276 Conn. 782 | Conn. | 2006
Opinion
In these consolidated appeals, four of the defendants appeal, the plaintiffs appeal, and four of the defendants cross appeal
The plaintiffs brought these four separate quiet title actions against the defendants, alleging claims for trespass and adverse possession and seeking declaratory and injunctive relief.
The trial court found the following relevant facts. The plaintiffs own property at 2 Crescent Bluff Avenue in the Pine Orchard section of Branford. That property is identified as lot 4 on an 1885 plan (Baker plan), which was drafted following a survey of thirty-five building lots on a five acre tract of land (development) owned by Ellis B. Baker, trustee.
Currently, beyond the lawn in front of lots 2 and 4 is a concrete slope, alongside which a concrete ramp runs down to the seawall walkway atop the seawall.
The relevant records in the chain of title to the plaintiffs’ property trace back to a 1950 conveyance in fee, of lot 4, along with a ten foot strip of the lawn area south of lot 4 (first lawn parcel), from John Moran to Margaret Walker, which conveyance the parties agree constitutes the plaintiffs’ root of title for purposes of the Connecticut Marketable Record Title Act (act), General Statutes § 47-33b et seq. Moran retained ownership of the remaining eight feet of lawn and the remaining strip of land in front of lot 4 lying between the lawn and the Sound (second lawn parcel).
The defendants own rear lots in the development, that is, lots that line the avenue and are not shorefront properties. Over the years, rear lot owners, including the defendants, have crossed the lawn area in front of lots 2 and 4 to go down to the Sound. Others have crossed that same portion of the lawn area to walk over to an adjoining lot where a stairway led directly to the water. Some rear lot owners have even gathered at the top of the ramp to socialize, converse and sunbathe.
Prior to erecting the fence, Lowlicht, as well as Craig, had presented a property agreement (agreement), drafted by Craig, to the rear lot owners. The agreement provided that Craig and Lowlicht would pay, in part, for some needed repairs to the seawall and for the construction of new stairs leading down to the Sound from the portion of the lawn that lies directly south of the avenue.
Because the Cirillo defendants had signed the agreement relinquishing their rights to the second lawn parcel, the trial court granted the plaintiffs’ requested injunction against them. Although the Baldwin defendants had also signed the agreement, and, therefore, had also relinquished their rights to the second lawn parcel, the trial court denied the plaintiffs’ requested injunction against them because it found that there was no evidence to show that they had trespassed on the plaintiffs’ property after the institution of this action. With regard to the Verderame and Paquin defendants, the trial court rendered judgment in favor of the defendants on the trespass counts.
The trial court also set forth the scope of the prescriptive easement. “[T]he defendants shall have a prescriptive easement measuring eight feet in width over the grassy portion of the lawn area [and] directly south of lot 4, at the premises known as 2 Crescent Bluff Avenue,
I
Because the records in these four cases do not reflect that any of the lot owners of the development, other than those who are already parties, were given notice of the pendency of these actions, we must first consider whether the trial court had subject matter jurisdiction to render the declaratory judgment in these cases. Practice Book § 17-56 (b), formerly § 390 (d), which sets out the procedure for declaratory judgment actions, provides that the court will not render declaratory judgments upon the complaint of any person unless “[a]ll persons who have an interest in the subject matter of the requested declaratory judgment . . . [have been] made parties to the action or [have been] given reason
Subsequently, in Mannweiler v. LaFlamme, 232 Conn. 27, 35, 653 A.2d 168 (1995), we relied on Sloane-
Just as in Mannweiler and Sloane-Wheeler Corp., the four cases involved here seek a declaratory judgment
The complaint in Verderame seeks declaratory and injunctive relief, as well as damages, in connection with the same facts and circumstances that underlie the four consolidated appeals. Specifically, the Verderame plaintiffs seek a declaratory judgment that they enjoy an easement over the lawn and avenue areas of the development as depicted on the Baker plan, and over the area of land that lies between the lawn and the Sound.
