222 Conn. 216 | Conn. | 1992
The plaintiff, Carmine Carbone, who owns the land over which the named defendant, Alex Vigliotti, claims a right-of-way for access to a public street from a two-family house constructed on this defendant’s property, brought this action to enjoin such a use, to obtain a declaratory judgment that the construction of the house violates the zoning regulations of the town of Branford and to secure other appropriate relief, including damages. The trial court rendered judgment for the defendants.
In his appeal
On October 6,1986, the defendant purchased a tract of land lying north of the plaintiff’s driveway and comprised of four contiguous parcels designated as parcels 1, 2, 3 and 4 on the diagram included in the appendix to this opinion. After his original proposal to develop the entire tract for the purpose of building condominium units was rejected by the Branford planning commission, the defendant proceeded to divide parcel 1 into two lots, both of which front on Chestnut Street. He reconstructed the existing two-family house on one of these lots and erected a new two-family house on the other lot. The remainder of the tract, parcels 2, 3, and 4, which lie along the rear of the two lots fronting on Chestnut Street, were combined into one lot for the purpose of building another two-family house thereon. A strip of land twenty feet wide was taken from the rear of the two lots that front on Chestnut Street and added to the westerly boundary of parcels 2, 3 and 4 in order to construct a driveway extending to the plaintiffs driveway, which leads to Chestnut Street and over
Although the plaintiff had observed the construction activity on the interior lot comprised of parcels 2, 3 and 4 some time earlier, he first learned in the late summer or fall of 1988 of the defendant’s intention to use for ingress and egress the portion of the driveway extending from the southerly boundary of that lot to Chestnut Street. The defendant used a strip of land along the boundary between the two lots fronting on Chestnut Street for access to the interior lot during the course of construction of the house on that property. In this strip he has installed water and sewer lines that service the house on the interior lot.
The plaintiff commenced this action on January 10, 1989, after the foundation had been installed, the house had been framed, rough plumbing, heating, air-conditioning and electrical wiring had been completed and the defendant was preparing to install sheetrock. The defendant continued his work on the house and completed its construction by July 20, 1989, when he obtained a certificate of occupancy from the town of Branford. At the time of trial in May, 1991, the house was occupied by the defendant’s tenants, who continued to use the strip of land between the two lots fronting on Chestnut Street for access to the interior lot during the pendency of this litigation.
After examining the deeds of title to the land involved, the trial court concluded that parcels 2, 3 and 4, which the defendant had combined to form the
I
On appeal the only challenges raised by the plaintiff to the trial court’s conclusion that the defendant’s interior lot has an appurtenant right-of-way over the portion of the plaintiff’s driveway extending from that lot to Chestnut Street are: (1) the insufficient basis for finding in the relevant conveyances an intention to create an easement for the benefit of that parcel; and (2) the failure of the court to recognize that, even if such an intention had existed, the “unity of title doctrine” precludes the creation of such an easement for parcel 2, which lies between parcels 3 and 4, and, therefore, bars its use by occupants of the house on the interior lot, which comprises the three parcels. We agree with the plaintiff that the documents relied upon by the defendant do not adequately support the conclusion that an easement appurtenant to parcel 2 over the plaintiff’s driveway has been created. We hold, nevertheless, that the unquestioned grant of a right-of-way over the plaintiff’s driveway for access to Chestnut Street contained in the deed to parcel 4, which the
A
The first reference in the exhibits introduced at trial. to the disputed right-of-way to Chestnut Street is contained in a November 30, 1936 deed from Gustave Hamre conveying parcel 4 to Harry Carsten “[tjogether with a right of way across [parcel 2] . . . also across a strip of land ten feet wide, located [on parcel 3] . . . and thence through a [26.5] foot right of way ... to Chestnut Stfreet].” On the same date, Gustave Hamre deeded parcel 2 to Frank Beach subject to the right-of-way granted to Carsten for parcel 4, but without creating as an appurtenance to parcel 2 any right to use the 26.5 foot right-of-way to Chestnut Street. At that time Beach owned land bounding parcel 2 on the east and fronting on East Main Street, and parcel 2 was an addition to his rear yard. Beach later transferred parcel 2 to Carsten, who on March 19,1947, conveyed both parcels 2 and 4 to George Edwards.
