Deane v. Kahn

Full title: Curtis D. Deane v. Amy Day Kahn et al

Court: Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford

Date published: Jul 13, 2007

2007 Ct. Sup. 12492 (Conn. Super. Ct. 2007)

Opinion

No. X 09 CV 01 4022032

July 13, 2007

MEMORANDUM OF DECISION

JOSEPH M. SHORTALL, J.

A hundred years ago, as the twentieth century began, Harriet Warner owned an estate of land on the shore of the Connecticut River in Lyme, where the river widens to the east while continuing its southerly flow toward Long Island Sound. Some she had acquired from her daughter, May Belle Reynolds, in 1905, and the rest from the estate of her husband, Zebulon, in 1906. The parties in this case now own and occupy three properties carved out of Mrs. Warner's estate over the years. As the twentieth century ended, they were at sword's point over the existence, scope and use of certain easements claimed to exist on those properties.

The plaintiff, Curtis D. Deane, owns and occupies the easternmost of the three properties in question. The defendant Any Day Kahn owns the property immediately to the west of Mr. Deane's property and occupies it with her husband, Robert Kahn, who is also a defendant. The defendant John Gorman owns the westernmost property of the three and occupies it with his wife, Ellyssa Eror.

Nine of the counts in the complaint¹ assert Mr. Deane's claims to a right to cross from his property westward over the Kahn and Gorman properties along the shore of the Connecticut River, which the court will refer to as the "riverfront easement." He claims this right by way of an express grant by deed, by adverse possession, by an implied easement, by an easement by necessity, by virtue of an equitable servitude and as a result of a constructive trust. Two of the counts concern an undisputed easement the Kahns have over Mr. Deane's property to reach their property from the main road in the area, Brockway's Ferry Road (the road), which the court will refer to as the "common driveway easement" since Mr. Deane uses the same driveway to reach his property from the road. One of those counts alleges that the Kahns have trespassed beyond an alleged "established and traveled portion" of the easement and have wilfully damaged Mr. Deane's property in doing so; the other claims that Mrs. Kahn has failed to pay her share of maintenance costs for the easement. The final count concerns another undisputed easement which the Kahns enjoy over Mr. Deane's property, a strip twenty feet wide and running 350 feet southward just inside the western boundary of Mr. Deane's property, which the court will refer to as the "mutual boundary easement."² Mr. Deane claims that the Kahns have abandoned their easement; thus, it no longer exists by operation of law.³

1 The trial of three of the fifteen counts in the complaint, one each alleging intentional infliction of emotional distress and property damage against the Kahn defendants and Mr. Gorman and Ms. Eror (the "Gorman defendants") and civil conspiracy against all the defendants, was deferred until after the court's decision on the other twelve counts settling the parties' property rights.

2 The "common driveway" and "mutual boundary" easements are, in reality, parts of the same continuous easement over the Deane property created in 1960 when Musa Warner Caples conveyed to Marion and Charles Srebroff, respectively, the Kahn and Deane properties. See Exhibit 24. The easement runs 538 feet south from the road, turns west to provide a driveway into the Kahn property and then runs southwest 350 feet within the westerly boundary of the Deane property.

3 Attached to this decision is a tax assessor's map of the area in question. The shaded area at the bottom is the Connecticut River. Mr. Deane's property is #7; Mrs. Kahn's property, #8; Mr. Gorman's property, #19. The riverfront easement claimed by Mr. Deane runs to the west from his property and over the Kahn and Gorman properties along the river, continuing westward to Brockway's Ferry Road. The common driveway easement runs in a southerly direction from Brockway's Ferry Road toward the Deane and Kahn properties. The mutual boundary easement runs 350 feet along the 430-foot line between the Deane and Kahn properties.

In addition to denying the salient allegations of Mr. Deane's complaint as it applies to them and raising a plethora of special defenses,⁴ the Kahns have counterclaimed to establish a prescriptive easement they claim over Mr. Deane's property at the corner at the intersection of the common driveway easement and the driveway leading to their property.⁵

4 In all, forty-seven, most of which have been abandoned. See footnote 7, infra.

5 The property owned by Mr. Deane over which the Kahns claim this prescriptive easement is not the Deane property otherwise at issue in this case but a separate piece he owns due north of the property at issue here.

Over the course of sixteen days in July and August of 2006 this case was tried to the court. The court heard from twenty-one witnesses,⁶ including all of the parties, and received 237 exhibits. What follows represents the court's findings of fact and conclusions of law. The factual findings are based on the court's assessment of the credibility of the witnesses and the weight to be given their testimony, as well as its consideration of the exhibits that were introduced. In addition, the court made two visits to the properties in question, along with counsel for the parties, one before and one after it heard the evidence, and some of the court's findings of facts are based in part on its observations on those visits.

6 Of all the witnesses the court found two particularly important and credible: Robert Sutton, who has lived in the immediate area of the properties at issue all his life and testified that he had crossed over the Gorman and Kahn properties via the riverfront easement "thousands and thousands of times," and Carole Schmitt, who lived there in the late 50s and 60s, when her parents, Marion and Charles Srebroff, owned the Gorman, Kahn and Deane properties.

The conclusions of law reached by the court are based on arguments made by counsel during the trial, as well as in post-trial memoranda of law⁷ and argument, and its research into the applicable principles of the law governing easements.

7 Points of law raised in the pleadings or at trial which have not been briefed or have been inadequately briefed are considered abandoned. See Conn. Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120 (2003).

I The Facts A The Gorman Property

Harriet Warner held onto her land for thirty years before she deeded out the first portion to a predecessor in title to one of the parties here; viz., to Walter Hastings, Mr. Gorman's predecessor, on January 19, 1935.⁸ According to the deed, that tract of land consisted of approximately one-third of an acre of Mrs. Warner's property along the river. In the deed Mrs. Warner reserved "a right of way . . . in perpetuity across said tract along the route now in use." This reservation is the source of Mr. Deane's claim of a right of way by grant over the Gorman property, the riverfront easement. See part III A, infra.

8 In 1909 Mrs. Warner had conveyed to Robert Huey the property immediately to the west of the Gorman property, now occupied by Mr. and Mrs. Russell Shaffer. See part III B, infra.

Thereafter this tract passed to William Hastings via a certificate of devise from Walter Hastings' estate on December 10, 1938 and to Kenneth Johnson via a deed from William Hastings on September 12, 1945. In both of these instruments the land is expressly conveyed subject to the right of way reserved by Mrs. Warner in 1935. On October 30, 1945 Mr. Johnson augmented his land by obtaining from Musa Warner Caples, Harriet Warner's daughter, who now owned a portion of the adjoining land formerly owned by her mother; see part IB, infra; a grant of a 100-foot square tract on the northern boundary of the land he had obtained from William Hastings. No mention of the riverfront right of way was made in this conveyance, nor would one expect it since, according to the deed, the property conveyed runs north from a point 160 feet from the river, i.e., not on the riverfront. The riverfront right of way appeared again, however, when Mr. Johnson conveyed all of his land on February 8, 1955 to Charles and Marion Srebroff. The right of way was described by reference to the deed in which Mrs. Warner originally reserved it in 1935, including the volume and page number of the Lyme land records in which the deed appears, and in the same terms as appear in that deed.

No further references to the right of way appear in the conveyances by which title to the property descended to its present owner, the defendant John J. Gorman: from Marion Maynard nee Srebroff to herself and Carole Schmitt nee Srebroff, her daughter, on December 21, 1977;⁹ from Mrs. Maynard and Mrs. Schmitt to Elliott and Linda Packman on April 30, 1982; from Mr. and Mrs. Packman to Robert and Susan Wright on March 1, 1984; and from Mr. and Mrs. Wright to Mr. Gorman on April 18, 1986. All of these deeds except the last, to Mr. Gorman, provided that the premises were conveyed "with the appurtenances thereof." The Wrights' conveyance to Mr. Gorman is expressly subject to a right of way over the riverfront portion of the property granted by the Srebroffs to Frank Denise Heineman in 1981. See part IB, infra.

9 Marion Srebroff took title to the property she owned jointly with her husband after he died on November 29, 1972 and married Elwood Maynard on December 22, 1973. See Exhibit 32.

