Village Apartments, LLC v. Ward ( 2016 )

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VILLAGE APARTMENTS, LLC v. STANLEY P.
WARD, JR., ET AL.
(AC 38047)
Lavine, Alvord and Bear, Js.
Argued September 21—officially released December 13, 2016
(Appeal from Superior Court, judicial district of New
London, Moukawsher, J.)
Matthew G. Berger, for the appellant (plaintiff).
Garon Camassar, for the appellees (named defen-
dant et al.).
Opinion
BEAR, J. The plaintiff, Village Apartments, LLC,
appeals from the judgment of the trial court rendered
in favor of the defendants Stanley P. Ward, Jr., and
Rose Mary Ward, after a trial to the court, quieting title
to a claimed easement in the form of a right-of-way
(right-of-way) over the defendants’ real property (prop-
erty).1 The court determined that the Marketable Title
Act (act), General Statutes § 47-33b et seq., extinguished
the right-of-way because it was not preserved in the
roots of title of the parties as required by the act and did
not meet the apparent easement exceptions in General
Statutes § 47-33h. On appeal, the plaintiff claims that
the court erred in finding that the act extinguished
its right-of-way (1) because it predated and was not
properly set forth in either root of title; and (2) although
there were visible, physical indicators of the existence
of the right-of-way. We affirm the judgment of the
trial court.
In the first count of its complaint against the defen-
dants, the church, and Citizens Bank, dated July 9, 2012,
and returned to the court on August 1, 2012, the plaintiff
sought to quiet title to the alleged deeded right-of-way
over the defendants’ property and the church’s prop-
erty.2 The defendants alleged as a special defense, inter
alia, that the act extinguished any rights that the plaintiff
had to the claimed right-of-way. Following a trial to the
court,3 the court, Moukawsher, J., rendered judgment
in favor of the defendants and Citizens Bank on June
9, 2015, and in favor of the plaintiff, as stipulated
between it and the church. This appeal followed.
The following factual findings of the court are rele-
vant to this appeal. In 1877, an easement in the form
of a right-of-way was created over property now owned
separately by the defendants and the church in favor
of property now owned by the plaintiff. Pursuant to
the act, the plaintiff’s root of title4 is a 1968 deed that
conveyed the property ‘‘[t]ogether with and subject to
such rights of way, pipe line and other easements and
privileges as will of record appear.’’ The defendants’
roots of title are one or two 1944 deeds5 that referred
to a ‘‘Frank Calvert’’ ‘‘right of way.’’6 The 1944 deeds
did not set forth that the property is subject to the
Frank Calvert right-of-way, did not describe the right-
of-way’s metes and bounds, and did not incorporate by
volume and page the title transaction that created that
right-of-way.
The court found that as of the dates of the trial, the
alleged right-of-way area showed no evidence of ruts
or marks that might suggest that it had been used as a
cart path or track as claimed by the plaintiff. Photo-
graphs in evidence showed that the only open area
within the alleged right-of-way revealed nothing to sug-
gest its use as a cart path or track. The photographs
showed that much of the disputed area was strewn
with boulders, was covered with mature trees, and was
incapable of accommodating any kind of path. From
this and other evidence, the court concluded that there
were no signs of a cart path or track on the property.
In its memorandum of decision, the court concluded
that the defendants’ muniments of title7 did not describe
the right-of-way sufficiently to enforce it and that the
muniments of title did not specifically identify the
recorded title transaction that created the right-of-way.
In its analysis, the court rejected the plaintiff’s argument
that references to the right-of-way in the 1944 deeds
were necessary to determine the location of the five
tracts conveyed therein. Consequently, the court con-
cluded that the act extinguished the right-of-way unless
an exception applied. The plaintiff argued that mere-
stones8 marking the right-of-way, a wire fence running
along it, and signs of a cart path were physical evidence
sufficient to satisfy one of the § 47-33h exceptions. The
court concluded that fences and merestones were not
included in the list of exceptions contained in § 47-33h
and, although roads and tracks were included in the
list, there were no signs of a cart path or tracks on the
property. Accordingly, the court found that § 47-33h did
not apply. In light of these determinations, the court
declared that the defendants’ property was not subject,
under General Statutes § 47-31, to the purported right-
of-way described in volume 21, page 99, and volume
21, page 100 of the Montville land records.9 This
appeal followed.
