Opinion
No. WWMCV 08-5003308S
August 6, 2010
MEMORANDUM OF DECISION
The plaintiffs own a parcel of land westerly of Fitzgerald Road, in Brooklyn, Connecticut. The plaintiffs' property abuts property of the defendant which is due north of the plaintiffs' property. The defendant acquired his property, also located in Brooklyn, Connecticut on January 9, 1989, recorded in Vol. 94, Page 62 of the Brooklyn Land Records. The plaintiffs acquired their parcel on October 1, 1956, recorded in the Brooklyn Land Records in Vol. 33, Page 195. Both parcels are undeveloped and wooded, although the forestation is clearly not first growth timber and has been harvested for timber on several occasions over the past 200 or so years according to trial testimony.
The plaintiffs' property is landlocked. The defendant's property abuts a public highway known as Fitzgerald Road. Fitzgerald Road is the only public highway bordering the defendant's property. Emanating from the plaintiffs' property and crossing the defendant's property is a cart path or "woods road" which provides access from the plaintiffs' landlocked parcel to Fitzgerald Road. The "woods road" is shown on a survey Plaintiff's Exh. #4 introduced by the plaintiff and was also quite visible to the court upon a view of the property on April 21, 2010. It is referred to as "woods road" on Plaintiff's Exh. #4.
The defendant's and plaintiffs' properties were once held as a single parcel by a common grantor. This was in the early 1700s. Plaintiffs' Exh. #5 depicts the plaintiffs' and defendant's properties at the time that the plaintiffs' parcel became landlocked due to the conveyances by Jonathan Davis in the 1727-1728 timeframe. The surveyor who testified for the plaintiffs, Mr. Gerald Stefon, opined that at all times since the early 1700s up to the present, the plaintiffs' parcel has been landlocked.
The property to the west of the plaintiffs' parcel, see plaintiffs' Exh. #6, contains a swamp which testimony revealed to be impassible. The property to the south has been in a different chain of title since the 1700s and contains numerous geographical features which would present an extreme and unpractical challenge as a means of ingress and egress to the plaintiff's parcel. There are no existing woods roads or cart paths across any property to the south which could serve as a means of ingress and egress to the plaintiffs' parcel.
The evidence presented clearly indicates that there is a "woods road" from the plaintiffs' parcel across the defendant's parcel to Fitzgerald Road. Fitzgerald Road has been a public highway since at least 1753. Testimony demonstrated that the plaintiff's have utilized this "woods road" for ingress and egress ever since their acquisition of the property. Testimony and photographic evidence from Mr. Stefon clearly indicate that the "woods road" has been in existence as a means of ingress and egress to the plaintiff's parcel for in excess of 200 years. There is a slight "jog" in the original "woods road" where it joins Fitzgerald Road as a result of the defendant having barricaded the path due to people utilizing the original path to dump trash on his parcel. The original "woods road" is clearly depicted on Mr. Stefon's maps.
It appears that the "woods road" is the only existent means of ingress and egress to the plaintiffs' parcel and that it has been in existence since the time when the original unity of interest was severed, leaving the plaintiffs' parcel landlocked. There neither is nor was any other viable, practicable access to the plaintiffs' parcel to any public road except for this "woods road" which provides access to Fitzgerald Road. Although the defendant and other witnesses testified about other roads or paths crossing both the defendant's and plaintiffs' property, there was no evidence introduced demonstrating where they were located, when or how they were created or what access they provided to the plaintiffs' landlocked parcel. Mr. Stefon testified that he searched all of the properties abutting the plaintiffs' parcel. None of the conveyances referenced in Mr. Stefon's testimony referenced a habendum clause or other language purporting to convey a right-of-way across the defendant's or any other abutting parcels, despite the fact that without a right-of-way, the plaintiffs' parcel is landlocked.
Both the plaintiffs' and defendant's properties were held as a single parcel by a common grantor until that grantor conveyed the parcel now held by the defendant to the defendant's predecessor in title. At the time that the parcel was conveyed by the common grantor to plaintiffs' predecessor in interest, there was no public road or other means to be used for ingress or egress from the plaintiffs' parcel nor does any such means exist today save for the "woods road" which crosses over the defendant's land to Fitzgerald Road as depicted on Plaintiff's Exh. #4.
