Deane v. Kahn , 179 Conn. App. 58 ( 2018 )

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CURTIS D. DEANE v. AMY DAY KAHN ET AL.
(AC 39006)
(AC 39011)
Alvord, Prescott and Kahn
Syllabus
The plaintiff brought this action seeking, inter alia, a judgment determining
the rights of the parties as to a claimed right-of-way along a riverfront
over certain real property of the defendant G, and a claimed riverfront
easement by necessity and implication over certain real property of the
defendant K. The properties of the plaintiff, G and K had been part of
a large estate of riverfront property that previously was owned by W.
In 1935, pursuant to the terms of a deed, W conveyed to H a fee simple
interest in a portion of her estate lying directly on the river free of
encumbrances, except that a right-of-way was reserved across the prop-
erty ‘‘along the route now in use.’’ Following several conveyances over
the years, that property is now owned by G. In 1960, the eastern portion
of W’s estate was divided into two properties, and after several convey-
ances over the years, those properties are now owned by the plaintiff
and K. The divided properties consisted of an upper portion near the
main road and a lower portion along the river, and the upper and lower
portions were separated by a very steep slope, which made access
between them very difficult and virtually impossible for vehicles. The
deeds in the chain of title of the properties now owned by G and K did
not make reference to the 1935 right-of-way, and the deeds in the chain
of title to the property now owned by the plaintiff did not mention the
1935 right-of-way reserved by W over the property now owned by G.
The trial court concluded that the plaintiff had an easement by deed
over G’s property by virtue of the 1935 deed of conveyance by W and
that he had an easement by necessity over K’s property that arose in
1960 when the properties now owned by the plaintiff and K originally
were divided into separate parcels and were conveyed separately. The
trial court rendered judgment in favor of the plaintiff, and G and K filed
separate appeals to this court, which reversed the judgment in part.
Thereafter, on the granting of certification, the plaintiff appealed to
our Supreme Court, which reversed in part this court’s judgment and
remanded the case to this court with direction to remand the case to
the trial court for further proceedings on the plaintiff’s claim of an
easement by implication. On remand, the trial court rendered judgment
in favor of the plaintiff, concluding that he had an implied easement
over K’s property and that, as a result of the implied easement, the
easement by deed over G’s property in favor of the plaintiff’s property
was not extinguished by the severance of the plaintiff’s and K’s proper-
ties. Thereafter K and her husband, who was also a defendant, and G filed
separate appeals to this court. Held that there was sufficient evidence
in the record to support the trial court’s conclusion that an implied
easement existed over K’s property in favor of the plaintiff’s property: on
the basis of the circumstantial evidence presented, including numerous
photographs of the subject properties, the trial court’s observations
from twice having walked the properties and the testimony of two
witnesses, who the court found credible and who had intimate and
prolonged knowledge of the uses related to the properties over the
years, the trial court reasonably and logically could have inferred that
the parties to the 1960 conveyance were aware of the historic right-of-
way along the riverfront, that the use of the right-of-way continued at
the time of the conveyance, that the parties to the conveyance had the
requisite implied intent to create the subject easement and that the
easement was reasonably necessary for the use and normal enjoyment
of the plaintiff’s property; moreover, this court rejected the defendants’
claim that the trial court improperly considered, as a matter of law,
evidence of the use of K’s property other than the use that existed at
or close to the time of the 1960 conveyance, as the defendants did not
raise any evidentiary challenges before the trial court on remand or
seek to limit the evidence that the court could consider in deciding
whether an implied easement existed, and our Supreme Court in the
prior appeal in this matter concluded that this court had impermissibly
narrowed the scope of evidence that was admissible as proof of a
grantor’s intent with respect to the existence of an easement by deed,
and there was no indication that that holding did not extend to a court’s
consideration of an easement by implication; furthermore, there was
no merit to the defendants’ argument that because the parties to the
1960 conveyance expressly set forth in the deed a common driveway
and mutual boundary easements, they necessarily would have also
expressly set forth any other intended easement, including any easement
necessary to access the lower portion of the plaintiff’s property, as the
fact that parties to the 1960 conveyance created express easements by
deed in no way precluded the trial court from finding that an additional
easement was created by implication, and the defendants failed to cite
any binding authority in support of their argument to the contrary.
Argued September 19—officially released January 2, 2018
Procedural History
Action for, inter alia, a judgment determining the
rights of the parties as to a right-of-way on certain real
property of the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford, where the named defendant et al. filed
a counterclaim; thereafter, the matter was transferred
to the Complex Litigation Docket and tried to the court,
Shortall, J.; judgment in part for the plaintiff; subse-
quently, the named defendant et al. appealed to this
court, which reversed in part the judgment of the trial
court, and the plaintiff, on the granting of certification,
appealed to our Supreme Court, which affirmed in part
and reversed in part this court’s judgment and
remanded the case to this court with direction to
remand the case to the trial court for further proceed-
ings; thereafter, the court, Hon. Joseph M. Shortall,
judge trial referee, rendered judgment for the plaintiff,
from which the named defendant et al. and the defen-
dant John Gorman filed separate appeals with this
court. Affirmed.
