Francini v. Goodspeed Airport, LLC ( 2016 )

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WILLIAM FRANCINI v. GOODSPEED
AIRPORT, LLC, ET AL.
(AC 37258)
DiPentima, C. J., and Lavine and Lavery, Js.
Argued October 20, 2015—officially released April 5, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Jonathan D. Chomick, for the appellant (plaintiff).
John R. Bashaw, with whom was Mary Mintel Miller,
for the appellee (named defendant).
Opinion
LAVERY, J. The plaintiff, William Francini, appeals
from the trial court’s judgment granting the motion for
summary judgment filed by the defendant Goodspeed
Airport, LLC.1 On appeal, the plaintiff claims that the
court improperly granted the motion for summary judg-
ment as a matter of law because the court wrongly
concluded that an easement by necessity may be
granted only to provide physical access to a landlocked
parcel and not for the purpose of installing commercial
utility lines. Although the issue of whether an easement
by necessity is reserved only for physical access to a
landlocked parcel is one of first impression for this
court, we recognize that this issue has been squarely
addressed by many of our sister states and by a federal
magistrate judge in this state. We conclude that the
court incorrectly concluded, as a matter or law, that an
easement by necessity may be granted to a landlocked
parcel only for the purpose of ingress and egress.
Accordingly, we reverse the judgment of the court.
The following facts, as alleged by the plaintiff and
admitted by the defendant, are not in dispute for the
purpose of this motion for summary judgment. The
plaintiff owns a parcel of land in East Haddam. The
parcel’s only access to a public highway is over an
abutting property, owned by the defendant. The defen-
dant took title to its property by warranty deed in 1999,
subject to a right-of-way easement now enjoyed by the
plaintiff as well as several of the plaintiff’s neighbors,
landowners who also own land abutting the defendant’s
property. The 1999 warranty deed expressly described
the right-of-way, in general terms and without limita-
tions on its use, by providing for ‘‘[s]uch rights as others
may have to a Right of Way over a passway or driveway
as set forth in a deed from [the property’s prior owner],
dated August 16, 1963 and recorded in Volume 77 at
Page 526 of the East Haddam Land Records . . . .’’
In 2001, the defendant entered into an agreement
with several of the plaintiff’s neighbors, who also share
the plaintiff’s right-of-way across the defendant’s prop-
erty, to allow the neighbors to improve the right-of-
way by installing and maintaining a utility distribution
system under the existing right-of-way easement. As
a result, a commercial utility system was constructed
under the existing right-of-way and now provides elec-
tricity to the plaintiff’s neighbors. In exchange for this
utility easement, each of the plaintiff’s neighbors paid
the defendant $7500. The plaintiff offered to pay the
defendant the same $7500 that his neighbors had paid
for use of the utility easement, but the defendant
requested that the plaintiff not only pay the $7500, but
also grant it the power to move the location of the
easement at will. The plaintiff declined the additional
terms and the two parties never reached an agreement.
Without an agreement, the plaintiff does not enjoy an
easement for commercial utilities and his property is
currently landlocked from access to commercial elec-
tricity. Currently, the plaintiff’s house is powered by a
generator, but the generator is alleged to be insufficient
to run and maintain the basic requirements of the plain-
tiff’s house such as powering security devices, turning
on automatically in the event of a flood, and running
a refrigerator to preserve perishable food without con-
stant operation of the generator.
In 2011, the plaintiff commenced this action seeking
an easement by necessity for access to commercial
utilities across the same right-of-way that he already
owned and that already provided his neighbors with
commercial electric power. In 2012, the defendant filed
a motion for summary judgment, admitting the facts as
alleged by the plaintiff for the purpose of the motion,
and arguing that, under those facts, the plaintiff was
not entitled to an easement by necessity for commercial
utilities because easements by necessity may be granted
only to provide physical access to landlocked parcels.
The plaintiff opposed the motion by claiming that there
was a dispute of material fact—his need for commercial
electricity2—and maintaining that he was entitled to an
easement by necessity for access to commercial utilities
because electricity was reasonably necessary for the
continued enjoyment of his property and connecting
his property to the already existing utility easement
would not unreasonably burden the defendant’s prop-
erty. The court, Aurigemma, J., granted the defendant’s
motion for summary judgment on the ground that ease-
ments by necessity may not be granted for any purpose
other than to provide physical access to a landlocked
property. This appeal followed.
