In this quiet title action, the defendants, Thanongchit Sourignamath, Bounthavy Sourignamath, D. Scott Ward and Kathleen A. Ward, appeal from the judgment of the trial court concluding that the plaintiffs, Darryl Johnson, Denise Myers, Darlene Graves, Lori Johnson Jerome and the estate of Walter Rochette (Joan Rochette and Dawn O’Dell, trustees), have a deeded right-of-way over the properties of the defendants. The defendants claim on appeal that the court improperly determined that the plaintiffs had a right-of-way (1) that never had been conveyed to them, (2) despite provisions of the Marketable Title Act (act), General Statutes §§ 47-33b through 47-33Í, that operate to extinguish any preexisting right-of-way and (3) located over the defendants’ properties. We agree with the defendants’ second claim and, accordingly, reverse the judgment of the trial court.
The following facts and procedural history are relevant. The Ward defendants and the Sourignamath defendants are two married couples owning neighboring properties in Old Saybrook. Running generally north and south alongside their properties is a private street in which each couple owns an undivided one-half interest.
The plaintiffs are relatives who acquired their respective shares of the twelve acre parcel through inheritance; the parcel has been owned by various family members since 1930. The certificates of devise by which the plaintiffs obtained title, as well as all but one
In 1991, the Sourignamath defendants acquired their property by warranty deed. That deed described their parcel and their half interest in the private road, and recited that the property was “[s]ubject to such easements as of record appear.” In 1997, the Ward defendants acquired their property by warranty deed. That deed described their parcel and their half interest in the private road, but included no language stating that their parcel is subject to easements. None of the deeds in the defendants’ chains of title, extending to 1922, includes any language indicating that their properties are subject to a right-of-way in favor of the plaintiffs’ parcel. Moreover, the general easement language included in the Sourignamaths’ deed does not appear elsewhere in their chain of title.
The Wards and the Sourignamaths share common predecessors in title, one of whom is Lillian D. Heifetz. Heifetz owned property that ultimately was subdivided into several parcels, including those of the defendants. In 1984, Heifetz caused to be prepared a survey map
In December, 1997, after disagreement arose among the parties as to the existence and location of the right-of-way, the plaintiffs commenced the present action with a two count complaint. In count one, the plaintiffs alleged that, by virtue of the language in the deeds comprising their chain of title, they were owners of record of a right-of-way that passed over a portion of the Sourignamaths’ property and down the private street owned by the defendants. In count two, the plaintiffs alleged that they had acquired the described right-of-way via prescription. After a trial in 2001 to the court, Hon. Daniel F. Spallone, judge trial referee, the court found that the plaintiffs had a deeded right-of-way in the location alleged.
Thereafter, the defendants appealed from the court’s judgment as to count one, and the plaintiffs cross appealed from the dismissal of count two. Johnson v. Sourignamath,
Further proceedings were conducted on August 12, 2003, and the requested additional evidence was submitted. In a November 24, 2003 memorandum of decision, the court, Aurigemma, J., made findings as to the parties’ roots of title and, citing General Statutes § 47-33e, concluded that “the plaintiffs have proved their right of access by deed and that the deeded right-of-way has not been extinguished.” Judge Aurigemma also agreed with Judge Spallone as to the location of the right-of-way and rejected the defendants’ claim that it was located elsewhere. Consequently, judgment was rendered in the plaintiffs’ favor on count one and count two again was dismissed.
The dispositive claim on appeal is whether any right-of-way that the plaintiffs, or their predecessors in title, might once have possessed has been extinguished by operation of the act. We first note our standard of review. The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, presents a question of law over which our review is
As recently explained by our Supreme Court, “[t]he ultimate prnpose of [the act] is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction. . . . [The act is] designed to decrease the costs of title assurance by limiting the period of time that must be covered by a title search.” (Internal quotation marks omitted.) Coughlin v. Anderson,
“Pursuant to the act, any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record
In this case, the property purported to be affected by an interest, namely, the alleged right-of-way, is the
To begin, in many contexts courts have held that when a recorded instrument in a party’s chain of title makes reference to some extrinsic document, the party thereby is charged with constructive or actual notice of the contents of the extrinsic document. See generally annot.,
Nevertheless, the description of the purported right-of-way is entirely vague and lacks any indication as to the way’s origin. Under the act and a recent decision of our Supreme Court interpreting it, that lack of specificity is fatal to any argument that the right-of-way has been preserved. Pursuant to General Statutes § 47-33e,
Our Supreme Court recently decided a case concerning the extinguishment of an easement due to the failure
The court determined the servient owner’s root of title to be the 1954 deed. Id., 496; see General Statutes § 47-33b (e). It concluded that, insofar as the conveyance creating the easement predated the root of title, the act required that the postroot deeds include specific references to the volume and page of the land records for the 1952 deed creating the easement and because they did not, the easement had been extinguished by operation of law. Coughlin v. Anderson, supra,
On appeal, the parties did not dispute the trial court’s conclusion on that point; id., 507; and, therefore, it was not a direct subject of review. The Supreme Court, however, characterized the trial court’s conclusion as proper, and the resolution of the claims raised was premised on the correctness of the trial court’s ruling. Id.
