Opinion
No. CV01-0166193S
October 12, 2005
MEMORANDUM OF DECISION
Pilot's Mall LLC originally brought this action against Christian Associates, Incorporated, BALA Ridge Road, LLC, Strongtown Road, LLC and Mary Kaytis. The Estate of Mary Kaytis was substituted as a defendant upon her death. The complaint was in two counts; Count One sounding in Trespass and the Second Count pursuant to C.G.S. § 47-31 asking the court to determine the rights of the parties to a disputed section of highway which will be described below. The plaintiff basically claims that it is the fee-simple owner to the disputed area and as such these defendants have no rights to travel over the disputed area for any reason. The plaintiff settled with the Estate of Mary Kaytis just prior to trial by granting it an easement to use the disputed area for residential access only.
Defendants provided their Answer and Special Defenses including a statement required by C.G.S. § 47-31(d) as to the basis of their Special Defenses stating in the alternative that 1) the disputed highway area is the Southbury portion of the East-West highway (defined below) and is a Southbury town road which has not been abandoned as discontinued, 2) if the disputed highway section has been abandoned the defendants have statutory private rights of easement pursuant to C.G.S. § 13(a)-55 to access Route 188 in Southbury, 3) if 13(a)-55 is not available, the defendants have acquired an easement by implication based on deeds and maps, and 4) a right to use the disputed area by virtue of an easement by prescription.
Pilot is a successor in interest to Uniroyal and International Business Machines Incorporated (IBM) and owner of approximately 585 acres of property in Southbury, Oxford and Woodbury which basically surrounds the defendant's property. A portion of its property in Southbury has provided access far many years to several property owners out to State Route 188 in Southbury, also known as Strongtown Road. This access way which measures 160 feet in length extends from the intersection of Bala Ridge Road and the discontinued Old Strongtown Road in Southbury in a westerly direction to where it intersects with Route 188. The right to use this 160-foot section of the East-West Highway between said intersection and the current Route 188 is the subject of this action. This section is shown of "Driveway subject to the rights of others" on Defendant's Exhibit 17, an IBM map prepared for Pilot and recorded in Southbury. This access way since 1820 has been variously referred to as highway, Dark Entry Road, Dark Meadow Road, driveway and Woods Road. The disputed area is best shown on Defendant's Exhibit 92, a large composite map, which shows the entire area in Oxford and Southbury in the area of the disputed section.
That map also shows the property line between Oxford and Southbury being the center line of Eight Mile Brook. On said map Southbury is to the west of the brook and Oxford is to the east. The defendant, Christian Associates, Inc., is the owner of a four-acre parcel of land in Oxford upon which a residence once existed just east of the town line. (Eight Mile Brook, just described.) That property in Oxford now permits industrial and commercial uses and Christian has constructed its corporate headquarters on the property at a cost of two million dollars and operates a business thereon, DeSantis, Inc., which contracts its street sweeping services to municipalities and private industries and uses the site for storage, maintenance and repair of associated equipment. These premises, formerly known as the Dumas property, fronts on an impassable but not discontinued road in Oxford called Bala Ridge Road.
Bala Ridge Road continues to the West into Southbury, also known as Bala Ridge Road, at least to the intersection of the now discontinued Old Strongtown Road. The property proceeding Westerly from the Christian Associates property on the northerly side of the highway is owned by Bala Ridge Road, LLC and the next property West on Bala Ridge Road, LLC also north of the highway is owned by Strongtown Road, LLC. All three of these companies are owned by John Dubioso. No construction exists on the Southbury property of Bala Ridge Road, LLC on Strongtown Road, LLC. Strongtown Road, LLC is bounded on the north by the property of the Estate of Mary Kaytis.
From the time Christian Associates acquired its property its only access to the outside has been over the roadway shown as Bala Ridge Road thence proceeding westerly along property owned by Bala Ridge Road, LLC and Strongtown Road, LLC to the intersection of the discontinued Old Strongtown Road and continuing Westerly across the disputed area out to State Road 188.
The only way to get to the Christian Associates, Inc. property in Oxford is to enter from Route 188 in Southbury and proceed easterly along the same roadway or access way. All of the trucks, material and labor that went into building Christian's two-million-dollar corporate headquarters used that same and only access. The court concludes that the roadway area was wide enough and sturdy enough to handle these large trucks.
Up until this time there is no evidence that any predecessor in title to the plaintiff has ever denied access across the disputed property to anyone. Prior to 1936 when the new Route 188 was constructed, Bala Ridge Road in Southbury proceeded westerly beyond its intersection with Old Strongtown Road beyond the current Route 188 and proceeded Westerly for virtually the entire length of the roadway as shown on Plaintiff's Exhibit 92. To the west of Route 188 it was referred to as something other than Bala Ridge Road.
After 1936 when the new State Route 188 was constructed and Old Strongtown Road was abandoned, the disputed area between the intersection of Bala Ridge Road and Old Strongtown continued to be used for access by anyone with property to the East of Route 188. It was only when the defendant, Christian Associates, began to use its property in Oxford for an industrial use, and utilized the roadway including the disputed area, that the plaintiff took this action to deny Christian Associates access to Route 188.
The problem with the plaintiff's position is that it doesn't seem to deny that the disputed area is a road or an access way to Route 188. It acknowledges that the predecessors in title to Christian Associates have always used the road to get to Route 188. Before the case began it granted a residential easement to the Estate of Mary Kaytis to get from its property on the Old Strongtown Road over the disputed area to Route 188. Even in its brief on page 2 in describing the defendant's use of the disputed area it says "and westerly direction through Bala Ridge Road to the point where the road intersections the discontinued Old Strongtown Road and across the Woods Road onto Route 188." It continually talks of the disputed area as a road.
The plaintiff states on page 4 of its brief that "The Woods Road between Old Strongtown Road and Route 188 crosses land owned exclusively by Pilot's Mall, LLC." The only evidence to support that fact is Plaintiff's Exhibit 1, a title report done by Attorney Charles Johnson who was not even called as a witness. That, however, is not the issue to be decided in this case.
Before getting to the merits of the case let us get some perspective as to the evidence presented by each side. The plaintiff has presented 12 exhibits and has called two witnesses, John Dubioso, Christian's owner, and William Kaytis, the son of Mary Kaytis. Mr. Dubioso bought the Dumas property in 2000 and the tenants in the Dumas house continued to utilize the disputed roadway to Route 188. Dubioso generally described his business, the construction of his corporate headquarters and his use of the roadway out to Route 188 as his only outlet. Apparently his construction equipment and materials easily traversed the 20-foot wide road and bridge leading to his property. He testified his address is 50 Bala Ridge Road and his mailbox is on Route 188. Mr. Kaytis testified to the use by his parents of their property on Old Strongtown Road and the use by Mrs. Dumas from at least 1950 to the present of her residence on property that is now owned by Christian Associates. They all exclusively used the plaintiff's Woods Road to access Route 188. He described Woods Road as paved in the 1950s. With that the plaintiff rested. It has subsequently filed a 15-page post-trial brief.
The defendants called four witnesses; Michael Kenney, former First Selectman of Southbury from 1971 to 1983; Frank Staub, a neighbor; Nicholas Poletta, a title-searcher; and Ken Hricka, a land surveyor and engineer. They also introduced over one hundred exhibits, mainly deeds and maps of the area involved demonstrating the existence of a "highway" both east and west of Route 188 and Old Strongtown Road as far back as 1820. They have filed a 48-page brief detailing the back title to the properties both north and south of that East-West highway as shown on Exhibit 92 to demonstrate its existence. The court will not repeat all of that evidence, but will selectively make use of it.
Before describing the defendants' evidence, it is important to realize that when a deed executed in 1840 makes reference to a highway, it is not a highway as we think of today. The auto was more than 60 years away and these roads or highways were often for walking, horses and horse and buggies. How we dedicate or accept a road today for public use is not how it was done in 1840.
The plaintiff on Page 7 of its post-trial brief sets forth what it believes is the sole issue in this case in the following language:
Whether the owners of the Christian parcel, Bala Ridge Road and Strongtown parcel may have unrestricted access over Plaintiff's Woods Road or whether such access is limited to normal residential purposes as established by the historical use over Woods Road.
Firstly, this court does not believe that is the main issue of the case. The central issue is whether a town road in Southbury existed from the Oxford-Southbury town line adjoining the Christian Associates property and proceeded westerly out to Route 188. The issue as presented by the plaintiff would limit this case to a discussion of prescriptive rights and whether an easement may be expanded beyond its initial use.
What is also interesting about the plaintiff's limited issue is that it appears to acknowledge that a restricted access over Woods Road to Route 188 for residential purposes in fact exists for anyone owning property east of Route 188. It clearly recognizes that as it applied to the Dumas and Kaytis property. It absolutely concedes that in the conclusion to its Trial Brief at page 14 where it states "the Woods Road in question owned by Pilot's Mall is not a public highway and the rights of the Defendants to pass over the Woods Road is limited to residential use." Their only issue is that Christian Associates, LLC may not use it for a permitted use in Oxford. Although it is suing Christian Associates, Bala Ridge Road, LLC and Strongtown Road, LLC, it is only Christian Associates conduct that it is complaining about. No present use is being made of the property of Bala Ridge Road, LLC or Strongtown Road, LLC. There is no building on either property. There is little reason to have even sued them. They have nothing to do with Christian Associates or its street sweeper business, Desantis. They are only parties to the Second Count, the Quiet Title action.
The issue the court must decide initially is whether the so called East-West Highway is a town road in Southbury, whether it was dedicated and accepted and if it was, whether it was ever abandoned or discontinued. That issue is a difficult one and may never be established with absolute certainty. The court will look at the law, the live testimony and the large number of exhibits.
The court will begin the process with a brief recitation of the pertinent law concerning roads.
Public highways are created by dedication and acceptance. The "essential feature of a highway is that it is a way over which the public at large has the right to pass." Wamphassuc Pointe Property Owners Association v. Public Utilities Commission, 154 Conn. 674 (1967). From early times, under the common law, highways have been established in this state by dedication and acceptance by the public. Id. at 680-81, citing Reed v. Risley, 151 Conn. 372, 376 (1964); DiCiocco v. Town of Wethersfield, 146 Conn. 474, 479 (1959); State v. Taft, 37 Conn. 392, 398 (1870). No particular formality is required. Both the owners' intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public. Johnson v. Town of Watertown, 131 Conn. 84, 89 (1994); LaChappelle v. Borough of Jewett City, 121 Conn. 381, 386, 387 (1936); City of New London v. Pequot Point Beach Co., 112 Conn. 340, 344 (1930); Russo v. Seleit, 98 Conn. 398, 404 (1922); Hartford v. New York N.E.R. Co., 59 Conn. 250, 254 (1890); Whippoorwill Crest Co. v. Stratford, supra, 271 (1958); see Crescent Beach Ass'n. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wamphassuc Point Property Owners Ass'n. v. Public Utilities Commission, 154 Conn. 674, 680-81 (1967); 23 Am.Jur.2d, Dedication 1. "No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. Whippoorwill Crest Co. v. Stratford, supra, 272; Phillips v. Stamford, 81 Conn. 408, 411 (1908)." Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279 (1980).
"Where the municipality has done nothing with the street, implied acceptance may still be found through the actions of the general public use is frequent enough and goes on over a sufficient length of time . . . actual use of the street is the essence of acceptance by implication." See Sostman, Ellen and Anderson, Jonathon S.R., THE HIGHWAY RIGHT OF WAY: AN ANALYSIS OF THE DECISION LAW IN CONNECTICUT CONCERNING PUBLIC PRIVATE AND PROPOSED ROADS FROM ESTABLISHMENT OF ABANDONMENT, 61 Connecticut Bar Journal 299 (1987) at 305. The focus is not on the number of users but on the nature of the use. Id. Use by pedestrians and occasional vehicles in the summer was sufficient in one case. Id.