This situation is somewhat analogous to that in Hilton v. New Haven, 233 Conn. 701, 661 A.2d 973 (1995). In Hilton, the plaintiffs were a group of homeless persons in the city of New Haven who sought to enjoin the city from closing a homeless shelter. Id., 704. Before reaching the merits of the appeal, we first addressed the city’s claim that the trial court lacked subject matter jurisdiction over the case because the state, which the
In the present appeal, we similarly conclude that the specific facts and circumstances establish that the other lot owners in the development were not prejudiced by the failure to give notice of the pendency of these four specific actions. Verderame was consolidated for trial with these actions. Furthermore, the notice in Verderame effectively apprised the remaining lot owners of the issues litigated in the present appeal and placed them on notice that their rights to the land would be affected by any final decree issued in Verderame. Specifically, Verderame involves the very same easement and the very same property agreement as are at issue in the present appeal. The other lot owners were free, upon receiving notice in that case, which was consoli
II
The plaintiffs first claim that the trial court improperly concluded that any implied easement over the second lawn parcel benefiting the defendants that may have been created by the Baker plan, either as interpreted by our decision in Fisk v. Ley, supra, 76 Conn. 295, or on its face, had not been extinguished by the act. The plaintiffs contend that: (1) our holding in Fisk construing the Baker plan as having created an implied easement in favor of the rear lot owners, did not survive the act; and (2) any implied easement that may have been created by the filing of the Baker plan with the Branford town clerk did not survive the act because the deeds comprising the plaintiffs’ chain of record title do not specifically identify the Baker plan, but merely made general reference to that document, and, therefore, any such easement does not fall under the proviso contained in General Statutes § 47-33d (l).
The issue of whether a map creates an easement by implication is a question of law over which our review is plenary. See Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170, 464 A.2d 26 (1983). Although much of our case law setting out the circumstances under which a map creates an implied easement specifically has involved the consideration of streets and highways delineated on such maps, some general principles set out in those decisions guide our analysis in the present case.
We have identified two theories under which a map may imply an easement: first, under an equitable estoppel theory, an implied easement exists in a lot owner when the owner “reasonably anticipated the use of the streets disclosed on the map that would prove beneficial to him”; Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 527, 757 A.2d 1103 (2000), citing Whitton v. Clark, 112 Conn. 28, 33-34, 151 A. 305 (1930); and, second, a lot owner may acquire an implied easement by virtue of a map under an implied covenant theory, if “the [anticipated] use served as an inducement to the purchase of the lot.” Il Giardino, LLC v. Belle Haven Land Co., supra, 527. Thus, we have not required a showing that such an easement is necessary in order
Just as in Fisk,
In determining whether language constitutes a reference to a map under § 7-31, we have examined whether the language in the deed “is . . . calculated of itself to cause a searcher to turn aside from following back the chain of title to examine the special index of maps, to see, if, perchance, there may be one there which bears upon that title,” or, in other words, whether “the [titleholder] could ... be charged with knowledge of the contents of the map.” Kulmacz v. Milas, 108 Conn. 538, 542, 144 A. 32 (1928); id., 540-42 (concluding that language in deed describing land by specific metes and bounds, then adding, “or however otherwise bounded and described as of records may appear,” insufficient to alert title searcher to look for map [internal quotation marks omitted]); see also Powers v. Olson, 252 Conn. 98, 107-108, 742 A.2d 799 (2000) (plaintiff had constructive notice only of first page of subdivision plan because sole map referred to in deed referred only to first page of plan); Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 139 (finding following language sufficient to incorporate map by reference into deed: “[The lands conveyed are those] designated and shown as ‘OPEN SPACE CONSERVATION’ and ‘OPEN SPACE’ areas on a certain set of subdivision maps . . . which subdivision maps are on file in the offices of the Morris and Litchfield Town Clerkfs]” [citation omitted]).
The question remains whether the Baker plan implied an easement in favor of the defendants. Although this court has already addressed this issue in Fisk v. Ley, supra, 76 Conn. 300, and concluded that the plan did have this effect, we take this opportunity to clarify the principles that necessitated this outcome at the time we first considered this issue in Fisk, and require the same result today.
