CURTIS D. DEANE
AMY DAY KAHN ET AL
Argued March 23, 2015.
Action for, inter alia, a judgment determining the rights of the parties as to a right-of-way on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Hartford, where the named defendant et al. filed a counterclaim; thereafter, the matter was transferred to the Complex Litigation Docket and tried to the court, Shortall, J.; judgment in part for the plaintiff; thereafter, the named defendant et al. appealed to the Appellate Court, Gruendel, Sheldon and Peters, Js., which reversed in part the judgment of the trial court, and the plaintiff, on the granting of certification, appealed to this court.
Affirmed in part; reversed in part; further proceedings.
The plaintiff brought an action seeking, inter alia, to quiet title to an alleged right-of-way connecting the riverfront portion of his property to a public road over certain parcels of real property owned by the defendants. Specifically, the plaintiff alleged the creation of an easement by deed over property owned by the defendant G, and the creation of an easement by necessity and implication over property owned by the defendants A and R. The three parcels were originally part of an estate that was divided into a series of parcels. The trial court concluded, and the parties agreed, that the language of a deed from a common grantor in 1935 evinced an intent to create an easement over G's property. The trial court established the location and scope of that easement by relying on, inter alia, maps and testimony describing the right-of-way as it existed in the 1940s and 1950s. The trial court further concluded that the plaintiff had established an easement by necessity over A and R's property because, although the portion of the plaintiff's property on which his home was located was accessible from a public road and therefore was not landlocked, a steep slope rendered the riverfront portion of the plaintiff's property inaccessible and precluded the reasonable and productive use of his land. The defendants subsequently appealed to the Appellate Court, which concluded that, in the absence of evidence regarding the use of the right-of-way at the time the 1935 deed was executed, the plaintiff had failed to prove the location or scope of the easement over G's property. The Appellate Court further concluded that the plaintiff was not entitled to an easement by necessity or implication over A & R's property, the plaintiff having failed to show that his property would be landlocked without the right-of way or to show that the parties intended to create such an easement when the plaintiff's land was separated from A & R' property in 1960, and trial court having failed to make any findings related to the scope of the easement over A and R's property at that time. The Appellate Court reversed the judgment of the trial court with respect to the easement by deed over G's property and the easement by necessity over A & R's property and, on the granting of certification, the plaintiff appealed to this court.
1. The Appellate Court improperly concluded that the plaintiff failed to prove the scope or location of the easement over G's property, there having been sufficient evidence in the record to support the trial court's factual findings regarding the location and scope of the deeded easement because the evidence regarding the use of the right-of-way in the 1940s and 1950s was reasonably related to the circumstances surrounding the execution of the 1935 deed and, therefore, was properly considered by the trial court; moreover, contrary to G's claim, the judgment of the Appellate Court regarding that easement could not be affirmed on the alternative ground that the easement over G's property was in gross, this court having concluded that, because the 1935 deed retained the easement " in perpetuity" and subsequent owners of G's property continued to recognize the easement, there was sufficient evidence to support the trial court's finding that the easement was appurtenant to the plaintiff's property.
2. This court did not address whether the Appellate Court improperly concluded that the plaintiff failed to prove the scope of the easement by necessity over A and R's property, this court having concluded that the judgment of the Appellate Court regarding the easement by necessity could be affirmed on the alternative ground that the plaintiff's property was not landlocked; although an easement by necessity may be created upon a showing of reasonable necessity, the plaintiff was not entitled to such an easement in the absence of a factual finding by the trial court that the cost of providing access to the riverfront portion of his property without a right-of-way would exceed the value his entire property.
3. The Appellate Court improperly concluded that the plaintiff had failed to prove the scope of an easement by implication over A and R's property; although the trial court made some factual findings that could support the plaintiff's claim for an easement by implication, those findings may have been merely incidental to the judgment rendered on the count of easement by necessity and this court declined to surmise whether the trial court would have made any additional factual findings in the event it had rendered judgment on that count of the plaintiff's complaint.
Wesley W. Horton, with whom were Brandon P. Levesque and F. Thor Holth, for the appellant (plaintiff).
Lloyd L. Langhammer, for the appellees (named defendant et al.).
Sean P. Clark, with whom was Kerry R. Callahan, for the appellee (defendant John Gorman).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. EVELEIGH, J. In this opinion the other justices concurred.
[317 Conn. 159] EVELEIGH, J.
