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Village Apartments, LLC v. Ward

Court of Appeals of Connecticut

December 13, 2016


          Argued September 21, 2016

         Appeal from Superior Court, judicial district of New London, Moukawsher, J.

          Matthew G. Berger, for the appellant (plaintiff).

          Garon Camassar, for the appellees (named defendant et al.).

          Lavine, Alvord and Bear, Js.


          BEAR, J.

         The plaintiff, Village Apartments, LLC, appeals from the judgment of the trial court rendered in favor of the defendants Stanley P. Ward, Jr., and Rose Mary Ward, after a trial to the court, quieting title to a claimed easement in the form of a right-of-way (right-of-way) over the defendants' real property (property).[1] The court determined that the Marketable Title Act (act), General Statutes§ 47-33bet seq., extinguished the right-of-way because it was not preserved in the roots of title of the parties as required by the act and did not meet the apparent easement exceptions in General Statutes § 47-33h. On appeal, the plaintiff claims that the court erred in finding that the act extinguished its right-of-way (1) because it predated and was not properly set forth in either root of title; and (2) although there were visible, physical indicators of the existence of the right-of-way. We affirm the judgment of the trial court.

         In the first count of its complaint against the defendants, the church, and Citizens Bank, dated July 9, 2012, and returned to the court on August 1, 2012, the plaintiff sought to quiet title to the alleged deeded right-of-way over the defendants' property and the church's property.[2] The defendants alleged as a special defense, inter alia, that the act extinguished any rights that the plaintiff had to the claimed right-of-way. Following a trial to the court, [3] the court, Moukawsher, J., rendered judgment in favor of the defendants and Citizens Bank on June 9, 2015, and in favor of the plaintiff, as stipulated between it and the church. This appeal followed.

         The following factual findings of the court are relevant to this appeal. In 1877, an easement in the form of a right-of-way was created over property now owned separately by the defendants and the church in favor of property now owned by the plaintiff. Pursuant to the act, the plaintiff's root of title[4] is a 1968 deed that conveyed the property ‘‘[t]ogether with and subject to such rights of way, pipe line and other easements and privileges as will of record appear.'' The defendants' roots of title are one or two 1944 deeds[5] that referred to a ‘‘Frank Calvert'' ‘‘right of way.''[6] The 1944 deeds did not set forth that the property is subject to the Frank Calvert right-of-way, did not describe the right-of-way's metes and bounds, and did not incorporate by volume and page the title transaction that created that right-of-way.

         The court found that as of the dates of the trial, the alleged right-of-way area showed no evidence of ruts or marks that might suggest that it had been used as a cart path or track as claimed by the plaintiff. Photographs in evidence showed that the only open area within the alleged right-of-way revealed nothing to suggest its use as a cart path or track. The photographs showed that much of the disputed area was strewn with boulders, was covered with mature trees, and was incapable of accommodating any kind of path. From this and other evidence, the court concluded that there were no signs of a cart path or track on the property.

         In its memorandum of decision, the court concluded that the defendants' muniments of title[7] did not describe the right-of-way sufficiently to enforce it and that the muniments of title did not specifically identify the recorded title transaction that created the right-of-way. In its analysis, the court rejected the plaintiff's argument that references to the right-of-way in the 1944 deeds were necessary to determine the location of the five tracts conveyed therein. Consequently, the court concluded that the act extinguished the right-of-way unless an exception applied. The plaintiff argued that mere-stones[8] marking the right-of-way, a wire fence running along it, and signs of a cart path were physical evidence sufficient to satisfy one of the § 47-33h exceptions. The court concluded that fences and merestones were not included in the list of exceptions contained in § 47-33h and, although roads and tracks were included in the list, there were no signs of a cart path or tracks on the property. Accordingly, the court found that § 47-33h did not apply. In light of these determinations, the court declared that the defendants' property was not subject, under General Statutes § 47-31, to the purported right-of-way described in volume 21, page 99, and volume 21, page 100 of the Montville land records.[9] This appeal followed.


         The plaintiff claims that the trial court erred in determining that the act extinguished the right-of-way because the right-of-way predated the roots of title. Specifically, it contends that the reference to the Frank Calvert right-of-way in the 1944 deeds that constitute the defendants' roots of title is a specific reference satisfying § 47-33h. Additionally, the plaintiff argues that reference to the right-of-way in the deeds puts a reasonable title searcher on notice of the existence of an easement and that determination of the location of the right-of-way was necessary to ascertain the location of the three parcels constituting the defendants' property. The defendants argue that their roots of title do not specifically identify a recorded title transaction creating the right-of-way and that the description of the right-of-way was too vague to convey it. We agree with the defendants.

         We begin by setting forth the applicable 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 plenary. . . . Furthermore, the meaning of language used in a deed also raises a legal issue such that, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court's factual inferences.'' (Citation omitted; internal quotation marks omitted.) Johnson v. Sourignamath, 90 Conn.App. 388, 393-94, 877 A.2d 891 (2005).

         ‘‘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[10] (which is the root of title under the act) has a marketable record title[11] subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title. . . . The act declares null and void[12] 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.'' (Footnotes added; internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 507, 853 A.2d 460 (2004).

         ‘‘Even marketable record title, however, may be subject to certain interests. Section 47-33d[13] 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 . . . .' Thus, if an easement over a subject piece of property arises out of one or more of the muniments, including the deeds, of which the chain of record title is formed, a property owner takes the land subject to that easement. This general provision is subject to a proviso contained in § 47-33d (1), however, which provides that ‘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 . . . .' '' (Footnote added.) McBurney v.Cirillo, 276 Conn. 782, 808-809, 889 A.2d 759 (2006), overruled in part on other grounds by Batte-Holmgren v.Commissioner of Public Health, 281 ...

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