WILLIAM FRANCINI v. GOODSPEED AIRPORT, LLC, ET AL.
(AC 37258)
Connecticut Appellate Court
officially released April 5, 2016
DiPentima, C. J., and Lavine and Lavery, Js.
Argued October 20, 2015
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(Appeal from Superior Court, judicial district of Middlesex, Aurigemma, J.)
Jonathan D. Chomick, for the appellant (plaintiff).
John R. Bashaw, with whom was Mary Mintel Miller, for the appellee (named defendant).
Opinion
LAVERY, J. The
The following facts, as alleged by the plaintiff and admitted by the defendant, are not in dispute for the purpose of this motion for summary judgment. The plaintiff owns a parcel of land in East Haddam. The parcel‘s only access to a public highway is over an abutting property, owned by the defendant. The defendant took title to its property by warranty deed in 1999, subject to a right-of-way easement now enjoyed by the plaintiff as well as several of the plaintiff‘s neighbors, landowners who also own land abutting the defendant‘s property. The 1999 warranty deed expressly described the right-of-way, in general terms and without limitations on its use, by providing for “[s]uch rights as others may have to a Right of Way over a passway or driveway as set forth in a deed from [the property‘s prior owner], dated August 16, 1963 and recorded in Volume 77 at Page 526 of the East Haddam Land Records . . . .”
In 2001, the defendant entered into an agreement with several of the plaintiff‘s neighbors, who also share the plaintiff‘s right-of-way across the defendant‘s property, to allow the neighbors to improve the right-of-way by installing and maintaining a utility distribution system under the existing right-of-way easement. As a result, a commercial utility system was constructed under the existing right-of-way and now provides electricity to the plaintiff‘s neighbors. In exchange for this utility easement, each of the plaintiff‘s neighbors paid the defendant $7500. The plaintiff offered to pay the defendant the same $7500 that his neighbors had paid for use of the utility easement, but the defendant requested that the plaintiff not only pay the $7500, but also grant it the power to move the location of the easement at will. The plaintiff declined the additional terms and the two parties never reached an agreement. Without an agreement, the plaintiff does not enjoy an easement for commercial utilities and his property is currently landlocked from access to commercial electricity. Currently, the plaintiff‘s house is powered by a generator, but the generator is alleged to be insufficient to run and maintain the basic requirements of the plaintiff‘s house such as powering security devices, turning on automatically in the event of a flood, and running a refrigerator to preserve perishable food without constant operation of the generator.
On appeal, the plaintiff claims that he is entitled to an easement by necessity for access to commercial utility services, i.e., electricity. Acknowledging that no such easement by necessity has yet been recognized by an appellate court in our state, the plaintiff argues that easements by necessity should be extended to provide access to commercial utilities because access to utilities, consistent with the easement‘s element of necessity, supply something that is highly convenient and beneficial to the use of property. The defendant responds that Connecticut law has recognized easements by necessity to exist only in the classic context of providing a property owner with physical access to a landlocked parcel for purposes of ingress and egress, which is to say that an easement for commercial utilities does not exist simply because one has never been granted before. The trial court, correctly observing that no such easement has ever been granted by an appellate court in this state, agreed with the defendant and rendered summary judgment on the plaintiff‘s claim. We reverse the judgment based on this conclusion of law and determine that easements by necessity for access to utility services exist in Connecticut.
Before we address the specific claim advanced in this appeal, we set forth the standard for appellate review of a court‘s decision to grant a motion for summary judgment.
The parties agree, however, that there is no dispute of material facts in this case. Instead, the plaintiff challenges only the court‘s conclusion of law, that an easement by necessity may not be granted to provide commercial electricity to a parcel cut off from commercial electricity. Accordingly, “[b]ecause the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Soares v. George A. Tomasso Construction Corp., 66 Conn. App. 466, 469, 784 A.2d 1041 (2001). Moreover, the plaintiff‘s claim raises a question of law “concerning the court‘s application of the law of easements by necessity, over which our review is plenary.” Thomas v. Primus, 148 Conn. App. 28, 32, 84 A.3d 916 (2014).