Lloyd L. Langhammer, for the appellants (named
defendant et al.).
Kerry R. Callahan, with whom, on the brief, was Sean
P. Clark, for the appellant (defendant John Gorman).
Wesley W. Horton, with whom were Brendon P. Lev-
esque and, on the brief, F. Thor Holth, for the appel-
lee (plaintiff).
Opinion
PRESCOTT, J. Since at least 2001, the parties in this
case have been engaged in a lengthy legal dispute
regarding abutting properties that sit along the bonny
banks of the Connecticut River in Lyme. The defendants
Amy Day Kahn, Robert Kahn, and John Gorman1 appeal
from the judgment of the trial court finding that an
easement exists in favor of the plaintiff, Curtis D. Deane,
over the parcels of real property owned by Amy Day
Kahn (Kahn property) and Gorman (Gorman property).
The defendants’ principal claim is that the evidence
was insufficient to support the court’s ultimate legal
conclusion that an easement by implication exists over
the Kahn property and, correspondingly, that an ease-
ment by deed continues to exist over the Gorman prop-
erty.2 We affirm the judgment of the court.
The following facts and procedural history, much of
which was set out in the prior appeal in this case, are
relevant to the defendants’ appeals. To aid the reader,
we include the following visual representation of the
area, which was constructed from a map entered into
evidence at trial as plaintiff’s exhibit 49.
‘‘In the early 1900s, Harriet Warner owned a large
estate of land along the shore of the Connecticut River
in Lyme. The estate was shaped roughly like a triangle,
with its base running along the riverfront on the south
side of the estate, where the river flows from west to
east. The estate was accessible from the northeast via
Brockway’s Ferry Road, a public road that ran from
northeast to southwest along the upper left or north-
west side of the estate. As the road approached the
river, however, near the southwest corner of the estate,
it split into two branches, one of which continued south-
westward while the other turned sharply to the east
and continued eastward, parallel to the river, part way
across the south side of the estate. . . .
‘‘The estate would later be divided into a series of
parcels that the parties in the present case would come
to own. The three properties owned by the parties are
contiguous, with the Gorman property to the west, the
Kahn property in the middle, and the [plaintiff’s prop-
erty (Deane property)] to the east. . . . Common to all
three properties is the private right-of-way at issue in
the present case, which extends from the end of the
eastward branch of Brockway’s Ferry Road, and contin-
ues parallel to the river part of the way across the south
side of the estate. In this action to quiet title, the plaintiff
. . . claims that he has the right to access the southern,
riverfront portion of his sloping property from the west,
across: (1) [the Gorman property] . . . over which the
plaintiff claims a right-of-way pursuant to [a] 1935 deed;
and (2) [the Kahn property] . . . over which the plain-
tiff claims an easement by necessity [that arose in
1960]. . . .
‘‘On January 19, 1935, Harriet Warner conveyed a
fee simple interest in [the Gorman property] to Walter
Hastings. Under the terms of Harriet Warner’s deed to
Walter Hastings . . . the tract conveyed to him was to
be free of encumbrances, except that a [right-of-way]
is reserved in perpetuity across said tract along the
route now in use. The 1935 deed contained no other
language describing the location, direction, dimensions,
uses or purposes of the right-of-way so reserved, or of
the route now in use along which it was to run. . . .
‘‘In 1936, Harriet Warner conveyed the remainder of
her estate to her children, Hester Warner and [Musa
Warner] Caples. Although Harriet Warner reserved a
life use of the property so conveyed for herself, her
deeds to her daughters made no mention of the right-
of-way across the Gorman property reserved in the 1935
deed. On December 30, 1936, Hester Warner and Caples
split the property between themselves, Caples con-
veying the western portion of the property to Hester
Warner and Hester Warner conveying the eastern por-
tion of the property, including [what would become]
the Kahn and Deane properties, to Caples.
‘‘In 1938, the Gorman property was transferred by
certificate of devise from the estate of Walter Hastings
to William Hastings, whereafter, in 1945, it was con-
veyed by William Hastings to Kenneth Johnson. . . .
No mention of the 1935 right-of-way was made in any
of the above-described conveyances of the Gorman
property.
‘‘On February 8, 1955, Johnson conveyed the Gorman
property to [Marion Srebroff and Charles Srebroff]. The
1955 deed from Johnson to the Srebroffs mentioned
the right-of-way reserved by the 1935 conveyance for
the first time since that date. It provided, more particu-
larly, that the property so conveyed was subject: To a
[right-of-way] reserved in [the 1935] deed recorded in
Volume 51 at page 25 of the Lyme land records in perpe-
tuity across the land above described as parcel 1 and
along the route now in use. There has been no other
reference to the 1935 reservation in any other deed
in the chain of title by which the Gorman property
ultimately descended to Gorman from the Srebroffs
. . . .