I
The plaintiff claims that the trial court erred in
determining that the act extinguished the right-of-way
because the right-of-way predated the roots of title.
Specifically, it contends that the reference to the Frank
Calvert right-of-way in the 1944 deeds that constitute
the defendants’ roots of title is a specific reference
satisfying § 47-33h. Additionally, the plaintiff argues
that reference to the right-of-way in the deeds puts a
reasonable title searcher on notice of the existence of
an easement and that determination of the location of
the right-of-way was necessary to ascertain the location
of the three parcels constituting the defendants’ prop-
erty. The defendants argue that their roots of title do not
specifically identify a recorded title transaction creating
the right-of-way and that the description of the right-
of-way was too vague to convey it. We agree with
the defendants.
We begin by setting forth the applicable standard of
review. ‘‘The interpretation of a statute, as well as its
applicability to a given set of facts and circumstances,
presents a question of law over which our review is
plenary. . . . Furthermore, the meaning of language
used in a deed also raises a legal issue such that, when
faced with a question regarding the construction of
language in deeds, the reviewing court does not give
the customary deference to the trial court’s factual
inferences.’’ (Citation omitted; internal quotation marks
omitted.) Johnson v. Sourignamath, 90 Conn. App. 388,
393–94, 877 A.2d 891 (2005).
‘‘Pursuant to the act, 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 neces-
sary to trace the title back to the latest connecting title
instrument of earlier record10 (which is the root of title
under the act) has a marketable record title11 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 void12 any interest in real property not specifi-
cally 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.’’
(Footnotes added; internal quotation marks omitted.)
Coughlin v. Anderson, 270 Conn. 487, 507, 853 A.2d
460 (2004).
‘‘Even marketable record title, however, may be sub-
ject to certain interests. Section 47-33d13 provides in
relevant part: ‘Such marketable record title is subject
to: (1) All interests and defects which are created by
or arise out of the muniments of which the chain of
record title is formed . . . .’ Thus, if an easement over
a subject piece of property arises out of one or more
of the muniments, including the deeds, of which the
chain of record title is formed, a property owner takes
the land subject to that easement. This general provi-
sion is subject to a proviso contained in § 47-33d (1),
however, which provides that ‘a general reference in
the muniments, or any of them, to easements, use
restrictions or other interests created prior to the root of
title are not sufficient to preserve them, unless specific
identification is made therein of a recorded title transac-
tion which creates the easement, use restriction or
other interest . . . .’ ’’ (Footnote added.) McBurney v.
Cirillo, 276 Conn. 782, 808–809, 889 A.2d 759 (2006),
overruled in part on other grounds by Batte-Holmgren
v. Commissioner of Public Health, 281 Conn. 277, 284–
89, 914 A.2d 996 (2007). Section 47-33d therefore
requires either a specific reference in the muniments
to easements, use restrictions, or other interests or a
general reference to such interests accompanied by a
specific identification of a recorded title transaction
creating the easement.
‘‘The reason that a general reference to pre-root of
title interests is not sufficient to preserve and prevent
their extinguishment is to avoid any necessity for a
search of the record back of the root of title, as well
as to eliminate the uncertainties caused by such general
references. Connecticut Bar Association, Connecticut
Standards of Title (1999), standard 3.10, comment one.
Effectively, it requires one claiming a deeded right-of-
way over the property of another to establish conclu-
sively that at some point, some owner in the servient
estate’s chain of title actually made a conveyance validly
creating that right-of-way. Otherwise, an invalid or non-
existent right-of-way could ripen into existence over a
period of time through the mere insertion into the land
records of language asserting it.’’ (Internal quotation
marks omitted.) Johnson v. Sourignamath, supra, 90
Conn. App. 401.
‘‘[T]he 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. . . . [The act
is] designed to decrease the costs of title assurance by
limiting the period of time that must be covered by a
title search.’’ (Citation omitted; internal quotation
marks omitted.) Il Giardino, LLC v. Belle Haven Land
Co., 254 Conn. 502, 537, 757 A.2d 1103 (2000).
