Opinion
No. CV 03-0100645-S
September 15, 2005
MEMORANDUM OF DECISION
In this case the plaintiff, Charles D. Mierzejewski, seeks to extinguish the deeded right of way of the defendant, Crary Brownell, over the plaintiff's land. After trial the court finds the following facts. The plaintiff purchased his property, a developed parcel known as 133 Bashan Road on Bashan Lake in East Haddam (the "Mierzejewski Property"), in 1994 from Ronald and Karoline Swan. The defendant obtained his property, an undeveloped parcel of approximately 3.1 acres on Bashan Lake (the "Brownell Property") by quitclaim deed from his mother, Helen Brownell in December 1997. The Brownell Property had been in the defendant's family since 1958.
The deed to the defendant contained the following language:
Said property is more particularly described as Parcel No 1. on a map entitled, "Map showing property of Constance S. Cuthbertson, East Haddam, Connecticut. March 1950, Scale 1"=50', Lawrence E. Gitchell, Registered Land Surveyor as amended by a map showing dividing line certified by Carroll A. Campbell, Registered Land Surveyor and C.E., Middletown, Connecticut, October 1958."
Together with a right of way over an old highway as more fully set forth in a Warranty Deed from Arthur Foreman and Lillian M. Foreman to Nathan Brownell and Crary Brownell, dated October 8, 1958, and recorded in the East Haddam Land Records, Volume 72, Page 436.
Being the same premises described in a Quit Claim Deed from Crary Brownell to Sumner I. Brownell, dated March 8, 1974, and recorded in the East Haddam Land Records, Volume 104, Page 472. Also see Volume 174, Page 109.
The Mierzejewski Property was also a part of the property of Arthur and Lillian Foreman referred to in the description above. The Foremans acquired 13.2 acres of property with a frontage on Lake Bashan and access to Bashan Road on September 25, 1958 by a Warranty Deed from Constance Sauer Cuthbertson. On the same day the Foremans acquired the property, they subdivided it by transferring 3.1 +/- acres in the western part of the property to Nathan and Crary Brownell. The deed from the Foremans to the Brownells created an easement of access over the land retained by the Foremans to the land conveyed to the Brownells. The deed stated:
Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.
The Old Highway referred to in the deed from the Foremans was discontinued as a public highway in 1866. The property conveyed by the Foremans to the Brownells in 1958 has stayed in he Brownell family since that date. The right of way is the only access of the Brownell Property to any roadway.
After they conveyed property to the Brownells, the Foremans conveyed out additional portions of the property north of the Old Highway shown on the Cuthbertson Map. The property remaining after these conveyances is what is now the "Mierzejewski Property."
In 1986 the Foremans conveyed the Mierzejewski Property to Norbert Pomeranz. The deed to Pomeranz made reference to the access easement in favor of the Brownell Property by saying the property was subject to the easements shown on the Cuthbertson Map. On April 1, 1991, Pomeranz conveyed the Mierzejewski Property to Ronald and Karoline Swan. This conveyance was again subject to the easement in favor of the Brownell Property. The Swans conveyed the Mierzejewski Property to the plaintiff in 1994. The deed to the plaintiff made a specific reference to the right of way described in the 1958 deed from the Foremans to the Brownells.
When Pomeranz acquired the Mierzejewski Property he made improvements on the property, including the installation of a new septic system. At the time Pomeranz put in the new septic system the ordinances of the Town of East Haddam required that Pomeranz apply for a building permit prior to constructing the septic system. Pomeranz did not apply for any permit. The septic system involved the installation of a septic tank under a portion of the right of way. Pomeranz had fill placed over the tank to form a slightly elevated area. That elevated area does not have any pump, manhole cover, stand pipe or any other evidence that there is a septic tank or anything else beneath it. Since the land in the area is sloping and uneven, the area above the septic tank appears to be an unimproved portion of the plaintiff's property with trees and other vegetation growing on it.
When the plaintiff purchased the Mierzejewski Property he was aware of the right of way described in the 1958 deed from the Foremans to the Brownells. Moreover, the right of way is mentioned in two title insurance policies, one dated June 21, 1994, issued in connection with the plaintiff's purchase of the property, and the other dated July 11, 2003, in which the plaintiff signed an Owner's affidavit which referenced the right of way.
The plaintiff claims that he and his predecessors in title have acquired the area of the right of way by adverse possession.
An express reservation of easement may be lost by prescription. "[I]f the servient owner [the defendant here] should by adverse acts lasting through the prescriptive period obstruct the dominant owner's [the plaintiffs here] enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement."[fn 1] American Brass Co. v. Serra, 104 Conn. 139, 146, 132 A. 565 (1926); Schroeder v. Taylor, 104 Conn. 596, 605, 134 A. 63 (1926); 28 C.J.S., Easements 53, 63; 2 Thompson, Real Property 445.
