59 Conn. App. 572 | Conn. App. Ct. | 2000
Opinion
The defendants
The plaintiffs brought this action to quiet title to an easement over a proposed road or private right-of-way
“All of the properties owned by the parties descend from a common owner, one Mary Gracy. The various deeds from Mary Gracy to the parties herein form the basis for this dispute.
“The deed from Mary Gracy to the plaintiffs’ predecessor in title contains a description of the property conveyed setting forth its various boundaries, some of which are described as bordering on a certain ‘right of way.’ . . . There is no specific reference in the deed to any right of passage or use over said right-of-way. The deed does, however, contain a referral to a map, alleged to be of record, for a further description of the property. The reference reads as follows: ‘The above parcel is fully described and reference is here had to a map entitled “Gracy, Orange, Conn., scale 1 [inch] - 40 [feet], July, 1929, Wynne & Hahn, Civil Engineers and Surveyors” on file in the Orange Town Clerk’s Office.’ All of the deeds but one in the plaintiffs’ chain of title contain this reference to the map of July, 1929.
“Subsequently, the deeds to the defendants or then-predecessors in title refer not only to the map but also refer to the right through over and upon said right of way. An example of such grant is found in the deed to the defendant Joan Somers:
“Over the years, the ‘Proposed road’ or ‘right-of-way’ has become known as Glen Road, and several of the deeds refer to the right in common with others to the use of Glen Road.”
The court framed the issue as “whether a reference, in a deed, to a map alleged to be on file in the Orange Town Clerk’s Office, by itself and without any specific grant conveys an interest in a proposed road depicted thereon, said road being bounded on the property being conveyed.” The court answered that question in the affirmative and concluded that the plaintiffs have an easement over Glen Road that gives them access to the rear of their property.
“[T]he law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.” Whitton v. Clark, 112 Conn. 28, 32, 151 A. 305 (1930). “If a grantor promulgates a general plan for the development of a tract and the plan designates streets by which the lots on the plan may be reached, the lot owners have an enforceable right to use the street to reach their lots. Id., 35. The Whitton court states, ‘ [h] ere the test must be the intention of the owner
Because the plaintiffs were not given an express easement over Glen Road, we must consider whether they have an easement by implication. “There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Internal quotation marks omitted.) Id., 78. We determine whether the grantor intended to establish an easement “by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law.” Id., 76. “We must also examine the facts found by the court as relevant to the establishment of the particular dimensions of the easement.” Mandes v. Godiksen, 57 Conn. App. 79, 83, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000); see also Perkins v. Fasig, supra, 57 Conn. App. 78-79 (“[although the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement”).
As previously stated, the deed from Mary Gracy to the plaintiffs’ predecessor in title contains a reference to the map
We next examine the second factor in determining whether an easement by implication has arisen. “[I]n so far as necessity is significant [for an easement by implication] it is sufficient if the easement is highly convenient and beneficial for the enjoyment” of the dominant estate. (Internal quotation marks omitted.) D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954); Schultz v. Barker, 15 Conn. App. 696, 701, 546 A.2d 324 (1988). Regarding the benefit to the plaintiffs, the court heard evidence and noted that the rear portion of the plaintiffs’ property had a sharp slope to it, and that the plaintiffs had made use of the right-of-way for access to the rear of their property for the purpose of farming the rear portion of the property since approximately 1935. In addition, the plaintiffs’ son testified that he gained access to the rear of the plaintiffs’ property for gardening by using a pickup truck over Glen Road from approximately 1975 to 1990. We conclude that the easement is reasonably necessary for the use and normal enjoyment of the plaintiffs’ property and that the trial court properly concluded that the plaintiffs have an easement over the property known as Glen Road.
We also agree with the court’s conclusion that the defendants failed to prove their special defenses of adverse possession and the statute of limitations.
The defendants also claimed that because the plaintiffs and their predecessors had failed to make entry onto Glen Road within fifteen years of the defendants’ possession of Glen Road and to institute an action within one year of their entry, the plaintiffs’ claim that they had the right to use the road was barred by the statute of limitations contained in General Statutes § 52-575. That statute gives a person ousted from possession
The defendants’ final claim is that the plaintiffs failed to prove that their use of Glen Road was open, visible and uninterrupted for fifteen years. As to this claim, we simply note that the court did not conclude that the plaintiffs had obtained a prescriptive easement or an easement by adverse possession. The plaintiffs, therefore, had no duty to prove that their use of Glen Road was open, visible and uninterrupted for fifteen years. This claim is without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
This action was brought against a number of property owners who have an interest in the subject property. Only the defendants Thomas O’Donnell, Susan O'Donnell, Dennis Lee, Valerie Lee, Robert, Lehet and Roberta Lehet have appealed. We refer in this opinion to those defendants as the defendants.
The plaintiffs are Alistair Gemmell and Dorothy Gemmell.
The plaintiffs alleged in their complaint that the defendants had blocked Glen Road by the parking and storage of vehicles and other debris, thereby preventing the plaintiffs from using the right-of-way to gain access to their land, and further that the defendants had encroached on the plaintiffs’ land by this parking and storage. The plaintiffs sought an injunction restraining the defendants from interfering with their right-of-way and from encroaching on their land.
Joan Somers was a defendant in the trial court, but she is not involved in the present appeal.
Although the map is dated July, 1929, it was recorded in the town clerk’s office in Orange on September 10, 1938.