On September 10, 1947, Edwards acquired title to parcel 3 from John Hamre, who then owned the 26.5 foot strip of land constituting the disputed right-of-way. The deed for this transfer, following the description of parcel 3, contains a recital that “[s]aid grantee has
The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). On appeal the scope of review of such a question is plenary and does not require “ ‘the customary deference to the trial court’s factual inferences.’ ” Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122 (1989). In this case the language of the deed as well as of the map legends does not unequivocally create an easement over the strip for the benefit of parcel 2, but may have been intended simply to acknowledge that the grantee, as the owner of parcel 4, had such an easement. See Ozyck v. D'Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988). Even if this language could reasonably be construed to have created a right-of-way over the strip, the absence of any reference to parcel 2, except as a boundary in the description of parcel 3, would indicate that its benefit was restricted to parcel 3. Furthermore, the map referred to in the deed of parcel 3 from John Hamre to Edwards, dated approximately one month
B
“The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). Under this rule the conveyance of parcel 3 by John Hamre to George Edwards could not have created a right-of-way over the 26.5 foot strip as an appurtenance to parcel 2, even if such an intention were plainly expressed in the deed, because John Hamre did not then own parcel 2, the “dominant estate,” but only the “way,” the servient estate. The defendant urges that we overrule Curtin and abandon the unity of title doctrine, as several other states have done. See, e.g., Willard v. First Church of Christ, Scientist, 7 Cal. 3d 473, 498 P.2d 987, 102 Cal. Rptr. 987 (1972); Townsend v. Cable, 378 S.W.2d 806, 808 (Ky. 1964); Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970).
In Ozyck v. D’Atri, supra, 479, however, this court declined to reconsider our adherence to this doctrine because it was not clear in that case that the grantor had intended to create an easement for the benefit of a “stranger to the title.” While we recognized that several commentators view the unity of title doctrine as an obsolete vestige of feudalism that frustrates the intention of the grantor; H. Harris, “Reservations in Favor of Strangers to the Title,” 6 Okla. L. Rev. 127 (1953); 2 American Law of Property (Casner Ed. 1952) § 8.29; 5 Restatement, Property § 472, comment a; we decided to defer reconsideration of the subject until we
C
The plaintiff does not dispute that the defendant, as the owner of parcel 4, has acquired a right-of-way over the 26.5 foot strip for use in conjunction with that parcel or that approximately one half of the two-family house for which the defendant seeks to exercise this right is situated on parcel 4. The proposed use of the strip to provide access to Chestnut Street for the benefit of the tenants occupying the house is not materially different from that contemplated when Gustave Hamre conveyed parcel 4 in 1936 with a right-of-way to Chestnut Street. The circumstance that one half of the house is situated on parcel 2 does not indicate that the right-of-way will be overburdened or subjected to uses beyond those envisioned at the time of the conveyance of parcel 4. Only one house has been built on the three parcels, which have now been combined to form a single building lot. In granting the right-of-way for access to Chestnut Street as an appurtenance to parcel 4, Gustave Hamre must have realized that it would someday probably be used for that purpose by the occupants of a dwelling similar to those in the surrounding area, several of which are two-family houses. We are “warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.” 5 Restatement, Property § 484.
II
The plaintiff also claims that, by constructing a two-family house on the interior lot comprised of parcels 2, 3 and 4, the defendant has violated § 1-2 of the Bran-ford subdivision regulations, which requires approval by the planning and zoning commission of any subdi
A
Section 1-2 of the subdivision regulations prohibits any “subdivision” of land without the approval of the planning and zoning commission. The term “subdivision” is defined in § 1-7-3a
“Contiguous land all owned by the same proprietor does not necessarily constitute a single lot.” Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1957). The plaintiff concedes that whether a merger of contiguous parcels of land has occurred depends on the intention of the owner and that such an issue is factual. See Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 608-10, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). The trial court found that “[a]t no time did [the defendant] intend to merge said parcels into one tract if the application was rejected . . . .’’For this court the only question is whether the finding of the trial court that no such merger occurred is clearly erroneous, despite the defendant’s unsuccessful application to erect condominium units on the entire tract. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980).
Although there was no testimony expressly indicating that the defendant’s original intention to use the entire tract for a condominium development was conditioned on approval of that proposal by the planning commission, such an inference may reasonably have been drawn from the evidence. It would have been quite unusual for an experienced builder, like the defendant, not to have had alternative uses for the property in mind in the event that his original plan should be dis
B
The plaintiffs final claim, that the construction of the two-family house on the interior lot comprised of parcels 2, 3 and 4 violates § 25.2.1
Because the defendant’s interior lot lacks frontage on a public street, it does not conform to the zoning
If the requirement of § 25.2.1 that an interior lot be located in an R-3, R-4 or R-5 zone were applicable, the defendant’s interior lot could never satisfy that provision, because it is situated in an R-l zone and he would not be permitted to build even a single family house thereon, thus effectively confiscating his nonconforming use of the property. The plaintiff, in recognition of the nonconforming status of the lot, implicitly concedes the inapplicability of this portion of § 25.2.1, but contends that the provision that an interior lot “shall be used only for a single family dwelling” is, neverthe
The judgment is affirmed.