On appeal, the plaintiff claims that he is entitled to
an easement by necessity for access to commercial
utility services, i.e., electricity. Acknowledging that no
such easement by necessity has yet been recognized
by an appellate court in our state, the plaintiff argues
that easements by necessity should be extended to pro-
vide access to commercial utilities because access to
utilities, consistent with the easement’s element of
necessity, supply something that is highly convenient
and beneficial to the use of property. The defendant
responds that Connecticut law has recognized ease-
ments by necessity to exist only in the classic context
of providing a property owner with physical access to
a landlocked parcel for purposes of ingress and egress,
which is to say that an easement for commercial utilities
does not exist simply because one has never been
granted before. The trial court, correctly observing that
no such easement has ever been granted by an appellate
court in this state, agreed with the defendant and ren-
dered summary judgment on the plaintiff’s claim. We
reverse the judgment based on this conclusion of law
and determine that easements by necessity for access
to utility services exist in Connecticut.
Before we address the specific claim advanced in this
appeal, we set forth the standard for appellate review
of a court’s decision to grant a motion for summary
judgment. Practice Book § 17-49 provides that summary
judgment ‘‘shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’’
‘‘A material fact is a fact that will make a difference in
the result of the case. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue as to all material facts which, under
applicable principles of substantive law, entitle him to
a judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue of
material fact. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
test is whether a party would be entitled to a directed
verdict on the same facts.’’ (Internal quotation marks
omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn.
App. 220, 222, 688 A.2d 349 (1997).
The parties agree, however, that there is no dispute
of material facts in this case. Instead, the plaintiff chal-
lenges only the court’s conclusion of law, that an ease-
ment by necessity may not be granted to provide
commercial electricity to a parcel cut off from commer-
cial electricity. Accordingly, ‘‘[b]ecause the trial court
rendered judgment for the [defendant] as a matter of
law, our review is plenary and we must determine
whether the legal conclusions reached by the trial court
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision of the trial court.’’ (Internal quotation marks
omitted.) Soares v. George A. Tomasso Construction
Corp., 66 Conn. App. 466, 469, 784 A.2d 1041 (2001).
Moreover, the plaintiff’s claim raises a question of law
‘‘concerning the court’s application of the law of ease-
ments by necessity, over which our review is plenary.’’
Thomas v. Primus, 148 Conn. App. 28, 32, 84 A.3d
916 (2014).
The common-law easement by necessity creates an
implied servitude that burdens one piece of property,
the servient estate, for the benefit of another, the domi-
nant estate, to enable the normal ‘‘use and enjoyment of
the [benefited] property.’’ Id., 33; see also 1 Restatement
(Third), Property, Servitudes § 2.15, comment (a), p.
203–204 (2000); 2 G. Thompson, Real Property (Perma-
nent Ed. 1939) § 550, p. 150 (‘‘[the extent of] a way
of necessity covers such a way as is required for the
complete and beneficial use and enjoyment of the land
to which such way is impliedly attached’’). In the classic
example, ‘‘an easement by necessity will be imposed
where a conveyance by the grantor leaves the grantee
with a parcel inaccessible save over the lands of the
grantor, or where the grantor retains an adjoining parcel
which he can reach only through the lands conveyed
to the grantee.’’ Hollywyle Assn., Inc. v. Hollister, 164
Conn. 389, 398–99, 324 A.2d 247 (1973). In such cases,
the element of necessity lies in the grantee’s inability to
use his property beneficially because he lacks physical
access to it, ‘‘[f]or the law will not presume, that it was
the intention of the parties, that one should convey land
to the other, in such manner that the grantee could
derive no benefit from the conveyance; nor that he
should so convey a portion as to deprive himself of the
enjoyment of the remainder.’’ Robinson v. Clapp, 65
Conn. 365, 385, 32 A. 939 (1895). In other words, ‘‘the
necessity does not create the way, but merely furnishes
evidence as to the real intention of the parties’’; id.;
because courts ascribe to the parties a fictitious
intent—presumably, if the parties actually intended
there to be an easement, they would have said so in
the written grant—based on ‘‘the public policy that no
land should be left inaccessible or incapable of being
put to profitable use.’’ (Internal quotation marks omit-
ted.) Thomas v. Primus, supra, 148 Conn. App. 36;
see 28A C.J.S. 310, Easements § 106 (2008) (‘‘[t]he law
recognizes under some circumstances an implied ease-
ment or way of necessity to landlocked parcels of realty
based on public policy favoring their use and develop-
ment and that land should not be landlocked and ren-
dered useless’’ [footnotes omitted]). Accordingly, the
easement is based on the beliefs that parties do not
intend to effectuate a conveyance that would render
the land useless; Collins v. Prentice, 15 Conn. 39, 44
(1842); 1 Restatement (Third), supra, § 2.15, comment
(a); and that parties naturally intend to convey whatever
rights are necessary for the use and enjoyment of the
land conveyed. 28A C.J.S., supra, p. 311 (‘‘[t]he implica-
tion of easements of necessity is an application of the
rule that wherever one conveys property the person
also conveys whatever is necessary for its beneficial
use and enjoyment’’); see Whittelsey v. Porter, 82 Conn.