In Connecticut, it is well settled that a map may create an implied easement. See id., 295 (holding that Baker plan created implied easement in favor of rear lot owners); Pierce v. Roberts, 57 Conn. 31, 37, 17 A. 275 (1889) (construing map, in which open area was designated as “[p]ark,” to create implied easement); see also Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 116, 273 A.2d 880 (1970) (citing to Fisk and
The Connecticut view, or the “broad view,” that a “grantee to whom a conveyance is made by reference to a map or plat acquires a private right, or easement, in a park or other open area delineated on such map or plat, ” is followed in numerous jurisdictions, including Arkansas, Florida, Georgia, Iowa, Kentucky, Maine, Michigan, New Jersey, New York, North Carolina, Oregon, Pennsylvania and Texas. 7 A.L.R.2d 607, 650 (1949), and cases cited therein. One court has explained that the policy reason underlying this “broad view” is “to secure to persons purchasing lots under such circumstances those benefits, the promise of which, it is reasonable to infer, has induced them to buy portions of a tract laid out on the plan indicated.” McCorquodale v. Keyton, 63 So. 2d 906, 910 (Fla. 1953); see also 1 Restatement (Third), supra, § 2.13. This court has
Another set of inferences on which this court relied in Pierce is also applicable in interpreting the Baker plan to have created an implied easement for the benefit of the rear lot owners. In Pierce, the court specifically noted that “[t]he lots for sale were all numbered in order from one to twenty-two. The center piece contained no number to facilitate selection by a purchaser, but on the contrary it was given a name which in itself imported a design to set it apart and reserve it for the common benefit of all.” Id. Similarly, the Baker plan depicts individually numbered lots, and two common areas, one designated “[a]venue,” and a second designated “[l]awn.” Although the word “lawn” does not indicate as clearly as “park” that the area was intended to be a common area, the fact that the area is not numbered, or attached to any of the numbered lots, but is instead identified as a unified “lawn” area, necessarily implies that the intent of the grantor was to reserve that portion of the development as a common area to be used by
Finally, we note that the plan depicts the avenue leading directly into the lawn area, without any lines indicating the extension of the road to the Sound or in any other way indicating a division between the lawn area and the avenue. In fact, the most reasonable way to view the two, the avenue and the lawn, is as part and parcel of one common area. Thus, any inferences that would apply to support the conclusion that the avenue is a common area strengthen the conclusion that the lawn also was intended to be shared in common. See id. (analogizing “ ‘[p]ark’ ” area to “ ‘road’ ” area on map and noting that same reasoning that would support conclusion that “ ‘[p]ark’ ” area was not intended for common use would lead to conclusion that “ ‘road’ ” was not common area). The avenue depicted on the Baker plan is the only access that the rear lot owners have to the street labeled “highway” on the map. It is well settled that under such circumstances, lot owners have an implied easement over the street for access to the highway. See, e.g., Whitton v. Clark, supra, 112 Conn. 32 (“the 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”). Therefore, by extension, it is reasonable to infer that the original intent of the grantor was that the area designated as “lawn” likewise remain open for use by the rear lot owners and, consequently, that the
The plaintiffs contend that the act extinguished any implied easement created either by the Baker plan or by the Baker plan as interpreted by Fisk v. Ley, supra, 76 Conn. 295, because the easement was created by a document, the Baker plan, that is not a part of the plaintiffs’ chain of record title and because the Baker plan was not “specifically identified” in any of the deeds comprising the plaintiffs’ chain of title as required by § 47-33d (1). Specifically, the plaintiffs, relying on § 47-33d (1) of the act; see footnote 20 of this opinion; contend that the Baker plan is not one of “the muniments of which the chain of record title is formed.” Consequently, they claim, because the Baker plan was recorded in 1885, long before the plaintiffs’ root of title in 1950, and because the reference to the Baker plan was merely a “general reference in the muniments . . . to [an easement] created prior to the root of title,” that reference was not sufficient to preserve the easement because there was no “specific identification ... of a recorded title transaction which create[d] the easement . . . .” General Statutes § 47-33d (1).
