58 Conn. App. 19 | Conn. App. Ct. | 2000
Opinion
The plaintiffs John Pender and Mary Pender
The trial court found the following facts. The plaintiffs own certain lots on the west shore of Candlewood Lake in New Fairfield. The Matrangas own a ten acre undeveloped parcel that abuts the plaintiffs’ smaller lots and overlooks Candlewood Lake. The boundaries of the parties’ parcels are stated on a property map, titled, “MAP SHOWING SUBDIVISION OF PROPERTY OF BURTON F. SHERWOOD LOCATED ON THE WEST SHORE OF LAKE CANDLEWOOD IN THE TOWN OF NEW FAIRFIELD, FAIRFIELD COUNTY CONNECTICUT.” (Rapp map). The Rapp map was prepared and certified as being substantially correct by Sydney Rapp, and was recorded in the New Fairfield land records on December 7, 1953.
Both the plaintiffs and the Matrangas trace title to a common grantor, Burton F. Sherwood, who was a seasoned real estate developer in the area. On October 23, 1944, Sherwood and a group of landowners known as the Kellogg Point residents signed an agreement. The agreement gave those residents access to a nearby thoroughfare through a “private road” across Sher
David Ryan, a licensed land surveyor, was called by the defendants to testify at trial as an expert witness. He explained the meaning of double dotted lines that signify the presence of the wood road on the Rapp map. Ryan stated that the double dotted lines on the Rapp map signify a traveled way or road, while a single dotted line indicates a path. Ryan noted that in 1991 he observed the wood road to be between seven feet and ten feet wide, but that the double dotted lines scale to eight feet wide on the Rapp map.
The court found that a fourteen foot express easement, a twelve foot easement of necessity and an eight foot easement by implication existed over the plaintiffs’ property in favor of the Matrangas. The court further found that the Matrangas may maintain, construct and repair those easements when necessary.
I
The plaintiffs first contend that the court improperly found that the Matrangas hold certain easements over the subject property. We agree with the trial court that there is an express easement of fourteen feet in width.
The determination of the scope of an easement is a question of fact. Strollo v. Iannantuoni, 53 Conn. App. 658, 659, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999). The court’s factual findings are “binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. ... 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.” (Internal quotation marks omitted.) Food Studio, Inc. v. Fabiola’s, 56 Conn. App. 858, 862, 747 A.2d 7 (2000); see Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000). The plaintiffs have admitted that an express easement
A
The court concluded that a fourteen foot easement exists over the plaintiffs’ land pursuant to the October, 1944 agreement. The court reasoned in part: “Here, we are presented with a general grant of authority to pass and repass ‘for all purposes whatsoever.’ . . . [The Matrangas’ land] is almost inaccessible by any other means, and contains ten acres overlooking Candlewood Lake. The testimony of both David Ryan and Christina Matranga affirmed that a steep grade renders access . . . unfeasible. Since the actual road was approximately eight feet in width in 1952, according to rehable testimony, one must conclude that either Burton F. Sherwood had the foresight to reserve fourteen feet as an easement in the event access to this ten acre parcel was necessary for development or he grossly miscalculated the width of the existing road by a full six feet prior to signing the agreement with the Kellogg Point residents.” The court concluded that the plaintiffs’ deed to the property and the mortgage instrument executed on the property referenced the easement. The court concluded that the plaintiffs took title to their property subject to the agreement between Sherwood and the Kellogg Point residents. We agree.
The phrase “for all purposes whatsoever” is a broad one, without any restrictions as to the use of the right to pass or repass. See Birdsey v. Kosienski, 140 Conn. 403, 412-13, 101 A.2d 274 (1953); Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986). The phrase permits any use reasonably connected to the reasonable use of the land. Lichteig v. Churinetz, supra, 410.