Acceptance of a highway by the public is presumed, where it is shown to be of common convenience and necessity, and therefore beneficial. City of New London v. Peguot Point Beach Co., et al, 112 Conn. 340 (1930). As testified by the First Selectman, where a road links two towns and intersects and provides access to a major highway there is deemed a public interest in continuing the roadway. Although Bala Ridge Road to the East of the Christian Property is unimproved in Oxford, the 160-foot section of this Road would provide a needed connection of that road to Route 188. Further where there is a way of common convenience and necessity to link the two towns there is less use required. As with the Meshberg v. Bridgeport City Trust Company case where there was access to the beach for the segment of the public that wanted to use it, here there is access to the pond at the town line for the public at large and the fact that the highway in issue links to Oxford to complete the connection to Bala Ridge Road in Oxford (sometimes also called Bala Ridge Road on the Southbury side). 180 Conn. 274 (1980)
Even where roads are not plowed and paved by the Town or the Town has done nothing with the street, implied acceptance may still be found through the actions of the general public if the public use is frequent enough and goes on over a sufficient length of time.
Implied acceptance is a question of fact. Phillips v. Stamford, 81 Conn. 406 (1908). See "Use" discussion above confirming year-round use by many property owners and the general public. A 1970 Blueberry Hill Farm Map shows that at least 5 properties utilize the East-West Highway in Southbury and Oxford East of Strongtown Road/Route 188 to obtain access to Strongtown Road/Route 188.
Once a road is established as a public thoroughfare, its public status continues until the road is discontinued or abandoned. Discontinuance and abandonment are two separate methods in which the public status of the road terminates. Discontinuance is accomplished when the municipality follows the prescribed statutory requirements. Abandonment occurs when there is a sufficient period of nonuse by the public coupled with an intent to abandon the road. Both methods involve legal analysis of the town's actions and an examination of factual and historical considerations. State statutes provide that "[t]he selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the general assembly, and except where such highway is within a city, or within a borough having control of highways within its limits." The antecedent to this statute has been in place since 1799. Witty v. Hartland Planning Zoning Commission, 2000 WL 765378 (Conn.Super). The purpose of the statutory procedure is to provide notice to aggrieved parties in order that they may appeal the discontinuance within the time frame set by Conn. Gen. Stat. § 13a-62. The effect of the discontinuance is that the easement in favor of the general public for use of the road is extinguished and typically the fee-title to the roadbed either remains in or is vested in the abutting property owners, one-half each to the center line of the road. Luf v. Southbury, 188 Conn. 336, 341 (1982); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56 (1955); Benham v. Potter, 52 Conn. 248, 252 (1884). However, if the discontinuance is after 1959, property owners abutting the discontinued road retain the right of access as set forth at Conn. Gen. Stat. § 13a-55.
If there has been no statutory and formal discontinuance approved by a Town Meeting, a town road or highway may lose its public status if it is found to have been "abandoned." The burden of proof is on the party trying to establish abandonment, and the continuance of the highway is to be presumed in each case. Appeal of St. John's Church, 83 Conn. 101, 105 (1910). Thus, the Plaintiff has the burden of proving this issue. The Plaintiff has provided no evidence on this issue. Further, once a street has been accepted by a municipality, "no further action on the part of the general public is required to constitute the street a public highway." DiCioccio v. Wethersfield, 146 Conn. 474, 481 (1959). The actions of the Town approving maps showing private driveways did not amount to either termination of acceptance of the Disputed Highway Section or abandonment. Id. What is required is non-use for many years to make out a prima facie case that there has been a relinquishment of the public easement. Benham v. Potter, 52 Conn. 248 (1884); see Greist v. Amrhyn, 80 Conn. 280, 285 (1907). However, the fact that "a highway has not been used for many years alone is insufficient. Mere nonuse is not enough. The case law requires an intent to abandon together with the nonuse." E. Sostman J. Anderson, "The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment." 61 Conn. B.J. 299-98 (citations omitted, emphasis supplied); Marrin v. Spearow, 35 Conn.App. 398, 405 (1994).
Abandonment implies a "voluntary and intentional renunciation." City of New London v. Peguot Point Beach Co., 112 Conn. 340, 347 (1930), citing Newkirk v. Sherwood, 89 Conn. 598, 605 (1915). However, the court can look at the surrounding circumstances to make this determination. Id. The most important factor is the length of time the public has ceased to use the road.
Before going any further the Court will dispose of the first count sounding in Trespass against Christian Associates, Inc. The only paragraph in the First Count that even mentions the word trespass is paragraph 10 which paragraph the plaintiff has specifically withdrawn. In paragraph 11, the plaintiff claims irreparable harm and asks for an injunction. And yet it offered no evidence from anyone associated with Pilot's Mall on the subject of irreparable harm. In fact it offered no testimony from anyone on behalf of Pilot's Mall on any subject of this litigation. Their Trial Brief doesn't even mention trespass or define its elements.
On the basis of a failure of proof, judgment shall enter for the defendant Christian Associates, Inc. on the First Count.
The Second Count is a mirror image of the First Count with the addition of three more defendants Bala Ridge Road, LLC, Strongtown Road, LLC and Mary Kaytis. The evidence presented by the plaintiff as to each count is exactly the same, two witnesses, both defendants, DuBioso and Kaytis, and a handful of exhibits. On this thin veil of evidence the plaintiff wants to deny access to Route 188 to Christian Associates, Inc. and render its $2 million corporate headquarters a shell. Their only evidence remotely on point is the title report of Attorney Charles Johnson who concludes that the title to the roadway being used by the defendants is in the name of the plaintiff. That simply is not the issue in this case.
Attorney Johnson was not called as a witness to explain his position or explain what the language in the deed from IBM to Pilot's "Subject to the Rights of Others," meant when referring to the disputed highway. Because there are no deeded easements providing these rights or designation of particular properties possessing these rights, the only possible and reasonable explanation is that they stem from the East-West Highway's existence to serve the general public.
It appears that the plaintiff does not contest that a road exists to the East of the disputed highway. However, this 160-foot section to the west has been used no differently than the remaining portion of the highway, it is simply further to the West along the same road. There is no rational explanation for the proposition that the highway exists East of Old Strongtown Road but does not cover the 160-foot section between Old Strongtown Road to the West to Route 188.
The entire roadway was of common convenience and necessity to the bordering properties. It's all one road. Pilot's ownership of both sides of the disputed highway section does not change this result.
That the East-West Highway crossing Strongtown Road remained after the relocation is borne out by the State Construction Maps. These maps showing the Strongtown Road/Route 188 and its intersection with the existing East-West Highway are as follows:
"Town of Southbury, Plan Showing Land to Be Acquired from Julian Schwabacher, By The State of Connecticut, Strongtown Road" 1935. Map 256 Southbury Land Records ("SLR"). [Def. Exhibit 3]; "Town of Southbury, Plan Showing Lane to Be Acquired from James C. And Winifred S. Kelsey, By The State of Connecticut, Strongtown Road" 1935 Map 263 SLR. [Def. Exhibit 43;
On these plans, the East-West Highway is depicted as continuing from the relocated intersection with Strongtown Road/Route 188 to the East to connect with the old intersection with Old Strongtown Road and similarly to the West of Strongtown Road/Route 188 the maps show the intersection with the continuation of this road — the East-West Highway. These maps do not suggest that the State's intersection relocation of Strongtown Road 160 feet westward along the East-West Highway would create a road to nowhere by eliminating the access to the East from Bala Ridge Road/Dark Entry Road to the intersection with Strongtown Road/Route 188 — the only existing access to the Defendants' properties.
To prevail Pilot must prove that the disputed highway section is not a public highway in the Town of Southbury. That it has failed to do. Failing that it has conceded that all defendants have an easement based on usage to use the roadway for residential purposes. Their final argument would then be that Christian Associates, Inc could not expand the residential use to an industrial use. What it is suing Bala Ridge Road LLC and Old Strongtown Road, LLC is beyond the Court's imagination. Those properties are in Southbury, are being used for nothing and are simply not a party to the dispute therein.
But that is not the end of the case. Here the defendants have filed a Special Defense and have offered evidence to support its unrestricted use of the highway from the Oxford-Southbury town line out to Route 188. If they prevail on that issue they are entitled to have judgment in their favor. The court will therefore review their evidence. They claim that the entire roadway between Route 188 in Southbury to the Oxford-Southbury town line including the disputed section is a town road in the Town of Southbury that has not been abandoned or discontinued.
The defendants have provided the court with comprehensive title and map evidence which is important to understanding the status of the disputed highway section. They have attached to their brief as "Attachment A" a title report utilizing the deeds in evidence to explain the relevant chains of title and the importance of each. This attachment delineates four main chains of title and their constituent deeds that reference the East-West Highway. The chains are referred to in defendants' brief as the Kelsey — Kramer Chain, the Schwabacher-Kramer 101-acre Chain, the Getzloe-Kramer-Dumas — 75-acre Chain, and the Orosz Chain.
These four chains of title encompass the property both North and South of the East-West highway shown on Defendant's Exhibit 92 from the defendant Christian's property in Oxford and proceeding westerly past the discontinued Old Strongtown Road, past the new Route 188 and continuing westerly almost to the top of the exhibit. That title report was supplemented by the testimony of Nicholas Polletta, a title searcher who in his testimony carefully viewed Defendant's Exhibits 22-28, 34-60, 66, 67, 70, 71, 72, 80 and 97.
According to the 1868 Beers' Atlas Maps, in Southbury and Oxford, there was by 1868 an East-West roadway that intersected and crossed a major North-South Highway (Old Strongtown Road) that runs from Woodbury (now Southbury) to an area called "Southford." The roadway appears on both maps near property of "O. Buckingham." Def. Ex. 1 and 2. The East-West Highway appears as solid parallel lines to the East from Old Strongtown Road to the Town Line and beyond for a short distance into Oxford and as dashed lines to the West. To the West of Old Strongtown Road, the East-West Highway is labeled "Wood Road" on the Southbury Beers map. To the East of Old Strongtown Road on the Oxford Beers' map, the East-West highway is shown as extending across the town line into Southbury. The Beers' maps only show roadways, they do not appear to depict driveways that serve single properties. The East-West Highway location on the Beers maps is corroborated on the Eastern side of Old Strongtown Road in a 1966 warranty deed from Smith C. Wheeler to Orwin C. Buckingham for 75 acres with a dwelling house and lying on the North section of Oxford aforesaid "at a place called Preston Hill" and "a small section of the same on the Westerly side is in the Town of Southbury." This deed recites that the property is bounded "On the South . . . [by] highway." See Def. Ex. 39. The Beers Oxford map actually shows the location of a building just North of the East-West Highway.
The descriptions in the deeds in the chain of title for the properties abutting this East-West Highway on the North and South — both to the West and East of Strongtown Road (including the Disputed Highway Section) go back to as early as 1920 and are described as bordering on a "highway," "old highway," an "old road," "an old road known as Dark Entry," and "Dark Entry Meadow Road." See Attachment A. (Def. Ex. 22 through 86). For example:
1) The Schwabacher 101-acre chain: This chain includes the 1932 and 1936 deeds both describing the property as bounded " Northerly by old highway." Def. Ex. 31 and 32. The "old highway" described in the 1932 deed is the East-West Highway and the property is on both sides bounding on the North by Old Strongtown Road. The "old highway" described in the 1936 deed is also the East-West Highway and is on both sides of the then newly rebuilt Strongtown Road/Route 188. Therefore, this property is bordered all along its northern boundary by the East-West highway (including the Disputed Highway Section) both prior to and after the relocation of the Strongtown Road/Route 188. This is corroborated by the following: 1) The State Right of Way taking maps, Ex. 3 and 4 show the Schwabacher property to the South, abutting the East-West Highway including the Disputed Highway Section; and 2) the 1932 deed (Def. Ex. 31), recorded before the Strongtown Road reconstruction/relocation uses the description "highway running through the same" which references Old Strongtown Road. The 1936 deed excepts a portion deeded to the State of Connecticut to create relocated Strongtown Road/Route 188. The 1936 deed incorporates the 1932 description including the "highway running through the same." Reading the two deeds together proves that the East-West Highway that is the Northern Boundary in this chain includes the Disputed Highway Section between Strongtown Road/Route 188 (the parcel excepted in the 1936 deed) and Old Strongtown Road (the highway running through it in both deeds) and that this East-West highway section survived the relocation. This is consistent with the State Highway Maps, 255, 256, and 257, that clearly show the "to be discontinued" portions of Old Strongtown Road and the new Strongtown Road sections (Route 188) that divide Schwabacher's land. It is important to note that this chain does not describe the East-West Highway as discontinued or abandoned. This piece is conveyed to Kramer and then Blueberry Hill Farm, then Uniroyal, then IBM and now Pilot.
