Williams v. Green Power Ventures, LLC ( 2023 )

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DAVIDSON D. WILLIAMS ET AL. v. GREEN
POWER VENTURES, LLC, ET AL.
(AC 45623)
Bright, C. J., and Elgo and Cradle, Js.
Syllabus
The plaintiffs, owners of real property in Bridgeport that is benefitted by
an express easement over a neighboring property, 145 Anchorage Drive,
sought, inter alia, a declaratory judgment defining the permissible uses
of the easement and an injunction prohibiting the defendants, G Co.,
the owner of 145 Anchorage Drive; A Co.; E and A, individuals who
owned or controlled G Co. and A Co.; and K Co., a building company,
from interfering with their use of the right-of-way over 145 Anchorage
Drive. The plaintiffs’ property and 145 Anchorage Drive were originally
part of a single parcel of land. In the 1920s, M, the then owner, subdivided
the parcel into thirteen lots, as depicted on a map that was filed with
the town clerk. Lot 13, now known as 145 Anchorage Drive, is a strip
of land running from the end of Anchorage Drive to the waterfront. In
1927, M conveyed lot 4, now the plaintiffs’ property, to F, the plaintiffs’
predecessor in interest, pursuant to a warranty deed that included
express easements providing that ‘‘the land designated as Lot No. 13 as
delineated on [the] map shall remain open as a right of way for the use
and benefit of the grantee’’ and that ‘‘the land on [the] map designated
as Anchorage Drive shall remain open for appropriate street purposes
. . . for the use and benefit of the grantee . . . .’’ The easements
granted in F’s deed were referenced in all of the deeds thereafter con-
veying ownership of the plaintiffs’ property, and all of the deeds con-
veying ownership of 145 Anchorage Drive indicated that the property
was subject to certain easements appurtenant to the other lots on the
map. For many years, the plaintiffs and other easement holders used
the right-of-way to access the waterfront, including traversing the length
of 145 Anchorage Drive on foot and in motor vehicles, to park vehicles on
the property, and to store and launch boats, kayaks, and paddleboards.
In 2017, G Co. purchased 145 Anchorage Drive and A Co. purchased
the adjacent property, 141 Anchorage Drive. Thereafter, K Co. began to
construct a large residence on 141 Anchorage Drive for E and A. In
connection with the construction, K Co. erected a temporary fence
and gate along the western borders of 141 Anchorage Drive and 145
Anchorage Drive, where those properties abut Anchorage Drive, which
blocked the plaintiffs’ access to the right-of-way. G Co. and A Co. indi-
cated that, following the completion of construction, they intended to
allow the plaintiffs and other easement holders to access the right-of-
way through a pedestrian gate only and that access through a motor
vehicle gate would be limited to E and A. The plaintiffs commenced
this action, claiming that the defendants, by reason of their construction
activities and the building of the fence and other improvements, unrea-
sonably interfered with the plaintiffs’ use and enjoyment of the easement.