‘‘On July 6, 1960, Caples simultaneously conveyed a
portion of her property that would later become the
Kahn property to Marion Srebroff and an adjoining par-
cel directly to the east of it that would later become
the Deane property to Charles Srebroff. The deed to
Marion Srebroff created a common driveway easement
and a mutual boundary easement to provide the Kahn
property with access over the Deane property to and
from Brockway’s Ferry Road. . . . This deed did not
mention the right-of-way at issue in the present case,
though it did contain language stating that it was con-
veyed with the appurtenances thereof. . . .
‘‘On January 14, 1970, Marion Srebroff conveyed the
Kahn property to Frank [Heineman] and Denise Heine-
man . . . . On May 13, 1981, Marion Srebroff and her
daughter, [Carole] Schmitt, who then jointly owned the
Gorman property, granted the Heinemans a right-of-
way over the riverfront portion of that property, along
that strip of land which is the easterly exten[sion] of
the ancient private dirt road, as it now lays, across the
property. . . . In none of [the] deeds in the chain of
title to the Kahn property, from Harriet Warner to Amy
Day Kahn, is there any reference to the 1935 reservation.
In all [but one] of them, however . . . the Kahn prop-
erty is conveyed with the appurtenances thereof. . . .
‘‘All conveyances of the Deane property were specifi-
cally made subject to the common driveway and mutual
boundary easements created by Caples in favor of the
Kahn property when she first separated the Kahn prop-
erty from the Deane property and sold them respec-
tively to Marion Srebroff and Charles Srebroff. In none
of the deeds to the Deane property, however, is there
any mention of the right-of-way reserved by Harriet
Warner over what is now the Gorman property in 1935.
In all of those deeds, however, the Deane property is
conveyed with the appurtenances thereof.
‘‘On August 20, 2001, the plaintiff filed this action
seeking, inter alia, to quiet title to his alleged right-of-
way across the Gorman and Kahn properties to access
the lower portion of [the Deane property], and to enjoin
the defendants from interfering with his quiet enjoy-
ment and use of that right-of-way. . . .
‘‘In a thorough memorandum of decision, the trial
court concluded, inter alia, that the plaintiff has an
easement over the Gorman property by virtue of the
1935 deed and an easement by necessity over the Kahn
property, which arose in 1960 when . . . Caples, who
then owned the eastern portion of [Harriet Warner’s]
former estate, which included both the Deane property
and the Kahn property, divided those properties into
separate tracts and conveyed them, respectively, to
Charles Srebroff and Marion Srebroff . . . . Upon
reaching the foregoing conclusions, the court went on
to rule 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,
which it then described in great detail, specifying its
location on the burdened properties, its dimensions and
its scope, including both the purposes for which and
the time and manner in which it could be used. . . .
Although the trial court ruled in favor of the plaintiff
with respect to two counts—namely, the count alleging
the creation of an easement by deed over the Gorman
property and the count alleging the creation of an ease-
ment by necessity over the Kahn property—it did not
rule on the count alleging the creation of an easement
by implication over the Kahn property.
‘‘The defendants appealed from the judgment of the
trial court to the Appellate Court, which concluded that
the plaintiff failed to prove, either by the language of
the 1935 deed or by the circumstances existing at the
time of its execution, that the 1935 deed created an
easement [by deed] appurtenant to Harriet Warner’s
property across the Gorman property and that the plain-
tiff failed to prove that he is entitled to an easement
by necessity over the Kahn property, either by showing
that his property would be landlocked without it, which
it would not be, or by showing that the parties intended
to create such an easement at the time of its alleged
creation in 1960, based upon evidence of the necessity
for or the use of the claimed easement at that time.
. . . The Appellate Court, accordingly, reversed the
judgment of the trial court in part. . . .
‘‘The plaintiff petitioned for certification to appeal
from the judgment of the Appellate Court. [Our
Supreme Court] granted the plaintiff’s petition for certi-
fication to appeal limited to the following issues: (1)
Did the Appellate Court properly reverse the judgment
of the trial court enforcing a right-of-way by deed on
the ground that the plaintiff failed to prove its location
or use?; and (2) Did the Appellate Court properly
reverse the judgment of the trial court enforcing a right-
of-way by implication or necessity on the ground that
the plaintiff failed to prove what use was made of the
right-of-way at the time the riverfront portion of the
property became effectively landlocked? . . . The
defendants raise[d] two alternative grounds for
affirmance: (1) the easement by deed over the Gorman
property was not appurtenant to the land; and (2) an
easement by necessity over the Kahn property cannot
be imposed unless the dominant parcel is landlocked
and the easement connects the landlocked parcel to
a public road.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Deane v. Kahn, 317
Conn. 157, 160–65, 116 A.3d 259 (2015).