We also look to the intent of the parties when interpreting the meaning of the easement. Birdsey v. Kosienski, supra, 140 Conn. 410. The intention of the parties, as shown by the language of the 1944 agreement, further supports the court’s conclusion. The “whereas” clauses in the agreement, as set forth by the parties, reveal that “the Kellogg Point Residents desire to have free access from their land to the public highway,” “Sherwood owns other land ... to which access is difficult without passing through land of the Kellogg Point Residents” and “the parties hereto feel that it would be mutually beneficial to exchange rights of way.” In essence, the Kellogg Point residents received access to a nearby highway in exchange for Sherwood’s gaining access to his property over the wood road. The fact that a fourteen foot easement over the plaintiffs’ land has significant value to the dominant tenement is a relevant factor in determining the easement’s scope. See id., 410-11.
“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .. . .” HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999). The plain meaning of the easement grants an
B
Since we agree with the trial court that an express easement exists over the subject property, any implied easements or easements of necessity that may have existed over the same right-of-way are extinguished. An easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel. Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973); Collins v. Prentice, 15 Conn. 39, 43-44 (1842); see Friedman v. Westport, 50 Conn. App. 209, 214, 717 A.2d 797, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). The inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means. See R. Powell & P. Rohan, Powell on Real Property (1999) § 34.07, p. 34-67 n.29, citing Parham v. Reddick, 537 So. 2d 132, 135 (Fla. Dist. Ct. App. 1988) (right-of-way based on necessity expires when owner of dominant estate acquires adjoining lands that provide access to public or private road).
Similarly, an easement by implication does not arise by mere convenience or economy, but exists because
Here, the Matrangas possess an express easement of fourteen feet in width by which to access and develop the parcel. No reason exists to retain an implied easement or easement of necessity over the exact same tract of land. We therefore conclude that because the fourteen foot express easement exists along the wood road in the Rapp map, no implied easement or easement of necessity can be found.
II
The plaintiffs next contend that the court improperly refused to admit testimony about the 1944 agreement under the exception to the hearsay rule embodied in General Statutes § 52-172, which is commonly known as the dead man’s statute. We disagree.
“ ‘The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion.’ State v. Lindstrom, 46 Conn. App. 810, 818, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). ‘The trial court has wide discretion
Nancy Simmons,
“The dead man’s statute creates an exception to the hearsay rule. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 11.1-11.25. Its purpose is to create an equal footing between the living and the dead parties.” Rosales v. Lupien, 50 Conn. App. 405, 407-408, 717 A.2d 821 (1998). Although it is to be interpreted liberally, “every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died. This is particularly true where its admission would violate another well established rule of evidence.” Id., 408.
The dead man’s statute requires not only that the declarant be a representative of a decedent, but that the action be by or against a representative of the deceased person. O’Brien v. Coburn, 46 Conn. App. 620, 632, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).
The judgment is reversed only as to the trial court’s findings that the defendants have a twelve foot easement of necessity and an eight foot easement by implication over the plaintiffs’ property and the case is remanded with direction to vacate those findings. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
The plaintiffs at trial were John Pender, Mary Pender, Nancy P. Simmons and Dorothy Kemp. Only John Pender and Mary Pender have appealed. We therefore refer in this opinion to John Pender and Mary Pender as the plaintiffs.
The defendants are Joseph Matranga, Christina Matranga and Chris Wallace. The Matrangas own real property that the trial court found was benefited by easements over the plaintiffs’ property. Wallace was in the process of constructing a twelve foot wide roadway for the Matrangas on the plaintiffs’ property at the time the plaintiffs brought this injunction action.
The plaintiffs contend that a decision in a prior case resolving the width of the wood road on an adjacent plot of land that the wood road crosses bars redetermination of the width of the easement in this case. See McEachern v. Matranga, Superior Court, judicial district of Danbury, Docket No. 0319038 (August 15,1997). As this question of issue preclusion was not raised before the trial court, we will not consider it on appeal. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998).
As noted earlier, neither Nancy Simmons nor Dorothy Kemp, who is Nancy Simmons’ sister, is a party to this appeal.