B The Kahn Property

A little over a year after she conveyed a portion of her property to Walter Hastings, on February 28, 1936, Harriet Warner conveyed the rest to her daughters, Musa and Hester, and on December 30, 1936 Musa and Hester split the property between them, with Hester conveying to Musa the easternmost portion of their mother's property, including the tracts which have become the Kahn and Deane properties.

Musa Warner Caples held onto the portion of the property she received from her sister, Hester, for almost 24 years until, on July 6, 1960, she conveyed a portion of it (now the Kahn property) to Marion Srebroff and an adjoining portion (now the Deane property) to Charles Srebroff. The deed to Mrs. Srebroff created both the common driveway easement and the mutual boundary easement over which Mr. Deane and the Kahn defendants are at issue. They were created as one "perpetual" right of way twenty feet in width running 538 feet south from the road, then west to the land conveyed to Mrs. Srebroff (providing access from the road to Mrs. Srebroff's property) and then 350 feet southwesterly along and within the boundary between the property conveyed to Mrs. Srebroff and the property conveyed to Mr. Srebroff. The purpose of the entire easement is given as "for passage on foot and in vehicles and for the installation of public utility services for the benefit of the land herein conveyed (to Mrs. Srebroff) in common with other land of the grantor (Musa Warner Caples) conveyed or to be conveyed to Charles M. Srebroff."¹⁰

10 By 1960, then, the Srebroffs, either jointly or individually, owned all of the land which now constitutes the Deane, Kahn and Gorman properties, having purchased the Gorman property in 1955.

Ten years later, on January 14, 1970, Mrs. Srebroff conveyed her portion of Musa Caples' property to Frank and Denise Heineman. While the Heinemans owned the property, on May 13, 1981, Mrs. Srebroff, now Marion Maynard, and her daughter Carole Schmitt granted them a right of way over the riverfront portion of the property Mrs. Maynard and Mrs. Schmitt owned immediately to the west of the Heinemans' property, what is now the Gorman property. They described the course of the easement as "along that strip of land which is the easterly extention (sic) of the ancient private dirt road, as it now lays, across" the Gorman property from the property immediately on its western boundary to the Kahn property. On November 17, 1986 the Heinemans conveyed the property to Robert and Amy Day Kahn, and on February 7, 1990 Mr. Kahn released his one-half interest to Mrs. Kahn.

In none of these deeds is there any mention of the right of way reserved by Harriet Warner over the portion she conveyed to Walter Hastings in 1935, now the Gorman property. In all of them, except for the release by Mr. Kahn of his one-half interest to Mrs. Kahn, the property conveyed is conveyed "with the appurtenances thereof."

C The Deane Property

On November 11, 1961 Charles Srebroff conveyed the portion of Musa Warner Caples' property he received the year before to Howard Heffernan. That deed is expressly subject to the perpetual easement created by Mrs. Caples when she conveyed the other portion of her property to Marion Srebroff; see part IB, supra; i.e., the common driveway and mutual boundary easements. Although she owned no interest in this property, Mrs. Srebroff signed the deed to memorialize her agreement to be jointly responsible with Mr. Heffernan for the "maintenance, use and upkeep" of the common driveway easement. The deed spells out the relative responsibilities of Mr. Heffernan and Mrs. Srebroff; count seven of the complaint alleges that the defendant Amy Day Kahn has not met her financial obligations under the deed, as the successor to Mrs. Srebroff's title.

This deed also created, in the court's view,¹¹ ambiguity as to the size of the traveled portion of the common driveway easement by its reference to a "roadway over said right of way" created in Musa Caples' deed to Mrs. Srebroff. Count five of the complaint alleges that the Kahn defendants have consistently traveled outside of such traveled portion and caused damage to the Deane property in doing so.

11 See Deane v. Kahn, Superior Court, complex litigation docket, judicial district of Hartford, Docket No. CV 01 X 09 4022032 (May 24, 2006).

Howard Heffernan had held the property for almost fifteen years when he conveyed it to William Blundin on August 6, 1976. This conveyance was expressly subject to the common driveway/mutual boundary easement. In 1981, Mr. Blundin began conveying interests in the property to Mr. Deane; first, 25% on February 28, 1981; then, another 25% on August 23, 1984. The common driveway/mutual boundary easement was expressly referenced in both conveyances. Neither conveyance, however, was recorded until January 31, 1994. Shortly thereafter, on February 25, 1994, Mr. Blundin executed a quitclaim deed to himself of the 50% he had retained when he made the earlier conveyances to Mr. Deane, his express intention being to "terminate the survivorship provisions with" Mr. Deane set forth in those two earlier deeds. Finally, on April 18, 1996 Mr. Blundin conveyed his remaining 50% interest in the property to Mr. Deane, making Mr. Deane the sole owner of the property. This deed, like the earlier conveyances to Mr. Deane, included specific reference to the common driveway/mutual boundary easement.

In none of the deeds in Mr. Deane's chain of title is there any mention of the right of way reserved by Harriet Warner over the portion she conveyed to Walter Hastings in 1935, now the Gorman property. In all of them, except for the deed by Mr. Blundin to himself, the property is conveyed "with the appurtenances thereof."

D

The Disputes Among the Parties

When Mr. Blundin purchased the Deane property from Mr. Heffernan in 1976, Mr. Deane and he had a personal relationship which both described as "companions" to each other, and they had business and property interests in common as well. During the ten-year period from 1976 to 1986 they enjoyed untrammeled passage over the riverfront easement on foot and by vehicle. They took advantage of it by frequent walks along the riverfront and by bringing in vehicles from the road to upgrade and maintain the lower portion of their property, including the installation of a gabion¹² along the shore to control erosion.

12 A "gabion" is defined as "a metal cylinder filled with stones and sunk in water, used in laying the foundations of a dam or jetty." Random House Compact Unabridged Dictionary (2d Ed. 1996).

Mr. Gorman put a stop to that when he purchased his property in 1986. Very early in his tenure he informed both Mr. Deane and Mr. Blundin that they had no right to cross his property without his permission. He installed new locks on a post-and-chain barrier to vehicular traffic first installed by Mr. Heineman near the boundary line between the Gorman and Kahn properties so that Mr. Deane could not bring vehicles over those properties without his and the Kahns' permission. There was unpleasantness between Mr. Gorman and Mr. Deane over the latter's attempts to cross the former's property on more than one occasion from then till 1998, but Mr. Gorman testified that Mr. Deane by and large adhered to an "agreement" between them that Mr. Deane could cross on foot when Mr. Gorman was not at home. Mr. Deane disputed this at trial, claiming to have crossed the Gorman property less often after 1986 but nonetheless on a regular basis both when the Gormans were at home and when they were not. In any event, the "agreement" broke down in 1998 when Mr. Deane attempted to cross the Gorman property while Mr. Gorman was there, and Mr. Gorman told him he could not cross at all. As a result of these actions of Mr. Gorman, Mr. Deane claims he has interfered with the riverfront easement he enjoys.

In contrast, there was no discord between the Kahn defendants and Mr. Deane over the portion of the riverfront easement which crosses the lower portion of their property, according to Mr. Deane, until 2001. In fact, Mr. Deane and Mrs. Kahn took frequent walks along the riverfront for a period of several years in the early 1990s, including over the Gorman property and the lower portion of the Kahn property. There was plenty of disagreement over the common driveway easement, however, beginning in about 1996. Mr. Deane wanted to make some significant changes in the grade and surface of the driveway and share the costs with Mrs. Kahn, pursuant to the cost-sharing formula first established in the deed of the Deane property from Charles Srebroff to Howard Heffernan in 1961. While Mrs. Kahn was willing to share the cost of some improvements, she demurred to the ambitious plans of Mr. Deane.

That and the demise of their walks along the riverfront soured the relationship between Mr. Deane and Mrs. Kahn. Mr. Deane claims that, beginning in 1997, the Kahn defendants drove at excessive rates of speed down the common driveway, drove off the traveled portion of the right of way and in so doing wilfully caused damage to plants and flowers he had placed along the common driveway. Thus, he claims they have trespassed outside of the traveled portion of the common driveway easement and, in so doing, have caused damage to his property. During the same period, according to Mr. Deane, Mrs. Kahn failed to pay her share of the maintenance of the common driveway, thus violating the cost-sharing obligation created in the Srebroff-Heffernan deed.