Russo v. Terek, 7 Conn.App. 252, 255, 508 A.2d 788 (1986).
As indicated by the court in American Brass Co., to prove extinguishment of an easement by prescription, the rights and acts of the respective parties are considered toward the end of establishing that the owners of the servient tract, by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominant tract so as to form a basis for an inference of a grant, releasing the easement, by an owner of the dominant tract to the owner of the servient tract.
Boccanfuso v. Conner, 89 Conn.App. 260, 281, 873 A.2d 208 (2005).
The presence of an underground sewer line has been held to be insufficient to constitute an open and visible use of property. Exley v. Gallavin, 96 Conn. 676, 115 A. 482 (1921); Ricci v. Naples, 108 Conn. 19, 25, 142 A. 452 (1928).
The plaintiff has presented evidence that the septic tank was installed in 1987 by Mr. Pomeranz and that some neighbors observed the installation. The septic tank is located in a wooded area over 250 feet from a public roadway. There was no evidence that the defendant or any of his predecessors in title were aware of the construction of or the existence of the underground septic tank area.
There was no evidence presented as to the length of time it took to install the septic system. Mr. Pomeranz did not testify and there was no evidence that he was aware that his septic tank was even within the right of way. Thus there was no evidence that Mr. Pomeranz or any owner before the plaintiff had any intent to exclude the defendant or his predecessors from the right of way when the septic tank was installed or maintained. Intent may be inferred from the "servient owner's `open, visible, continuous and uninterrupted' use for a period exceeding fifteen years." Public Storage v. Eliot Street Ltd. Partner., 20 Conn.App. 380, 383-84, 567 A.2d 389 (1989).
In Russo the servient owner's construction and use of and outdoor fireplace which blocked vehicular traffic was sufficiently open, visible and continuous to permit the inference that the servient owner intended to deprive the dominant owner of the use of the right of way. In Public Storage the servient owner's construction of a chain link fence blocking the right of way was also sufficiently open, visible and continuous to permit such an inference.
In the present case, apart from the construction period, there was never any open and visible interference with the right of way. The court finds that the area of the right of way under which the septic tank is located contains absolutely no indicia that anything is underneath the ground and appears only as a slight elevation in the terrain which would not interfere with the use of the right of way any more than any natural elevation would interfere. Since the plaintiff has failed to prove that he or his predecessors have by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominant estate, the defendant, or his predecessors, he has failed to prove either adverse possession or a prescriptive easement.
Both parties contend that the plaintiff must prove adverse possession by clear and convincing evidence. However, where the owner of a servient estate claims to have extinguished or diminished an easement through adverse possession, he need only satisfy the preponderance of the evidence standard, as he is not seeking to establish ownership of land which he already owns. See Public Storage, supra, at 385. The plaintiff has failed to prove adverse possession even by a preponderance of the evidence.
The special defenses and counterclaims of the defendant claiming easement by necessity, easement by estoppel, appurtenant easement and easement by prescription, apparently have been filed in the alternative. Having decided that the deeded right of way in question still exists and has not been adversely possessed or otherwise extinguished by the plaintiff, the court need not address those special defenses and counterclaims.
The parties also disagreed as to the location of the right of way. The plaintiff has submitted a survey map performed at his request which shows that the easterly portion of the right of way passes over only 10 feet of the plaintiff's property and ten feet of the property of Robert and Janice Laneri. The defendant claims that all sections of the right of way are entirely on the Mierzejewski Property. The court agrees with the defendant.
The language of the original grant of the right of way found in the deed from the Foremans to the Brownells provides:
Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.
The Robinson property, now the Laneri Property, was never owned by the Foremans, and, therefore, they had no right to grant any right of way over it. The language of the deed does not purport to do so, but rather speaks of the right of way running through the land of the grantors and along the Robinson property. The meaning and effect of the language in the deed is to be determined by the intent expressed within the deed and not by speculating at the intent of the parties. Dent v. Lovejoy, 85 Conn.App. 455, 462, 857 A.2d 952 (2004); Bird Peak Road Association, Inc. v. Bird Peak Corp, 62 Conn.App. 551, 557, 771 A.2d 260 (2001).
The language in the Foreman deed granting the right of way at issue here was quite clear as to the size of the right of way. The right of way runs along the northern property line of the Mierzejewski Property and is 20 feet in width, with the entire right of way being located on that property. In accordance with the language of the deed, the right of way may be used for vehicles, foot traffic, utility access and any and all other purposes in connection with the Brownell Property.
This is not an injunction action and, therefore, the court cannot order the plaintiff to relocate his septic system. However, the defendant is free to construct a driveway in the right of way and if the plaintiff does not relocate his septic system, he runs the risk that it will be damaged by that construction.
By the court,
Aurigemma, J.