2) The 75 acre-chain with 75 acres in Oxford and a small piece in Southbury (Getzloe-Kramer-Dumas): This large tract primarily in Oxford and also in Southbury dated back to at least 1820, is consistently described as bounded "South on . . . highway"; This chain includes the Defendants three properties in Southbury and Oxford; This chain describes the property as "South on . . . highway," "Southerly on highway," and "South by Highway." In 1897 two acres (called the "third tract" in the deed) were added to this chain by a deed into Farrell Martin who eventually became the owner of the remaining 75 acres in Southbury and Oxford; these two (2) acres were at the northeast intersection of Old Strongtown Road with the East-West highway and are described in the deed as at "Dark Entry" so called near Eight Mile Brook and "South and West by highway." Def. Ex. 47 and 48. The two-acre piece was eventually combined with a small piece in Southbury to make up the Anna Christen property now owned by Defendant, Strongtown Road, LLC. A portion of the Oxford part of the property that became 50 Bala Ridge Road owned by Defendant Christian Associates, LLC was reserved when the 75 acres in Oxford were sold by Getzloe to Kramer. The small piece in Southbury became the .61-acre piece that was left over after the deed to Anna Christen and now is owned by Defendant Bala Ridge Road, LLC.
3) In the Orosz Chain describing property bordering this East-West highway in Southbury: The deeds describe the property in this chain as bounded on the South by an "old highway" or "an old road known as Dark Entry." The Orosz chain includes four deeds (1905 to July 1919) that describe the property as 12 acres of land "Southerly and Westerly of an old Highway." Def. Ex. 68-71. The remaining deeds in this chain from October 1919 to December 1985, including the deeds into Uniroyal and into IBM, describe the property as bounded to the South by an "Old road known as Dark Entry." Def. Ex. 72-82 (Def. Ex. 82 is the deed from Uniroyal to IBM.) The road at the Southern boundary is the East-West Highway a continuation of the road to the South of the Kelsey-Kramer chain (which borders the disputed Highway Section at the Eastern-most portion of the Kelsey-Kramer property). Thus the Orosz property to the West of Route 188 is deeded separately to Uniroyal rather than via Blueberry Hill Farm and this Orosz deed states that the property is Southerly and Westerly "by an old road known as Dark Entry." The Uniroyal deed is evidence that the East-West Highway is a continuous road and not simply a driveway.
4) The Kelsey-Kramer Chain describes the property that was originally bordered to the "East by Highway" (Old Strongtown Road) and to the South by "a Highway" (this highway to the South is the western section of this East-West highway (also called Dark Entry or Dark Entry Meadow Road and includes the Disputed Highway Section). The deeds in 1904, 1914, 1929 all describe the property as South by Highway. In 1936, when Strongtown Road was rebuilt, the shifting of the intersection of about 160 feet to the West split the Kelsey-Kramer piece leaving a portion on each side of Strongtown Road/Route 188. After the relocation, in 1939, this property was described in a Probate Deed as "Easterly and Southerly by a Highway."
The East-West Highway Section shown on the 1868 Beers Map including the Disputed Highway Section once on the West of the relocated Strongtown Road/Route 188 location and now to the East. It is described in deeds to abutting owners as "highway," "old highway," and "old road known as Dark Entry." The Kelsey-Kramer deeds spanning form 1905 to 1985 never describe the Disputed Highway Section or the East-West highway between Oxford and Southbury as a "wood road," "passway," "drive," or "drive-way."
The status of the East-West Highway, including the Disputed Highway Section, was confirmed by Mr. Polletta. He testified that he found evidence of the discontinuance of "All the portions of town road through Strongtown which have been replaced by the State Aid Road running through Strongtown from Southford Station to the Southbury-Middlebury town line" as set forth in the 1936 Southbury Town Journal. Def. Ex. 97. This carefully drawn town meeting resolution merely eliminates the left-over sections of Old Strongtown Road not incorporated into the right of way of the reconstruction highway. It did not by its terms or otherwise discontinue cross roads such as the East-West Highway intersection with Old Strongtown Road/Strongtown Road/Route 188. His testimony is totally consistent with the proposition that the so-called disputed section has always been recognized as a highway and he has found no evidence that it was ever abandoned or discontinued.
The defendants called Michael Kenney, who was the First Selectman of the Town of Southbury for 12 years from November 1971 to May 1983. He testified that the East-West Highway was one of over 35 miles of unpaved, unimproved dirt roads that were considered Town Roads in Southbury. TR Kenney p. 3-4, 6-7. He explained that these town roads were the subject of a Road Study Committee just prior to 1971 made up of retired engineers that researched over 30 or 40 old roads, they complied a list of unimproved roads, because the "town historically had low taxes by never maintaining roads." He testified that he was familiar with a road called "Dark Entry Road" or "Bala Ridge Road," which he indicated were two names for the same road in the unimproved roads study. TR Kenny p. 2, 4-6. He testified that in late 1971 the town of Southbury considered discontinuing some of these unpaved highways, but "ultimately" only "took a half a dozen or so roads to a town meeting to be discontinued." TR Kenny p. 4. He identified on Def. Ex. 9 the road running East from Strongtown Road/Route 188 (including the Disputed Highway Section) as Dark Entry or Bala Ridge Road in Southbury. TR Kenny p. 5-6. He testified that this road was considered for discontinuance in the early stages of the road discontinuance project:
to remove town liability" but "we removed it from the list to be discontinued along with several other roads, Flag Swamp Road [is] one I could think of immediately, primarily because they went into neighboring towns.
TR Kenny, p. 6. See also pp. 12-13. He explained that this was done to cooperate with neighboring towns. Id. The selected roads were approved for discontinuance at the February 1972 town meeting, but the East-West Highway described herein was not on the discontinuance list. Id. When asked if the Town permitted owners abutting these unimproved or dirt roads to maintain them, Mr. Kenney responded "In most cases the town really didn't care. The Town's primary concern was cost . . ." TR Kenny p. 7.
The very action of the Southbury Town Fathers in affirmatively deciding not to discontinue the East-West Highway including the Disputed Highway Section is evidence that it was considered a Southbury Town Road. See Brownell v. Palmer, 22 Conn. 107 (1852), holding that action to discontinue a road creates presumption that it was laid out as a highway and dedicated, even if Town records are absent to confirm this. The same rationale necessarily applies to the decision not to discontinue a road as was testified to by the former Southbury First Selectman. See discussion above.
A memo in evidence from Patricia Forst, Assistant Assessor to the First Selectman dated 1983 states:
Oxford does have an old town road by the name of Bala Ridge Road in the northern part of town that runs into Southbury by the Dumas property. It appears that this name was extended into Southbury's section of the old road possibly by the surveyors when they did the Blueberry Hill Farm survey. In the old deeds to the adjoining properties, Christen, Kaytis, and Dumas, there is reference made to an "old highway" and "old road." Some of the deeds mention property located on "Preston Hill" so-called. I have found nothing in the town Journals regarding abandonment or discontinuance of a road in this area. [Def. Ex. 87].
Thus, the former First Selectman confirms that the East-West Highway including the Disputed Highway Section was a Southbury Town Road as of 1972 and the above memo confirms that as of 1983 there is no reference in the Town Journals to a discontinuance of a road in the Preston Hill area including the portion of Bala Ridge Road running by the Dumas property (now property of Defendant Christian Associates, Incorporated) into Southbury. The "old road" is the Southern boundary of the Christen Property (the Christen property being "South by old road" in the deeds). This is consistent with title searcher, Nicholas Polletta's testimony that he had searched all the relevant records in Southbury and Oxford and found no evidence of discontinuance of the East-West Highway including the Disputed Highway Section.
The evidence of usage of the East-West Highway between the Oxford-Southbury Town line and Route 188 in Southbury is not in dispute. The plaintiff called William Kaytis as a witness and he basically described his parents' usage of the roadway out to Route 188 for nearly 50 years. He also described the white house on the Dumas property now owned by Christian Associates for the same 50 years. It was used for their family and friends and was the only access out to Route 188. He described improvements made to the road over time. The Dumas home was estimated to be 80-100 years old so there was obvious usage of the roadway from at least its construction and occupancy. However, the first actual evidence of usage of the highway underlying the designated section was somewhere around 1950. Kaytis remembers a bridge being built over Eight Mile Brook to access the Dumas home and provide access out to Route 188 and also recalls that the roadway which he remembers originally as dirt was later paved.
Frank Schaub in the late 1980s became the owner of the defendant's three parcels.
The statutory affidavit of Frank Schaub, Def. Ex. 89 as well as his testimony provides that throughout his ownership of the property in Oxford (Christian Associates, Inc.) and the properties in Southbury (properties now of Bala Ridge Road, LLC and Strongtown Road, LLC) the Disputed Highway Section was used by the general public, including people driving down the road and parking to feed ducks and geese, deliverymen in their trucks would park on the side of the road and eat their lunch, large tree-cutting trucks would clear branches from the electrical wires. He states that since the sale of the properties, he still drives down Bala Ridge Road from Route 188 once every two or three weeks to observe construction activity from a distance and to enjoy the beauty of the pond. No one from IBM or any other abutting property owner ever contacted him concerning road improvements and paving or usage and, further, his tenants Graham and Fretts used the roadway daily for about 11 years and did not report any contact with abutting property owners nor were they denied use of the road by the Town of Southbury, the Town of Oxford, any abutting owner, including Pilot Mall, LLC and IBM. They had several large picnic gatherings each summer and their guests used the roadway without incident. After Mrs. Dumas died, people came to take care of her dog for another two years. IBM was contacted when the three properties were sold to the Defendants and Mr. Schaub was told that IBM was not interested in purchasing the land. Mr. Dubiosso testified that the public use described by Mr. Schaub has continued in addition to his companies use by employees, customers and equipment. Walter Christen's affidavit describes the road (including the Disputed Highway Section) as a town road used by the public and references a time period of this use known to him as from 1948 to 1988. Def. Ex. 101. He recites that his wife bought the property in 1948 and, he inherited it upon her death. That property is now owned by Old Strongtown Road, LLC. The affidavit states that from July 27, 1948 until the sale to Frank Schaub, the property was used for fishing in the Eight Mile Brook cutting firewood, picnicking, picking mushrooms, and cleaning brush. Mr. Christen built a small cabin on the property next to the Christian piece in Oxford and used the roadway (including the Disputed Highway Section) to access that cabin. The East-West Highway fronts this property and the properties to the East. (Def. Ex. 19). Surveyor Hrica's testimony indicated that the maps in evidence provide evidence consistent with a finding that the Disputed Highway Section is a road and that the field evidence shown on various maps indicates that it is opened for vehicular travel.
The defendants also called as a witness, Kenneth Hrica, a Registered Land Surveyor.
Although there are occasional references on old maps such as the ancient Beers Maps (Def. Ex. 2) to the Western section of the East-West highway as a "wood road" or "woods road" and on the State Highway Construction maps, Def. Ex. 3 and 4, Mr. Erica explained that these legends merely describe the condition of a road noted in the field as opened up for travel, opened wide enough for a vehicle to pass and with visible tire track marks and other evidence of vehicular traffic. TR Hrica July 20, 2005, p. 15, 16, 19. He opined that the term is not meant to tell "whether the road is an accepted road, or discontinued road, [or] an abandoned road." Id. He adds, it also "doesn't tell you whether it's on public property or private property. It just states the visible condition of the land." TR Hrica July 20, 2005, p. 20.