The plaintiff, Curtis D. Deane, claims a right-of-way over land owned by the defendant John Gorman and land owned by the defendants Amy Day Kahn and Robert Kahn. In this certified appeal, the plaintiff appeals from the judgment of the Appellate Court reversing the judgment of the trial court quieting title and establishing an easement by deed as of 1935 in favor of the plaintiff over the Gorman property and establishing an easement by necessity as of 1960 in favor of the plaintiff over the Kahn property. The plaintiff claims that the Appellate Court improperly concluded that he failed to prove: (1) the location or use of the easement by deed over the Gorman property; and (2) the use of the easement by necessity or implication over the Kahn property at the time his property became effectively landlocked. Regarding the Gorman property, we reverse the judgment of the Appellate Court as to the creation of an easement by deed and, accordingly, remand the case to that court with direction to affirm the judgment of the trial court on that [317 Conn. 160] count of the plaintiff's complaint. Regarding the Kahn property, we affirm the judgment of the Appellate Court as to the creation of an easement by necessity, but reverse as to the creation of an easement by implication and, accordingly, remand the case to the Appellate Court with direction to remand the case to the trial court for further proceedings in accordance with this opinion.
The following undisputed facts and procedural history are relevant to the present appeal. " In the early 1900s, Harriet Warner owned a large estate of land along the
shore of the Connecticut River in Lyme. The estate was shaped roughly like a triangle, with its base running along the riverfront on the south side of the estate, where the river flows from west to east. The estate was accessible from the northeast via Brockway's Ferry Road, a public road that ran from northeast to southwest along the upper left or northwest side of the estate. As the road approached the river, however, near the southwest corner of the estate, it split into two branches, one of which continued southwestward while the other turned sharply to the east and continued eastward, parallel to the river, part way across the south side of the estate." Deane v. Kahn, 149 Conn.App. 62, 64, 88 A.3d 1230 (2014).
The estate would later be divided into a series of parcels that the parties in the present case would come to own. The three properties owned by the parties are [317 Conn. 161] contiguous, with the Gorman property to the west, the Kahn property in the middle, and the Deane property to the east. See footnote 2 of this opinion. Common to all three properties is the private right-of-way at issue in the present case, which extends from the end of the eastward branch of Brockway's Ferry Road, and continues parallel to the river part of the way across the south side of the estate. " In this action to quiet title, the plaintiff . . . claims that he has the right to access the southern, riverfront portion of his sloping property from the west, across: (1) [the Gorman property] . . . over which the plaintiff claims a right-of-way pursuant to [a] 1935 deed; and (2) [the Kahn property] . . . over which the plaintiff claims an easement by necessity [that arose in 1960]." Deane v. Kahn, supra, 149 Conn.App. 65.
" On January 19, 1935, Harriet Warner conveyed a fee simple interest in [the Gorman property] to Walter Hastings." Id., 64. " Under the terms of Harriet Warner's deed to Walter Hastings . . . the tract conveyed to him was to be free of encumbrances, 'except that a [right-of-way] is reserved in perpetuity across said tract along the route now in use.' The 1935 deed contained no other language describing the location, direction, dimensions, uses or purposes of the right-of-way so reserved, or of 'the route now in use' along which it was to run." Id., 64-65.
" In 1936, Harriet Warner conveyed the remainder of her estate to her children, Hester Warner and [Musa Warner] Caples. Although Harriet Warner reserved a life use of the property so conveyed for herself, her deeds to her daughters made no mention of the right-of-way across the Gorman property reserved in the 1935 deed. On December 30, 1936, Hester Warner and Caples split the property between themselves, Caples conveying the western portion of the property to Hester Warner and Hester Warner conveying the eastern portion [317 Conn. 162] of the property, including [what would become] the Kahn and Deane properties, to Caples.
" In 1938, the Gorman property was transferred by certificate of devise from the estate of Walter Hastings to William Hastings, whereafter, in 1945, it was conveyed by William Hastings to Kenneth Johnson. . . . No mention of the 1935 right-of-way was made in any of the above-described conveyances of the Gorman property.
" On February 8, 1955, Johnson conveyed the Gorman property to [Marion
Sreboff and Charles Sreboff]. The 1955 deed from Johnson to the Sreboffs mentioned the right-of-way reserved by the 1935 conveyance for the first time since that date. It provided, more particularly, that the property so conveyed was subject: 'To a [right-of-way] reserved in [the 1935] deed recorded in Volume 51 at page 25 of the Lyme land records in perpetuity across the land above described as parcel 1 and along the route now in use.' There has been no other reference to the 1935 reservation ...