95, 101, 72 A. 593 (1909) (‘‘[a] grant of a thing will include
whatever the grantor had power to convey which is
reasonably necessary to the enjoyment of the thing
granted’’ [internal quotation marks omitted]), citing 3
E. Washburn, Real Property (4th Ed. 1876) p. 394; see
also Birdsey v. Kosienski, 140 Conn. 403, 413, 101 A.2d
274 (1953) (‘‘[s]uch a grant is to be construed as broad
enough to permit any use which is reasonably con-
nected with the reasonable use of the land to which it
is appurtenant’’).3 ‘‘[T]o fulfill the element of necessity,
the law may be satisfied with less than the absolute
need of the party claiming the right of way. The neces-
sity need only be a reasonable one.’’ (Internal quotation
marks omitted.) First Union National Bank v. Eppoliti
Realty Co., 99 Conn. App. 603, 608, 915 A.2d 338 (2007).4
Therefore, the imposition of an easement by necessity
upon the burdened estate is justified by two partnering
rationales, the presumed intent of the parties to the
conveyance and general public policy.
Today, we conclude that easements by necessity may
provide not only physical access to landlocked prop-
erty, but a property landlocked from commercial utili-
ties may likewise receive an easement by necessity to
access utility services. Easements by necessity are not
artifacts of a more ancient era and must serve their
intended purpose, to render land useful, in the present
day as the beneficial use of land conforms to modern
innovations and needs. This follows from the general
rule that the need constituting the necessity that implies
an easement by necessity may change over time. See
Myers v. Dunn, 49 Conn. 71, 77–78 (1881); Lichteig v.
Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986);
Restatement (Third), supra, § 2.15, comment (d). In
fact, in the context of a granted right-of-way, the ease-
ment’s owner may use the easement for all purposes
consistent with the reasonable use of the benefited land
and is not limited to using the easement for only those
purposes that existed at the time the benefited and
burdened properties were created. Lichteig v. Churi-
netz, supra, 410. ‘‘In other words, a way of necessity is
held to be coextensive with the reasonable needs, pre-
sent and future, of the dominant estate . . . .’’ (Internal
quotation marks omitted.) Morrell v. Rice, 622 A.2d
1156, 1160 (Me. 1993); see Davis v. Jefferson County
Telephone Co., 82 W.Va. 357, 95 S.E. 1042, 1044 (1918)
(‘‘the grantee of such an easement is entitled to vary
his mode of enjoying the same, and from time to time
to avail himself of modern inventions; if, by so doing,
he can more fully exercise and enjoy the object or carry
out the purpose for which the easement was granted’’).
We therefore reject the defendant’s argument that ease-
ments by necessity may be granted only for physical
access to landlocked property simply because no such
easement has yet been recognized. To ‘‘deny [property
owners] such right would be to stop to some extent
the wheels of progress, and invention, and finally make
residence in the country more and more undesirable
and less endurable.’’ (Internal quotation marks omit-
ted.) Dowgiel v. Reid, 359 Pa. 448, 459, 59 A.2d
115(1948).
In our view, the legal justifications underlying ease-
ments by necessity, intent and public policy, support
extending the doctrine to include access to utilities
for properties landlocked from them. Utilities are so
obviously necessary for the reasonable use and enjoy-
ment of all types of property that the law will assume
that parties to a land conveyance intend to convey what-
ever is necessary to ensure a property’s access to utili-
ties in the same way that the law presumes the parties
intended to convey an easement for physical access.