Thus the uncontradicted expert testimony of Mr. Hrica is that the word "wood road" is not inconsistent with a road being a Town Highway, but does indicate that the road may be a dirt road open for vehicular traffic. It should riot be surprising that dirt roads existed in 1935. Mr. Hrica testifies that the word "highway" means to a surveyor "that there is a public highway." TR Hrica, July 21, 2005, p. 13. Mr. Hrica explains that surveyors use the word "wood road" generally as a way of to limit liability because of uncertainty on the surveyor's part. Id. He explains that the choice of the word "wood road" on a map does not mean to the surveyor that "the historical record doesn't indicate that there is a public highway." TR Hrica, July 21, 2005, p. 14.
This testimony regarding the meaning of "wood road" is consistent with that of Mr. Kenney who in response to questions by the Plaintiff's attorney, testified that in his considerable experience with roads in Southbury as First Selectman "wood road" on a map means "it could have been a county road at one time, it means it could have been a town road, it could have been a right-of-way to a wood lot." TR Kenny, p. 13.
Mr. Hrica testified that town roads over 20 or 25 years old in Connecticut are rarely owned in fee simple by a town but are usually public right of ways [roads] that are underlain by private property, with the owners on each side owning up to the middle. TR Hrica, July 20, 2005, p. 20.
With reference to the term "Driveway Subject to the Rights of Others" contained in the deed from IBM to Getzloe (Def. Ex. 9) he cites the definition of "highway" in Connecticut General Statutes § 14-1(18) as "any state or other public highway, road, street, avenue, alley, driveway, parkway or place under the control of the state or any political subdivision thereof, dedicated, appropriated or opened to public travel or other use." This notation is therefore the same as "Highway subject to the rights of others." The Johnson Chain of Title does not provide any formal easements or other basis for the " SUBJECT TO THE RIGHTS OF OTHERS" legend and therefore the only conclusion is that it is a public road.
An action to quiet title is a statutory action instituted under the provisions of General Statutes Section 47-31. The statute requires the plaintiff to name the person or persons who may claim such adverse estate or interest. Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293 (1967). This allows the trial court to make a full determination of the rights of the parties to the land, and action to quiet title is brought against persons who claim title to or have an interest in the land. CT Page 16113 Cahill v. Cahill, 76 Conn. 542 (1904). Only the parties to an action to quiet title are bound by the judgment. Lake Garda Improvement Ass'n. v. Battistoni, 76 Conn. 294-95. The overwhelming evidence before the court shows that this Quiet Title Action should be resolved in favor of Defendants based on a finding which this court makes that the Disputed Highway Section is a town road or public right-of-way that has not been abandoned or discontinued. That evidence includes results of title searches, including deeds and maps, map references, testimony of Michael Kenney, the former First Selectman of the Town of Southbury, Affidavits of Walter Christen, Frank Schaub, Bonnie Schaub, testimony of Frank Schaub, expert testimony of Kenneth Hrica, RLS and P.E., and the testimony of title searcher, Nicholas Polletta. The Deed and Map evidence shows that the Disputed highway in question is part of an East-West highway that has existed since at least 1825. See Title search of the Schwabacher, Kramer, Orosz and Ferrell Martin chains of title. Each of these chains of title shows that there was a "highway" that was to the North in the Schwabacher Chain, to the South in the Kramer Chain, that continued to the West where it was North by Schwabacher and South on Dark Entry Road by Orosz. The defendant, Christian Associates, Inc.'s property in Oxford is in a commercial zone as is the plaintiff's property that completely surrounds it. The plaintiff can do anything in Oxford that the defendant, Christian, can do. To build its building, Christian Associates must have complied with Oxford zoning to get a building permit and to get a permit it needed access to Route 188 which obviously Oxford believed it had over this highway.
Finally based on the above and the evidence at trial, there is no evidence of trespass by virtue of defendants utilizing the Disputed Highway Section that is part of the East-West Highway for unlimited access to and from their properties. Judgment should enter on all counts for the defendants, that they have unrestricted use of the highway out to Route 188 in Southbury.
In its supplemental Brief of August 12, 2005, on the subject of the scope of a prescriptive easement, the plaintiff raised a separate issue involving the existence of the so-called "Dark Entry Road," referenced in defendant's brief. It then cites the case of Scutt v. Town of Southbury, 55 Conn. 405 (1887), indicating that sometime prior to 1887 the Selectman of the Town of Southbury discontinued Dark Entry Road.
The defendants filed a supplemental brief on the subject and asked for a supplemental hearing which the court granted.
After a hearing on that subject, it was clear that the Dark Entry Road mentioned in that case was not the Dark Entry Road made reference to in this case, so Scutt has no application here.
The defendants have several alternate grounds to uphold their position. First they cite C.G.S. § 13-a-55 which basically states that if after 1959 a road is abandoned or discontinued that property owners abutting it have the same rights to access over it as they had before. In that the court finds no evidence that the East-West highway, in particular the disputed section, was ever abandoned or discontinued, this statute is not applicable here.
The defendants next rely on the subject of easements to support their position. The use of easements would only be necessary if an appellate court should conclude the court was in error in finding the disputed section was a part of a town road or town right-of-way.
In Connecticut, easements may be created by, grant, necessity, implication and prescription. D'Addario v. Truskoski, 57 Conn.App. 236, 242, cert. denied, 253 Conn. 918 (2000). The latter three were raised as alternative defenses in this case.
In Bolan v. Avalon Farms Property Owners Ass'n., Inc., 250 Conn. 135, 144-45 (1999), easement law in Connecticut was substantially changed abolishing the Unity of Title Doctrine. Our Supreme Court stated that there is, "no reason to adhere to the unity of title doctrine and ignore the expressed intention of the parties to the . . . deeds." Id. The Bolan court further concluded that, "the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estates and the dominant estate the easement is intended to serve." See Irving v. Firehouse Associates, LLC, 2004 WL 3090588 (Conn.Super. 2004) at 9. " Bolan . . . abolished the unity of title doctrine in its entirety including the need for any inquiry regarding the intent of the grantor." Irving v. Firehouse Associates, LLC, 2004 WL 3090588 (Conn.Super. 2004) at 9. The argument regarding easements of implication, prescription and necessity will take the Bolan ruling into consideration.
a. Easement by Implication:
Where there is no express grant or reservation, "an implied easement may be inferred from certain terms or circumstances surrounding the conveyance of another interest in land." Starble, Jonathan N. "DIS-UNITY OF TITLE IN CONNECTICUT: A TALE OF SUPREME CONFUSION OVER EASEMENT LAW," 75 Conn. B.J. 61 (June 2001), (citations omitted). "The finding of an easement by implication is a question of law." Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 636 (2002). The two elements required to determine whether an easement by implication has arisen are: "(1) the intention of the parties, and (2) if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 637 (2002). "Absolute necessity is not essential because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it." Utay, at 637 (internal citations and quotations omitted). The role of the court is to "determine whether there was an intent to establish easements. The court does so by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law." Perkins v. Fasig, 57 Conn.App. 71, 76 (2000) (finding based on documents in evidence that an implied easement existed as a matter of law). The court has the power to determine based on the evidence submitted whether the historical documents show the intent to grant easements.
Reference to a map in a deed incorporates that map and any further notations contained thereon into the deed "as fully and effectually as if copied therein. The identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein." Bolan v. Avalon Farms Property Owners Association, Inc., 250 Conn. 135, 141-42 (1999) (internal citations and quotations omitted).
While the courts interpretation of the relevant deeds and maps in Utay found no intention to create an easement; in Gemmell and Bolan based on the evidence presented it was found that "the reference to the deed to specific maps that showed the servitude in question was persuasive evidence of intent to create an implied easement." Utay, at 638 fn. 8. Footnote 8 of the CT Page 16116 Bolan decision, eliminating the unity of title doctrine as an element in cases addressing implied easements, is especially instructive under the current set of facts:
We appreciate the [party's, opposed to the easement,] observation that a purchaser of the dominant estate — the estate benefitted by the easement — may have problems discovering such easements by way of a title search. We nevertheless favor abandonment [of the unity of title doctrine]. We note, moreover, that a purchaser of the servient estate — the estate burdened by the easement — will have sufficient notice of such easements because the language of its deed and the surrounding circumstances will manifest such an intent.
Bolan v. Avalon Farms Property Owners Association, Inc., 250 Conn. 135, 145 at fn. 8 (1999) (Emphasis added).
Under the current facts the servient estate's chain of title, currently owned by the Plaintiff, clearly shows that the right of way in question is subject to the rights of others. The Plaintiff's took title to their property with constructive notice that the right of way in question was subject to the rights of the owner of the Defendants' parcels. Further, the weight of the deeds and maps evidence shows a road that serves the Defendants' property and there is testimony that there is no other access other than over the Disputed Highway Section to Route 188. Not only did Pilot know that this segment of highway was subject to the rights of others, but it also has constructive notice from the chain of title, that the "driveway" was an old highway. Further, Getzloe, the owner of the 75-acre chain, deeded the property in Oxford to Kramer, the predecessor to Pilot, who also owned the piece bordering the Kelsey-Kramer chain piece abutting the Disputed Highway Section on the North. With this deed, he served a four-acre piece to himself, which piece is now the Defendant Christian Associates, Incorporated parcel. It is unreasonable that Getzloe would have intended to land lock his four reserved acres, while at the same time providing Kramer with access to get to the road. This analysis is also true of the .61 acre Bala Ridge Road, LLC piece that was reserved from the 75-acre deed to Kramer. Additionally, the utility easement from Kramer was granted down the entire East-West Highway from Strongtown Road/Route 188 to the West. A review of the surrounding circumstances provides strong evidence of an intent to provide access to the state highway.
In D'Addario v. Truskoski, the court quotes approvingly the rationale in Marshall v. Martin, 107 Conn. 32 (1927), where the court considered various cost elements and pointed out that it is not a question of obtaining an access that is inconvenient or expensive.
As noted: It may be, however, that while access to the property is not absolutely cut-off, the circumstances of the case are such that the means of access available would not afford the landowner any real beneficial enjoyment of his property. Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property of which access was sought. Such a means of access would be no better than none at all and there would seem to be equal reason for presuming a grant under such circumstances as in the case where there was no access. Although there are cases which hold that the way must be one of strict necessity, the weight of authority supports what seems to us to be the better rule that the necessity need only be a reasonable one ( 107 Conn. at 37, 139 A. 348).
57 Conn.App. 236, 242 cert. denied, 253 Conn. 918 (2000). Here it is extremely unlikely that the owners of these three small pieces of property of the Defendants could feasibly build a highway to the Southeast toward Airport Road, across Bala Ridge Road for approximately 2200 feet that is completely grown over with trees and subject to wetland laws, title problems and which hasn't been used in 80 to 100 years.
The court finds that an easement by implication has been proven to provide access over the disputed section for all purposes.
b. Easement by Prescription:
General Statutes § 47-37 provides: "No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued for fifteen years." Combining this statutory requirement with settled case law the party claiming that it has acquired an easement by prescription must demonstrate that the use has been, open, visible, continuous, and uninterrupted for fifteen years and made under a claim of right. M. Gallo-Mure V. Tonchik, 78 Conn.App. 699, 704 (2003); Kelley v. Tomas, 66 Conn.App. 146, 159 (2001).
"Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered." McManus v. Roggi, 78 Conn.App. 288, 294 (2003). Robert S. Weiss Co. v. Mullins, 196 Conn. 614, (1985), citing, Wadsworth Realty v. Sundbeg, 165 Conn. 457, 464 (1973); Klein v. DeRosa, 137 Conn. 289, 294-95 (1981). In such cases, the trier's determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not be reasonably reached. Id., citing D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 180 (1983).