The common-law easement by necessity creates an implied servitude that burdens one piece of property, the servient estate, for the benefit of another, the dominant estate, to enable the normal “use and enjoyment of the [benefited] property.” Id., 33; see also 1 Restatement (Third), Property, Servitudes § 2.15, comment (a), p. 203–204 (2000); 2 G. Thompson, Real Property (Permanent Ed. 1939) § 550, p. 150 (“[the extent of] a way of necessity covers such a way as is required for the complete and beneficial use and enjoyment of the land to which such way is impliedly attached“). In the classic example, “an easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee.” Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398–99, 324 A.2d 247 (1973). In such cases, the element of necessity lies in the grantee‘s inability to use his property beneficially because he lacks physical access to it, “[f]or the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder.” Robinson v. Clapp, 65 Conn. 365, 385, 32 A. 939 (1895). In other words, “the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties“; id.; because courts ascribe to the parties a fictitious intent—presumably, if the parties actually intended there to be an easement, they would have said so in the written grant—based on “the public policy that no land should be left inaccessible or incapable of being put to profitable use.” (Internal quotation marks omitted.) Thomas v. Primus, supra, 148 Conn. App. 36; see 28A C.J.S. 310, Easements § 106 (2008) (“[t]he law recognizes under some circumstances an implied easement or way of necessity to landlocked parcels of realty based on public policy favoring their use and development and that land should not be landlocked and rendered useless” [footnotes omitted]). Accordingly, the easement is based on the beliefs that parties do not intend to effectuate a conveyance that would render the land
Today, we conclude that easements by necessity may provide not only physical access to landlocked property, but a property landlocked from commercial utilities may likewise receive an easement by necessity to access utility services. Easements by necessity are not artifacts of a more ancient era and must serve their intended purpose, to render land useful, in the present day as the beneficial use of land conforms to modern innovations and needs. This follows from the general rule that the need constituting the necessity that implies an easement by necessity may change over time. See Myers v. Dunn, 49 Conn. 71, 77–78 (1881); Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986); Restatement (Third), supra, § 2.15, comment (d). In fact, in the context of a granted right-of-way, the easement‘s owner may use the easement for all purposes consistent with the reasonable use of the benefited land and is not limited to using the easement for only those purposes that existed at the time the benefited and burdened properties were created. Lichteig v. Churinetz, supra, 410. “In other words, a way of necessity is held to be coextensive with the reasonable needs, present and future, of the dominant estate . . . .” (Internal quotation marks omitted.) Morrell v. Rice, 622 A.2d 1156, 1160 (Me. 1993); see Davis v. Jefferson County Telephone Co., 82 W.Va. 357, 95 S.E. 1042, 1044 (1918) (“the grantee of such an easement is entitled to vary his mode of enjoying the same, and from time to time to avail himself of modern inventions; if, by so doing, he can more fully exercise and enjoy the object or carry out the purpose for which the easement was granted“). We therefore reject the defendant‘s argument that easements by necessity may be granted only for physical access to landlocked property simply because no such easement has yet been recognized. To “deny [property owners] such right would be to stop to some extent the wheels of progress, and invention, and finally make residence in the country more and more undesirable and less endurable.” (Internal quotation marks omitted.) Dowgiel v. Reid, 359 Pa. 448, 459, 59 A.2d 115 (1948).
In our view, the legal justifications underlying easements by necessity, intent and public policy, support extending the doctrine to include access to utilities for properties landlocked from them. Utilities are so obviously necessary for the reasonable use and enjoyment of all types of property that the law will assume that parties to a land conveyance intend to convey whatever is necessary to ensure a property‘s access to utilities in the same way that the law presumes the parties intended to convey an easement for physical access. See D‘Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954) (necessity present where “easement is ‘highly convenient and beneficial’ for the enjoyment of the [dominant estate]“), citing 1 G. Thompson, supra, § 339; Collins v. Prentice, supra, 15 Conn. 44 (necessity “merely furnishes evidence as to the real intention of the parties“). Likewise, because utilities are required for most reasonable uses of property, public policy dictates that access to utilities be implied to ensure “that no land should be left . . . incapable of being put to profitable use.” Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 400. Accordingly, we conclude that access to utilities is reasonably necessary to the reasonable use and enjoyment of property, especially, as is the case here, residential property. “A house generally is not considered to be a residence without water, electricity, and similar utilities, e.g., the ability to be heated and cooled, lit in the dark, and equipped for communication with the outside world.” Stroda v. Joice Holdings, LLC, 288 Kan. 718, 728, 207 P.3d 223 (2009). To deny a residence access to utilities would, practically speaking, deny use of that property as a residence. See Richards v. Land Star Group, Inc., 224 Wis. 2d 829, 842, 593 N.W.2d 103 (1999).