We agree with the initial premise underlying the plaintiffs’ argument, namely, that the Baker plan is not one of the “muniments [of title] of which the chain of record title is formed . . . .” We note that the trial court traced the plaintiffs’ root of title to the 1950 warranty deed through which Moran conveyed lot 4 and the second lawn parcel to Walker. The parties do not contest this finding. The implied easement, however, was created by the original recording of the Baker plan in 1885, significantly predating the plaintiffs’ root of title. Therefore, because the implied easement in favor of the defendants was created prior to the plaintiffs’ root of title, the references to that easement in the muniments comprising the plaintiffs’ chain of record title must com
To understand how the implied easement created by the Baker plan survives the act, it is helpful to review the general structure and purpose of the act, which “declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land’s chain of title.” Schulz v. Syverlsen, 219 Conn. 81, 84, 591 A.2d 804 (1991). We have previously stated that the purpose 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.” (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 507, 853 A.2d 460 (2004); see also Mizla v. Depalo, 183 Conn. 59, 67, 438 A.2d 820 (1981).
Marketable record title is defined as “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 § 47-33b (a). In order to establish marketable record title, a person with the legal capacity of owning land in this state must be able to show an unbroken chain of title to an interest in the land for forty years or more. See General Statutes § 47-33c.
Even marketable record title, however, may be subject to certain interests. Section 47-33d provides in rele
In determining whether the implied easement created by the Baker plan survived the act, we must read § 47-33d (1) in conjunction with § 7-31. Because § 7-31 provides that the reference to the Baker plan in the deeds renders the plan a part of those deeds, the reference to the plan in the deeds is more than a general reference. As we have already stated, the reference to the Baker plan is sufficient to place a reasonable title searcher on notice of the existence of the map, and sufficient to impose upon a title searcher the obligation to find and consult the map in determining whether the subject property is encumbered in any way.
Furthermore, the reference to the Baker plan is sufficiently specific to allow a title searcher to locate the
The plaintiffs contend that the fact that the deeds comprising their chain of record title fail to specify a volume and page number for the Baker plan renders the reference to the plan insufficient to satisfy the “specific identification” requirement of § 47-33d (1). We have held that such a failure in referring to a deed renders a reference too general to satisfy the requirement. See Coughlin v. Anderson, supra, 270 Conn. 507. As indicated by § 7-32, however, there is no requirement that maps be indexed by volume and page. Compare General Statutes § 7-25 (provision governing indexing of “instrument” and requiring index to specify “book and page of such instrument or other suitable indication of its location approved by the Public Records Administrator”). It simply would make no sense to apply the same standard for reference to maps as is applied to deeds, since the two are filed and indexed differently in the town clerk’s office. Furthermore, the Baker plan, by virtue of § 7-31, is incorporated into each deed that refers to it, and each such deed is one of the muniments
Consequently, a title researcher reading the root of title, namely, the 1950 conveyance from Moran to Walker—and, indeed, all of the subsequent conveyances—would have been obligated to examine the Baker plan. Indeed, the plaintiffs’ own title expert testified accordingly. Although we agree that, as the plaintiffs argue, a title searcher would not have been obligated, solely by that examination, to discover this court’s decision as reported in Fisk v. Ley, supra, 76 Conn. 295, he or she would have been duly charged with knowledge of the necessary legal consequences of what the Baker plan depicted. Put another way, a title searcher, having been alerted to the Baker plan, would be charged with knowledge of what it necessarily implied as a matter of law. As we have explained, these necessary legal consequences were and are an implied easement over the second lawn parcel in favor of the rear lot owners.
Ill
The plaintiffs next contend that the trial court improperly concluded that the defendants, in addition to having an implied easement over the second lawn parcel by virtue of the Baker plan, had acquired a prescriptive easement by virtue of the use, by various residents of the rear lots over the course of years, of the second lawn parcel. We agree with the plaintiffs.