Our Supreme Court reversed in part and affirmed in
part the judgment of this court. Id., 160. With respect
to the existence of a deeded easement over the Gorman
property, our Supreme Court agreed with the plaintiff
that this court improperly had concluded that the plain-
tiff could have proven the location and use of such an
easement only with evidence exclusively from the time
of the 1935 conveyance. Id., 165–66. The Supreme Court
concluded as follows: ‘‘In the present case, the trial
court’s consideration of evidence of the location and
use of the right-of-way before and immediately after
the 1935 conveyance, including credible evidence of
use of the well worn path in the 1940s and 1950s by
Schmitt and Sutton, was not [improper]. Because the
trial court properly considered this evidence, and
because the determination of the scope of an easement
is a question of fact that will not be overturned unless
clearly erroneous . . . we conclude that there is suffi-
cient evidence in the record to support the trial court’s
finding of the location and use of an easement by deed
over the Gorman property.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Id., 171.
The Supreme Court also rejected the alternative ground
for affirmance raised by the defendants, concluding that
the same post-1935 evidence offered to establish the
easement also established the appurtenance of the ease-
ment. Id.
Turning to the Kahn property, the Supreme Court
first affirmed this court’s decision that the plaintiff had
failed to prove the existence of an easement by neces-
sity over the Kahn property in favor of the plaintiff,
albeit on the basis of the defendants’ alternative ground,
namely, ‘‘that an easement by necessity cannot be
imposed unless the dominant parcel is landlocked and
the easement connects the landlocked parcel to a public
road.’’ Id., 174.3 The Supreme Court, however, reversed
the Appellate Court’s decision to reject outright the
plaintiff’s alternative ground for affirming the trial
court’s judgment, namely, that the trial court’s factual
findings were sufficient to support an easement by
implication over the Kahn property.4 Id., 178.
The Supreme Court considered anew whether there
were sufficient factual findings in the record to support
an easement by implication and reasoned as follows:
‘‘Our review of the record leads us to conclude that,
although the trial court made some factual findings
that likely will support the plaintiff’s claim for an
easement by implication over the Kahn property, such
findings may merely be incidental to the judgment that
the trial court rendered solely on the plaintiff’s count
of easement by necessity. We decline to surmise
whether the trial court would have made any additional
factual findings if it had rendered judgment on other
counts of the plaintiff’s complaint, especially in light of
the fact that this opinion clarified what evidence is
probative of the parties’ intent with respect to the scope
and use of an easement. We therefore reverse the judg-
ment of the Appellate Court as to easement by implica-
tion and remand the case to that court with direction
to remand the case to the trial court for further proceed-
ings on that count of the plaintiff’s complaint.’’ (Empha-
sis altered.) Id., 183.
On remand, the trial court ordered the parties to
submit briefs in support of their positions regarding the
existence of an easement by implication. The court
determined that it was unnecessary for it to conduct
any additional hearing or to consider additional evi-
dence and instructed the parties to confine their discus-
sion to the evidence that was presented at the original
2006 trial in this matter. The parties did not object
to this procedure or ask for an opportunity to offer
additional evidence, and each submitted a brief. On the
basis of the evidence and the submissions of the parties,
the court issued a memorandum of decision on March
1, 2016, finding in favor of the plaintiff and concluding
that he had an implied easement over the Kahn property
and that, as a result of that implied easement, ‘‘the
easement by deed over the Gorman property in favor
of [the plaintiff’s property] was not extinguished by the
severance of the Deane and Kahn properties in 1960.’’5
These appeals followed.
I
We begin our discussion by setting forth the princi-
ples of law that guide our consideration of the principal
claim raised by the defendants, including the appro-
priate standard of review. An easement by implication,
also referred to as an implied easement, ‘‘is typically
found when land in one ownership is divided into sepa-
rately 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.’’ (Internal quotation marks omit-
ted.) Sanders v. Dias, 108 Conn. App. 283, 293, 947 A.2d
1026 (2008). Although related in concept, an easement
by implication differs from an easement by necessity.
See Kelley v. Tomas, 66 Conn. App. 146, 169 n.5, 783
A.2d 1226 (2001). ‘‘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 land-
locked. An additional difference is that an easement
by necessity does not require that the parcel have a
preexisting use of an apparent servitude at the time of
severance . . . whereas an easement by implication
requires such an apparent servitude to be existing at
the time of severance, and that the use of the apparent
servitude be reasonably necessary to the use and enjoy-
ment of the grantee’s property.’’ (Citation omitted.) Id.,
170 n.5.
The creation of an easement by implication is gov-
erned by the often cited test set forth in Rischall v.
Bauchmann, 132 Conn. 637, 642–43, 46 A.2d 898 (1946).
‘‘[If] . . . an apparently permanent and obvious servi-
tude is imposed on one part of an estate in favor of
another, which, at the time of the severance, is in use,
and is reasonably necessary for the fair enjoyment of
the other, then, upon a severance of such ownership,
whether by voluntary alienation or by judicial proceed-
ings, there arises by implication of law a grant or reser-
vation of the right to continue such use. In such case the
law implies that with the grant of the one an easement
is also granted or reserved, as the case may be, in the
other, subjecting it to the burden of all such visible
uses and incidents as are reasonably necessary to the
enjoyment of the dominant heritage in substantially the
same condition in which it appeared and was used when
the grant was made. . . . [I]n so far as necessity is
significant it is sufficient if the easement is highly conve-
nient and beneficial for the enjoyment of the portion
granted. . . . The reason that absolute necessity is not
essential is because fundamentally such a grant by
implication depends on the intention of the parties as
shown by the instrument and the situation with refer-
ence to the instrument, and it is not strictly the necessity
for a right of way that creates it.’’ (Citations omitted;
internal quotation marks omitted.) Id.
