., 243-44. The plaintiffs had sought an injunction to prevent the defendant from trespassing on the lands covered by the water. Id., 244. The court, applying the common-law rule, held that “[ojrdinarily, title to land bordering on a navigable stream extends to low water mark subject to the rights of the' public to navigation and fishery between high and low water, and in the case of land abutting on creeks and non-navigable rivers to the middle of the stream, but in the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water, and an attempt to exercise any such rights by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another.” Id., 247.

In applying the common-law rule to a similar situation, the Alabama Supreme Court determined: “We are bound to follow the majority common law rule ... as the rule of law governing decisions in this state. . . . [W]e apply the common law rule and hold that the owners of land extending beneath artificial or man-made lakes, not navigable as a matter of law, have surface-water rights only in the surface waters above their land. We conclude that the [plaintiffs], in the absence of some covenant, agreement, or statute to the contrary, have no right to use that portion of the lake beyond the boundaries of their own land.” (Citation omitted.) Wehby v. Turpin, supra, 710 So. 2d 1249; see also Black v. Williams, 417 So. 2d 911, 912 (Miss. 1982) (holding that owners of subaqueous lands only have right to use portions of lake above their land).

Similarly, in Anderson v. Bell, 433 So. 2d 1202, 1204 (Fla. 1983), the Supreme Court of Florida stated that “we now hold that the owner of property that lies adjacent to or beneath a man-made, non-navigable water body is not entitled to the beneficial use of the surface waters of the entire water body by sole virtue of the fact that he/she owns contiguous lands.” The court went on to explain the policy considerations behind the rule it adopted. “Because the construction of a man-made water body often involves the expenditure of substantial sums of money and the expense is not, as a rule, divided proportionately among the various abutting owners, the individual making the expenditure is justified in expecting that superior privileges will inure to him in return for his investment. In contrast, the abutting owners to a natural water body probably invest proportionally equal amounts for the increased value of the water front property. While there are certainly exceptions to this general scenario, we believe that the [civil law] rule will more often result in an injustice, than in a correct decision.” Id., 1205. The court also explained that “[a]nother concern of ours involves the difficulty in limiting [the civil rule]: Does an adjoining landowner to a drainage ditch have the right to follow the water surface and use all adjacent waters? Of equal concern would be the application of this rule to artificial alterations to water-courses. . . . Further, we are concerned that a contrary rule would place the owners of adjacent land in an unequal bargaining position with respect to flowage rights sought by the person constructing the lake. Adjacent landowners would be in a position to set exorbitant prices for the flowage rights on their land knowing that they would receive full beneficial use of the lake irrespective of the price. This, we believe, may also frustrate the development of these waters, which is capital improvement we should not discourage.” Id., 1206.

The majority relies, in part, on 4 Restatement (Second) of Torts, Riparian Rights § 843, comment (e) (1991), which addresses the impact of ownership of subaqueous lands on water use. Notably, although the Restatement would allow the use, the use would be severely restricted because it could not “involve a trespass on the land underlying the water.” Id. That would, seemingly, make ingress and egress from the water very difficult. In addition, one commentator has explained that courts “must be careful in. relying on the Restatement (Second) of Torts to resolve the uncertainties that abound in most states under riparian rights theory . . . [because] the Restatement (Second) substantially departs in significant ways from established riparian rights law.” 1R. Beck, Waters and Water Rights, (1991 Ed.) § 6.01 (c), pp. 6-85-6-86. Beck explains that this deviation is attributable to the reporter’s predilection to “make water more available for different kinds and places of use than was possible under traditional riparian rights.” Id., § 6.01 (c), p. 6-88. The Restatement (Second) thus deviates from the established law to “enlarge the areas that qualify as riparian in order to allow the use of water over the widest possible range of lands and uses.” Id., § 6.01 (c), p. 6-89. We, therefore, should not rely on the Restatement (Second) of Torts in this case.

I believe that the common-law rule, as adopted in the previously discussed cases and the policy considerations explained therein, best fits the needs of the citizens of Connecticut. Further, one of the leading commentators on Connecticut water rights has interpreted our case law to indicate that we have adopted the common-law rule. See R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources (1967) pp. 88-89. Reis states that “[w]here bed ownership has been severed from the upland, the bed owner may control the use of both the bed and the surface of a pond or lake. . . . Ownership of a lake bed has also been held in Connecticut to include exclusive control over surface water use.” Id., 89. By virtue of the policy change announced by the majority today, we sweep away the reliance by property owners on the concept that ownership of all the subaqueous lands conveys exclusive riparian rights. Accordingly, because ownership of the subaqueous land is a material fact, I conclude that summary judgment was inappropriate in this case, and I would remand it for further proceedings.