At about the same period of time Mr. Deane took steps to prevent the Kahn defendants from cutting the corner where the common driveway easement turns westward to create a driveway into the Kahn property. This turn is a very sharp one: Although no evidence was introduced as to the degree of the angle, a survey commissioned by Mr. Deane in 1998, the "Gates survey" (Exhibit 519), shows it to be well over ninety degrees. For that reason, the Kahn defendants claim that they have been cutting across a very small triangle of land which is part of property Mr. Deane owns to the north of the properties at issue in this case from the time they bought their property in 1986 and until Mr. Deane effectively blocked their ability to do so in 2001 by placing barriers at the intersection of the common driveway easement and the driveway to their home. The Kahns claim that their immediate predecessors in title, the Heinemans, also drove over Mr. Deane's property in making this sharp turn. By way of a counterclaim, they assert a prescriptive easement over a triangular shaped portion of Mr. Deane's land to the north of the Deane property.

In all of this history there had been remarkably little overt controversy over the mutual boundary easement. Mr. Heineman recounted a conversation he had with Mr. Deane as he prepared to sell the property to the Kahns in 1986 in which Mr. Deane reacted angrily to Mr. Heineman's reminding him of the easement. And, Mrs. Kahn remembered Mr. Deane telling her on one of their walks that he thought the mutual boundary easement had been abandoned, to which she made a noncommittal response. Mr. Deane claims that the mutual boundary easement has been abandoned by actions of both the Kahn defendants and their predecessors in title.

In 2001 Mr. Deane was informed not to cross the lower portion of the Kahn property, and this directive was reinforced by the erection of a chain link fence along the boundary line between the Deane and Kahn properties by Mr. Kahn, with some help from Mr. Gorman, in July 2001. The fence runs from the foot of the slope separating the upper and lower portions of the Deane and Kahn properties all the way to the river's edge, entirely preventing any travel from the Deane property westward over the Kahn and Gorman properties. According to Mr. Deane, these actions constitute an interference by Mrs. Kahn with his riverfront easement.

II Conclusions of Law

The court reaches the following conclusions of law from the application of the legal principles concerning easements to this sequence of deeds, their language, the circumstances surrounding their execution and the other evidence the court has considered:

1. The easement created by Harriet Warner in 1935 (the riverfront easement) was an easement appurtenant, not an easement in gross. That easement extended across the Gorman property the public/private route which ran from the road along the riverfront in order to provide direct access from the road to the riverfront portions of what are now the Kahn and Deane properties.

2. That easement was carried down through Mr. Deane's chain of title by the language "with the appurtenances thereof," which appears in all the deeds in that chain of title.

3. An easement by necessity over the Kahn property for the benefit of the Deane property was created in 1960 when the deeds from Musa Caples to Marion Srebroff and Charles Srebroff severed what are now the Deane and Kahn properties.

4. As to the Gorman property, the deeded easement was not extinguished by the marketable record title act (the act). As to the Kahn property, since the easement by necessity did not predate the Kahns' root of title, the act has no effect on it.¹³

13 Since the court finds that an easement by deed exists over the Gorman property, it need not decide Mr. Deane's other claims as they affect that property. See Pender v. Matranga, 58 Conn.App. 19, 27 (2000). Likewise, the court need not decide Mr. Deane's other claims of an easement over the Kahn property, having decided that he enjoys an easement by necessity.

5. Neither Mrs. Kahn nor any of her predecessors in title abandoned the mutual boundary easement.

6. Mrs. Kahn has violated to a de minimis degree the deeded obligation to contribute to maintenance costs on the common driveway easement.

7. Mr. Deane has not proven that any trespass by the Kahn defendants over the traveled portion of the common driveway easement was committed intentionally or proximately caused any damage to his property.

8. The Kahn defendants/counterclaim plaintiffs do not have a prescriptive easement over Mr. Deane's property at the intersection of the common driveway easement and the driveway to the Kahn property.

III The 1935 Easement A Easements in Gross and Appurtenant

That Mrs. Warner intended to create an easement in 1935 when she conveyed the Gorman property to Walter Hastings is not in doubt. But, easements come in two varieties, easements in gross and easements appurtenant: "Easements are classified as either easements appurtenant or easements in gross . . . Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests . . . An easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate . . . An easement in gross is one which does not benefit the possessor of any tract of land in his use of it as such possessor . . . An easement in gross belongs to the owner of it independently of his ownership or possession of any specific land. Therefore, in contrast to an easement appurtenant, its ownership may be described as being personal to the owner of it." (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-12 (2000). If an easement is one in gross, i.e., personal to the grantor who created it, such as Mrs. Warner, it is terminated by her death. If it is appurtenant, i.e., of benefit to the land itself, it "runs with the land" and will continue in existence as long as it is properly transmitted through the chain of title and not extinguished by operation of law; e.g., via operation of the act.

How is the court to determine whether an easement is appurtenant or in gross? "The general rule is that an easement may be construed as personal only when the deed language fails to contain the words `heirs, successors and/or assigns.' The absence of words of inheritance may create a presumption that the easement was intended to be personal, but the force of that presumption is negated if the easement serves to enhance the value of the dominant estate, and it appears from all the surrounding circumstances that the parties intended to create a permanent easement." Irving v. Firehouse Assoc., 95 Conn.App. 713, 729 (2006). As an earlier case put it, "(a)n easement of way will never be presumed to be personal when it can fairly be construed to be appurtenant to land." Blanchard v. Maxson, 84 Conn. 429, 433 (1911).

The language of this easement, which was handwritten into a printed conveyance form, is that "a right of way is reserved in perpetuity across said tract [i.e., the Gorman property] along the route now in use." See Exhibit 40. Although the words of inheritance are missing, the easement is reserved "in perpetuity." Black's Law Dictionary defines "in perpetuity" as meaning "forever" and refers the reader to the term, "perpetuity," which is defined as "the state of being forever." Black's Law Dictionary (8th ed. 2004). Thus, the deed on its face connotes an easement appurtenant which continues after the death of the grantor. "As a matter of law, a (sic) perpetual easements run with the land, in perpetuity, and as such a grantee has the legal right to enforce its easement against any subsequent title holder." Avalon Bay Communities, Inc. v. Town of Orange, Superior Court, judicial district of New Britain, Docket No. CV 98 492260 (Aug. 12, 1999) 1999 Ct.Sup. 12118, 12137.¹⁴

14 Easements "in perpetuity" are well known in conservation and environmental law, and no one doubts that they create easements appurtenant which outlive their creators. See, e.g., Town of Wallingford v. State Dept. of Public Health, Superior Court, judicial district of Hew Britain, Docket No. CV 02 515569 (July 27, 2005); Gonthier v. Watertown Planning Zoning Comm., Superior Court, judicial district of Waterbury, Docket No. CV 94 119318 (July 12, 1995).

Should the language be considered ambiguous on the nature of the easement, the court may consider the circumstances surrounding the creation of the easement to ascertain the intent of the grantor. Simone v. Miller, 91 Conn.App. 98, 108-09 (2005). Those circumstances confirm that the easement Harriet Warner created was appurtenant to the land she retained and not personal.

A consideration of the topography of the land retained by Mrs. Warner, which now includes the Deane and Kahn properties, is necessary at this point. Numerous photographs of these properties were introduced at trial. In addition, the court walked the site twice. Each property consists of an upper portion near to the road and a lower portion along the river, the portions being separated by a steep slope which makes access from the upper portion to the lower portion and the river very difficult. There is no evidence whatever that the configuration of these properties was any different in 1935 than it is today. The defendants argue that the plaintiff has failed to prove that the topography of the properties was the same in earlier times as it is at present. It is the Kahn defendants, however, who have alleged as their seventh special defense that "the plaintiff and/or his predecessor in title created the condition [i.e., the steep slope] which the plaintiff alleges makes him unable to reasonably access the lower, river-front portion" of his property, thereby assuming the burden of proving that factual allegation, which they have failed to do. In any event, the evidence has certainly established and the court has seen the present topography, and in the absence of any evidence of events that suggest a change in the topography from 1935 to now, the court makes the reasonable and logical inference that the two are the same.¹⁵