‘‘The two principal elements we examine in determin-
ing whether an easement by implication has arisen are
(1) the intention of the parties, and (2) if the easement
is reasonably necessary for the use and normal enjoy-
ment of the dominant estate.’’ Utay v. G.C.S. Realty,
LLC, 72 Conn. App. 630, 636–37, 806 A.2d 573 (2002).
In considering whether a grantor intended to create an
easement, the court, in addition to examining the deed,
maps and recorded instruments introduced as evidence,
always may ‘‘consider the circumstances of the parties
connected with the transaction.’’ Id., 637. ‘‘With respect
to the second prong of the test . . . [a]n easement by
implication does not arise by mere convenience or econ-
omy, but exists because of some significant or unrea-
sonable burden as to access that demands the
easement’s presence.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 638.
Turning to our standard of review in the present case,
we note that, generally, ‘‘[t]he scope of our appellate
review depends upon the proper characterization of the
rulings made by the trial court. To the extent that the
trial court has made findings of fact, our review is lim-
ited to deciding whether such findings were clearly
erroneous. [If], however, the trial court draws conclu-
sions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Cirinna v. Kosci-
uszkiewicz, 139 Conn. App. 813, 818, 57 A.3d 837 (2012).
The circumstances in the present case, however, are
somewhat unique and require a slightly different
approach. The defendants do not claim that the court
misstated the applicable law with respect to implied
easements. Additionally, with one exception, they do
not claim that the court made clearly erroneous factual
findings or otherwise challenge the factual basis of the
court’s decision.6 Rather, the defendants’ primary claim
on appeal is that the court misapplied the applicable
law to the subordinate facts in reaching its ultimate
determination that an implied easement existed.
In other words, the defendants’ claim is best under-
stood as implicating the evidentiary sufficiency of the
court’s legal conclusion. We have applied the following
standard when considering sufficiency claims in other
civil cases and conclude that the same approach is
appropriate under the present circumstances. If the
appropriate standard of review is one of evidentiary
sufficiency, we consider ‘‘whether the trial court could
have reasonably concluded, upon the facts established
and the reasonable inferences drawn therefrom, that
the cumulative effect of the evidence was sufficient to
justify its [ultimate conclusion]. . . . When applying
this standard, we construe the evidence in a manner
most favorable to sustaining the judgment of the trial
court.’’ (Internal quotation marks omitted.) In re Shane
M., 318 Conn. 569, 588, 122 A.3d 1247 (2015). With these
principles in mind, we turn to whether the cumulative
effect of evidence in the record supports the court’s
determination that an easement by implication exists.7
II
In their respective appeals, the defendants each claim
that the trial court improperly concluded on the basis
of the factual record before it that the parties to the 1960
severance of the Deane and Kahn properties intended
to create an easement by implication in addition to
certain other easements expressly set forth by deed.
Having reviewed the court’s decision, however, we are
convinced that the evidence relied upon by the court
was sufficient to support its conclusion that the plaintiff
met his burden of establishing by a preponderance of
the evidence that an easement over the Kahn property
was both implicitly intended by the parties to the 1960
conveyance and reasonably necessary for the use and
normal enjoyment of the Deane property. Accordingly,
we reject the defendants’ claims.
As a preliminary matter, we reject the defendants’
suggestion that the court improperly considered, as a
matter of law, evidence of the Kahn property’s use other
than that which existed either at or closely around the
time of the 1960 conveyance. First, the defendants did
not raise any evidentiary challenges before the trial
court on remand or seek to limit the evidentiary lens
through which the court viewed whether an implied
easement existed. Furthermore, our Supreme Court
already held in the prior appeal in this matter that this
court impermissibly narrowed the scope of evidence
that was admissible as proof of a grantor’s intent with
respect to the existence of an easement by deed, and
there is no indication that that holding does not extend
to a court’s consideration of an easement by implica-
tion. Certainly, to establish an easement by implication,
the plaintiff has the burden of demonstrating a preex-
isting use of an apparent servitude at the time the prop-
erty was severed into separate parcels. Sanders v. Dias,
108 Conn. App. 283, 293, 947 A.2d 1026 (2008). Such
use may be established by direct evidence of that use
by the grantor, but may also be established, more indi-
rectly, by circumstantial evidence of the existence of
a use both prior to and after the severance from which
it reasonably may be inferred that the same use by
the grantor existed at the time of conveyance and was
intended to continue. The fact that the trial court here
relied on such circumstantial evidence is not fatal to
its legal conclusions.