General Statutes § 47-37, which sets forth the requirements for acquiring easements by prescription, provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of
If one party’s period of use or possession is insufficient to satisfy the fifteen year requirement, that party may “tack on” the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights. Smith v. Chapin, 31 Conn. 530, 531-32 (1863); see also 1 Restatement (Third), supra, § 2.17, p. 283, comment (l) (privity requirement of tacking satisfied by succession of interests); 72 A.L.R.3d 648, 654, § 2 (a) (1976) (“[i]t has frequently been stated, and even more often implied, that in order to acquire a prescriptive easement by tacking successive use periods, there must be privity between the successive users”). Typically, therefore, a successful invocation of the doctrine of tacking will resemble the following hypothetical: A, the owner of Whiteacre, used a road across Blackacre for access to the public highway, without the permission of O, the owner of Blackacre, for ten years. A subsequently sold Whiteacre to B, who used the road across Blackacre for the same purpose for five years. See 1 Restatement (Third), supra, § 2.17, pp. 283-84, illustration (42). Under such circumstances, B has privity with A and, in the absence of other facts and circumstances, will be allowed to invoke the doctrine of tacking in order to establish that she has satisfied the fifteen year use requirement of § 47-37. Id.
In the present case, the trial court extended the tacking doctrine to allow what is essentially collective tack
IV
The defendants raise two claims in their appeals and cross appeals. The Baldwin and Cirillo defendants claim that the trial court improperly concluded that the agreement between them and Lowlicht and Craig was not void for mutual mistake. Additionally, all eight of the defendants challenge the trial court’s finding that the plaintiffs hold title to the second lawn parcel. We address each of these claims in turn.
A
The Baldwin and Cirillo defendants claim that the trial court improperly found that they had failed to demonstrate the existence of a mutual mistake operating to void the agreement. Specifically, they con
“The legal concept of ‘mistake’ is similar to the legal concept of ‘misrepresentation’ in that, under each, a party to a contract may be relieved from his obligations if he was unaware of certain material facts.” (Emphasis added.) Leasco Corp. v. Taussig, 473 F.2d 777, 781 (2d Cir. 1972). “A mutual mistake is one that is common to both parties and effects a result that neither intended. . . . Whether there has been such mistake is a question of fact.” (Citation omitted.) Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991).
Questions of fact are subject to the clearly erroneous standard of review. Efthimiou v. Smith, 268 Conn. 487, 493, 846 A.2d 216 (2004). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial
The trial court found that the parties’ ignorance of Fisk, at the time that they had executed the agreement, had been irrelevant to the formation of the agreement because the agreement had effectuated the result intended by the parties, namely, “the exchange of all [of the Baldwin and Cirillo] defendants’ rights, titles or interests in the lawn southerly of lot 4 in return for Lowlicht and Craig’s promise to fix the seawall and concrete stairs.” Furthermore, the court found that Lowlicht and Craig had satisfied their obligations under the agreement by expending the funds necessary to repair the seawall and the concrete stairs.
The evidence in the record supports the trial court’s findings. By signing the agreement, the Baldwin and Cirillo defendants agreed, inter alia, to “remise, release and quitclaim to the owners of Lot 4 and their successors and assigns all of [the defendants’] right, title and interest in and to that portion of [the lawn] lying between the southerly extensions of the east and west boundaries of Lot 4 and being bounded on the north by Lot 4 and on the south by the existing sidewalk, hereby expressly retaining whatever rights [the defendants] may have in and to said sidewalk.” The Baldwin and Cirillo defendants agreed to these terms “in order to induce the owners of Lot 2 and Lot 4 to make improvements presently needed to said sidewalk and to not impede or impair the [defendants’] access thereto . . . .” Thus, the agreement makes clear that the Baldwin and Cirillo defendants were willing to relinquish any right that they had to the use of the lawn in exchange for the repair of and access to certain structures to which they also had certain rights; Lowlicht and Craig,
The claims of the Baldwin and Cirillo defendants that, by signing the agreement, they thought that they were relinquishing the possible existence of a prescriptive easement, as opposed to the implied easement as a matter of law identified in Fisk, and, that had they known about Fisk, they would not have signed the agreement, fail to establish the existence of a mutual mistake. The record indicates that, at the time that they signed the agreement, the Baldwin and Cirillo defendants believed that they had a right of access to the lawn area. Whether the source of that right was a prescriptive easement or an implied easement was immaterial to the execution of the agreement. The Baldwin and Cirillo defendants, believing that they possessed a legal right, access to the lawn, that they did, in fact, possess, chose to exchange that right, which they were entitled to do, for consideration from Lowlicht and Craig. Moreover, proof that these defendants, had they been aware of Fisk, would not have signed the agreement is insufficient to prove that a mutual mistake had a material effect on the agreed upon exchange of performance. See 1 Restatement (Second), Contracts, Mistake § 152, pp. 387-88 (1981). Thus, the evidence supports the trial court’s finding that there was no mutual mistake, and that finding was not clearly erroneous.