In the present case, the parties agree that the defen-
dants’ roots of title are two 1944 deeds that refer to a
Frank Calvert right-of-way.14 The two 1944 deeds do
not provide that the property is subject to that right-
of-way, do not describe the right-of-way’s metes and
bounds, and do not incorporate by volume and page
the title transaction that created the right-of-way. The
reference to the right-of-way is used only to describe
the boundaries of certain tracts of land conveyed to
the defendants’ predecessor in title. Additionally, the
deeds fail to provide any reference to a record title
transaction creating the right-of-way as required by
§ 47-33d; indeed, Frank Calvert is not named in the
1877 deed creating the right-of-way or in any other
transaction in the defendants’ chain of title.15 See John-
son v. Sourignamath, supra, 90 Conn. App. 401 (pur-
ported interests and claims must appear in chain of
title of property against which interest or claim is
being made).
Consequently, the court did not err in concluding
that the right-of-way does not burden the defendants’
property unless an exception delineated in the act
applies.
II
The plaintiff claims that the court erred in finding
that the act extinguished the right-of-way despite visible
evidence of the right-of-way. Specifically, the plaintiff
argues that the court erroneously concluded that mere-
stones, the remnants of a fence, and the remnants of
a cart path did not constitute physical evidence
excepted by the nonexclusive list contained in § 47-33h.
Essentially, the plaintiff argues that the statute allows
for any physical evidence of an easement. The defen-
dants counter that the statute does not include mere-
stones, fence posts, or car tracks, but is limited to ‘‘large
industrial equipment typically used by public service
companies . . . .’’ Although we disagree with both
interpretations advanced by the parties, we conclude
that the statutory exception contained in § 47-33h does
not apply to preserve the right-of-way claimed by the
plaintiff.
We begin by setting forth the applicable standards
of review. ‘‘The interpretation of a statute, as well as its
applicability to a given set of facts and circumstances,
presents a question of law over which our review is
plenary.’’ Johnson v. Sourignamath, supra, 90 Conn.
App. 393–94. Whether certain physical markers and con-
ditions such as a fence, cart path, or merestones existed
on the property are questions of fact to which we apply
a clearly erroneous standard of review. See Reiner,
Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107,
897 A.2d 58 (2006) (‘‘Questions of fact are subject to the
clearly erroneous standard of review. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . Because
it is the trial court’s function to weigh the evidence
. . . we give great deference to its findings.’’ [Internal
quotation marks omitted.]).
Section 47-33h,16 which codifies certain exceptions
to the act, provides in relevant part that the act ‘‘shall
not be applied to . . . extinguish any easement or
interest in the nature of an easement, or any rights
granted, excepted or reserved by the instrument creat-
ing such easement or interest, including any right for
future use, if (1) the existence of such easement or
interest is evidenced by the location beneath, upon or
above any part of the land described in such instrument
of any pipe, valve, road, wire, cable, conduit, duct,
sewer, track, hole, tower or other physical facility and
whether or not the existence of such facility is observ-
able . . . .’’ (Emphasis added.)
In the present case, the plaintiff argues that a cart
path, fence, and merestones constitute ‘‘other physical
evidence’’ of the easement. The court found that there
were no physical signs of a ‘‘cart path’’ running over
the contested property, and the evidence presented
does not demonstrate that this conclusion was clearly
erroneous. We must determine then, whether mere-
stones and fences, as a matter of law, can be evidence
of an apparent easement under § 47-33h that may have
preserved the right-of-way and, specifically, whether
either of these items is included as an ‘‘other physi-
cal facility.’’
Our state courts have not expounded on the meaning
and application of the term ‘‘other physical facility’’ as
used in § 47-33h, and, therefore, its interpretation is an
issue of first impression. ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Internal quotation marks omitted.)
Joseph General Contracting, Inc. v. Couto, 317 Conn.
565, 586, 119 A.3d 570 (2015).