15 For further discussion of the historical topography of the Deane property see part V, infra.

An easement across the Gorman property to the portion of the land retained by Mrs. Warner along the river would be of obvious benefit to the lower portion since it would provide direct access from the road to that portion across the public road and private path that existed at that time. See part IIIB, infra. While the easement was not the sole means of access to the property retained by Mrs. Warner, since the upper portion of the property fronted on the road, access via an easement along the riverfront would greatly facilitate the maintenance and development of the waterfront portion since it would make it possible for landscaping and construction equipment to reach the waterfront portion, which is impossible now as well as in 1935 because of the steep slope from the upper portion to the lower portion. The right of way thus created would be of benefit to anyone who might thereafter come to own the Deane and Kahn properties, and the law construes a right in such a case to be appurtenant rather than personal. "If [the easement] is of value to the property to which it is appurtenant and will continue to be of value whoever may own the property, that is strong evidence that the parties intended a permanent easement." Kelly v. Ivler, 187 Conn. 31, 42 (1982).¹⁶

16 The defendants cite Taylor v. Dennehy, 136 Conn. 398 (1950), in support of their position that the lack of words of inheritance and any subsequent specific mention of [the right of way] in the Deane chain of title are evidence demonstrating that it was intended to be personal to Mrs. Warner. In Taylor, however, it was the words of the deed as a whole which tipped the scales in favor of an easement in gross: "If we look to the deed we are at once struck by the fact that it includes as an integral portion of the clause [creating the easement] not merely a reservation of the right of way but also of the household furniture and equipment in the dwelling on lot 8 [the servient estate]; the latter portion of the reservation certainly was intended to create only a personal right; and it can hardly be supposed that Mrs. Taylor [the grantor] meant one portion of the reservation to be personal and the other to be of a right appurtenant." Id., 402-03.

Moreover, the defendants have offered no reason why Mrs. Warner would have wanted to retain an easement over the Gorman property for herself alone, and the court can conceive of none. "If an easement is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross." Lichteig v. Churinetz, 9 Conn.App. 406, 411 (1986).¹⁷

17 "Also significant is whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to exercise the easement." Kelly v. Ivler, supra, 187 Conn. 43. In 1993, before this litigation arose, Mr. Gorman executed a mortgage deed to Shawmut Bank secured by his property on the Connecticut River. In the property description he explicitly recognized that it was conveyed "subject to . . . right of way reserved in deed from Harriet M. Warner to Walter S. Hastings dated January 19, 1935 and recorded in Volume 51, page 25 of the Lyme Land Records." See Exhibit 27.

The defendants make much of the fact that, when Mrs. Warner conveyed her remaining property to her daughters, Musa and Hester, in 1936, she made no specific reference in those deeds to the easement she had reserved in 1935; so, she must have intended the easement to be personal to her. She did, however, convey those parcels "with the appurtenances thereof." Since an "appurtenance" is "something that belongs or is attached to something else;" Black's Law Dictionary (8th Ed. 2004); such as an easement attached to the land conveyed, and such language has been held "sufficient for the passage of an easement appurtenant"; Blanchard v. Maxson, supra, 84 Conn. 434; Mrs. Warner's failure to include a specific reference to the easement in her subsequent conveyances tells us nothing about the type of easement she intended to create.¹⁸

18 The fact that the easement was not carried forward in the chains of title to the northernmost properties making up the tract retained by Mrs. Warner when she conveyed out the Gorman property is neither surprising nor probative of her intent. None of these properties fronted on the river, and none of them had the topographical difficulties of the Kahn and Deane properties, which the riverfront easement was obviously meant to address.

B Location of the Easement

Noting that the reservation in Mrs. Warner's 1935 deed to Walter Hastings describes the right of way only as "along the route now in use," the defendants argue that it does not adequately identify the dominant estate to be served by the easement, as is required for an easement appurtenant. Branch v. Occhionero, 239 Conn. 199, 204 (1999).

There is in the record, however, in the testimony of Gerald Stefon and the very useful map produced by him, evidence that, historically, there was a public road leading from Brockway's Ferry Road along the riverfront in the direction of the Gorman, Kahn and Deane properties. The obvious purpose of this road was to provide easy access to certain residential and commercial premises along the water. This road existed well before Mrs. Warner's 1935 conveyance. Although it stopped well short of the Gorman, Kahn and Deane properties, Mr. Stefon's map further shows the existence, historically, of a private path extending from the public road in the same easterly direction along the riverfront and continuing through the Gorman property, stopping at the boundary with the Kahn property. Again, the obvious purpose of this path is to provide ready access from the road to residences (such as the Hastings residence) and businesses (such as the Oakum Mill) further along the shore of the river. There is still clear evidence of this public/private "route" on the ground, which photographs have evidenced and the court has observed.

Even as late as 1981, when Marion Maynard (nee Srebroff) and her daughter, Carole Schmitt, granted the Heinemans an easement over the Gorman property westward to the road, its route was described as "along that strip of land which is the easterly extention (sic) of the ancient private dirt road as it now lays" (emphasis added), and its purpose was described as to give the Heinemans "the non-exclusive means of gaining access to and from [their property] to and from Brockway (sic) Ferry Road along said private dirt road." (Emphasis added.) This is persuasive evidence that the "route" of the easement reserved by Mrs. Warner was understood both before and after her reservation to be along the shore of the Connecticut River eastward from the road.¹⁹

19 The description of the location and purpose of the right of way granted to the Heinemans is relevant to the location of the "route now in use" referred to in Mrs. Warner's 1935 reservation. The grant of the right of way, however, was unnecessary because the Heinemans already possessed an easement over the Gorman property by virtue of Mrs. Warner's reservation. See footnote 21, infra, and accompanying text.

This is the rational and logical explanation of what Mrs. Warner meant when she referred to the "route now in use." Furthermore, there was evidence from Robert Sutton of the continued regular use of this route by him and others during the 1940s and later. He identified a picture of the "Fannie Mitchell house," which he testified had been in existence until the early 1950s located on the river in the southeast corner of the Deane property. The route along the river was used frequently and continuously to bring groceries and other supplies from the road and over the Gorman and Kahn properties to the Fannie Mitchell house until it was torn down by Jess Caples, Mr. Sutton's uncle. In addition, Exhibits 51 and 52, surveyor's maps of the Gorman property drawn in 1945, show a "right of way" along the river in front of the residence, and Exhibit 50, a map by the same surveyor of the property immediately to the west of the Gorman property done in 1951, shows a "right of way" running from the direction of the road through that property and continuing onto the Gorman property. Mr. Stefon testified that maps do not generally create easements in themselves and are merely the surveyor's opinion; he added, however, that they do reflect what the surveyor sees on the ground and might properly be labeled as evidence of a right of way to pass, which is the way in which the court is using them.²⁰

20 This route is still in use to provide access to all the properties along the river from the road eastward, including the Gorman property, and Mr. and Mrs. Leslie Shaffer, who have occupied the property next to the Gorman property since 1982, testified as to the frequent use of the route by themselves and others since that time.

The court finds from all the evidence that the language Mrs. Warner used, in the light of the surrounding circumstances in 1935, was sufficient to identify the dominant estate as the property she retained along the riverfront, direct access to which was provided via the existing public/private route shown on Mr. Stefon's map.²¹

21 The defendants contend that Mrs. Warner might have meant to create an easement from the Gorman property through a gate and along a path generally northward across the upper portion of the property she retained. This would have allowed her, the defendants claim, to traverse from property she retained northwest of the Gorman property to property she retained southeast of the Gorman property. This is speculation supported by no contemporary evidence. There is no apparent reason why Mrs. Warner would have wanted to retain such a right of way: The property she retained was mostly undeveloped, and she did not live there. All of the property she retained was contiguous. Had she any reason to, she could have gone from the property north of the Gorman property to the property east of it simply by walking across her own property. If she wanted to avoid traversing the slope, she could have used the established route along the river to access her riverfront properties. Finally, Carole Schmitt, who testified that in the 1960s she used such a path to walk from her house on the Kahn property downhill to her parents' house on the Gorman property, also testified that there was no indication that such a path was in existence before that, and that she wore it down in her travels back and forth.

Finally, the defendants point out that Mrs. Warner did not reserve an easement across the property immediately to the west of the Gorman property and between it and the road when she conveyed it in 1909 to Robert Huey. The evidence, in the testimony of Robert Sutton, indicates that Robert Huey, his grandfather, was married to Dora Huey, who appears to have been Harriet Warner's sister, and it is a fair inference that Mrs. Warner did not believe she needed an easement over land owned by her sister and brother-in-law. So, her failure to reserve that right of way is not evidence that she did not intend for the easement she reserved in 1935 to run from the road to the Deane and Kahn properties.