B
All of the defendants claim that the trial court improperly concluded that they lacked standing collaterally to
Because the Baldwin and Cirillo defendants, by signing the agreement, relinquished their right to the implied easement over the second lawn parcel, and because the Verderame and Paquin defendants did not relinquish their interest in the land, our analysis differs with respect to each of these two groups. Nonetheless, we conclude, albeit for different reasons, that neither group of defendants had standing collaterally to attack the Probate Court decrees in the trial court.
The following additional facts as set forth by the trial court are relevant to our resolution of this issue. At the time of Moran’s death in 1951, he possessed a record interest in the second lawn parcel. His will devised his interest in the parcel to trustees of two testamentary trusts. The trusts were designated as Trust A and Trust B. The remaindermen and ultimate beneficiaries of Trust B were largely Catholic charities, schools and similar groups. The Moran estate was closed approximately nine to ten years after his death without his interest in the parcel having been conveyed.
In October, 1997, Moran’s nephew, Thomas Kelley, Jr., filed a motion to reopen the estate, seeking permis
Sulzbach subsequently filed an application to sell the parcel to Lowlicht and Haedicke. Sulzbach did not disclose to the Probate Court his representation of Lowlicht, Haedicke and the plaintiffs, nor did he inform that court of the ongoing dispute between the plaintiffs and the defendants in the present case, despite his knowledge of the dispute and despite that court’s specific inquiry as to whether any disputes existed regarding the property. Prior to the hearing on the application to
“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005). “The concept of standing, as presented by the question of aggrievement, is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court.” (Internal quotation marks omitted.) Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). In order to establish standing to appeal from a probate matter, a party must show that he or she is “aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law . . . .”
They claim, nonetheless, that, because the plaintiffs could not have sued them for trespass if the plaintiffs had not acquired the second lawn parcel through the Probate Court proceedings, they have shown that they had a legal interest in the estate. We have rejected the notion that the desire to avoid suit is sufficient to constitute a legal interest in the probate context. See Bridgeport v. Steiber, supra, 143 Conn. 723. If we were to accept the argument of the Baldwin and Cirillo defendants, anyone who wished to cross the plaintiffs’ property, not just residents of the development, arguably could establish that they had a legal interest in the Moran estate, because if the plaintiffs did not own the second lawn parcel, they could sue no one for crossing that portion of the lawn. Such an interest is simply too remote and speculative to confer standing upon the Baldwin and Cirillo defendants under § 45a-186 (a).
The Verderame and Paquin defendants, however, because they did not sign the agreement, did have a legal interest in the estate, namely, the implied easement that they held over the second lawn parcel. Merely possessing a legal interest in the estate, however, is not enough to confer standing upon a party. In order to show aggrievement, that party must show that the legal interest was adversely affected. The Verderame and
In summary, insofar as the trial court found that the Verderame and Paquin defendants have a prescriptive easement over the second lawn parcel, the judgment is reversed, and the trial court’s injunction based thereon is vacated; in all other respects, the judgment is affirmed; the case is remanded for further proceedings to determine the scope of the implied easement in favor of the Paquin and Verderame defendants over the second lawn parcel. Furthermore, on remand, the trial court is instructed to give notice to all the lot owners in the development of the pendency of these actions and of this opinion, and allow such persons the opportunity to join as parties to these actions.
In this opinion the other justices concurred.
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The defendants are Frank A. Cirillo and Susan P. Cirillo (Cirillo defendants), Antoinette F. Verderame and Salvatore Verderame (Verderame defendants), Peter P. Paquin and Suzanne Paquin (Paquin defendants) and James G. Baldwin and Joann F. Baldwin (Baldwin defendants).
The Baldwin and Cirillo defendants filed separate appeals on January 12, 2004; the plaintiffs appealed on December 24, 2003; and the Verderame and Paquin defendants filed separate cross appeals in response to the plaintiffs’ appeal on January 8, 2004.