While the burden of proof is on the party seeking to establish an easement by prescription, the standard is a showing by a fair preponderance of the evidence that the use was adverse. McManus v. Roggi, 78 Conn.App. 288, 295 (2003). The elements for this easement are as follows:
Claim of Right: "Use made under a claim of right means use that is made without recognition of the rights of the owner of the servient tenement." Kelley v. Tomas, 66 Conn.App. 146, 159 (2001). "There can be no claim of right unless the use is unaccompanied by any recognition of the right of the owner of the servient tenement to stop such use." Lisiewski v. Seidel, 72 Conn.App. 861, 873 (2002).
Open: The facts presented show that the use has included vehicle to access the Defendant's property. Although the plaintiff has introduced a chain of title claiming ownership to the Disputed Highway Section those deeds conflict with the weight of map evidence provided, showing not only that the Disputed Highway Section is a public right of way but it has been there since at least 1865. Indeed, Plaintiff's deed from IBM states that the Disputed Highway Section is a "driveway subject to the right of others." The Defendants and Katys are necessarily the "others" that can use the road. There are no other possible users. The IBM deed, as noted above, deeds the property to Pilot subject to Maps, and the Maps include Map 1334. Further the Deeds in the chain reflect the CLP easement from Kramer that makes clear that the easement is granted with Dark Entry Meadow Road and that the easement abuts on Kramer's property along the center line for the road. Further even the Uniroyal deeds served to eradicate the history of the prior parcels, the IBM quitclaim deed restored the ancient descriptions including the Blueberry Hill Farm Description. Finally as noted, almost all of the deeds to the properties surrounding the Disputed Highway Section describe the properties as bounded by the highway.
Visible: The use above is visible to the world — vehicles access the properties off of the East-West Highway, using the Disputed Highway Section. Christian Associates, Incorporated has large sweepers accessing its property in Oxford from Route 188 and up to 20 employees on site. This use is visible.
Continuous and uninterrupted — the "use" section above shows continuous uninterrupted use.
15 years: Here the Defendants and their predecessors in title have been using the roadway since at least 1948 and that use continues to the present. See Christen affidavit. Under Connecticut law the doctrine of tacking does apply; therefore, once the elements are established for the applicable 15-year time period any transfers in ownership are not relevant to the analysis. See Reynolds v. Soffer, 190 Conn. 184, 187 fn. 3 (1923); see also Boccanfuso v. Conner, 89 Conn.App. 260, 274 (2005) (recognizing tacking in the context of prescriptive easements). Further, the Defendants have used the Disputed Highway Section as their sole means for getting to the property. The affidavits filed on the land records under Section 47-12a by Frank and Bonnie Schaub show that the Defendant's predecessors in title also utilize the Disputed Highway Section as a travelway for access to their properties since February 4, 1988 for the Defendant Strongtown Road, LLC, since September 26, 1989 for the Defendant Bala Ridge Road, LLC's property and the Defendant Christian Associates, Incorporated property. In each case the Defendants openly used the right of way, improved it by placing ground-up asphalt over the existing width and removing boulders from the roadway. These improvements were within the barbed wire fence line on the South side of East-West Highway. The evidence furnished is prima facie proof of the Defendants and their predecessors use of the Disputed Highway Section for over 15 years, openly, visibly, uninterruptedly and under a claim of right. Reynolds v. Soffer, 190 Conn. 188 (1983).
"That a claim was actually made and brought to the attention of the owner of the fee is not essential in order to establish that the user was made under a claim of right. Nothing more is required than a user "as of right," that is, without recognition of the rights of the owner of the servient tenement." Zavisza v. Hastings, 143 Conn. 40, 45-46 (1955). (Citations omitted.) However in a case as here "[w]here the use of a right of way is in common with the public . . . [that] the individual user must, in order to establish an independent prescriptive right, perform some act to the knowledge of the servient owner clearly indicating his individual claim of right." (Citations omitted.) Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 168. In this case the paving of the road is sufficient evidence that there is an individual claim of right claimed and that it is done with knowledge of the plaintiff clearly indicating its claim of right." See Robert S. Weiss Co. v. Mullins, 196 Conn. 614 (1985). The historical use in the deeds has been as a "highway" or "road," thus the use, the intent of the use per the deeds is for any use for which a highway could be used — travel by vehicles for access to properties.
Although the plaintiff does not argue about the existence of a prescriptive easement here, it argues that it does not go beyond the use in which the servient owner has acquiesced. It is well-settled that when an easement has been established by prescription, the common and ordinary use which establishes the right also limits it. Hawley v. McCabe, 117 Conn. 558, 560 (1933). Here it argues that the defendant Christian Associates, Inc. has gone well beyond the residential use made by its predecessors in title.
However in the more recent case of Kuras v. Kope cited by defendants, the court adopts approvingly the following more flexible standard:
Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, "the use made during the prescriptive period does not fix the scope of the easement eternally.". . . "[i]f it [the above announced rule] were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right-of-way, for instance, would, as has been judicially remarked . . . be available for use only by the people and the vehicles which have passed during the prescriptive period. But the rule is not applied with absolute strictness." Another authority has said: "Since, however, no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation."
205 Conn. 332, 342 (1987) (internal citations omitted). In Hawley, cited by Pilot, the plaintiff was a bona fide purchaser of land who without knowledge or actual or constructive notice of the existence of an easement takes title relieved of the burden of the easement. 9 R.C.L. 805; 19 C.J. 939, 940. (Citations omitted.) However, here, Pilot is on notice of the rights of others based on the IBM deed to Pilot that is expressly subject to the use of others. See P. Ex. 1-9. Plaintiff also expressly took title subject to the utility easement to CLP granted by a predecessor in title and running from Route 188 down to the East to the property of Getzloe (now Christian). Def. Ex. 60.
An abutter of a highway has a legitimate expectation of using that highway for access to its property. These expectations are even broader than the general public. Although the Defendant Christian's property had an old house on it when it was purchased in 2000, the property had been previously rezoned to corporate business park, not residential. Plaintiff owns extensive land in the same zone, and therefore is reasonably on notice of the reasonable commercial zoning uses.
Any use connected with the reasonable use of land that is appurtenant, includes the zoning uses here. Because the use of the Disputed Highway Section benefits the land of the Defendants (appurtenant rights) and is not a grant of an interest, it is personal to the Grantee (easement in gross). The undeveloped parcels are planned for future use that necessarily must comply with the Southbury zoning and subdivision regulations. The uses permitted must allow the uses reasonably permitted by the commissions with responsibility for processing applications and enforcing those regulations.
c. Easement by Necessity
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. Pender v. Matranga, 58 Conn.App. 19, 26 (2000) (citing Hollywyle Ass'n., Inc., v. Hollister, 164 Conn. 389, 398-99 (1973); Collins v. Prentice, 15 Conn. 39, 43-44 (1842); Friedman v. Westport, 50 Conn.App. 209, 214, cert. denied, 247 Conn. 937 (1998)). All of the cases cited pre- Bolan relied upon the now eliminated unity of title doctrine. As discussed supra, the requirement for a historical unity of title is no longer a legal requirement; instead, all of the facts and circumstances are to be considered when determining whether the historical documents lead to the finding of an easement by necessity as a matter of law.
If there were no highway available over the Disputed Highway Section, then Defendants' three properties would be landlocked. D'Addario v. Truskoski, 57 Conn.App. 236, 242, cert. denied, 253 Conn. 918 (2000), is instructive. In D'Addario, the court states that an "easement of necessity" is one in which the easement is indispensable to enjoyment of dominant estate; it arises by operation of law when land conveyed is completely shut off from access to any road by land retained by grantor or by land of grantor and that of a stranger. Here Getzloe, predecessor in title to Pilot, the owner of the 75-acre chain, deeded the property in Oxford to Kramer who also owned the piece bordering the Kelsey-Kramer chain piece abutting the Disputed Highway Section on the North. With this deed, Getzloe reserved a four-acre piece to himself, which piece is now the Defendant Christian Associates, Incorporated parcel that would have no access except over what is termed here as the East-West Highway and the Disputed Highway Section. The court concludes there is no feasible alternate access to the South.
Plaintiff may claim that Defendants may create new access to their properties by construction of over 2000 feet of new highway over a forested unimproved Bala Road that crosses the Algonquin Pipeline and connects to a limited access state highway known as Airport Road that serves the Oxford Airport to the South. See testimony of John Dubiosso and Testimony of Frank Schaub as to status of Bala Ridge Road to the southwest. There is no evidence that this is feasible. The letters from the Oxford public works indicate that the property owner would need to pay for the entire road cost and for surveys that prove that it remains a town road. Although the records show no discontinuance, the section of Bala Ridge Road Southwest of the Defendant's Christian Associates, Incorporated property has had no current or recent historical use to support defeating an abandonment claim. Further the IBM quit claim deed shows that there is a triangular piece abutting "abandoned" Bala Ridge Road to the south of Defendant Christian Associates, Incorporated land. (This is Bala Ridge Road in Oxford.) Without the access over the Disputed Highway Section, the Defendant's properties are landlocked, and the Defendant Christian Associates, Inc.'s $2 million investment is lost. If the Defendants are not entitled to an easement by implication or prescriptive easement, then the court does find the Defendants entitled to an easement of necessity with respect to the Disputed Highway Section because it is defendant's only reasonable source of access from their properties to Route 188; there being no credible evidence showing any other feasible access. Remember, even if all obstacles could be overcome to build a new 2,200-foot road through Oxford, Oxford has made it clear it would contribute nothing. That renders that proposition non-feasible.
Only if an appellate court finds error in this court's decision that the disputed section of the East-West Highway is a town road or town right-of-way, this court will approve an easement in the proposed language of the defendants to wit:
The Defendants are found to have a permanent easement or right-of-way, in common with others, for access to and from the public highway known as Strongtown Road and Route 188 from property of Christian Associates, Incorporated, Bala Ridge Road, LLC, Strongtown Road, LLC, their successors and assigns, for all purposes permitted by zoning authorities where the parcels are located, and including, without limitation, the right to construct, maintain, repair, and reconstruct a paved roadway, together with the right to install or cause to be installed, maintained and repaired, poles and wires or underground conduits for public utilities and communication conduits (and related nonexclusive utility easements), and to grade, fill, slope, and to install subsurface drainage for said common roadway, which easement shall be within the area shown as "Driveway Subject to the Rights of Others" on a certain map entitled: "`PERIMETER SURVEY OF PROPERTY OF INTERNATIONAL BUSINESS MACHINES CORPORATION PREPARED FOR PILOT'S MALL, L.L.C.' situated at Benson Road-Middlebury, Connecticut Donovan Road, Oxford Airport Road-Oxford Connecticut Oxford Airport Road, Strongtown Road-Southbury Connecticut" dated May 30, 1997 and revised to 11-5-97 prepared by Paul M. Fagan, RLS and recorded on December 11, 1997 as Maps 3443 and in the Southbury Land Records.
So ordered.
ATTACHMENT A TITLE REPORT BASED ON DEEDS IN EVIDENCE
The East-West Highway including the Disputed Highway Section is a boundary in the following deeds and is either referenced as "Dark Entry Road," "road" or "Highway":
A. Kelsey-Kramer Chain (South and East by Highway);
B. Schwabacher-Kramer chain 101 Acres (North by Highway);
C. The Getzloe-Kramer-Dumas 75 Acre Chain for Oxford and Southbury — including Bala Ridge Road, LLC, Strongtown Road, LLC and Christian Associates, Inc. that derive from the Dumas-Getzloe chain) (South by Highway);
D. Orosz chain (South by Dark Entry Road).
A. Kelsey-Kramer Chain. The Southbury Land Records chain of title for the Pilot's Mall, abutting Bala Ridge Road and Dark Entry Road to the South and 3.71 ± piece to the East is as follows:
The relocation of Strongtown Road (major road from Middlebury to Southford) through the creation of CT Route 188 on or about 1936 split the Kelsey-Kramer piece. The Land Records in the Town of Southbury show that the piece was originally a ten-acre piece with the Eastern frontage on Strongtown Road and the Southern frontage on Dark Entry Road (known as Bala Ridge Road on the Oxford side of Strongtown Road). New Route 188 was constructed through the East end of this ten-acre parcel leaving the small strip to the East and the remaining portion of the parcel to the West. On September 26, 1936 (Volume 5 Page 110, 121) the Town of Southbury approved the discontinuance of portions of Strongtown Road (All the portions of town road through Strongtown which have been replaced by the State Aid Road running through Strongtown from Southford Station to the Southbury-Middlebury town line). We have found no records indicating that Bala Ridge (Dark Entry) was formally discontinued, and it is now known that it is definitely not abandoned as it has been consistently utilized by neighboring property owners to gain access to Route 188. It is therefore of common convenience and necessity.