"[A]lthough there exists a similarity between an easement by necessity and an easement by implication . . . these easements are not identical . . . The difference between the two types of easements is that an easement by necessity requires the party's parcel to be landlocked, and an easement by implication does not require that the parcel be landlocked." Sanders v. Dias, 108 Conn.App. 283, 289, 947 A.2d 1026 (2008).
"An easement by necessity will be imposed where a conveyance leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only though the lands conveyed." Hollywyle Association, Inc. v. Hollister, 164 Conn. 389, 389, 324 A.2d 247 (1973), "[T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one." Id., 399. See Christensen v. Reed, 105 Conn.App. 578, 941 A.2d 333, cert. denied, 286 Conn. 912, 944 A.2d 982 (2008).
"Although the requirements for an easement by necessity once included a showing of unity of ownership . . . our Supreme Court has eliminated that requirement . . . Moreover, although it is true that [a]n 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 . . . [t]he inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road though another means." (Internal quotation marks omitted.) Christensen v. Reed, 105 Conn.App. 578, 583-84, 941 A.2d 333, cert. denied, 286 Conn. 912, 944 A.2d 982 (2008). Furthermore, "a plaintiff who brings an action . . . to quiet title by claiming an easement of necessity must affirmatively establish the scope of the easement." First Union National Bank v. Eppoliti Realty Company, 99 Conn.App. 603, 610, 915 A.2d 338 (2007).
"[A]n implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property . . . In the absence of common ownership . . . an easement by implication may arise based on the actions of adjoining property owners . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." (Internal quotation marks omitted.) Sanders v. Dias, 108 Conn.App. 283, 288, 947 A.2d 1026 (2008). See McBurney v. Cirillo, 276 Conn. 782, 800, 889 A.2d 759 (2006).
"[W]e determine whether the grantor intended to establish an easement 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 . . . [A]lthough the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement . . . [Furthermore, the] determination of the scope of an easement is a question of fact . . . [and the] decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Sanders v. Dias, 108 Conn.App. 283, 290-91, 947 A.2d 1026 (2008).
The evidence presented, in consideration of all of these enumerated factors, would entitle the plaintiffs to an easement by necessity — the parcel in question is land-locked and the necessity is a reasonable one. The plaintiffs also meet the requirements of an easement by implication as the land of both the plaintiffs and the defendant was once in one ownership, was subsequently divided into separately owned parcels and at the time of the conveyance, a permanent servitude existed — the "woods road" as to one part of the property in favor of the other. This easement is also reasonably necessary for the normal use and enjoyment of the dominant estate. It also appears that at the time of the original conveyances by Jonathan Davis, that the "woods road" existed from the plaintiffs' dominant parcel across the defendant's serviant estate to Fitzgerald Road.
Connecticut does not distinguish the requirements of necessity when comparing an easement by implication and an easement by necessity. Kelley v. Tomas, 66 Conn.App. 146, (fn5) (2001).
One seeking an easement by necessity (or implication) has the burden to prove the existence of such easement, and that the easement is reasonably necessary for the enjoyment of the land, by clear and convincing evidence. Christensen v. Reed, 105 Conn.App. 578 (2008). fn 11. The plaintiff has met this burden and has also proven that no alternative mode of ingress and egress is available. Having proven that they are entitled to an easement by necessity, the court must now determine the scope of the easement. Its use must be reasonable and as little burdensome to the servient estate as the nature of the easement and its purposes will permit. Simone v. Miller, 91 Conn.App. 98, 111 (2005). The purpose of the easement is to permit the plaintiff (their heirs and assigns) to pass and repass over the land of the defendant (his heirs and assigns) to their property and for all such other reasonable purposes consistent with the plaintiffs' expressed desire to construct a single family dwelling on the parcel owned by the plaintiffs. While it will be the plaintiffs' responsibility to construct and maintain any improvements to the easement, its exact location cannot be determined at this time. It will follow the "woods road," so-called, but its metes and bounds will need to be established in a legal description consistent with the description set forth in the plaintiffs' exhibits from the trial. This description will be incorporated into a further order of this court which will then be recorded in the Brooklyn Land Records. This court will retain jurisdiction for all purposes consistent with the implementation of this decision.