See D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586
(1954) (necessity present where ‘‘easement is ‘highly
convenient and beneficial’ for the enjoyment of the
[dominant estate]’’), citing 1 G. Thompson, supra, § 339;
Collins v. Prentice, supra, 15 Conn. 44 (necessity
‘‘merely furnishes evidence as to the real intention of
the parties’’). Likewise, because utilities are required for
most reasonable uses of property, public policy dictates
that access to utilities be implied to ensure ‘‘that no
land should be left . . . incapable of being put to profit-
able use.’’ Hollywyle Assn., Inc. v. Hollister, supra, 164
Conn. 400. Accordingly, we conclude that access to
utilities is reasonably necessary to the reasonable use
and enjoyment of property, especially, as is the case
here, residential property. ‘‘A house generally is not
considered to be a residence without water, electricity,
and similar utilities, e.g., the ability to be heated and
cooled, lit in the dark, and equipped for communication
with the outside world.’’ Stroda v. Joice Holdings, LLC,
288 Kan. 718, 728, 207 P.3d 223 (2009). To deny a resi-
dence access to utilities would, practically speaking,
deny use of that property as a residence. See Richards
v. Land Star Group, Inc., 224 Wis. 2d 829, 842, 593
N.W.2d 103 (1999).
As further support, under the approach adopted by
the Restatement (Third) of Property, Servitudes, a prop-
erty that is landlocked from commercial electricity
enjoys an implied easement by necessity for utility ser-
vices. 1 Restatement (Third), supra, § 2.15. The
Restatement (Third), itself adopted eighteen years ago,
explains that ‘‘the increasing dependence in recent
years on electricity and telephone service, delivered
through overland cables, justify the conclusion that
implied servitudes by necessity will be recognized for
those purposes.’’ Id. For example, ‘‘O, the owner of
Blackacre and Whiteacre, conveyed Whiteacre to A.
Whiteacre is landlocked, but Blackacre abuts a public
street. The property is located in a rural residential area
and it is suitable for residential use. A servitude for
necessity will be implied for access for surface travel
and for utility services normal in the area.’’ (Emphasis
added.) Id., illustration (12). By including access to
commercial electricity within the easement by neces-
sity, the Restatement (Third) recognizes that ‘‘ ‘[n]eces-
sary’ rights are not limited to those essential to
enjoyment of the property, but include those which
are reasonably required to make effective use of the
property.’’ Id.; see 4 Powell On Real Property (M. Woolf
ed., 2015), § 34.07 [1], p. 34–45 (‘‘implied easements by
necessity have also been found for utilities’’); see also
L. Jones, Easements (2003) § 324, p. 264 (‘‘[t]he way
implied is usually one for all purposes for which the
grantee may need to use it for the full enjoyment of the
property conveyed’’). Therefore, because electricity is
essential to daily life and is reasonably required to make
effective use of property, the easement by necessity
includes not only physical access to landlocked prop-
erty, but also access to utilities for properties land-
locked from utilities. This decision honors both the
principles underlying the easement by necessity and
the fundamental actualities of modern life.
With this conclusion, we join with the decisions of
many other states that also have held that easements
by necessity may be granted for properties landlocked
from utility services. See, e.g., Fleming v. Napili Kai,
Ltd., 50 Haw. 66, 70, 430 P.2d 316 (1967) (‘‘[i]t is the
usual and common practice in this State to use roadway
easements as rights of way for electricity, telephone,
water and drainage facilities and it would be reasonable
to construe that [the easement] was reserved not only
for purposes of ingress and egress but also for those
purposes’’); Brown v. Miller, 140 Idaho 439, 443, 95 P.3d
57 (2004) (agreeing with trial court that ‘‘it is only logical
[that] an easement by necessity also includes utilities’’
[internal quotation marks omitted]); Gacki v. Bartels,
369 Ill. App. 3d 284, 293, 859 N.E.2d 1178 (2006) (declar-
ing that ‘‘implied easements by necessity have been
recognized for purposes such as access for utilities and
other services’’), citing 1 Restatement (Third), supra,
§ 2.15; New York Central Railroad Co. v. Yarian, 219
Ind. 477, 485, 39 N.E.2d 604 (1942) (granting utility
access over easement by necessity under public policy
rationale, recognizing that ‘‘[e]lectricity is largely used
for power and light . . . and that its use contributes