1. (1904) At Volume 22 Page 415 John B. Pope deeded a 10-acre parcel to Coe Brass Company
North by Harley E. Warner
Easterly and Southerly by Highway
West by Cornelius G. Hard
2. (1914) At Volume 26 Page 294, 295 Coe Brass Manufacturing deed its 10-acre "4th" parcel to American Brass. "Easterly and Southerly by a Highway"
3. (1929) At Volume 36 Page 490-91 American Brass deeded both pieces (10-acre piece and 5-acre piece) to James C. and Winifred Kelsey. When Route 188 was constructed it splits the 10-acre piece into the small strip to the East and the remaining portion to the West. "Easterly and Southerly by a Highway"
4. Dated and recorded May 5, 1939 At Volume 53 Page 180 of the SLR- Probate Certificate, the Estate of James C. Kelsey devised James C. Kelsey's interest to Winifred Kelsey. Second Parcel (10 acres): " Easterly and Southerly by a Highway." See Vol. 36 page 490-91;
5. Dated and Recorded September 14, 1939 at Volume 53 Page 216-17 of the SLR Warranty Deed of the Second Piece (10 acres) Kelsey to Kramer. This 10-acre piece is now described as part of "19 acres" and "situated in the said Town of Southbury on both sides of the highway leading from Southford to Middlebury."
Beginning at the intersection of two abandoned highways and running along the center line of an abandoned highway N 56 degrees 00' W a distance of 125.05, thence along said center line and crossing Connecticut State Highway No. 188 S 88 degrees 58' W a distance of 226.65 feet, then still along said center line N. 75 degrees 55' W a distance of 114.95 feet, thence along an Old Wood Road N 14 degrees 08' W a distance of 206.64 feet [this description continues and then again crosses Route 188 and eventually returns to] thence a distance of 267.00 feet more or less to the center line of an abandoned highway thence S. 12 degrees 48' E a distance of 341.05 feet along the center of said abandoned highway, thence S 2 degrees 01' E a distance of 173.18 feet along said center line of said abandoned highway to the point or place of the beginning.
Not intending to convey by this instrument that portion of the land sold to the State of Connecticut by James C. and Winifred G. Kelsey by deed dated April 16, 1935 and recorded Volume 43 page 339 and 340 of the Southbury Land Records and which lies within the above described boundaries.
"Being the same property conveyed to me (grantor) by probate certificate of distribution dated May 5, 1939 and recorded in Vol. 53 Page 180 of the Southbury Land Records"
6. This property is subject to an Easement from David Kramer to The Conn. Light Power Co. dated May 5, 1944 and recorded June 8, 1944 at Volume 55 Page 74. This easement provides an easement along Kramer's property in Southbury abutting" Dark Entry Meadow Road running from the West side of Route 188 south along Dark Entry Meadow Road and continuing to the land of Harvey M. Getzloe (which became the land of Bala Ridge Road, LLC).
7. Dated April 18, 1947 and recorded April 19, 1947 at Volume 55 Page 556 Kramer deeded to Blueberry Hill Farm, Inc the same piece (a third Piece) (19 acres consisting of the 10-acre piece and another Kramer piece). using the same description as Volume 53 Page 216 —" "19 acres" and "situated in the said Town of Southbury on both sides of the highway leading from Southford to Middlebury" "Beginning at the intersection of two abandoned highways . . ."
8. Blueberry Hill Farm, Inc to Uniroyal, Inc. at Volume 90 Page 96 (First Piece) — property was deeded along with other properties and reconfigured into 7 parcels that did not track the boundaries of the parcels from which they came and the descriptions were by survey description to a new map. For example, "Parcel No. 1" contained 30.8 acres including this piece. Tracking the survey description, Bala Ridge Road/Dark Entry Road is crossed without a mention. However, the 30.8 acres of Parcel No. 1 are shown on filed map 1206 ("Map of Property of Blueberry Hill Farm, Inc., to be Conveyed to Uniroyal, Inc., Southbury, Connecticut, Scale 1"=100'" recorded January 17, 1971). That map shows the intersection of Route 188 and the so called "driveway" that is later shown on the successor owner IBM map as "subject to the rights of others."
9. Further the IBM deed (Volume 327 Page 137, et seq. dated November 21,1997 to Pilot's Mall, L.L.C, volume 327 Page 155 is "subject to . . . The state of facts shown on the Maps." "MAPS" is defined in the deeds and two sets of maps including the Maps showing the disputed highway as "SUBJECT TO THE RIGHTS OF OTHERS."
10. Uniroyal Properties to International Business Machines Corporation deed dated and recorded December 17, 1985 at Volume 186 Page 1062 of the SLR.
11. International Business Machines Corporation to Pilot's Mall, LLC — limited warranty deed dated November 21, 1997 and recorded November 26, 1997 at Volume 327 Page 137 of SLR.
12. International Business Machines Corporation to Pilot's Mall, LLC-Quitclaim deed dated August 20, 2001 and recorded September 4, 2001. Volume 385 Page 289 of SLR.
B. Schwabacher-Kramer Chain-101 acres. North by Highway.
1. Dated and recorded September 19, 1932 at Volume 45 Page 304 of the SLR, dated and recorded September 19, 1932 and recorded October 4, 1932 in the OLR, Warranty Deed from George E. Garlick to Julian Schwabacher 101 acres more or less "together with all the buildings thereon standing."
Northerly by old highway [Dark Entry Road] and land formerly of Thomas Kelly; Easterly by land now or formerly of Thomas Kelly and by the "Donovan Place" so called; Southerly by land now or formerly of James George, land now or formerly of William Piel and the "Tappan Property" so-called;
Westerly by land nor or formerly of Robert Dougal and land now or formerly of one Rupel;
2. Dated and recorded May 28, 1936 at Volume 45 Page 554 of the SLR, Warranty Deed from Julian Schwabacher to David Kramer "First Piece" 101 acres more or less "together with all the buildings thereon standing" " Northerly by old highway [Dark Entry Road] and land formerly of Thomas Kelly." See State of Connecticut Maps #268, #269 of the Southbury Land Records.
C. 75-Acre piece plus a small piece in Southbury (Getzloe Kramer Dumas). Since 1820 to the present these deeds described the property as being South by a "highway." The following properties are derived from the deed for 75 acres in Oxford and partly in Southbury.
1. 4-acre 50 Bala Ridge Road, Oxford Piece now owned by Christian Associates, Incorporated.
2. 61± Acre Southbury Piece (sometimes referred to in the chain of title as a .5-acre piece and 4-acre Oxford Piece). This is the Frank Schaub and Eric N. Ianantuoni .61± Piece deeded to Bala Ridge, LLC.
3.3.7± piece (sometimes referred to in the chain of title as a 4-acre piece) deeded to Strongtown Road, LLC by Frank Schaub and Bonnie L. Schaub at Volume 366 Page 211 of the Southbury Land Records. This is the so-called "Anna Christen" piece.
As shown on a map made by George B. Thompson, Civil Engineer, Derby, Connecticut entitled "Map of Land to be conveyed to Anna Christen, Southbury, Conn., Scale 1"=60 ft., July 15, 1948" which map has been recorded as map 2617 in the Southbury Land Records. ("Christen Map") and a certain map entitled "Map prepared for Frank Schaub Bala Ridge Road, Southbury, CT." Date 5/11/88 Scale 1"=40' prepared by Paul Associates filed in the Southbury Town Clerk's Office as Map #2659."
4. 2-acre piece in Southbury that is West by Highway and South by Highway.
The following is the chain of title for the 75-acre piece — 1820 to the present
1. Dated and Recorded May 30, 1820 Volume 9, Page 27 Oxford Land Records ("OLR") Mortgage Deed from Gershom Shelton to Eliakim Kimberly property "containing 75 acres more or less" that is in the Town of Oxford: "South on . . . and highway."
2. Dated November 12, 1825 recorded November 25, 1825 Volume 10, Page 289 of the OLR Warranty Deed Eliakim Kimberly to Elisha Wheeler property in the Town of Oxford "containing about 75 acres" that is: "South on . . . and highway" (recites that is same property as May 30, 1820 deed above).
3. Dated May 11, 1826 recorded May 25, 1826 Volume 10, Page 365 of the OLR Quit Claim Deed Elisha Wheeler to Mark Merwin, property in Oxford "containing about 75 acres" that is: " South on . . . and highway" (recites that is same property as May 30, 1820 deed above).
4. Dated April 1, 1837 recorded April 3, 1837 Volume 13, Page 635 of the OLR Quit Warranty Deed Mark Merwin to William L. Fabreque, property "containing about 75 acres" that is: " Southerly on land of Joseph Wheeler and highway" "situated in said town of Oxford and Southbury."
5. Dated March 26, 1857 recorded April 22, 1857 Volume 18, Page 257 of the OLR Warranty Deed William L. Fabreque to Curtiss Wheeler and Smith Wheeler, property "contains about 75 acres" that is: " Southerly in part on land supposed to belong to Joseph Wheeler or David Wheeler and in part on highway" (recites that is same property as Volume 13, Page 635 deed above) "with a dwelling house and other buildings standing thereon" "situated in said Town of Oxford in part and in part in the Town of Southbury."
6. Dated April 5, 1861 recorded April 27, 1861 Volume 21, Page 110 of the OLR Quit Claim Deed Curtiss Wheeler to Smith C. Wheeler property "containing 75 acres more or less" that is: "Southerly on David Wheeler and highway" "Tract of land with a dwelling house and other buildings standing thereon" "situated in "the Northern part of said Oxford in part the Southerly part of Town of Southbury."
7. Dated January 8, 1866 and recorded February 6, 1866 at Volume 22, Page 103 of the OLR Warranty Deed Smith C. Wheeler to Orwin C. Buckingham property "containing 75 acres more or less" that is: "On the South the land of David M. Wheeler and highway" "Tract of land with a dwelling house and other buildings standing thereon" "situate and lying in Oxford aforesaid in the Northerly section thereof at a place called Preston Hill." "A small section of the same on the Westerly side is in the Town of Southbury." This ownership is evidence by the Beers Map.
8. Dated and recorded May 12, 1874 at Volume 19, Page 471 of town records Administratrix Deed Ellen Buckingham Administratrix of the Estate of Orwin C. Buckingham to Wales W. Curtiss property "containing 75 acres more or less" that is: " Southerly by David Wheeler's land and highway" "a dwelling house and other buildings standing thereon" "lying in the towns of Oxford and Southbury."
9. Dated and recorded March 15, 1884 at Volume 23, Page 366 of the OLR Quit Claim Deed Orwin C. Buckingham to Robert B. Simburner "two certain tracts of land lying in the northerly part of the town of Oxford and partly in Southbury." The first tract lying a small part in Southbury and the rest in Oxford, called the "Preston Hill" land, contains seventy-five acres more or less and is "Southerly by lands of Sarah O. Donovan, George E. Garlick and highway" "with a small dwelling and buildings standing thereon."
10. Dated and recorded July 8, 1884 at Volume 24, Page 483 of the OLR Warranty Deed Robert B. Simburner to Samuel W. Buckingham a "tract of land with the buildings thereon situated in the northerly part of Oxford with a small portion thereof lying in the Town of Southbury. The same is known as `Preston Hill' and contains seventy-five acres more or less" and is "Southerly by lands of Sarah O. Donovan, George E. Garlick and highway."