Furthermore, we also must reject outright the defen-
dants’ legal argument that, because the parties to the
1960 conveyance expressly set forth in the deed a com-
mon driveway and mutual boundary easements, they
necessarily would have also expressly set forth any
other intended easement, including any easement nec-
essary to access the lower portion of the Deane prop-
erty. The fact, however, that parties to a deed created
express easements by deed in no way precludes a court
from finding that additional easements were created by
implication. The defendants have not cited any binding
authority in support of their argument to the contrary,
and we are not persuaded by their reliance on authority
from courts in other jurisdictions. Our Supreme Court
rejected a nearly identical argument in D’Amato v.
Weiss, 141 Conn. 713, 109 A.2d 586 (1954). The court
in D’Amato stated: ‘‘It is true that the express grant of
one or more easements in a deed may negate an intent
to grant another easement of a similar character by
implication. . . . It does not, however, necessarily do
so. . . . The question is always what the intention of
the parties was, as it can be gleaned from the deed in
the light of the attendant circumstances.’’ (Citations
omitted; emphasis added.) Id., 718. Certainly, if express
and implied easements concern different issues of
access and different portions of the property, the exis-
tence of an express easement in the deed will have far
less of a significance in evaluating whether the parties
also implicitly intended a separate and distinct
easement.
As stated in the relevant 1960 deed, the common
driveway and mutual boundary easements were created
to provide common access from the portion of the road-
way running north of what is now the Kahn and Deane
properties ‘‘for passage on foot and in vehicles and for
the installation of public utility services for the benefit
of the [conveyed] land.’’ Those easements, therefore,
benefit the upper portions of the conveyed property,
but did nothing with respect to access to the lower,
riverfront portions of the property, which the court
found on the basis of its own observations during two
site visits were all but inaccessible from the upper por-
tions due to the steep slope of the land. On these facts,
it was not unreasonable for the court to conclude that
the parties to the 1960 conveyance may have chosen
to expressly set forth in the deed the newly created
common driveway and mutual boundary easements and
yet still implicitly intended the continuation of a long-
standing practice of access over the lower riverfront
portion of the properties by way of the easement over
the Gorman property.
Finally, we turn to whether there was sufficient evi-
dence to support the trial court’s determination that an
easement by implication existed over the Kahn property
in favor of the Deane property. We conclude that the
evidence before the court was sufficient to support both
that the parties to the 1960 conveyance had the requisite
implied intent to create such an easement and that the
easement was reasonably necessary for the full enjoy-
ment of the Deane property.
The trial court set forth the following facts in support
of its determination that an easement by implication
exists in the present case. First, on the basis of numer-
ous photographs of the Deane and Kahn properties
introduced at trial, as well as the court’s own observa-
tions from twice having walked the site, the court found
that ‘‘[e]ach property consists of an upper portion near
to the road and a lower portion along the river, the
portions being separated by a very steep slope, which
makes access from the upper portion to the lower por-
tion and the river exceedingly difficult. Moreover,
access from the lower portion to the road via the slope
and the upper portion of the property is virtually impos-
sible, especially for vehicles. There is no evidence what-
ever that the configuration of these properties was any
different in 1960 than it is today.’’
The court also set forth additional facts, taken from
its prior decision in this matter, relative to whether the
implied easement was ‘‘reasonably necessary for the
use and enjoyment’’ of the plaintiff’s property. In partic-
ular, the court stated: ‘‘[T]his is not a case where access
to the lower portion from the upper portion of the
Deane property is merely inconvenient. . . . Without
direct vehicular access from the road [the plaintiff] 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. . . . [I]n 1960,
[Caples] was conveying to [Charles] 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 devel-
opment without access to the road via the riverfront
easement. Even access by foot was problematic due to
the steepness of the slope.’’ (Citation omitted; internal
quotation marks omitted.) These findings, taken
together, are sufficient to establish that there was a
‘‘significant or unreasonable burden as to access’’ to
the lower portion of the Deane property, and, that an
easement along the riverside was needed to provide
such access for the maintenance and enjoyment of the
lower portion of the property below the slope.
Regarding its conclusion that such use of the property
existed at the time of the 1960 conveyance and that
it reasonably could be implied that the parties to the
conveyance intended to create an easement continuing
that use, the court relied on the following evidence.
First, and most significantly, the court credited the trial
testimony of two witnesses—Robert Sutton, the
nephew of Harriett Warner and the cousin of Caples,
and Carole Schmitt, the Srebroffs’ daughter—whom the
court described as having ‘‘intimate and prolonged
knowledge of the uses to which these properties along
the Connecticut River had been put.’’
The court found with respect to Sutton that he ‘‘has
lived among these properties all his life’’ and that he
had ‘‘crossed over [Caples’] property on his way to and
beyond what is now the Deane property ‘thousands and
thousands of times’ ’’ beginning ‘‘in 1945, when . . .