The court concludes that, when Harriet Warner reserved a right of way "in perpetuity . . . along the route now in use," she created an easement appurtenant which ran eastward along the riverfront to the Kahn and Deane properties, which she had retained.²² The questions then are whether that easement was carried forward in Mr. Deane's chain of title and, if it was, whether it was extinguished by operation of law.

22 It worth noting that Gerald Stefon, testifying as an expert witness for the Kahn defendants, came to the same conclusions. See, e.g., Transcript of testimony, Aug. 2, 2006, pp. 184-85.

IV Mr. Deane's Chain of Title

None of the deeds in Mr. Deane's chain of title make explicit reference to the easement created by Harriet Warner in 1935. All of them convey the granted premises "with the appurtenances thereof." Was this sufficient to carry down through Mr. Deane's chain of title the easement appurtenant created in 1935?²³

The short answer is in the affirmative. Chaput v. Clarke, 26 Conn.App. 785 (1992), is apparently the latest in a line of cases that have held that "the phrase `with all the appurtenances' is sufficient for the passage of an appurtenant easement although it is not otherwise described." See e.g., Blanchard v. Maxson, supra, 84 Conn. 434. The defendants cite no law to the contrary although Mr. Gorman seeks to distinguish Chaput in ways the court does not find apposite. For example, he points out that it dealt with an easement that arose out of the closing of a former town road that had been the means of access to the property of the party claiming the easement. That is true but relevant only to the issue whether the claimant's predecessor in title had any easement to convey to him in the absence of a deed from the town of Scotland creating an easement in the first place. Chaput v. Clarke, supra, 26 Conn.App. 790-91. Having concluded that a deed from the town was not necessary, because it was not conveying an interest in land but only preserving the right of an abutter to access to a former public road, the court went on to answer in the affirmative the wholly separate question of whether the deed from the claimant's predecessor in title adequately conveyed his easement in the absence of a specific reference to or description of the easement. That is the only point of Chaput that is relevant to this case.

The court concludes that the easement appurtenant created by Mrs. Warner in 1935 was carried forward in Mr. Deane's chain of title by the consistent reference in the habendum clauses²⁴ of the muniments of his title²⁵ to a conveyance of the premises "with the appurtenances thererof."

24 The habendum clause of a deed "defines the extent of the interest being granted and any conditions affecting the grant." Black's Law Dictionary (8th Ed. 2004).

25 "The term `muniments of title' is defined, in relevant part, as `[t]he records of title transactions in the chain of title of a person purporting to create the interest in land claimed by such person and upon which he relies as a basis for the marketability of his title, commencing with the root of title and including all subsequent transactions." (Citation omitted.) Johnson v. Sourignamath, 90 Conn.App. 388, 398 n. 14 (2005).

V The 1960 Conveyances

On July 6, 1960 Musa Caples executed two deeds, one to Marion Srebroff and one to her husband, Charles. Via these deeds she conveyed portions of the land retained by Harriet Warner in 1935 when the riverfront easement was reserved over the Gorman property. These were the portions along the riverfront that were directly benefitted by the easement and, therefore, constituted the dominant estate.²⁶ "It is a well established principle that where an easement is appurtenant to any part of a dominant estate, and the estate is subsequently divided into parcels, each parcel may use the easement as long as the easement is applicable to the new parcel . . . An easement is applicable to the new subdivision (1) if the easement directly abuts on the new parcel, or (2) if the owner of the new parcel can reach the easement by traveling over intervening land over which the owner has a legal right of passage." Stiefel v. Lindemann, 33 Conn.App. 799, 813 (1994). The property conveyed to Marion Srebroff abutted the Gorman property immediately to its east; so, the easement reserved by Mrs. Warner in 1935 continued to benefit it. The property conveyed to Charles Srebroff, now the Deane property, was further to the east, abutting Marion Srebroff's property, not the Gorman property. Therefore, Musa Caples' severance of the dominant estate in this manner extinguished the Deane property's right to use the riverfront easement over the Gorman property unless the new owner of it, Charles Srebroff, had a legal right of passage over the intervening land owned by Marion Srebroff.²⁷

26 It is not necessary for the court to decide if the other portions of the land retained by Mrs. Warner, those not on the riverfront, were part of the dominant estate.

27 Mr. Deane introduced evidence at trial tending to show that the Srebroffs, who were husband and wife, purchased these properties as part of a common plan or scheme of development and argued that that prevented a legal severance of the two parcels. He did not, however, brief that claim in his post-trial memorandum, and it is considered abandoned. See Conn. Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120 (2003). The same principle applies to Mr. Gorman's claims of merger of title and abandonment of the riverfront easement by Charles Srebroff in 1960, which are mentioned in two footnotes in his post-trial brief, with little analysis and no citation of authority. See Post-Trial Brief of John Gorman, p. 12 n. 14 and p. 43 n. 45.

The court concludes that, at the time of the conveyance by Musa Caples to Charles Srebroff, an easement by necessity was created over the property she simultaneously²⁸ deeded to Marion Srebroff, now the Kahn property. The common law on easements by necessity in Connecticut began with the premise that "the necessity does not create the right of way, but merely furnishes evidence of the real intention of the parties." Collins v. Prentice, 15 Conn. 39, 44 (1842). This concept, however, was branded an "unadulterated fiction" by the Supreme Court in Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 400 n. 4. In the Hollywyle Assn. case the Court identified the "public policy that no land should be left inaccessible or incapable of being put to profitable use" as the moving force behind the recognition of easements by necessity. (Emphasis added.) Id., 400. Furthermore, "to 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.

28 The deeds were executed and recorded on the same date, July 6, 1960, and recorded three minutes apart, the deed to Mrs. Srebroff having been recorded at 12:15 PM; the one to Mr. Srebroff at 12:18 PM. If there is any particular reason why the deed to Mrs. Srebroff was recorded first, other than happenstance, it seems likely that the sequence was chosen to establish the common driveway and mutual boundary easements for its benefit over the portion to be conveyed to Mr. Srebroff as a matter of record before the portion to Mr. Srebroff was actually conveyed.

Even if the court were to look at the intention of Musa Caples in 1960, as evidenced by the language of her deed and the surrounding circumstances, it would conclude that imposing an easement by necessity gives effect to her intent. First, not only her deed to Marion Srebroff but her deed to Charles Srebroff conveyed their properties "with the appurtenances thereof." Connecticut law establishes and this court has held; see part IV, supra; that such language is sufficient to transfer the benefit of any easements appurtenant. So, this language is evidence of Musa Caples' intent to transfer to Charles Srebroff as well as Marion Srebroff the benefit of the riverfront easement.

Second, the surrounding circumstances in 1960 were the same as they are today: Mrs. Caples was conveying to Mr. Srebroff a tract of land, the lower portion of which along the riverfront was inaccessible to vehicular traffic from the upper portion due to a steep slope separating the two, thus precluding its reasonable and productive use and development without access to the road via the riverfront easement. Even access by foot was problematic due to the steepness of the slope.

Based on no evidence other than a map drawn in 1961, the "Heffernan map" (Exhibit 56), the defendants reach the remarkable conclusions that "in constructing the house and pool on the Deane property after severance, the Heffernans [Mr. Srebroff's grantees] altered the elevations on the property to create the present slope . . . (T)he slope did not exist at the time of severance;" Trial Brief of the Kahn Defendants, p. 38; and that "(t)he evidence would further suggest that when the Heffernans built their home, the pathway that led to the waterfront was cut-off by the placement and construction of the home." Post-Trial Brief of John Gorman, p. 39. These assertions are contradicted by the evidence. First of all, they fail to account for the fact that the same steep slope as burdens the Deane property continues without interruption onto the Kahn property. It seems unlikely that construction of Mr. Heffernan's house created the identical slope on the Kahn property. Second, Exhibit 54, a map drawn by Mr. Srebroff in 1969 shows an existing "grade" on the Kahn property, and Mrs. Schmitt described the presence of a steep incline in 1961 when her house was built on the Kahn property. Third, Mr. Sutton testified as to the steepness of the hill on his property, which lies to the west of the Kahn and Deane properties, and that he had cut a path down the hill in 1968. Finally, it was the court's observation on its site visits that the steep slope on the Deane property is simply part of a slope that extends into the property from the east and continues through the Kahn property, the Gorman property and the other properties westward to the road. In other words it is a natural feature of the landscape not one created in 1961 or probably at any other time by human actions.