11. Dated and recorded August 20, 1903 at Volume 26, Page 317 of the OLR Warranty Deed Samuel W. Buckingham to Ernest H. Reed a "tract of land with all buildings thereon standing" "situated principally in the northerly part of said town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' so called "containing seventy-five acres more or less" and is "Southerly by land of Ferrell Martin, land of George E. Garlick and highway."
12. Dated and recorded May 7, 1906 at Volume 29, Page 8 of the OLR Warranty Deed Ernest H. Reed to Thomas Kelly a "tract of land with all buildings thereon standing" "situated principally in the northerly part of the town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' so called "containing seventy-five acres more or less" and is "Southerly by land of Ferrell Martin, land of George E. Garlick and highway."
13. Dated September 13, 1927 and recorded September 15, 1927 at Volume 32, Page 345 of the OLR and recorded April 19, 1928 at Volume 27 Page 427 of the SLR Quit Claim Deed Thomas Kelly to Ferrell Martin a "tract of land with all buildings thereon standing" "situated principally in the northerly part of the town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on 'Preston Hill' (so called)" "containing seventy-five acres more or less" and is "Southerly by land of Ferrell Martin, land of George E. Garlick and highway."
14. Dated April 27, 1931 Recorded July 3, 1931 at Volume 39, Page 568 of the OLR and recorded November 19, 1931 at Volume 43 Page 102 of the SLR Administratrix Deed Administratrix of the Estate of Ferrell Martin to Thomas Kelly a "tract of land with all buildings thereon standing" "situated principally in the northerly part of the town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" "containing seventy-five acres more or less" and is "Southerly by land of said estate, land of George E. Garlick and highway."
15. Ferrell Martin 2-acre Southbury piece. An additional 2-acre piece in Southbury is added to the 75 acres in Oxford and Southbury.
a. Dated May 6, 1897 Recorded December 13, 1897 at Volume 23, Page 36 of the SLR and Recorded May 6, 1897 at Volume 27, Page 11 of the OLR Administrator's Deed of the Estate of Josephine Burr to Margaret A. Gilhuley and Farrell Martin. Third tract, in the town of Southbury at "Dark Entry" so called near Eight Mile Brook and contains two acres more or less being bounded North by land of Benjamin C. Pope [predecessor to Katys] East by S.W. Buckingham [predecessor in title to the 75 acres] South and West by highway. This property becomes part of the property transferred with the 75 acres and eventually is owned by Getzloe and then to Anna Christen. The deed recites that this property is situated in a location formerly called "Bristol town." Def. Ex. 47
b. Dated December 7, 1897 Recorded December 13, 1897 at Volume 19, Page 514 of the SLR and Recorded December 9, 1897 at Volume 28, Page 13 of the OLR Quitclaim Deed of Margaret A. Gilhuley to Ferrell Martin. Third tract, in the town of Southbury at "Dark Entry" so called near Eight Mile Brook and contains two 2 acres more or less . . . South and West by highway. (Same piece as subparagraph a. above.) Def. Ex. 48.
16. Dated and recorded February 4, 1932 and recorded February 10, 1932 at Volume 43 Page 6 of the OLR and recorded February 24, 1932 at Volume 43 Page 123 of the SLR, Executrix Deed Executor of the Estate of Thomas Kelly to Joseph Slusinski a "tract of land with all buildings thereon standing" "situated principally in the northerly part of the town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" "containing seventy-five (75) acres more or less" and is "Southerly by land of said Martin estate, land of George E. Garlick and highway."
17. Dated June 22, 1938 and recorded June 30, 1938 at Volume 44 page 128 of the OLR and recorded July 14, 1938 at Volume 51 Page 138 of the SLR Warranty Deed Slusinski to Dimitri Dumas "in and to that certain farm situated in both the towns of Oxford and Southbury" "containing 75 acres, more or less" "principally in the northerly part of the town of Oxford, with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" and bounded "Southerly by land of said F. Martin estate, land of George E. Garlick and highway."
18. Dated October 7, 1939 and recorded October 7, 1939 Volume 44 Page 209 of the OLR and recorded October 20, 1939 Volume 51 Page 240 of the SLR Dimitri Dumas to Tamara Getzloe Warranty Deed for undivided 1/2 interest "in and to that certain farm situated in both the towns of Oxford and Southbury" "containing 75 acres, more or less" "principally in the northerly part of the town of Oxford. with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" and bounded "Southerly by land of said F. Martin estate, land of George E. Garlick and highway."
19. Dated October 7, 1939 and recorded Oct 12, 1939 at Volume 44 Page 210 of the OLR and recorded October 20, 1939 Volume 51 Page 241 of the SLR Dimitri Dumas to Nina Dumas Warranty Deed for undivided 1/2 interest "in and to that certain farm situated in both the towns of Oxford and Southbury" "containing 75 acres, more or less" "principally in the northerly part of the town of Oxford. with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" and bounded "Southerly by land of said F. Martin estate, land now or formerly of George E. Garlick and highway."
20. Dated Oct. 7, 1939 and recorded May 31, 1941 at Volume 44 Page 289 of the OLR and recorded at June 7, 1941 at Vol. 51 Page 378 of the SLR Nina Dumas to Dimitri Dumas. Warranty Deed for undivided 1/2 interest "in and to that certain farm situated in both the towns of Oxford and Southbury" "containing 75 acres, more or less" "principally in the northerly part of the town of Oxford . . . with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' (so called)" and bounded "Southerly by land of said F. Martin estate, land now or formerly of George E. Garlick and highway."
21. Dated May 28, 1941 and recorded May 31, 1941 at Volume 44 Page 290 of the OLR and recorded June 7, 1941 at Vol. 51 Page 379 of the SLR Dimitri Dumas to Harvey Getzloe, Warranty Deed, undivided 1/2 interest "in and to that certain farm situated in both the towns of Oxford and Southbury" "containing 75 acres, more or less" "principally in the northerly part of the town of Oxford . . . with a small portion thereof lying in the Town of Southbury. Said property is located on `Preston Hill' — so called —;" and bounded "Southerly by land of said F. Martin estate, land now or formerly of George E. Garlick and highway."
22. Anna Christen piece created. Harvey and Tamara Getzloe to Anna Christine: Deed out 4± of the small piece in Southbury by Warranty Deed to Anna Christen. (Now owned by Strongtown Road, LLC). Christen Piece. 3.7 ± piece (sometimes referred to in the chain of title as a 4-acre piece) This piece is partly the Ferrell Martin piece that was combined with the Southbury property and is described as West by Highway and South by Highway. This piece includes the Southbury 2-acre pieced deeded from Burr to Gilhuley and Farrell Martin that is South and West by highway.
a. Deed dated July 27, 1948 and recorded July 28, 1948 at Vol. 59 Page 13 of the SLR Warranty Deed Harvey W. Getzloe and Tamara Getzloe to Anna Christen:
This deed references a map made by George E. Thompson, Civil Engineer, Derby Connecticut entitled "Map of Land to be conveyed to Anna Christen, Southbury-Conn., Scale 1"= 60 ft., July 15, 1948" which map has been recorded as map 2617 in the Southbury Land Records. ("Christen Map") This map shows this 4± property as Northerly of the "Old Road" [Bala Ridge/Dark Entry] and Easterly of the "Old Highway [discontinued portion of Strongtown Road not replaced by new highway 188]." The description commences:
"at a point on the easterly side of an old highway . . . thence proceeding southerly along said old highway . . . to the northeasterly corner of said old highway and old road; thence . . . easterly parallel to said old road . . . thence parallel to said old highway . . . thence easterly along said old road."
Note, the labels "Old Road" and "Old Highway" refer to 1948 Christen Map.
b. Estate of Anna Christen to Walter Christen Certificate of Devise dated December 17, 1976 and recorded December 28, 1976 at Vol. 132 Page 894 SLR.
c. Walter Christen to Frank Schaub February 4, 1988, recorded February 8, 1988 at Vol. 216 Page 1152. SLR. Incorporates description at Vol. 59 Page 13. Conveyed together with all" right, title and interest in and to the abandoned highway, adjoining on the west to the center line, thereof, as it adjoins said property."
d. November 1988 Vol. 226 Page 797-99 Frank Schaub to Frank Schaub and Bonnie Schaub. Deed dated November 16 1988 and recorded November 21, 1988 at Vol. 226 Page 797-99 SLR. Description from Southbury Town Clerk's Map #2659 "Map prepared for Frank Schaub Bala Ridge Road, Southbury CT" Dated 5/11/88 Scale 1"=40' prepared by Paul Associates.
Description includes: "Thence along Bala Ridge road . . ." and "Together with all right title and interest in and to the abandoned highway, adjoining on the west to the center line, thereof, as it adjoins said property." (This abandoned highway to the "west" is the discontinued piece of Strongtown Road and not Bala Ridge Road or Dark Entry Road which would be to the South.)
e. Dated June 20, 2000, and recorded on the Southbury Land Records on June 22, 2000, at Volume 366, Page 211 Warranty Deed from Frank A. Schaub and Bonnie L. Schaub to Strongtown Road, LLC. This deed is also together with all right, title and interest in and to the abandoned highway, adjoining on the west to the center line, thereof, as it adjoins said property. (This abandoned highway to the "west" is the discontinued piece of Strongtown Road and not Bala Ridge Road or Dark Entry Road which would be to the South.).
23. Deed to Kramer 75 acres in Oxford (except 4 acres in Oxford reserved, the Anna Christen piece already deeded in 1948, and leftover piece in Southbury not included in the Christen piece) (The excepted piece in Oxford is now 50 Bala Ridge Road is owned by Christian Associates, Inc.).
a. Warranty Deed Dated November 2, 1951 and recorded November 6, 1951 in the OLR at Vol. 51 Page 366 Harvey W. Getzloe and Tamara Getzloe to David Kramer: "containing 75 acres, more or less" "in the northerly part of the town of Oxford, said property being located on `Preston Hill' — so called —" and bounded " Southerly by land of said F. Martin estate, land now or formerly of George E. Garlick and highway."
1) This conveyance excepts a 4-acre piece bounded by the "Northerly Line of an old highway," then NE two courses an distances to a "point in line with the southerly side of a cottage and 25 feet northwesterly therefrom" and then to the "centerline of eight Mile Brook" and the Southerly along said brook "to northerly side of said old highway; thence southeasterly along northerly line of said highway" to the starting point.
2) Kramer is given right of first refusal on the small piece in Southbury reserved by Getzloe.
3) Kramer, his heirs and assigns and his business and social invitees are given the rights "to cross over the land reserved, along the portion of land denoted as "Drive" on a map showing the premises conveyed and premises reserved prepared by C.G. Stiles and a continuation of the `Drive' so as to permit access to the "Old Road" so-called, shown on said Map so as to obtain access to the land conveyed and to other land owned by the Grantee. Said access may be on foot or by vehicle of any description." This gave Kramer the right to use a "Drive" on property reserved to get to the "Old Road" from his properties. Thus Kramer in 1951 uses drives to get to a road but does not require any additional rights over that road. Further Kramer owns property to the West of 50 Bala Ridge Road and the Christen parcel which are other properties conveyed that utilize the "old road."
4. The deed provides that "no portion of the premises obtained by the said Harvey W. Getzloe and the said Tama Getzloe from the said Dimitri Dumas and lying in the town Southbury, is intended to be conveyed in this deed but only the land lying in the Town of Oxford." [This confirms that there is land in the Town of Southbury that is reserved by Getzloe. Further this deed is after the conveyance of 4± acres to Anna Christen in 1948 and therefore the reserved piece has to be the .61-acre piece.]
5). See map #2617 and Map 2659 on file in the Southbury Town Clerk's Office.