Because of the ambiguity of the statutory term ‘‘other
physical facility,’’ the doctrine of ejusdem generis is
useful in determining its meaning. ‘‘[T]he rule of ejus-
dem generis, which explains that where a particular
enumeration is followed by general descriptive words,
the latter will be understood as limited in their scope
to . . . things of the same general kind or character as
those specified in the particular enumeration.’’ (Internal
quotation marks omitted.) Stratford v. Jacobelli, 317
Conn. 863, 871–72, 120 A.3d 500 (2015). ‘‘The principle
of ejusdem generis applies when ‘(1) the [clause] con-
tains an enumeration by specific words; (2) the mem-
bers of the enumeration suggest a specific class; (3)
the class is not exhausted by the enumeration; (4) a
general reference [supplements] the enumeration . . .
and (5) there is [no] clearly manifested intent that the
general term be given a broader meaning than the doc-
trine requires.’ 2A J. Sutherland, Statutory Construction
(5th Ed. Singer 1992) § 47.18. Thus, ‘[t]he doctrine of
ejusdem generis calls for more than . . . an abstract
exercise in semantics and formal logic. It rests on partic-
ular insights about everyday language usage. When peo-
ple list a number of particulars and add a general
reference like ‘‘and so forth’’ they mean to include by
use of the general reference not everything else but
only others of like kind. The problem is to determine
what unmentioned particulars are sufficiently like those
mentioned to be made subject to the [clause’s] provi-
sions by force of general reference.’ Id.’’ 24 Leggett
Street, Ltd. Partnership v. Beacon Industries, Inc., 239
Conn. 284, 297, 685 A.2d 305 (1996).
In the present case, the doctrine of ejusdem generis
limits the definition of ‘‘other physical facility’’ to the
relationship of the preceding class of terms. The defen-
dants argue that the class is limited to the large indus-
trial equipment of public utilities. The list includes
however ‘‘road,’’ ‘‘track,’’ and ‘‘hole’’ as physical facili-
ties that may evidence an easement. Although the facili-
ties pipe, valve, cable, conduit, duct, sewer, and tower
connote a class of public utility items, road, track, and
hole are not limited to such uses. This court has applied
the § 47-33h exception for roads to cases not involving
uses by utility companies. See Simonds v. Shaw, 44
Conn. App. 683, 684–85, 689–90, 691 A.2d 1102 (1997)
(holding § 47-33h excepted easement in roadway from
prohibition of act). Additionally, § 47-33d clarifies that
this portion of § 47-33h applies to apparent easements
and interests in the nature of easements. Section 47-
33h protects the interest of ‘‘the United States, of this
state or any political subdivision thereof, of any public
service company as defined in section 16-1 or of any
natural gas company’’ apart from the enumeration
herein described. Accordingly, the class enumerated in
the statute cannot be limited to public utility uses.
Defining the class as ‘‘those physical objects that
evidence an easement that themselves effectuate the
easement itself’’ includes all of the items enumerated
in § 47-33h, but not dissimilar items. For example, the
location of a sewer beneath a property would evidence
a sewer easement, whereas the location of poles and
wires traversing the property would evidence an ease-
ment to a telephone company or electrical company
for such use. Stated this way, the class does not include
items that may be found on a property that are not set
forth in § 47-33h or otherwise within the class of those
items, which are only, at best, mere indirect, possible
indicators of an easement.17
After setting forth the proper class, it is clear that
merestones and fences are not a part of the class of
other physical facilities creating an exemption from
the application of the act. Merestones are defined as
markers of a boundary, but not necessarily of an ease-
ment in the form of a right-of-way within or across a
parcel of land. A fence also is not necessarily a marker
of an easement in the form of a right-of-way. It is com-
mon knowledge that a fence can have many uses aside
from marking a boundary of a parcel of land; for exam-
ple, it can separate one interior parcel of land from
another, it can restrict pets or livestock to a certain
area within a parcel of land, it can surround and protect
against access to a hazardous condition, or it can be
purely decorative. A fence or a merestone, even if visible
on part on the defendants’ property, is not necessary
or integral to the definition, use, existence, or identifica-
tion of the plaintiff’s claimed right-of-way in this case
in the way that a road, sewer, or pipe would identify
and carry out the purposes of an easement excepted
by § 47-33h.
Moreover, although this court and the plaintiff might
be able to imagine other physical evidence that could
suggest the possibility, or even probability, of an ease-
ment, our legislature made its choice in creating a list
of indicators of an apparent easement to achieve its
goal of ‘‘simplify[ing] land title transactions through
making it possible to determine marketability by limited
title searches over some reasonable period of the imme-
diate past and thus avoid the necessity of examining the
record back into distant time for each new transaction.’’
(Internal quotation marks omitted.) Il Giardino, LLC
v. Belle Haven Land Co., supra, 254 Conn. 537. To
expand the excepted list of items contained in § 47-
33h to include dissimilar items, such as fences and
merestones, could expose landowners to stale claims
against their properties and, thus, counteract the broad
remedial purposes of the act.