Exhibit 56 does show a "serpentine road" leading southward from the road down the mutual boundary easement and across the Deane property and ending up on the riverfront. The accuracy of the exhibit, itself, is suspect because it is demonstrably wrong in other respects; e.g., it identifies the common driveway easement as a "40 foot right of way," when all parties agree that its maximum width is twenty feet. And, no one, including the defendants, has ever claimed that there was a road of any kind running down the mutual boundary easement. In addition, a witness with contemporary knowledge of the realities on the ground, Carole Schmitt, the daughter of the Srebroffs, whom the court found to be a credible witness, testified unequivocally that the "serpentine road" never existed.

The defendants have also suggested that Mr. Blundin's planting of junipers and contemporaneous installation of stairs on the slope may have changed its angle. A comparison of Exhibit 82, a photo of the slope before the junipers were planted, and Exhibit 533, a photo of the slope taken from the same point after they were planted, shows the pitch of the slope to be the same. And, Exhibit 83, a head-on view of the slope after the junipers were planted, shows the steepness of the slope at that time.

As far as the present necessity for access over the Kahn property to the riverfront right of way is concerned, this is not a case where access to the lower portion from the upper portion of the Deane property is merely inconvenient. The court knows from its site visits just how steep the slope is. Moreover, the difficulties in even walking from the upper portion to the lower portion are demonstrated by the fact that, soon after they purchased their properties, both Mr. Blundin and the Heinemans, the Kahns' immediate predecessors in title, constructed stairs from one to the other to ease the walk. Without direct vehicular access from the road Mr. Deane has been and will continue to be unable to conduct ordinary maintenance of the lower portion of his property on a regular basis, to deal with damage to that portion caused by unusual events, such as a severe storm or flooding, to maintain his well or seawall or to construct a beach or boat dock on the river.

In addition to Mr. Deane, two witnesses testified who have first-hand knowledge of the site's topography and whom the court found to be credible. John Flower, who has done landscaping work for Mr. Deane, testified about the difficulties of bringing wheelbarrows and even a small machine like a wood chipper down the steep slope to perform routine maintenance on the lower portion. While he once drove a tractor down and up the slope, he testified that the tractor slid down the slope, and he had to maximize the gas to get the tractor up the slope. Joseph Albuquerque, who did grounds maintenance work for Mr. Deane, testified that in the 1990s he regularly accessed the lower portion of the Deane property via the riverfront easement and over the Kahn property because it was impossible to get trucks and even riding mowers down the steep slope. He testified that it was dangerous to attempt to do so. Mr. Albuquerque testified that he has experience building the kind of pathways that would be necessary to stabilize and decrease the slope of the Deane property, and such an endeavor on that property would be "very expensive." While no evidence of the actual cost of decreasing the slope of the Deane property was offered, from its view of the property the court infers that the cost would be very substantial. The slope extends across the entire width of the property, approximately 245 feet, is very steep and, in the court's opinion from its observations of the surrounding properties, is a natural feature of the land and has likely been there for centuries.

It is true, as the defendants argue, that Mr. Deane's property is not landlocked, in the technical sense, because he has a way out of his property over the common driveway easement to the road. But that part of his property which has access to the water, a characteristic of property that has repeatedly been recognized by Connecticut courts as intrinsically valuable; see, e.g., Kelly v. Ivler, 187 Conn. 31, 42 (1982); is of little beneficial use to him in the absence of access over the riverfront easement and the Kahn property. "It may be . . . 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." Marshall v. Martin, 107 Conn. 32, 37 (1927). Mr. Deane testified, as the owner of the property, that the absence of a riverfront easement causes a diminution in the value of his property of $500,000. Even discounting this estimate because of Mr. Deane's self-interest in offering it, the court's general knowledge of the value of property with direct access to the river and its view of the Deane property convinces it that the riverfront easement is of great value to the property. See Kelly v. Ivler, supra, 187 Conn. 43.

The court is mindful that "imposition of an easement by necessity impairs the dominion of the sentient estate owner [Mrs. Kahn] over [her] own soil . . . (T)his conclusion merely acknowledges the unavoidable consequences of easements by necessity." Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 401. It is not "blind to the countervailing interests of property owners in [Mrs. Kahn's] position." Id. The court has strictly construed the element of necessity, as required by these considerations, and considered "the situation of both parties,²⁹ the nature and adaptability of the property, and surrounding circumstances." Id. It will have these considerations in mind as well in defining the scope of Mr. Deane's easement by necessity.

29 The court notes that the Kahn residence is built on the upper portion of the Kahn property, and use by Mr. Deane of the easement by necessity over the lower portion of the property is not visible from the residence, as testified to by both Mrs. Kahn and Mrs. Heineman. So, the burden on the Kahn property from his use of the easement is slight.

Based on its consideration of these factors in light of the evidence, as well as its own knowledge of the properties based on its site walks, the court concludes that recognition of an easement by necessity is both consonant with the intent of Musa Caples when she conveyed the Deane property to Charles Srebroff in 1960 and reasonably necessary to provide Mr. Deane with the beneficial enjoyment of his property.

VI The Marketable Record Title Act

"The ultimate purpose of the act is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction." (Citation and internal quotation marks omitted.) Johnson v. Sourignamath, supra, 90 Conn.App. 394. It does so by providing that:

any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the root of title under the act) has a marketable record title subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title . . . The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 507 (2004).

In this case the Gorman property is purported to be affected by the easement reserved by Mrs. Warner in 1935 when she conveyed that property to Walter Hastings. Mr. Gorman purchased the property in 1986. Therefore, his root of title, pursuant to the act, is a 1945 deed from William Hastings, Walter Hastings' devisee, to Kenneth Johnson,³⁰ in which the easement is specifically referred to as follows: "Subject to a right-of-way reserved in said Vol. 51, page 25 in perpetuity across the land above described and along the route now in use." This "specific identification . . . of [the] recorded title transaction which creates the easement" in his root of title is fatal to Mr. Gorman's claim that the act extinguishes that interest in land. Johnson v. Sourignamath, supra, 90 Conn.App. 398; Conn. General Statutes § 47-33(d)(1)

30 Pursuant to the act, the root of title is that deed which is at least forty years prior to the time when marketability is being determined; Conn. General Statutes § 47-33b(e); "plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record." Johnson v. Sourignamath, supra, 90 Conn.App. 394-95nn. 6 7.

Mr. Gorman argues that the time at which marketability is to be determined is now, not in 1986 when he purchased the property, and claims that the root of title is a 1955 deed from Kenneth Johnson to Marion and Charles Srebroff. The Coughlin decision, however, makes it clear that the time from which marketability is to be determined is the date of purchase of the property claimed to be affected by the easement. Coughlin v. Anderson, supra, 270 Conn. 496. In any event, reliance on the Johnson to Srebroff deed in 1955 avails Mr. Gorman nothing, because it, too, contains a specific reference to the 1935 easement: "subject, however . . . (t)o a right of way reserved in deed recorded in Volume 51 at page 25 of the Lyme Land Records in perpetuity across the land above described as Parcel 1 and along the route now in use." Thus, within Mr. Gorman's chain of title there are two specific references to the 1935 riverfront easement.

Mr. Gorman offered expert testimony from Robert Moran that the operation of the act extinguished the easement reserved by Mrs. Warner in 1935. His testimony, taken as a whole, proved too much. He also opined that the easement created by Mrs. Warner was one in gross and not appurtenant to the land. Based upon that opinion, Mr. Moran agreed that the easement was extinguished by her death in 1936. So, there was no easement extant in 1945 for the act to extinguish. See Transcript of testimony, Aug. 8, 2006, pp. 191-92.