6) In connection with cottage language in deed at 51/366 OLR. See map in Oxford land records. 5 page 74 of OLR. Kramer is required to obtain his own water and electricity on the property conveyed to him including the cabin.
b. (1951) Volume 46 Page 496 of Oxford Land Records, quitclaim, David Kramer to Blueberry Hill Farm, Incorporated, 75 acres on Preston Hill in Oxford, Excepting a 4-acre piece in Oxford and bounded by the "Northern Line of said old highway," and to the North, the "centerline of eight Mile Brook.
c. Dated January 15, 1971 recorded January 19, 1971 at Volume 72 Page 492 OLR Warranty Deed from Blueberry Hill Farm, Inc. to Uniroyal, Inc. Parcel No. 1 contains the 75 acres less the deed out for 4 acres in Oxford, 4 acres to Anna Christen, and reserved Southbury 1/2-acre piece.
24. Bala Ridge Road, LLC chain (1/2-acre Southbury). Deed of remaining (reserved) one-half acre more or less in Southbury from Harvey Getzloe Estate to Nina Dumas (Now Bala Ridge Road, LLC).
a. Dated May 14, 1959 and recorded May 29, 1959 at Volume 59 Page 265 of the OLR and recorded June 1, 1959 of the SLR.
b. May 14, 1959, recorded June 1, 1959) Vol. 71 Page 253 SLR Certificate of Distribution of 4-Acre Piece in Oxford to Nina Dumas but omits this one-half acre piece. See Corrected Distribution Certificate at Volume 234 page 154 of the SLR that corrects the Certificate of Distribution in Volume 71 Page 253 SLR in which the Southbury piece was omitted in the deed out of the estate. See statutory affidavit dated and recorded August 28, 1989 of Attorney Peter M. Clark at 234 page 226 of the SLR and Volume 146 Page 197 of the OLR. That affidavit says that David Kramer acquired a right of first refusal to purchase said premises in Southbury that is described at Vol. 51 Page 366 of the SLR but he died and there was no sale to him so that this one-half acre piece more less should have been but was omitted in the Harvey M. Getzloe estate Executor's deed.
c. Sept. 1989. Volume 234 Page 1023 Executor's Deed from Executor under will of Nina Dumas (Seymour Trust) to Frank A. Schaub and Eric Ianantuoni:
In Southbury: One-half acre more or less bounded (."5 Acre Southbury Piece"):
Northerly (223.98') by land now or formerly of Frank and Bonnie L. Schaub; Easterly: center line of Brook (115' feet). Southerly by highway known as Bala Ridge Road, 200' Westerly 114.95' by land now or formerly of Frank and Bonnie L. Schaub;
Subject to passway rights from Vol. 51 Page 366 to get to Bala Ridge Road. SEE "MAP OF LAND TO BE CONVEYED TO ANNA CHRISTEN," July 15, 1948 revised to September 21, 1948"
d. Dated June 20, 2000, and recorded on the Southbury Land Records on June 22, 2000, Warranty Deed at Volume 366, Page 214 of the Southbury Land Records Warranty Deed from Frank A. Schaub and Eric N. Ianantuoni to Bala Ridge Road, LLC; The .5 acres now surveyed as .61 acres. "Southerly: by highway known as Bala Ridge road 200 feet more or less"
25. Christian Associates, Incorporated 4 acres Oxford. Deed of four (4) acres (this is the Oxford piece reserved by Getzloe in deed to Kramer) now owned by Christian Associates, Incorporated and located at 50 Bala Ridge Road.
a. Dated May 14, 1959 and recorded May 29, 1959 at Volume 59 Page 265 of the Oxford Land Records Warranty Deed from Getzloe to Nina Dumas.
b. Dated May 14, 1959 and recorded June 1, 1959 Certificate of Distribution in Volume 71 Page 253 from Estate of Harvey M. Getzloe to Nina Dumas in which the 4-acre piece in Oxford is deeded out of the estate.
c. Sept. 1989 Volume 234 Page 1023 Executor's Deed from Executor under will of Nina Dumas (Seymour Trust) to Frank A. Schaub and Eric lanantuoni:
In Oxford: Four acres described as "Beginning at a point on the northerly line of an old highway" and 200' NW from the division line between Getzloe and Kramer intersects the northerly line of said old highway" and "Southerly along center of said brook about 345.00 feet to northerly side of said old highway" and "southeasterly along northerly line of said highway about 367.00 feet to point of beginning" (referred to herein as the "4-Acre Piece.")
D. Orosz Chain: In order to check the existence of Dark Entry Road in Southbury (known as Bala Ridge road in Oxford) which intersected and crossed Old Strongtown Road and ran East and West, we searched the Orosz piece just to the West of the Kramer piece (Coe Brass). The chain of title for the Orosz piece shows:
When Uniroyal coincidentally purchases the Orosz property we get an indication as to the true status of the highway because in that deed, the ancient description is preserved, however in Property conveyed to Uniroyal as to the Kelsey-Kramer chain of deeds and Schwabacher-Kramer chain of deeds, the description of the southerly and easterly boundaries "by highway" have been removed. Further the Schwabacher-Kramer (101 acres) deed is "North by Highway" which is the subject highway (as admitted by Johnson who calls it North by "passway." However, the deed references the boundary as an old highway not as a passway.
1. April 3, 1905 Warranty Deed from Cornelius Hard to Estelle Wood recorded May 16, 1905 at Volume 22 Page 438 describes 12 acres of land that is "Southerly and Westerly by an old Highway."
This deed describes the property as "a little Northeasterly from the above described land and bounded:
Northerly by Harley Warner
Easterly by land formerly of the estate of Wales H. Curtiss divided by a straight line marked by bounds at each end andSoutherly and Westerly by an old highway
(The Kramer chain above is described as "West by Hard")
2. Estelle Wood to Jessie H. Curtiss Quit Claim Deed Dated September 14, 1905 recorded Oct. 4, 1905 at Volume 24 Page 187 of the SLR same 12 acres.
North by Harley Warner
East by Waterbury Brass Company [Kramer piece]
Southerly and Westerly by an old highway
3. Jesse Curtiss to Poter L Wood Dated Sept. 14, 1905 recorded Oct 4, 1905 SLR at Volume 24 page 188 SLR — same 12 acres
North by Harley Warner
East by Waterbury Brass Company [Kramer piece]
Southerly and Westerly by an old highway
4. Poter L Wood to Joseph and Margaret Abello Warranty Deed April 29, 1919 and recorded July 1, 1919 at Volume 33 Page 28 SLR. Same piece.
North by Harley Warner
East by Coe Brass Company [Kramer piece]
Southerly and Westerly by an old highway
5. Joseph and Margaret Abello to Robert and Katy Dougall Warranty Deed Dated October 11, 1919 recorded October 18, 1919 at Volume 33 Page 43 SLR. Same piece:
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
6. Margaret Abello to Robert and Katy Dougol (Dougall) Warranty Deed Dated October 11, 1919 recorded October 18, 1919 Volume 33 Page 45 SLR Last piece described is same 12 acres:
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry.
7. Robert and Katy Dougol to Leo L. and Laura A. Charbonneau Warranty Deed dated June 3, 1927 and recorded June 3, 1927 at Volume 37 Page 218 SLR — Second piece is same piece
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
8. Leo L. and Laura A. Charbonneau to Robert and Katy Dougol Warranty Deed dated and recorded December 19, 1927 at Volume 37 Page 273. Same piece is Second Piece described.
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
9. Robert and Katy [Katherine] Dougol to Lillian and Waldermar Anderson Warranty Deed dated June 2, 1947 and recorded June 3, 1947 at Vol 56 Page 460 of the SLR. (Second Piece is same 12 acre piece described.
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
10. Waldermar Anderson to Lillian Anderson Quit Claim Deed dated January 6, 1948 and recorded January 7, 1949 at Volume 58 Page 311 of the SLR.
Second Piece is same 12 acre piece described.
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
11. Lillian Anderson to John and Rose Loiacona Warranty Deed dated and recorded May 6, 1949 at Volume 58 Page 368 SLR.the Second Tract is deed of 12 acres:
North by Harley Warner
East by Coe Brass Company [Kramer piece]
South and West by an old road known as Dark Entry
12. John and Rose Loiacona to John and Anna Orosz Warranty Deed dated and recorded September 14, 1951 at Volume 59 Page 413 SLR. The Second Piece deed of 12 acres is described as:
North by Harley Warner
East by Coe Brass [Kramer piece]
South and West by an old road known as Dark Entry
13. Anna Orosz to Uniroyal, Inc Warranty Deed dated January 14, 1985, recorded February 14, 1985. at Volume 177 Page 330 SLR.
NORTHERLY by land now or formerly Harley Warner
EASTERLY by land formerly of Coe Brass [Kramer piece]
SOUTHERLY AND WESTERLY by an old road known as Dark Entry 14. Uniroyal, Inc. to Uniroyal Properties, Inc. Quit Claim Deed dated October 24, 1985 and recorded October 25, 1985 at 184/1109 of the SLR. 15. Uniroyal Properties to International Business Machines Corporation deed (with quitclaim and limited covenants) dated and recorded December 17, 1985 at volume 186 Page 1062 of the SLR: "Southerly and Westerly by old road known as Dark Entry."
This is the same road that is the southerly boundary of Kramer and the southerly boundary of the 75 acre-piece (Getzloe, Dumas to Kramer)16. International Business Machines Corporation to Pilot's Mall, LLC-limited warranty deed dated November 21, 1997 and recorded November 26, 1997 at Volume 327 Page 137 of SLR. At page 150 no reference to the original descriptions for the West side of 188; however the deed describes the tracts and parcels by reference to the IBM "MAPS" including Maps 25-14 and 25-15 of the Southbury Land Records, which Maps delineate the road to the South and West with a legend as the Southerly road "ROADWAY WITH POSSIBLE ACCESS RIGHT TO EXCLUDED PARCELS — AS SHOWN ON TOWN CLERK MAP 1208." The Southerly highway connects to Route 188 and continues shown as parallel solid lines to the East — which portion of the highway to the east is the disputed portion of highway. There is a contradiction in the legends on Maps 25-14 and 25-15 because the highways to the South and West are in one case (Southerly Highway) labeled as a "roadway" and the other (Westerly Highway) is labeled as "Wood Road." The deeds to this property until the IBM to Pilot Mall, LLC map describe both the Southerly Highway and the Westerly highway as either "an old road known as Dark Entry" or "highway"
E. Estate of Mary Kaytis Piece-Southbury — This piece is to the North of the Anna Christen piece and is bounded on the West by the discontinued Strongtown Road which road is NOT the East-West Highway but rather a piece of Strongtown that was relocated when Route 188 was built.
1. George S. Pope to Benjamin C. Pope Warranty Deed dated July 2, 1984 and recorded January 12, 1895 at Vol. 22, page 224 of the SLR two or more acres more or less bounded:
North by William Curtiss running on Said Curtiss line 28 rods lacking 6 feet East by William Buckingham 21 rods 2 feet South South by Josephine Burr. West by Highway running North 9 rods and 3 feet to William Curtiss land.
2. Death Certificate Benjamin C. Pope 2. dated December 27, 1916 and recorded December 30, 1916 at Vol. 56 Page 105 of the SLR.
3. Eleanor P. Hubbell to Walter J. Kaytis and Marylis L. Kaytis Warranty Deed dated and recorded July 9, 1945 Vol. 56 page 147 of the SLR.
North by William Curtiss running on Said Curtiss line 28 rods lacking 6 feet East by William Buckingham 21 rods 2 feet South by Josephine Burr running west 23 rods and 3 feet to a pile of stones at highway West by Highway running North 9 rods and 3 feet to William Curtiss land.
Being land acquired by Eleanor Hubbell from the estate of her father, Benjamin C. Pope.
4. Certificate of Descent Walter J. Kaytis to Mary Kaytis (aka Marylis) dated August 14, 1978 and recorded September 1, 1978 at Vol. 143 page 475 of the SLR 1/2 interest in:
North by William Curtiss running on Said Curtiss line 28 rods lacking 6 feet East by William Buckingham 21 rods 2 feet South by Josephine Burr running west 23 rods and 3 feet to a pile of stones at highway West by Highway running North 9 rods and 3 feet to William Curtiss land.