to the full and profitable enjoyment of a [property] can
hardly be doubted’’); Cline v. Richardson, 526 N.W.2d
166, 169 (Iowa App. 1994) (‘‘easement for ingress and
egress includes the right to install utilities’’), citing Stott
v. Dvorak, Superior Court, judicial district of New Lon-
don, Docket No. CV-92-0101097-S (April 5, 1994) (ease-
ment for right to travel over right-of-way included right
to install utilities); Stroda v. Joice Holdings, LLC, supra,
288 Kan. 728–29 (recognizing easement by necessity for
utilities in Kansas); Tong v. Feldman, 152 Md. 398, 136
A. 822, 823 (1927) (‘‘[r]ights or easements of necessity
are more familiarly met with in rights of way, but they
are not confined to such rights’’); Adams v. Planning
Board, 64 Mass. App. Ct. 383, 391–92, 833 N.E.2d 637
(2005) (extending right to install utilities over right-of-
way to easements by necessity);5 Morrell v. Rice, supra,
622 A.2d 1160 (‘‘[a]n easement created by necessity can
include not only the right of entry and egress, but also
the right to make use of the easement for installation
of utilities, essential for most uses to which property
may reasonably be put in these times’’); Ashby v. Maech-
ling, 356 Mont. 68, 78, 229 P.3d 1210 (2010) (holding
that ‘‘modern vehicle access and utility services may
be allowed as part of an easement by necessity even
though the easement arose as a legal matter before
the general use of such improvements’’); Firstenberg
v. Monribot, 350 P.3d 1205, 1219–20 (N.M. App. 2015)
(affirming summary judgment granting of easement by
necessity to property owner for electrical meter and
switch); Dowgiel v. Reid, supra, 359 Pa. 452, 460 (recog-
nizing that ‘‘in almost every American home . . . elec-
tricity is almost as much of a necessity as is water,’’
and concluding that easement by necessity includes
right to ‘‘obtain something which is essential to the
livableness of the home, to wit, electricity’’); Regan v.
Pomerleau, 107 A.3d 327, 338 (Vt. 2014) (‘‘[i]t is well
settled in Vermont and elsewhere, however, that an
implied easement by necessity may arise by operation
of law where it is essential to the reasonable enjoyment
of [the] land . . . and that this principle incorporates
access to essential utilities’’ [citation omitted; internal
quotation mark omitted]); Davis v. Jefferson County
Telephone Co., supra, 95 S.E. 1044 (construing easement
by necessity for telephone lines because ‘‘[i]f then those
living in a rural district with only such unlimited private
ways as [physical access] are to enjoy any of the modern
conveniences, such as electric light, natural gas, tele-
phones, and the like, they must of necessity rely upon
such ways by which to obtain them’’); Atkinson v. Ment-
zel, 211 Wis. 2d 628, 641, 566 N.W.2d 158 (Wis. App.
1997) (construing general grant of right-of-way to
include access to utilities because ‘‘[a]lthough at the
time of the conveyance creating the easement the prop-
erty was not served by utilities, the reasonable use of
the property in current times requires utility services’’);
see also Galvin v. Gaffney, 24 F. Supp. 2d 223, 233–35
(D. Conn. 1998) (interpreting Connecticut law to pro-
vide easements by necessity for commercial utilities).6
Moreover, finding an implied easement by necessity
for utilities is even more compelling in situations, as is
this case, where the property to be benefited already
enjoys a right-of-way across the burdened property
under a general grant without any limitations. See foot-
note 6 of this opinion (explaining that property is not
required to have preexisting right-of-way easement to
be granted easement for access to utilities). Generally,
‘‘[a] right of way granted or reserved in general terms
may be used for any purpose reasonably necessary for
the party entitled to use it. . . . The grant being general
in terms, it must be construed to include any reasonable
use to which the land may be devoted.’’ Peck v. Mackow-
sky, 85 Conn. 190, 194, 82 A. 199 (1912), citing Jones,
supra, p. 300; see Myers v. Dunn, supra, 49 Conn. 78
(general grant conveys ‘‘an unlimited way of necessity
for all legal uses’’); see also Birdsey v. Kosienski, supra,
140 Conn. 413 (construing general grant of right-of-
way broadly ‘‘to permit any use which is reasonably
connected with the reasonable use of the land’’). The
reasonable uses, to which the granted right-of-way may
be put, need only be reasonably connected with the
land and ‘‘are not limited to those to which the land
was being put when the way was granted.’’ Birdsey v.