Caples owned them, and continu[ing] up to and beyond
1960, when she sold them to the Srebroffs.’’ The court
appears to have credited Sutton’s testimony that ‘‘there
were well-worn tracks across what is now the Kahn
property for many years, evidencing the frequent and
regular traffic over the property to, from and beyond
what is now the Deane property’’ and that ‘‘the traffic
across the Kahn property was not limited to foot traffic:
on a regular basis stores in town delivered both fuel
oil and groceries to a house previously located on the
lower portion of the Deane property.’’ Significantly, the
court found that it was reasonable and logical to infer
that ‘‘Caples would have known of this extensive use
of her property by [Sutton], other members of her family
and others during her time as owner and of the impor-
tance of this use in obtaining access from the lower
portion of the property to the road.’’
With respect to Schmitt, the court found that ‘‘she
was in residence with [the Srebroffs] in 1960 when the
property was divided and sold to them by [Caples].’’
The court credited her testimony that, ‘‘[t]he reason the
properties were divided . . . was to allow [Charles]
Srebroff to sell off his portion of [Caples’] land, thereby
providing the financial wherewithal to build a house
on [Marion] Srebroff’s portion for use by [Schmitt] and
her family.’’ The court found that at the time Schmitt
lived on the Kahn property and the Heffernans lived on
the Deane property, the area by the river generally was
overgrown, but credited her testimony that ‘‘one area
that wasn’t overgrown was in the so called right-of-way
that everybody is talking about.’’ (Internal quotation
marks omitted.) The court further credited Schmitt’s
testimony that ‘‘the Heffernans used the established
right-of-way over the Kahn property for the purpose of
maintaining and improving the riverfront portion of
their property, now the Deane property’’ and that on
several occasions workmen presumably hired by the
Heffernans came to clear debris. Those workmen
passed over the property in their trucks. According to
Schmitt, the right-of-way remained apparent through
1968 when she vacated the Kahn property.
The court viewed the testimony of Sutton and Schmitt
as persuasive evidence that the use of the land at the
time of the 1960 conveyances was ‘‘open, visible, contin-
uous and necessary to the enjoyment’’ of the Deane
property, and that same evidence warranted an infer-
ence ‘‘that the parties’ intention in the division and
conveyance of [Caples’] property was to preserve the
established right-of-way.’’
The court further found that between 1955 and 1960,
the Srebroffs, who were living on what is now the Gor-
man property, were well aware of the easement across
the Gorman property because their deed mentioned
‘‘the right-of-way reserved by the 1935 conveyance.’’
Further, they were aware of ‘‘the frequent traffic across
their property and onto and through [Caples’] property.’’
Finally, the court found that they ‘‘knew from their
familiarity with the lay of the land along the shore that
the portion of [Caples’] property conveyed to [Charles]
Srebroff in 1960 required passage over the property
conveyed to [Marion] Srebroff for its full use and enjoy-
ment. This would have been of particular importance
to them since it was their intention to sell [Charles]
Srebroff’s portion of the property, and ready access
from its riverfront portion to the road would have
enhanced its value.’’ The court concluded that it reason-
ably and logically could deduce from those facts that
‘‘it was the Srebroffs’ intent in 1960 that the historic
right-of-way be preserved from [Charles] Srebroff’s por-
tion over [Marion] Srebroff’s portion and further over
what is now the Gorman property and on to the road.’’
After reaching its conclusion, on the basis of the
evidence it recited, that the parties to the 1960 convey-
ance implicitly intended to create an easement across
the lower portion of the Kahn property, the court set
forth the following as supporting the reasonable neces-
sity of such an easement. Between 1976 and 1986, ‘‘the
plaintiff crossed over both the Kahn and Gorman prop-
erties without hindrance and brought in vehicles from
the road via that route to improve and maintain the
lower portion of his property’’; the plaintiff crossed over
the Kahn property for an additional fifteen years until
the Kahns erected a fence in 2001; and [Amy Day] Kahn
joined the plaintiff in his walks along the riverfront.
The court, citing Deane v. Kahn, supra, 317 Conn. 170,
reasoned that this postconveyance evidence was an
example of the type of facts the Supreme Court contem-
plated as ‘‘bear[ing] a reasonable relation to what was
considered reasonably necessary for [the conveyance’s]
use and normal enjoyment at the time of the conveyance
. . . .’’ (Internal quotation marks omitted.)
Although it is clear from our review of the record
that there is not overwhelming direct evidence of
Caples’ own use of the Kahn property to serve the lower
portion of the Deane property precisely at the time of
the 1960 conveyance, there, nonetheless, was evidence
that such a use certainly existed both before and after
the conveyance, as evidenced by the testimony of Sut-
ton and Schmitt. We conclude that the court reasonably
and logically inferred on the basis of the circumstantial
evidence presented that the parties to the 1960 convey-
ance were aware of the historic right-of-way along the
riverfront and that that use continued, in some form,
at the time of the conveyance. It also was reasonable
to infer that the parties intended to continue the use
in the future because it was necessary for the proper
enjoyment of the resulting severed parcels. We are con-
vinced that there was sufficient evidence in the record
to support the trial court’s decision that an easement
by implication existed across the Kahn property for the
benefit of the Deane property, and, accordingly, we
reject all of the defendants’ arguments to the contrary.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Ellyssa Gorman and Pan Acres Nursery, LLC, were also named as defen-
dants in this action, but they have not participated in the present appeal.