Likewise, the act does not operate to extinguish the easement over the Kahn property claimed by Mr. Deane. Mr. Deane cannot claim that the easement created by Mrs. Warner in 1935 traversed the Kahn property.³¹ First, the deed reserving the right of way makes it clear that it is reserved out of the property Mrs. Warner is conveying to Walter Hastings, now the Gorman property. Second, the Kahn property was part of the property retained by Mrs. Warner, and an owner of land cannot grant herself an easement over her own land. Mr. Deane, however, does claim an easement by necessity, which would have arisen in 1960, when Musa Caples transferred her land in two parcels, one to Marion Srebroff (the Kahn property) and one to Charles Srebroff (the Deane property), and the court has upheld his claim. See part V, supra. Such an interest would not be one pre-existing Mrs. Kahn's root of title, which the court finds to be the deed from Hester Warner to Musa Caples in 1936, and the act would not affect it.

31 It is not clear to the court that he does. Count One of the complaint, which seeks to quiet title to the riverfront easement as to Mrs. Kahn, mentions Mrs. Warner's reservation of the right of way in 1935, but it is not at all clear from the pleading that Mr. Deane is claiming a deeded right of way over the Kahn property.

The court concludes that the act does not operate to extinguish the easement by deed Mr. Deane has over the Gorman property or the easement by necessity he enjoys over the Kahn property.

VII Abandonment of the Mutual Boundary Easement

"It has long been the law that in this jurisdiction, abandonment is a question of fact . . . Although an easement may be lost by abandonment, a party faces a difficult burden in establishing the necessary intent to abandon . . . Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances . . . The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement . . ." (Internal citations and quotation marks omitted.) Simone v. Miller, supra, 91 Conn.App. 103. The court finds that there is no evidence supporting a finding that the Kahn defendants abandoned the mutual boundary easement.

All of the direct evidence is to the contrary. Both Mr. and Mrs. Kahn, as well as Frank Heineman, testified that they never intended to abandon the easement. Its existence is confirmed in the chains of title to both the Kahn and Deane properties. Its continued existence was mentioned to Mr. Deane by Mr. Heineman as the latter prepared to sell the property to the Kahns.

Mr. Deane is correct that the intent to abandon may be inferred from the conduct of the holders of the dominant estate. Id. The evidence here discloses no conduct on the part of the Kahns or the Heinemans that would support a conclusion that they abandoned the easement. From time to time during their respective ownerships retaining walls and fences were erected over portions of the Kahn property bordering on the mutual boundary easement. None were erected for the purpose of and none had the effect of blocking access to the easement. At the time of the court's site visits most of them had fallen into acute disrepair, and only the remnants of most were visible. There was ready access from the Kahn property to the mutual boundary easement.³²

32 Although he did not mention it in his brief, Mr. Deane pointed to the chain link fence on the lower portion of the Kahn property as evidence of abandonment of the mutual boundary easement. The court is not bound to consider this argument, because it was not briefed, but notes that the fence overlaps the 350-foot easement for ten to twenty feet at its southernmost point and in no way impedes access by the Kahns to their easement.

Although the Kahns have not used the easement extensively during their occupancy, they have used it. Moreover, "(m)ere nonuser of an easement created by deed, however long continued, is insufficient to establish abandonment . . . (T)he nonuser must be accompanied by unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it." Id., 105.

Because the evidence does not demonstrate affirmative acts indicating a "clear, decisive and unequivocal intent to abandon" the mutual boundary easement on the part of the Kahns or their predecessors in title, the court finds that it has not been abandoned and continues to burden the Deane property.

VIII The Common Driveway Easement

Mr. Deane makes two claims pertinent to the common driveway easement used by him and the Kahn defendants to access their properties from the road: that both Mrs. and Mr. Kahn have driven off the traveled portion of the easement, thereby causing damage to his property, and that Mrs. Kahn has failed to pay her one-half share of the driveway maintenance costs.

Prior to trial the court held that the 1961 deed of the Deane property from the Srebroffs to Howard Heffernan created a latent ambiguity as to the size of the traveled portion of the common driveway easement, and that extrinsic evidence might be introduced to assist the court in construing the Caples deed.³³ The deed to Heffernan, executed in November 1961, sixteen months after the Caples deed, suggests that, although the width of the easement in the Caples deed is given as twenty feet, there may have been a narrower traveled portion of the right of way to be used by the owners of the Kahn and Deane properties for vehicular access to their properties.

33 See footnote 11, supra, and accompanying text.

There is evidence in the record that the width of the traveled portion of the easement is ten to twelve feet wide, as claimed by Mr. Deane. The "Gates survey" (Exhibit 519), which was commissioned by Mr. Deane in 1998 to clarify the issues surrounding the common driveway easement, employs a scale of 1" to twenty feet. Applying that scale to the "paved driveway" and "gravel driveway" shown on the survey yields a width that, although wider at the road and the turn-in to the Kahn property, is for the greater part of the easement ten to twelve feet wide. In addition, Mrs. Kahn testified that the driveway is about twelve feet wide. In addition, the court finds credible the evidence that the Kahns have sometimes driven outside of the traveled portion and even outside of the twenty-foot easement.

The problems for Mr. Deane, however, are that there is no evidence (1) establishing that the Kahns did so intentionally, i.e., that they knew and disregarded the limits of the traveled portion of the easement, or (2) linking the occasions when the Kahns or either one of them have driven outside the traveled portion of the easement and any specific damage to plants and flowers claimed by Mr. Deane. The failures of proof are in establishing the necessary intent; see Borrelli v. Hills, Superior Court, judicial district of Middlesex, Docket No. CV 06 4006452 (May 24, 2007) [ 43 Conn. L. Rptr. 471]; and proximate cause. While he testified to the loss of hundreds of plants of varying kinds, Mr. Deane could not testify that any intentional act of the Kahns caused any of the damage he claimed. Nor did he introduce any other evidence as to intent or causation.

The joint maintenance obligation of Mrs. Kahn and Mr. Deane is created by the 1961 conveyance of the Deane property from Marion Srebroff, then the owner of the Kahn property,³⁴ and Charles Srebroff, then the owner of the Deane property, to Howard Heffernan, which contained an undertaking by Mrs. Srebroff and Mr. Heffernan that the "cost of maintenance, use and upkeep of said 20 foot right of way . . . shall be borne equally by the parties." The deed also provided that the parties "shall share equally in [the cost of ice and snow removal]." Mr. Deane claims that Mrs. Kahn has failed to live up to her obligation since 1997.

34 Since she was not the owner of the Deane property, Mrs. Srebroff's signature on the deed to Mr. Heffernan was not necessary to convey title; it was obviously intended to bind her and her successors in title, like Mrs. Kahn, to the maintenance agreement.

From among many bills submitted by Mr. Deane five have survived various tests of admissibility, and he now claims payment for half of their total amount. Having reviewed those bills, the court disallows those payable to L.H. Bond, Inc., because it predates the period claimed in the complaint, and McGowan Construction Co., Inc., because the year it was incurred cannot be determined. The remaining three bills, which are all for snow removal, are found to be reasonable, and the court is satisfied from the testimony that they were submitted to Mrs. Kahn and not paid by her. Therefore, the court will order that half of those bills be paid by Mrs. Kahn.

IX The Kahns' Counterclaim

The last issue raised by the pleadings, Mr. and Mrs. Kahn's claim of a prescriptive easement over Mr. Deane's property at the corner where the common driveway easement intersects with the driveway leading to their property, requires little discussion.

Because the angle of the turn at that intersection is very sharp, the Kahn defendants claim that they have been cutting across a very small triangle of land which is part of property Mr. Deane owns to the north of the properties at issue in this case from the time they bought their property in November 1986 until "the institution of the instant action." Trial Brief of the Defendants, Amy Day Kahn and Robert Kahn, p. 48 (Dec. 21, 2006).³⁵ They allege in their counterclaim that their predecessors in title also accessed their property in this manner.

35 In fact, although the dates are not entirely clear from the evidence, Mr. Deane effectively blocked the Kahns' ability to cut this corner earlier in 2001 by placing various barriers at the intersection of the common driveway easement and the driveway to their home.

The Kahns' immediate predecessors in title were Frank and Denise Heineman, both of whom testified at trial, and neither of whom testified that they cut the corner of Mr. Deane's property in the manner claimed by the Kahns.³⁶ So, the record does not support the "tacking on" to the Kahns' period of use a period of use by the Heinemans, and the operative period for assessing the Kahns' prescriptive easement claim begins on November 17, 1986, when they took title to their property.