For the foregoing reasons, I respectfully dissent.

       The waters of the brook are connected to the Willimantic River.

       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 their property.

       Ace and WFGC, Inc., were permitted by this court to file a separate brief from that of the other plaintiff, WFGC, LLC, which filed its own brief. All of the plaintiffs, however, adopt and incorporate the argument of both briefs. The defendants Debski, Hisey and Latincsics filed a separate brief from that of the Buccinos. The defendant’s Hall’s Pond Fly Fishing Club, Inc., and Willington Industries, Inc., did not file an appearance and are not involved in this appeal.

       The defendants did not seek a declaratory judgment as to the title of the bed of the pond, but a declaratory judgment as to their right to use the waters of the pond for recreational purposes.

       The right-of-way allowed the Buccinos to use a twenty-five foot passageway extending from the exterior line of a state highway to the westerly edge of the pond to gain access to the dam to perform maintenance and upkeep on the dam.

       WFGC, LLC, in its separate brief, argues that the court should not have ordered the removal of the fence that it constructed on the defendants’ right-of-way. Because we conclude that the Buccinos have the right to use the pond for recreational purposes, it follows that the fence must be removed for them to gain access to the dam and the adjoining pond. Furthermore, the deed to the Buccinos gave them the right to use the passageway. We need not discuss that issue further.

       Because the 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 Ace 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).

       The present case is not about whether the fishing or other recreational activity by the plaintiffs or the defendants infringes on the reasonable use by the other parties. See Harvey Realty Co. v. Wallingford, 111 Conn. 352, 359, 150 A. 60 (1930). It solely concerns whether the Buccinos have the right, with the olher owners of abutting land, to use the pond for recreational purposes.

       The difference in terminology as between “riparian” or “littoral” does not affect the substantive rights of the defendants. See Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769 n.5, 646 A.2d 790 (1994) (proper term for property abutting lake is littoral); but see also Harvey Realty Co. v. Wallingford, 111 Conn. 352, 358, 150 A. 60 (1930) (uses riparian to describe land bounding lake, river or other watercourse); see also Rochester v. Barney, 117 Conn. 462, 465, 169 A. 45 (1933) (uses term littoral rights to refer to land abutting the ocean). Black’s Law Dictionary (7th Ed. 1999) defines riparian as “[o]f, relating to, or located on the bank of a river or stream (or occasionally another body of water, such as a lake) ....’’

       We do not perceive this case as requiring a choice between the application of “civil law” or “common law,” as discussed by the dissent. We rely instead on existing Connecticut appellate case law, as discussed in this decision, the particular facts, including the obligation of the defendants to maintain the water level of the pond, and the Restatement of Torts.

       Ballentine’s Law Dictionary (3d Ed. 1969) defines a flowage easement as the right to overflow land of another to accumulate and maintain an artificial body of water, acquired either by grant or prescription, or reserved in a conveyance.

       We are not concerned in this case with disputes between two or more owners of subaqueous soil to determine whether ownership of different portions of that soil are entitled to the shared use of the entire body of water or only that portion of the lake or pond over their portion of the bed owned. See, e.g., Duval v. Thomas, 114 So. 2d 791, 795 (Fla. 1959); R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources, supra, p. 90 (subaqueous owners given recreational use of entire pond); but see also Wehby v. Turpin, 710 So. 2d 1243, 1247 (Ala. 1998); Wickouski v. Swift, 203 Va. 467, 471, 124 S.E.2d 892 (1962) (owners of subaqueous soil have exclusive right to that portion of lake surface above their subaqueous soil). The dispute in this case is between the alleged owners of all of a pond bed and the owners of land abutting a pond, which was created by the erection of a dam on their land and that must be maintained by them.

       This appeal does notinvolve any claim by the Buccinos that the existence of the pond should be continued by the plaintiffs. In fact, it is the Buccinos who control the existence of the pond because of their duty to keep the dam in good repair and to maintain the natural water mark of the pond. We do not, therefore, discuss that issue.

       Although not critical to our holding, the definition of an artificial body of water may not have included Hall’s Pond even when it was originally created. The comments to § 842 of 4 Restatement (Second), Torts, define a lake or pond as natural even if formed by the artificial obstruction of a stream or by the diversion of a stream. Such water is considered a segment of a watercourse. If a body of water, such as a lake or pond, is created along the general course of a previously existing body of water, it may not be an “artificial” body of water.

       A penstock is a gate or sluice for controlling a flow of water.

       Interestingly, Alabama is, by statutory pronouncement, a “common law” state. Ala. Code § 1-3-1 (1999) provides: “The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.”