Accordingly, we refer in this opinion to the Kahns and John Gorman collec-
tively as the defendants and individually by name where appropriate.
2
The Kahns separately claim on appeal that the issue of whether an
easement by implication exists over their property was not properly before
the trial court because the plaintiff failed to pursue and, thus, abandoned
the allegations contained in count fifteen of the operative complaint, which,
the Kahns assert, was the ‘‘only count that could be construed to deal with
an implied easement.’’ This abandonment argument, however, was never
properly preserved for review because it was not raised or argued before
the trial court on remand or as part of the prior appeal. As they acknowledged
at oral argument before this court, the abandonment issue was not consid-
ered by our Supreme Court, which expressly remanded this matter to the
trial court with direction to adjudicate whether the evidence in the record
supported finding an easement by implication. ‘‘It is the duty of the trial
court on remand to comply strictly with the mandate of the appellate court
according to its true intent and meaning . . . . The trial court should exam-
ine the mandate and the opinion of the reviewing court and proceed in
conformity with the views expressed therein.’’ (Emphasis omitted; internal
quotation marks omitted.) Bruno v. Civil Service Commission, 192 Conn.
335, 343, 472 A.2d 328 (1984). ‘‘Compliance means that the direction is not
deviated from. The trial court cannot adjudicate rights and duties not within
the scope of the remand. . . . No judgment other than that directed or
permitted by the reviewing court may be rendered, even though it may be
one that the appellate court might have directed.’’ (Citation omitted.) Nowell
v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972).
Thus, the trial court was bound to follow the Supreme Court’s remand
order, and this court lacks any authority to conclude that the remand order
was made in error. See Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259
(2010) (‘‘it is manifest to our hierarchical judicial system that [the Supreme
Court] has the final say on matters of Connecticut law and that the Appellate
Court . . . [is] bound by [its] precedent’’). If the Kahns believed that the
claim of an easement by implication was abandoned at the pleading stage
or at trial, they should have raised this with the Supreme Court through a
motion for reargument or reconsideration. No such motions were filed. Only
our Supreme Court has the authority to correct perceived errors in its own
decisions, including its remand orders. Accordingly, for all the reasons
stated, we are not persuaded by the Kahns’ additional claim of error.
3
The Appellate Court had reversed the trial court’s determination that an
easement by necessity existed because the trial court failed to make findings
regarding the ‘‘use of the right-of-way at the time of the 1960 conveyances’’
or ‘‘the existence of the need for vehicular access at the time of the purported
creation of the easement by necessity.’’ Deane v. Kahn, supra, 149 Conn.
App. 83–84.
4
This court rejected the plaintiff’s alternative ground for affirmance in a
footnote, concluding that because ‘‘the [trial] court made no findings as to
the use of the purported riverfront easement at the time of the 1960 sever-
ance, and that the record, in fact, discloses no such use, the plaintiff’s claim
of an implied easement must fail.’’ Deane v. Kahn, 149 Conn. App. 62, 85
n.24, 88 A.3d 1230 (2014).
5
This final conclusion is significant because the easement appurtenant
created by the 1935 deed existed in favor of Caples’ undivided property,
which included both the current Kahn and Deane properties. ‘‘It is a well
established principle that [if] 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, and provided the easement can be used by the parcels without
additional burden to the servient estate. . . . 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.’’
(Citation omitted; emphasis added.) Stiefel v. Lindemann, 33 Conn. App.
799, 813, 638 A.2d 642, cert. denied, 229 Conn. 914, 692 A.2d 1211 (1994).
Thus, when Caples’ property was divided in 1960, the Kahn property would
have retained the benefit of the appurtenant right-of-way over the Gorman
property because it directly abutted that property, whereas the Deane prop-
erty could retain the benefit only if it enjoyed some other legal right of
passage over the intervening Kahn property, such as an easement by implica-
tion. See Deane v. Kahn, supra, 317 Conn. 173–74.
6
When asked at oral argument before this court whether they were claim-
ing that any of the court’s factual findings were clearly erroneous, the Kahns
explained that, to the extent that the trial court had found that Caples had
the intent to create an implied easement, they believed that that finding
was clearly erroneous given that she also had created express easements
as part of the 1960 conveyance. As we discuss later in part II of this opinion,
we reject the premise of this argument and, thus, cannot agree that the
court’s finding of an implied intent was clearly erroneous.
7
We acknowledge that we previously have stated that the finding of an
easement by implication is a question of law over which our review is
plenary. See Utay v. G.C.S. Realty, LLC, supra, 72 Conn. App. 636. Even if
we were to apply a more exacting plenary standard of review in the present
case, and thus make an independent determination regarding the existence
of an implied easement, we nonetheless would affirm the judgment of the
trial court.