36 Mr. Heineman testified in person and, when shown the Gates survey (Exhibit 519) containing the "driveway encroachment" claimed by the Kahns, could not say that it was a fair representation of how he used the driveway. Mrs. Heineman's testimony was offered via a heavily-redacted deposition transcript (Exhibit 572A); nowhere in the unredacted portions of her testimony is there any evidence that she encroached on Mr. Deane's property when accessing her driveway from the common driveway easement.

"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 uninterrupted for fifteen years." Conn. General Statutes § 47-37. The Kahns cannot satisfy the fifteen-year requirement because their use of Mr. Deane's property to access their property was interrupted by no later than August 29, 2001, when this action was instituted by service of process upon them, and probably earlier, when Mr. Deane interfered with their use by placing barriers in their way.

X Scope of the Easements

"The determination of the scope of an easement is a question of fact . . ." Simone v. Miller, 91 Conn.App. 98, 111 (2005). That determination, however, must be informed by fundamental principles of the law of easements:

It is well settled that [a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement . . . [T]he benefit of an easement . . . is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . . In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation. The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. Stefanoni v. Duncan, 282 Conn. 686, 700-01 (2007).

The easement which the Deane property enjoys over the Gorman property is a deeded easement; so, that in determining its scope the court must consider "the ordinary import of the language . . . as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation." Id. In conveying the Gorman property to Walter Hastings, Mrs. Warner used the following language to reserve her easement over his property along the riverfront: "except that a right of way is reserved in perpetuity across said tract along the route now in use." The easement is in general terms, and "(i)t is well established that a right of way granted in general terms may be used for any purpose reasonably necessary for the party entitled to use it." Hagist v. Washburn, 16 Conn.App. 83, 86 (1988). What is "reasonably necessary" for the use of the easement is also for the trier of fact to determine. Strollo v. Iannantuoni, 53 Conn.App. 658, 660-61 (1999).

Looking at the language of the deed and the surrounding circumstances, the lay of the land, itself, is the best evidence that in 1935 the "route" was "in use" to provide direct access to properties along the river from the road. This is confirmed by Mr. Stefon's testimony that the public road for this very purpose was dedicated by the town as early as 1872.

The court believes that what is "reasonably necessary" should also be determined by the uses to which the easement has been put since that time. Those uses demonstrate what the users of the easement, themselves, considered to be "reasonably necessary" for the beneficial enjoyment of the easement. The evidence demonstrates that it was used historically and by Mr. Deane and, frequently, Mrs. Kahn for walking to and fro along the riverfront as well as for vehicular traffic necessary to keep up the riverfront portion of the Deane property and to transport supplies and equipment to both the Deane and Kahn properties.³⁷ The court's finding as to the scope of the easement will reflect these uses as well as the principle that "(t)he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." Stefanoni v. Duncan, supra, 282 Conn. 701.

37 For example, Mr. Sutton testified that Mr. Heineman used the riverfront easement over the Gorman property to transport his boat from the road to the Kahn property when it was owned by him.

The easement which the Deane property enjoys over the Kahn property is an easement by necessity, and the "court is obligated to define the intended limits on the use of the easement." First Union v. Eppoliti, 99 Conn.App. 603, 609 (2007). In doing so "the court must take into account all the factors relevant to the scope and use of the easement, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting." (Internal quotation marks and citation omitted.) Id. 609-10.³⁸

38 As it indicated in its discussion of easements by necessity; see part V, supra; the court will also consider, to the extent they are not included in the factors listed, "the situation of both parties, the nature and adaptability of the property, and surrounding circumstances." Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 401.

Considering the language of the 1935 reservation, the surrounding circumstances, the nature of the land, the history of its use and the conduct of the parties, all as revealed by the evidence in this case, and balancing the equities present in this case, the court finds that the scope of the deeded easement over the Gorman property and the easement by necessity over the Kahn property should be defined in identical terms, as follows:

There shall be an easement 13 feet, 8 inches in width,³⁹ which shall run from west to east over the Gorman property and the Kahn property and into the Deane property, terminating on the Deane property. The easement shall follow the course of the gravel path visible on the ground directly in front of the residence located on the Gorman property, and as shown on Exhibits 51 and 52, and shall run along the foot of the slope on the Kahn property.

39 This is the width of the space between the two metal posts erected by Mr. Heineman just east of the boundary between the Kahn property and the Gorman property, as measured by the court on the second of its site visits, in the presence of and with the consent of counsel for all the parties, who agreed that, if there were to be an easement, this space accurately defined its width.

This easement is for the purpose of giving owners of the Deane property a non-exclusive means of gaining access on foot and in vehicles from that property to and from the road, and they may pass and repass along the easement for that purpose. The vehicles which may use this easement are those used for personal transportation and for the transport of supplies and equipment necessary for the maintenance and development of the lower portion of the Deane property. This easement may be used for traffic on foot and in vehicles used for personal transportation without limitation, except that no such use shall be made of the easement from 12:00 midnight on Saturday until 9:00 AM on Monday. The easement may be used for traffic in vehicles used for transportation of supplies and equipment without limitation, except that no such use shall be made of the easement from 5:00 PM on Friday until 9:00 AM on Monday, and provided that any such use shall be preceded by at least 48 hours written notice to Mr. Gorman and Mrs. Kahn.

While using the easement Mr. Deane and any persons in his company or on his behalf shall do so in such a manner as not to disturb the peaceful enjoyment of their property by Mr. Gorman and Mrs. Kahn and members of their families or damage or destroy the property of Mr. Gorman or Mrs. Kahn or interfere with the use of their property by Mr. Gorman or Mrs. Kahn. Any use of said easement by Mr. Deane or others in his company or on his behalf shall be at their own risk and peril, and the owners of the Gorman and Kahn properties shall be in no way liable for any injury to person or damage to property suffered by reason of any such use.

The owners of the Gorman and Kahn properties shall have no obligation to maintain said easement in any particular manner or condition.

X Judgments and Orders

Judgment shall enter for the plaintiff, Curtis Deane, against the defendant, Amy Day Kahn, on COUNT THREE of the second amended complaint, the court finding that an easement by necessity exists for the benefit of the plaintiff's property over the defendant's property, and that the defendant has interfered with the plaintiff's exercise of his rights under that easement since 2001. Accordingly, the defendant is PERMANENTLY ENJOINED from interfering in any manner with the plaintiff's exercise of his rights under the easement. The defendant is FURTHER ORDERED, within thirty days of the date hereof, to remove as much of the chain link fence which presently interferes with the plaintiff's exercise of his rights under the easement as is necessary to allow the plaintiff safe and unimpeded access to his property over the property of the defendant by way of the easement by necessity of 13 feet, 8 inches which the court has found to exist. The defendant is FURTHER ORDERED, within thirty days of the date hereof, to remove the chain between the metal posts near the western boundary of her property. By way of nominal damages⁴⁰ or past interference with the plaintiff's exercise of his rights under the easement the defendant is FURTHER ORDERED to pay the plaintiff $10.00 for each year of interference from 2001⁴¹ to the present, or $60.00.

40 See Kelly v. Ivler, supra, 187 Conn. 47.

41 Although the complaint claimed interference beginning in 1997, the evidence did not establish that allegation.

Judgment shall enter for the defendant, Amy Day Kahn, on COUNT FOUR.

Judgment shall enter for the defendants, Amy Day Kahn and Robert Kahn, on COUNT FIVE.

Judgment shall enter for the plaintiff, Curtis Deane, against the defendant, Amy Day Kahn, on COUNT SEVEN in the amount of $300.00.

Judgment shall enter for the plaintiff, Curtis Deane, against the defendant, John Gorman, on COUNT EIGHT, the court finding that an easement by grant exists for the benefit of the plaintiff's property over the defendant's property, and that the defendant has interfered with the plaintiff's exercise of his rights under that easement since 1998. Accordingly, the defendant is PERMANENTLY ENJOINED from interfering in any manner with the plaintiff's exercise of his rights under the easement. The defendant is FURTHER ORDERED to leave open the gate in the fence on the western boundary of his property to allow the plaintiff to access his property over the property of the defendant by way of the easement by grant which the court has found to exist. By way of nominal damages⁴² for past interference with the plaintiff's exercise of his rights under the easement the defendant is FURTHER ORDERED to pay the plaintiff $10.00 for each year of interference from 1998 to the present, or $90.00.

42 See Kelly v. Ivler, supra, 187 Conn. 47.

All of the above are so ORDERED on this, the 13th day of July 2007.