As further support, under the approach adopted by the Restatement (Third) of Property, Servitudes, a property that is landlocked from commercial electricity enjoys an implied easement by necessity for utility services. 1 Restatement (Third), supra, § 2.15. The Restatement (Third), itself adopted eighteen years ago, explains that “the increasing dependence in recent years on electricity and telephone service, delivered through overland cables, justify the conclusion that implied servitudes by necessity will be recognized for those purposes.” Id. For example, “O, the owner of Blackacre and Whiteacre, conveyed Whiteacre to A. Whiteacre is landlocked, but Blackacre abuts a public street. The property is located in a rural residential area and it is suitable for residential use. A servitude for necessity will be implied
With this conclusion, we join with the decisions of many other states that also have held that easements by necessity may be granted for properties landlocked from utility services. See, e.g., Fleming v. Napili Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316 (1967) (“[i]t is the usual and common practice in this State to use roadway easements as rights of way for electricity, telephone, water and drainage facilities and it would be reasonable to construe that [the easement] was reserved not only for purposes of ingress and egress but also for those purposes“); Brown v. Miller, 140 Idaho 439, 443, 95 P.3d 57 (2004) (agreeing with trial court that “it is only logical [that] an easement by necessity also includes utilities” [internal quotation marks omitted]); Gacki v. Bartels, 369 Ill. App. 3d 284, 293, 859 N.E.2d 1178 (2006) (declaring that “implied easements by necessity have been recognized for purposes such as access for utilities and other services“), citing 1 Restatement (Third), supra, § 2.15; New York Central Railroad Co. v. Yarian, 219 Ind. 477, 485, 39 N.E.2d 604 (1942) (granting utility access over easement by necessity under public policy rationale, recognizing that “[e]lectricity is largely used for power and light . . . and that its use contributes to the full and profitable enjoyment of a [property] can hardly be doubted“); Cline v. Richardson, 526 N.W.2d 166, 169 (Iowa App. 1994) (“easement for ingress and egress includes the right to install utilities“), citing Stott v. Dvorak, Superior Court, judicial district of New London, Docket No. CV-92-0101097-S (April 5, 1994) (easement for right to travel over right-of-way included right to install utilities); Stroda v. Joice Holdings, LLC, supra, 288 Kan. 728–29 (recognizing easement by necessity for utilities in Kansas); Tong v. Feldman, 152 Md. 398, 136 A. 822, 823 (1927) (“[r]ights or easements of necessity are more familiarly met with in rights of way, but they are not confined to such rights“); Adams v. Planning Board, 64 Mass. App. Ct. 383, 391–92, 833 N.E.2d 637 (2005) (extending right to install utilities over right-of-way to easements by necessity);5 Morrell v. Rice, supra, 622 A.2d 1160 (“[a]n easement created by necessity can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities, essential for most uses to which property may reasonably be put in these times“); Ashby v. Maechling, 356 Mont. 68, 78, 229 P.3d 1210 (2010) (holding that “modern vehicle access and utility services may be allowed as part of an easement by necessity even though the easement arose as a legal matter before the general use of such improvements“); Firstenberg v. Monribot, 350 P.3d 1205, 1219–20 (N.M. App. 2015) (affirming summary judgment granting of easement by necessity to property owner for electrical meter and switch); Dowgiel v. Reid, supra, 359 Pa. 452, 460 (recognizing that “in almost every American home . . . elec- tricity is almost as much of a necessity as is water,” and concluding that easement by necessity includes right to “obtain something which is essential to the livableness of the home, to wit, electricity“); Regan v. Pomerleau, 107 A.3d 327, 338 (Vt. 2014) (“[i]t is well settled in Vermont and elsewhere, however, that an implied easement by necessity may arise by operation of law where it is essential to the reasonable enjoyment of [the] land . . . and that this principle incorporates access to essential utilities” [citation omitted; internal quotation mark omitted]); Davis v. Jefferson County Telephone Co., supra, 95 S.E. 1044 (construing easement by necessity for telephone lines because “[i]f then those living in a rural district with only such unlimited private ways as [physical access] are to enjoy any of the modern conveniences, such as electric light, natural gas, telephones, and the like, they must of necessity rely upon such ways by which to obtain them“); Atkinson v. Mentzel, 211 Wis. 2d 628, 641, 566 N.W.2d 158 (Wis. App. 1997) (construing general grant of right-of-way to include access to utilities because “[a]lthough at the time of the conveyance creating the easement the property was not served by utilities, the reasonable use of the property in current times requires utility services“); see also Galvin v. Gaffney, 24 F. Supp. 2d 223, 233–35 (D. Conn. 1998) (interpreting Connecticut law to provide easements by necessity for commercial utilities).6
