September 21, 2016
from Superior Court, judicial district of New London,
Matthew G. Berger, for the appellant (plaintiff).
Camassar, for the appellees (named defendant et al.).
Lavine, Alvord and Bear, Js.
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). 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
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. 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,  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
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 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 that referred to a ‘‘Frank
Calvert'' ‘‘right of
way.'' 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.
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.
memorandum of decision, the court concluded that the
defendants' muniments of title 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 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. This appeal followed.
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.
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).
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 (which is the root of title under the
act) has a marketable record title 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 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).
marketable record title, however, may be subject to certain
interests. Section 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 .
. . .' 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 ...