Kosienski, supra, 413; see Myers v. Dunn, supra, 77–78.
For instance, the owner of an easement may use the
easement in ways which take advantage of modern
innovations such as commercial utilities. Davis v. Jef-
ferson County Telephone Co., supra, 95 S.E. 1044. Fur-
ther, when determining the scope of an easement
created by grant, any ambiguity in the grant, in a case
of reasonable doubt, is construed in favor of the grantee.
Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086
(1982).
In this case, the grant of the right-of-way is in general
terms without any restrictions other than its use as a
right-of-way. ‘‘Such a grant is to be construed as broad
enough to permit any use which is reasonably con-
nected with the reasonable use of the land to which it
is appurtenant.’’ Birdsey v. Kosienski, supra, 140 Conn.
413. Additionally, because utility lines already exist
underneath the right-of-way, connecting the plaintiff to
the preexisting utilities lines will present a minimal, if
any, additional burden on the defendant’s property.7
Therefore, the plaintiff is not restricted to using the
right-of-way purely for ingress and egress and may use
it for ‘‘any use which is reasonably connected’’ with
maintaining a residence on the property. Id.; see Myers
v. Dunn, supra, 49 Conn. 77. Surely, ‘‘[i]n current times,
the reasonable use and enjoyment of property, at a
minimum, requires utilities as long as it does not over-
burden the servient estate.’’ 25 Am. Jur. 2d, Easements
and Licenses, § 71 (West 2016).
We next apply the law of easements by necessity as
just set forth to the facts in this case. We view the facts
in the light most favorable to the plaintiff, as we must;
Fernandez v. Standard Fire Ins. Co., supra, 44 Conn.
App. 222; and, accordingly, determine that under our
expanded view of easements by necessity, the defen-
dant’s motion for summary judgment should have been
denied. The defendant alternatively argues that, even
if a property owner may receive an easement by neces-
sity for access to commercial utilities, the circum-
stances in this case preclude the plaintiff from enjoying
such an easement because he has failed to establish
the necessity required for granting such easement. Spe-
cifically, the defendant argues that the plaintiff’s opera-
tion of a generator on his property is a reasonable
substitute to commercial electricity. See Marshall v.
Martin, 107 Conn. 32, 38, 139 A. 348 (1927). Here, how-
ever, the facts, as alleged by the plaintiff and admitted
by the defendant for the purpose of this motion, intrude.
Our determination that easements by necessity may
be granted to allow a property access to commercial
utilities rests on the easement’s underlying rationales,
that parties generally would not intend to deprive prop-
erties of utility access and that utility access is neces-
sary for the productive use of property. This reasoning
obviously requires that the utilities—or their substi-
tute—be sufficient to allow the full reasonable benefi-
cial enjoyment of the property. Here, the plaintiff
alleged in his complaint, and the defendant admitted
for the consideration of this motion, that the ‘‘generator
is wholly insufficient to provide the electricity needed
to run and maintain a house in one or more of the
following ways: (a) a generator cannot automatically
turn on in the event of a flood and a sump pump needs
to be turned on; (b) a generator is loud and if kept
running often would adversely affect the neighbors and
the plaintiff; (c) a generator is dangerous to leave run-
ning without supervision for long periods of time; (d)
the plaintiff cannot use the innumerable electronic
devices which are a major part of this society without
first turning on a generator; (e) the plaintiff cannot use
a garage door opener upon his arrival at the house
unless the plaintiff first turns on a generator, thereby
defeating the purpose of having a garage door opener;
(f) the plaintiff’s house is a summer house and he spends
time in Florida during the winter months, without com-
mercial electrical power the plaintiff cannot rest
assured that he will have a working sump pump; (g)
the plaintiff has had persons come onto his property
when he has been away and he cannot install security
cameras on his property without commercial electric-
ity; (h) virtually every visitor expects to have electricity
when visiting the house; (i) the plaintiff cannot rent the
house out during the summer months due to concerns
over the safety of renters while trying to operate a
generator; [and] (j) the plaintiff cannot leave perishable
food items in his refrigerator or freezer for any length
of time without running a generator nonstop.’’ These
allegations of fact prevent us from affirming the court’s
granting of summary judgment to the defendant under
this expanded view of easements. They do not suggest
mere inconvenience, but indicate inadequacy. More-
over, the law in this context does not seek to grant
relief that, practically speaking, is ‘‘no better than none
at all.’’ (Internal quotation marks omitted.) Deane v.