The dynamic of this case is similar. Here, the language in the deeds in the plaintiffs’ chain of title referencing the right-of-way appears as early as 1878. If the right-of-way ever was validly created,
The court’s memorandum of decision was concise, and its statutory analysis is not altogether evident. It appears, however, that the court applied the provisions of the act from the perspective of the plaintiffs’ chain of title rather than that of the defendants and concluded that, because the general right-of-way language appeared throughout, the plaintiffs had established the
In their appellate brief, the plaintiffs argue cursorily that another section of the act that creates an exception from extinguishment for “apparent easements”; General Statutes § 47-33d (5); is applicable. Pursuant to General Statutes § 47-33h, the act “shall not be applied . . . to bar or extinguish any easement or interest in
The judgment is reversed and the case is remanded for further proceedings on count two in accordance with law.
In this opinion the other judges concurred.
Notes
Because the defendants’ second claim is dispositive of the appeal, we do not address directly claims one and three although, to some degree, they implicitly are considered in our analysis.
The Sourignamaths’ property is located to the rear of the Wards’ property. Although there is a third property between the Wards’ property and the private street for much of the length of the street, the owners of the third property do not share an interest in the street and are not parties to this action.
A certificate of devise dated August 15, 1907, omits the pertinent language.
The court determined the location of the right-of-way on the basis of evidence regarding the plaintiffs’ and their predecessors’ customary usage.
In accordance with our direction; see Johnson v. Sourignamath, supra,
General Statutes § 47-33c provides: “Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to
General Statutes § 47-33b (e) provides in relevant part: “ ‘Root of title’ means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. . . .”
General Statutes § 47-33b (a) provides: “ ‘Marketable record title’ means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e
General Statutes § 47-33e provides: “Subject to the matters stated in [General Statutes §] 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title. All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void.”
We observe that the court incorrectly determined the defendants’ root of title to be the next instrument previous in the chain of title to the 1945 deed, a 1922 warranty deed from Joseph Daer to Demetrio Carpi and Josephine Carpi. Neither of the parties contests this finding on appeal, likely because it is immaterial. In particular, because the 1922 deed, like the 1945 deed, lacks any reference to a right-of-way in favor of the plaintiffs’ property and because there are references to the right-of-way in the plaintiffs’ chain of title predating both the 1922 and 1945 deeds, the discrepancy does not impact the analysis.
To the extent that the plaintiffs have argued that the easement reference on the Heifetz map “purport[s] to divest”; General Statutes § 47-33c; the defendants of their claimed interests in their parcels, thus breaking their chains of title such that the provisions of the act are inapplicable, that argument is misplaced. Section 47-33c “pertains only to instruments within the marketable record chain of title which purport to ‘divest,’ i.e., ‘take from’ or ‘acquire,’ the full title claimed by the particular claimant. Hence, such recorded instruments as attachments, liens, mortgages, leases, life estates or other types of encumbrances do not purport to ‘divest’ a fee simple title.” (Emphasis added.) Connecticut Bar Association, Connecticut Standards of Title (1999), standard 3.6, comment four.
We note here that a map filed in town land records, to be incorporated into a deed such that it becomes part of the chain of title, ordinarily must be certified as accurate by a surveyor and referenced specifically by the deed. See Powers v. Olson,
Regarding the Wards, the record does not include any evidence as to what their title search uncovered. By the time they purchased their property in 1997, however, a second map, prepared after a boundary survey of the Heifetz property, had been placed in the town’s land records. This map, which included the same notation as the previous one as to the claimed right-of-way, was certified as accurate by a surveyor and was referenced in the deed by which Heifetz conveyed her property to Salvatore Zimmitti,
See footnote 9.
The term “muniments of title” is defined, in relevant part, as “[t]he records of title transactions in the chain of title of a person purporting to create the interest in land claimed by such person and upon which he relies as a basis for the marketability of his title, commencing with the root of title and including all subsequent transactions.” Black’s Law Dictionary (6th Ed. 1990). The Heifetz maps, thus, are muniments of the defendants’ titles.
The procedural posture of Coughlin is somewhat unusual. Because the 1996 deed conveying the servient estate omitted any reference to the easement, the grantee brought an action against the grantor alleging breach of the warranty against encumbrances and, further, against the attorneys who represented him in connection with the property acquisition for legal malpractice for not discovering the easement The success of both claims depended on the grantee establishing the continued viability of the easement and the associated diminishment in value of the property.
In contrast, in Mannweiler v. LaFlamme, supra,
There is nothing in the record evidencing the origin of the purported right-of-way. Wells testified that he searched the plaintiffs’ chain of title and did not find anything “show[ing] that they received either by grant or reservation a right-of-way over any other property.” The plaintiffs’ expert witness testified that he had searched their chain of title back as far as the town records would allow and that the same general language appeared throughout.
Our analysis assumes the claimed right-of-way was created in a recorded conveyance, which, for whatever reason, no longer is traceable. If, however, the right-of-way originally was created by operation of law or by an unrecorded instrument, it still necessarily was created preroot, and the plaintiffs would have had to file a sworn notice pursuant to General Statutes § 47-33f to preserve the way. It is clear that they did not. As noted by the authors of the Connecticut Standards of Title, “the language of [General Statutes
The plaintiffs reiterate this rationale on appeal.