We transferred the consolidated appeals to this court pursuant to General Statutes § 51-199 and Practice Book § 65-2.
The four original actions brought by the plaintiffs were McBurney v. Cirillo, Superior Court, judicial district of New Haven, Docket No. CV 980414820; McBurney v. Verderame, Superior Court, judicial district of New Haven, Docket No. CV990422102; McBurney v. Baldwin, Superior Court, judicial district of New Haven, Docket No. CV990422100; and McBurney v. Paquin, Superior Court, judicial district of New Haven, Docket No. CV010455411.
A fifth case, Verderame v. McBurney, Superior Court, judicial district of New Haven, Docket No. CV010453999, was consolidated with these actions, but is not before us in this appeal.
The plaintiffs do not challenge that determination in this appeal.
A copy of the Baker plan is attached to this opinion as an appendix.
It is unclear from the record by what means and at what point in time the title to both the first lawn parcel and the second lawn parcel had been transferred either to Moran or to one of his predecessors in title.
That quitclaim deed, which was recorded in the Branford town clerk’s office on May 21,1998, in volume 649, page 124, describes the subject parcel as follows:
“All that certain piece or parcel of land, situated in the Town of Branford, County of New Haven, State of Connecticut and being the majority of the parcel labeled ‘N/F John Moran’ on a map entitled ‘Property Survey, land of William E. & Susan H. Craig, 2 Crescent Bluff Avenue, Pine Orchard, Branford, Connecticut’ by LWF Land Surveying, scale 1”=10’, dated July 1997 and revised September 8, 1997, which map is to be filed herewith in
“Commencing at a point in the Westerly street line of Crescent Bluff Avenue, said point being the Southeasterly corner of premises known as #2 Crescent Bluff Avenue;
“Thence running S 12°-39’-00” W 30.12 feet along said Westerly street line of Crescent Bluff Avenue;
“Thence running S 18°-33’-00” W 31.7 feet, more or less, substantially along the Westerly edge of the concrete steps shown on said map;
“Thence running Westerly 43 feet, more or less, along the Mean High Water Line of Long Island Sound;
“Thence running N 12°-39’-00” E 56.5 feet, more or less, along premises known as #6 Crescent Bluff Avenue;
“Thence running S 77°-21’-00” E 45.00 feet along said #2 Crescent Bluff Avenue, to the point and place of commencement.”
As we have noted, because the parties have made claims and counterclaims regarding only the second lawn parcel, our conclusion directly affects only the rights of these parties to the second lawn parcel. We recognize, however, that the nature of this action, because it requires us to interpret the effect of the Baker plan on the relative rights of the parties to the “[l]awn” depicted in the plan, necessarily implicates the rights of all the lot owners in the development to all portions of the lawn. See part I of this opinion.
The fence does not, however, restrict access to the concrete ramp, the concrete slope, the seawall and the seawall walkway from the portion of the lawn that lies directly south of the avenue. Thus, after the erection of the fence, the defendants could gain access to the Sound only by going directly down the avenue and its extension, but not by crossing the lawn in front of lot 4.
The Pine Orchard Association paid for the remaining portion of the cost of the repairs.
The original complaint sought damages, but that claim for relief was later withdrawn.
The plaintiffs do not challenge that determination in their appeal.
We have defined indispensable parties as persons whose “interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience.” (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 722, 661 A.2d 973 (1995).
Although in Sloane-Wheeler Corp. v. Odiseas, supra, 154 Conn. 707, we remanded the case with direction to dismiss the action, in Mannweiler v. LaFlamme, supra, 232 Conn. 36, we clarified this remand and determined, instead, that the jurisdictional flaw did not require dismissal of the action. In Mannweiler we instructed that on remand, the plaintiff would be allowed to “pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement.” Id. This was because, we concluded, the failure to give notice only deprived the court of jurisdiction to render the declaratory judgment; it did not deprive the court of jurisdiction to entertain the action entirely. Id. Thus, an initial failure to give adequate notice is curable in a declaratory judgment action. Id.