Accordingly, fences and merestones are not included
as a matter of law within the definition of ‘‘other physi-
cal facility,’’ and, therefore, the court did not err in
concluding that the presence of a fence and merestones
on the defendants’ property did not except the plaintiff’s
claims to a right-of-way from application of the act.
The judgment is affirmed.
In this opinion the other judges concurred.
1
St. John’s Roman Catholic Church of Montville (church) and Citizens
Bank, also known as RBS Citizens, N.A. (Citizens Bank), were also defen-
dants in this action. In accord with a stipulation, the court rendered judg-
ment, quieting title to and confirming a right-of-way over the church’s
property. The church and Citizens Bank have not appealed and, therefore,
all references to the defendants herein are to Stanley P. Ward, Jr., and Rose
Mary Ward.
2
In the second and third counts of its complaint, the plaintiff alleged
trespass and interference with its easement rights by the defendants.
Because the plaintiff has not raised these claims in its appeal, they are not
before us.
3
The trial was held before the court, Hon. Thomas F. Parker, judge trial
referee, on June 24, 2014. The parties submitted posttrial briefs and an
additional hearing was held before Judge Parker on January 14, 2015, at
which the parties waived the 120 day deadline for the issuance of a decision.
On April 7, 2015, the court, Cole-Chu, J., transferred the case to the court,
Moukawsher, J., without a decision having been rendered by Judge Parker.
Judge Moukawsher reviewed the transcripts, exhibits, and briefs, and held
an additional hearing for arguments on June 5, 2015.
4
‘‘ ‘Root of title’ means that conveyance or other title transaction in the
chain of title of a person, purporting to create or containing language suffi-
cient to transfer the interest claimed by such person, upon which he relies
as a basis for the marketability of his title, and which was the most recent
to be recorded as of a date forty years prior to the time when marketability
is being determined. The effective date of the root of title is the date on
which it is recorded . . . .’’ General Statutes § 47-33b (e).
5
Although the court, Moukawsher, J., stated that the parties agreed that
the defendants’ root of title was a 1944 deed, the parties now argue, the
chain of title reveals, and Judge Parker noted, that the defendants’ roots of
title are two deeds from 1944 conveying undivided one-half interests from
Rose Sepowitz, individually and as executor of the estate of Peter Sepowitz,
to John Sepowitz. In describing the property, the deeds are identical. Whether
the defendants’ root of title was one deed, or two deeds that were identical
except for the parties thereto, it does not affect our analysis or conclusions.
For convenience, we will refer to the defendants’ root of title as the two
1944 deeds. The 1944 deeds conveyed five tracts. The defendants purchased
only three of those tracts in 1986 with Paul Ward, and in 1990, they purchased
Paul Ward’s interest in those tracts.
6
The so-called Frank Calvert right-of-way is not defined, explained, or
set forth in the 1944 deeds or any other muniment of title.
7
‘‘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.’ Black’s Law Dictionary (6th
Ed.1990).’’ Johnson v. Sourignamath, 90 Conn. App. 388, 398 n.14, 877 A.2d
891 (2005).
8
A merestone is ‘‘[a] stone that marks land boundaries.’’ Black’s Law
Dictionary (9th Ed. 2009).
9
General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may
be brought by any person claiming title to, or any interest in, real or personal
property, or both, against any person who may claim to own the property,
or any part of it, or to have any estate in it, either in fee, for years, for life
or in reversion or remainder, or to have any interest in the property, or any
lien or encumbrance on it, adverse to the plaintiff, or against any person
in whom the land records disclose any interest, lien, claim or title conflicting
with the plaintiff’s claim, title or interest, for the purpose of determining
such adverse estate, interest or claim, and to clear up all doubts and disputes
and to quiet and settle the title to the property. Such action may be brought
whether or not the plaintiff is entitled to the immediate or exclusive posses-
sion of the property.’’