Kahn, 317 Conn. 157, 176, 116 A.3d 259 (2015). Accord-
ingly, we decline to hold as a matter of law that the
plaintiff is not entitled to an easement by necessity
under the facts as alleged. We do not, however, con-
clude that the plaintiff is entitled to the easement; we
merely hold that the facts as alleged by the plaintiff,
viewed in the light most favorable to the plaintiff and
undeveloped by any evidence, prevent the defendant
from prevailing on its motion.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other judges concurred.
1
Seven additional defendants initially were served with the complaint to
give them notice of pending litigation pursuant to General Statutes § 52-
102. The plaintiff subsequently withdrew the complaint against them. In this
opinion, we refer to Goodspeed Airport, LLC, as the defendant.
2
The plaintiff abandoned his claim that there was a dispute of material
fact before this court. See Traylor v. Gerratana, 148 Conn. App. 605, 615,
88 A.3d 552 (‘‘appellant who fails to brief a claim abandons it’’ [internal
quotation marks omitted]), cert. denied, 312 Conn. 901, 902, 91 A.3d 908
(2014).
3
Naturally, because the law attributes to the parties a fictional intent, the
parties’ express showing of actual intent not to grant such an easement
would preclude the granting of the easement. See Leposky v. Fenton, 100
Conn. App. 774, 779, 919 A.2d 533 (2007).
4
Absolute need, strict necessity, occurs ‘‘[i]f the situation is such that the
landowner has absolutely no access to his property except across the land
of his grantor, [in that situation] the presumption [that the parties intended
an easement by necessity] is clear and the right [to have the easement is]
undoubted.’’ Deane v. Kahn, 317 Conn. 157, 176, 116 A.3d 259 (2015). On
the other hand, our Supreme Court recently described ‘‘ ‘reasonable neces-
sity’ ’’ as ‘‘represent[ing] only a narrow exception to the vast extent of our
case law, which generally provides for the creation of an easement by
necessity only when a parcel is truly landlocked.’’ Id., 181. For example,
reasonable necessity exists ‘‘when the expense of making the means of
access available [through a landowner’s adjacent, yet separate lot] would
exceed the entire value of the property to which access was sought.’’ (Inter-
nal quotation marks omitted.) Id. Thus, the test for reasonable necessity is
‘‘whether the party claiming the right can at reasonable cost, on his own
estate, and without trespassing on his neighbors, create a substitute.’’ Mar-
shall v. Martin, 107 Conn. 32, 38, 139 A. 348 (1927).
5
In fact, Massachusetts has a statute that provides in relevant part: ‘‘The
owner or owners of real estate abutting on a private way who have by deed
existing rights of ingress and egress upon such way or other private ways
shall have the right by implication to place, install or construct in, on, along,
under and upon said private way or other private ways pipes, conduits,
manholes and other appurtenances necessary for the transmission of gas,
electricity, telephone, water and sewer service . . . .’’ Mass. Gen. Laws. ch.
187, § 5.
6
In Galvin v. Gaffney, supra, 24 F. Supp. 2d 223, 235, United States
Magistrate Judge for the District of Connecticut, Holly B. Fitzsimmons,
concluded that the owner of a right-of-way easement was entitled to use
the easement to connect the dominant estate to utility services, under Con-
necticut law, reasoning that the installation of utilities is highly convenient
and beneficial to the use of the dominant estate. That conclusion rested in
part on the notion that the easement could be used to continuously carry
generator fuel, heating oil, and other supplies to the dominant estate and
that the alternative laying of utility lines would, in reality, present less of a
burden and inconvenience to the servient estate. Id., 234–35. Although that
reasoning is certainly applicable to the present case, it is not essential that
a property landlocked from utilities already enjoy a right-of-way easement
for physical access to be granted an easement to connect to utility services.
Therefore, we agree with the conclusion of Magistrate Judge Fitzsimmons
that easements by necessity for access to utilities may be granted to proper-
ties landlocked from utilities under the theory that electricity is necessary
to the beneficial use and enjoyment of property in current times.
7
Any costs relating to the maintenance of the easement will be shared
by each of the owners benefiting from the easement. General Statutes § 47-
42f (c) (‘‘[i]f more than one residential real property benefits from such
easement or right-of-way, the cost of maintaining and repairing or restoring
such easement or right-of-way shall be shared by each owner of a bene-
fited property’’).