In this opinion the other justices concurred.
(See Appendix on following page.)
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In addition to the named defendant, the plaintiff included as defendants the town of Branford, several town zoning and building officials, a bank holding a mortgage on the property of the named defendant, and other persons who may possibly have an interest. The trial court found that all persons having an interest in the subject matter of the complaint had been made parties or had been given reasonable notice of the action. For convenience we use the word “defendant” to refer only to Alex Vigliotti, the named defendant.
The plaintiff appealed to the Appellate Court, but we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The defendant also testified that the addition of twenty feet of area to the interior lot made it possible to select a location for the house that would avoid disturbance of some wetlands on the property and would provide a more adequate backyard.
The plaintiff has not sought review of the trial court’s findings relating to abandonment or overburdening of the easement.
The deed of parcel 2 from Frank Beach to Harry Carsten is not contained in the record. A map dated August 11, 1947, indicates, however, that Carsten had a right-of-way ten feet in width extending eastwardly from parcel 2 to East Main Street along the northerly boundary of Beach’s land fronting on East Main Street. The deed from Carsten to George Edwards refers to no right-of-way appurtenant to parcel 2, but only to the easement created for the benefit of parcel 4 for access to Chestnut Street, to which parcel 2 is subject.
See footnote 5, supra. At the time of trial this right-of-way was overgrown and was obstructed by a garage erected on the servient property several years before the defendant acquired parcel 2.
Section l-7-3a of the Branford subdivision regulations provides: “Subdivision means the division of a tract or parcel of land into three or more parts or lots for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision.”
General Statutes § 8-18 provides in part: “definitions. As used in this chapter: ‘Commission’ means a planning commission; ‘municipality’ includes a city, town or borough or a district establishing a planning commission under section 7-326; ‘subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . . .”
Section 25.2.1 of the Branford zoning regulations provides in part: “Interior Lots: An interior lot may be permitted, subject to approval by the Planning and Zoning Commission. When such lot is not part of a subdivision, a record map shall be submitted in two blue or black line prints for approval by the Commission, prior to filing in the Land Records, which map shall be clearly and legibly drawn at a scale if 1" = 40' and shall show the following:
* ** *
“All of the following requirements shall be met:
“1. The lot shall be located in an R-3, R-4 or R-5 Zone and shall be used only for a single family dwelling.
* * *
“8. In all other respects, each lot shall conform to the requirements of the zone in which it is located.”
There is no substance to the plaintiff’s claim that the defendant failed to comply with the provision of § 25.2.1 of the zoning regulations that “[a]n interior lot may be permitted, subject to approval by the Planning and Zoning commission.” It is undisputed that the defendant obtained all necessary permits for construction of a two-family house on his interior lot, including a certificate of zoning compliance from the zoning enforcement officer. We have recently construed the Branford zoning regulations to designate the zoning enforcement officer as “the official charged with the responsibility of enforcing the applicable regulations.” Castellon v. Board of Zoning Appeals, 221 Conn. 374, 381, 603 A.2d 1168 (1992). In Branford, the zoning enforcement officer is appointed by the planning and zoning commission pursuant to its authority to “provide for the manner in which the zoning regulations shall be enforced.” Id., 378; General Statutes § 8-3 (e). In issuing the necessary zoning approval to the defendant the zoning enforcement officer was acting as the duly authorized agent of the planning and zoning commission. Accordingly, there is no substance to the plaintiffs claim that the defendant had never obtained the approval of that commission for construction of a two-family house on his interior lot.
Section 5.11 of the Branford zoning regulations provides: “Lots: A parcel of land, which fails to meet the area, shape or frontage or any other applicable requirements of these Regulations pertaining to lots, may be used as a lot, and a building or other structure may be constructed, reconstructed, enlarged, extended, moved or structurally altered thereon, provided that all of the following requirements are met:
“5.11.1 The use, building or other structure shall conform to all other requirements of these Regulations;
“5.11.3 If the parcel fails to meet the area requirements of these Regulations, the owner of the parcel shall not also be the owner of contiguous land which in combination with such parcel that fails to conform would make a parcel that conforms or more nearly conforms to the area requirements of these Regulations pertaining to lots.”
General Statutes § 8-2 provides in part: “Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”