10
General Statutes § 47-33c provides: ‘‘Any person having the legal capacity
to own land in this state, who has an unbroken chain of title to any interest
in land for forty years or more, shall be deemed to have a marketable record
title to that interest, subject only to the matters stated in section 47-33d. A
person has such an unbroken chain of title when the land records of the
town in which the land is located disclose a conveyance or other title
transaction, of record not less than forty years at the time the marketability
is to be determined, which conveyance or other title transaction purports
to create such interest in land, or which contains language sufficient to
transfer the interest, either in (1) the person claiming that interest, or (2)
some other person from whom, by one or more conveyances or other title
transactions of record, the purported interest has become vested in the
person claiming the interest; with nothing appearing of record, in either
case, purporting to divest the claimant of the purported interest.’’
11
General Statutes § 47-33b (a) provides: ‘‘ ‘Marketable record title’ means
a title of record which operates to extinguish such interests and claims,
existing prior to the effective date of the root of title, as are stated in section
47-33e . . . .’’
12
General Statutes § 47-33e provides: ‘‘Subject to the matters stated in
section 47-33d, such marketable record title shall be held by its owner and
shall be taken by any person dealing with the land free and clear of all
interests, claims or charges whatsoever, the existence of which depends
upon any act, transaction, event or omission that occurred prior to the
effective date of the root of title. All such interests, claims or charges,
however denominated, whether legal or equitable, present or future, whether
those interests, claims or charges are asserted by a person sui juris or under
a disability, whether that person is within or without the state, whether that
person is natural or corporate, or is private or governmental, are hereby
declared to be null and void.’’
13
General Statutes § 47-33d provides: ‘‘Such marketable record title is
subject to: (1) All interests and defects which are created by or arise out
of the muniments of which the chain of record title is formed; provided a
general reference in the muniments, or any of them, to easements, use
restrictions or other interests created prior to the root of title are not
sufficient to preserve them, unless specific identification is made therein
of a recorded title transaction which creates the easement, use restriction
or other interest; (2) all interests preserved by the recording of proper notice
or by possession by the same owner continuously for a period of forty years
or more, in accordance with section 47-33f; (3) the rights of any person
arising from a period of adverse possession or use, which was in whole or
in part subsequent to the effective date of the root of title; (4) any interest
arising out of a title transaction which has been recorded subsequent to
the effective date of the root of title from which the unbroken chain of title
of record is started; provided such recording shall not revive or give validity
to any interest which has been extinguished prior to the time of the recording
by the operation of section 47-33e; (5) the exceptions stated in section 47-
33h as to rights of reversioners in leases, as to apparent easements and
interests in the nature of easements, and as to interests of the United States,
this state and political subdivisions thereof, public service companies and
natural gas companies.’’
14
See footnote 5 of this opinion.
15
We have also reviewed the 1986 and 1990 deeds conveying the defen-
dants’ property to them and Paul Ward. The defendants first purchased their
property with Paul Ward as tenants in common from John Sepowitz as set
forth in a deed recorded on the Montville town records on June 30, 1986.
Paul Ward then conveyed his interest in the property to the defendants by
a quitclaim deed recorded on May 24, 1990. The 1986 and 1990 deeds each
contain a reference to the ‘‘Plan of the Sepowitz Property Jerome Road,
Montville, Connecticut Date July, 1982 Scale: 1’’ = 50’,’’ which was recorded
on the Montville town records. That plan, however, does not depict any
alleged right-of-way for the benefit of the plaintiff’s property.
16
General Statutes § 47-33h provides: ‘‘Sections 47-33b to 47-33l, inclusive,
shall not be applied to bar any lessor or successor of the lessor as a rever-
sioner of the right to possession on the expiration of any lease or to bar or
extinguish any easement or interest in the nature of an easement, or any
rights granted, excepted or reserved by the instrument creating such ease-
ment or interest, including any right for future use, if (1) the existence of
such easement or interest is evidenced by the location beneath, upon or
above any part of the land described in such instrument of any pipe, valve,
road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical
facility and whether or not the existence of such facility is observable, or
to bar, extinguish or otherwise affect any interest of the United States, of
this state or any political subdivision thereof, of any public service company
as defined in section 16-1 or of any natural gas company, or (2) such easement
or interest is a conservation restriction, as defined in section 47-42a, that
is held by a land trust or nonprofit organization.’’ (Emphasis added.)
17
Thus, by way of example, fences, merestones, trees, and shrubs, standing
alone, in the absence of specific evidence of a road or track running between
them, do not satisfy the requirements for a § 47-33h exception.