Moreover, finding an implied easement by necessity for utilities is even more compelling in situations, as is this case, where the property to be benefited already enjoys a right-of-way across the burdened property under a general grant without any limitations. See footnote 6 of this opinion (explaining that property is
In this case, the grant of the right-of-way is in general terms without any restrictions other than its use as a right-of-way. “Such a grant is to be construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant.” Birdsey v. Kosienski, supra, 140 Conn. 413. Additionally, because utility lines already exist underneath the right-of-way, connecting the plaintiff to the preexisting utilities lines will present a minimal, if any, additional burden on the defendant‘s property.7 Therefore, the plaintiff is not restricted to using the right-of-way purely for ingress and egress and may use it for “any use which is reasonably connected” with maintaining a residence on the property. Id.; see Myers v. Dunn, supra, 49 Conn. 77. Surely, “[i]n current times, the reasonable use and enjoyment of property, at a minimum, requires utilities as long as it does not overburden the servient estate.” 25 Am. Jur. 2d, Easements and Licenses, § 71 (West 2016).
We next apply the law of easements by necessity as just set forth to the facts in this case. We view the facts in the light most favorable to the plaintiff, as we must; Fernandez v. Standard Fire Ins. Co., supra, 44 Conn. App. 222; and, accordingly, determine that under our expanded view of easements by necessity, the defendant‘s motion for summary judgment should have been denied. The defendant alternatively argues that, even if a property owner may receive an easement by necessity for access to commercial utilities, the circumstances in this case preclude the plaintiff from enjoying such an easement because he has failed to establish the necessity required for granting such easement. Specifically, the defendant
Our determination that easements by necessity may be granted to allow a property access to commercial utilities rests on the easement‘s underlying rationales, that parties generally would not intend to deprive properties of utility access and that utility access is necessary for the productive use of property. This reasoning obviously requires that the utilities—or their substitute—be sufficient to allow the full reasonable beneficial enjoyment of the property. Here, the plaintiff alleged in his complaint, and the defendant admitted for the consideration of this motion, that the “generator is wholly insufficient to provide the electricity needed to run and maintain a house in one or more of the following ways: (a) a generator cannot automatically turn on in the event of a flood and a sump pump needs to be turned on; (b) a generator is loud and if kept running often would adversely affect the neighbors and the plaintiff; (c) a generator is dangerous to leave running without supervision for long periods of time; (d) the plaintiff cannot use the innumerable electronic devices which are a major part of this society without first turning on a generator; (e) the plaintiff cannot use a garage door opener upon his arrival at the house unless the plaintiff first turns on a generator, thereby defeating the purpose of having a garage door opener; (f) the plaintiff‘s house is a summer house and he spends time in Florida during the winter months, without commercial electrical power the plaintiff cannot rest assured that he will have a working sump pump; (g) the plaintiff has had persons come onto his property when he has been away and he cannot install security cameras on his property without commercial electricity; (h) virtually every visitor expects to have electricity when visiting the house; (i) the plaintiff cannot rent the house out during the summer months due to concerns over the safety of renters while trying to operate a generator; [and] (j) the plaintiff cannot leave perishable food items in his refrigerator or freezer for any length of time without running a generator nonstop.” These allegations of fact prevent us from affirming the court‘s granting of summary judgment to the defendant under this expanded view of easements. They do not suggest mere inconvenience, but indicate inadequacy. Moreover, the law in this context does not seek to grant relief that, practically speaking, is “no better than none at all.” (Internal quotation marks omitted.) Deane v. Kahn, 317 Conn. 157, 176, 116 A.3d 259 (2015). Accordingly, we decline to hold as a matter of law that the plaintiff is not entitled to an easement by necessity under the facts as alleged. We do not, however, conclude that the plaintiff is entitled to the easement; we merely hold that the facts as alleged by the plaintiff, viewed in the light most favorable to the plaintiff and undeveloped by any evidence, prevent the defendant from prevailing on its motion.
The judgment is reversed and the case is remanded with direction to deny the defendant‘s motion for summary judgment and for further proceedings according to law.
In this opinion the other judges concurred.