Because we conclude that, even if the other lot owners were indispensable parties, the notice given in the companion case; Verderame v. McBurney, Superior Court, judicial district of New Haven, Docket No. CV010453999; is sufficient to confer jurisdiction on the trial court in these actions, we need not determine whether the other lot. owners are in fact indispensable parties.
The plaintiffs in Verderame include Salvatore Verderame, Antoinette F. Verderame, Frank A. Cirillo, Susan P. Cirillo, James G. Baldwin, Joann F. Baldwin and Grace L. Callejo. In part I of this opinion, we refer to this group as the Verderame plaintiffs. The defendants are James R.G. McBumey, Erin McBumey, Roger Lowlicht and Kay Haedicke. In part I of this opinion, we refer to this group as the Verderame defendants.
The Verderame plaintiffs also gave notice by first class mail to the attorney general and the commissioner of consumer protection and, by first class mail and hand delivery at its office, to the Connecticut department of environmental protection, office of Long Island Sound Programs.
Although we conclude that the trial court had subject matter jurisdiction in these four cases despite the failure to give notice to the other lot owners in the development, we believe that, in light of the effect that our decision will have on the relative rights of all lot owners in the development, it would be prudent, and it would serve the interests of judicial economy, on remand, for all the lot owners in the development to receive specific notice of these actions, including this decision, and be given the opportunity to join as parties in these actions.
General Statutes § 47-33d provides in relevant part: “Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest . . . .”
We note, however, that this conclusion does not end our inquiry regarding the rights of the Baldwin and Cirillo defendants, all of whom signed the agreement waiving their rights to the land. See part IV of this opinion.
We emphasize that our reference herein to Fisk is not for the purpose of concluding that that decision settled the rights of the parties to these actions. We rely on Fisk solely as support for the legal proposition that a map, such as the Baker plan, may create an implied easement.
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
General Statutes § 47-33e provides: “Subject to the matters stated in section 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.”
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. The effective date of the root of title is the date on which it is recorded . . ..”
We address this issue because it is relevant on the remand to the trial court’s determination of the scope of the defendants’ easement. Because
References to the parties in part IV of this opinion are to the following parties to the agreement: the Baldwin and Cirillo defendants; Craig, the plaintiffs’ predecessor in title; and Lowlicht.
We are informed by the plaintiffs in their brief, however, that they subsequently cured these defects, and that the parties who had not been given notice had no objection to the conveyance authorized by the Probate Court.
The defendants argue that they are not “directly” attacking the orders of the Probate Court, and, therefore, that they need not establish that they have standing to appeal. Instead, they attempt to distinguish their objective, namely, challenging the plaintiffs’ title to the property, from a “direct attack on a probate decree.” The only way that the defendants can challenge the plaintiffs’ title to the property, however, is through a challenge to the Probate Court orders regarding the opening of the Moran estate and the grant of the application for sale. Because the defendants seek a judgment that those orders are void, it matters not whether the attack is collateral or direct; the defendants still must establish that they have standing pursuant to § 45a-186.
The defendants rely on Sears v. Terry, 26 Conn. 273 (1857), for the proposition that a party with no direct interest in a probate estate may nevertheless collaterally attack the jurisdiction of a Probate Court. Sears, however, is inapposite to the present case. The decision does not discuss the issue of whether the aggrievement requirement under § 45a-186 (a) requires a showing that the alleged legally protected interest be one in the estate, and, indeed, could not, since Sears was decided twenty-eight years before the statute was originally enacted in 1885. See Public Acts 1885, c. 110, § 16. Therefore, Sears is not helpful in informing our determination whether the defendants have succeeded in satisfying the jurisdictional requirements imposed by the statute.
All of the defendants also argue for the first, time on appeal that the plaintiffs should not have been allowed to invoke the equity jurisdiction of the trial court to bring their injunctive action for trespass because they have unclean hands. The defendants now allege that the plaintiffs procured title to the second lawn parcel by making misrepresentations to the Probate Court. The defendants never raised this argument in the trial court, either in their pretrial or posttrial briefs or in their motion to reargue, reconsider and open judgment. Therefore, the defendants have failed to preserve the issue for appeal, and we decline to address it.