The trial court found, inter alia, that the plaintiffs’ right-of-way was
limited to foot passage only. It denied the plaintiffs’ request for an
injunction, concluding that, once the construction work was completed,
the plaintiffs would have access to the entirety of 145 Anchorage Drive,
and it further concluded that, because the easement was limited to foot
passage, the fence and gate restricting motor vehicle access did not
interfere with the plaintiffs’ rights. On the plaintiffs’ appeal to this court,
held that, because the granting language used in F’s deed was clear and
unambiguous when considered in light of the situation of the parties,
the properties, and the circumstances connected with the transaction,
this court’s standard of review of the plaintiffs’ claim was plenary, and,
as a matter of law, the plaintiffs’ easement was not limited to foot
passage only: F’s deed and the map expressly granted the easement
holders a general right-of-way in terms that were clear and unambiguous,
as neither document contained any specifications regarding the manner
in which 145 Anchorage Drive should be used or imposed any limitation
on the scope of the easement; moreover, because the trial court’s con-
struction of the deed was incorrect as a matter of law, as that court
failed to give effect to the language in F’s deed that granted an open
right-of-way in general terms without restrictions on its use, the trial
court also erred in its determination of the scope of the easement as
limited to foot passage, as the scope of the easement must be construed
to include any reasonable use to which the land may be devoted; further-
more, in determining the scope of the easement, the trial court erred
in limiting its consideration to what it viewed as the circumstances that
existed at the time the easement was granted, rather than considering
whether the plaintiffs’ use of the easement was reasonable in light of
the broad language of the grant, and its conclusion as to the import of
those circumstances was incorrect because the trial court’s reliance on
the right-of-way over Anchorage Drive for its conclusion that the grantor
intended to permit vehicular traffic on Anchorage Drive but not over
145 Anchorage Drive was misplaced, as the grantor limited the scope
of the use over Anchorage Drive but did not include such a restriction
in the easement over 145 Anchorage Drive, the extratextual evidence
of the surrounding circumstances that the trial court relied on, including
photographs from the early 1900s of the area surrounding 145 Anchorage
Drive, did not support its conclusion, as the fact that the photographs
did not display any vehicles or evidence of their use was not proof that
M intended to prohibit passage via motor vehicle and the plaintiffs were
not restricted to the reasonable uses that existed at the time the easement
was granted, it was undisputed that 145 Anchorage Drive was large
enough to accommodate recreation and parking, the plaintiffs and others
had been using the lot for such purposes for decades, and there was
an inference that M understood the easement over 145 Anchorage Drive
to include the right to travel by motor vehicle, as he granted himself
the same easement appurtenant to 141 Anchorage Drive as the only
means of accessing that property by motor vehicle; accordingly, a new
trial was required because the trial court, in failing to give proper effect
to the unrestricted language of F’s deed, failed to consider whether the
plaintiffs’ use of the easement was reasonable.
Argued May 8—officially released September 26, 2023
Procedural History
Action seeking, inter alia, an injunction prohibiting
the defendants from blocking or interfering with the
plaintiffs’ easement, and for other relief, brought to
the Superior Court in the judicial district of Stamford-
Norwalk and transferred to the judicial district of Fair-
field, where the named defendant et al. filed a counter-
claim; thereafter, the matter was tried to the court, Hon.
George N. Thim, judge trial referee; judgment in part
for the defendants, from which the plaintiffs appealed
to this court. Reversed in part; further proceedings.
Eric D. Grayson, for the appellants (plaintiffs).
Colin B. Connor, for the appellees (defendants).
Opinion
BRIGHT, C. J. The plaintiffs, Davidson D. Williams
and Barbara R. Williams, appeal from the judgment of
the trial court on their complaint against the defendants,
Green Power Ventures, LLC (Green Power), 141
Anchorage, LLC, Edward Stern and Amy Stern (Sterns),
and Keith J. Manca Building Company, LLC (Manca
Building), and on the counterclaim filed by Green
Power and 141 Anchorage, LLC. The plaintiffs sought
a declaratory judgment, injunctive relief, and damages
for trespass and nuisance arising out of the defendants’
alleged interference with the plaintiffs’ use of a right-
of-way easement over Green Power’s property, which
abuts 141 Anchorage, LLC’s property. In their counter-
claim, Green Power and 141 Anchorage, LLC, sought a
declaratory judgment defining the permissible uses of
the easement. In resolving the parties’ competing
claims, the court concluded that the plaintiffs’ easement
is limited to foot passage only, that the plaintiffs were
not entitled to injunctive relief or attorney’s fees, and
that the plaintiffs were entitled to $500 as ‘‘token dam-
ages’’ on their nuisance claim.1
On appeal, the plaintiffs claim that the court improp-
erly (1) concluded that their easement is limited to foot
passage only, (2) found that the fence and gate that
the defendants placed across the right-of-way did not
constitute an unreasonable interference with the plain-
tiffs’ use of the easement, (3) found that the defendants
did not engage in brazen and wanton conduct in connec-
tion with the planning, permitting, and development of
their project that interferes with the plaintiffs’ use of
the easement, and (4) failed to consider evidence that
the defendants are altering the location and dimensions
of the easement. We agree with the plaintiffs’ first claim
and, accordingly, reverse in part the judgment of the
trial court.2
The record reveals the following relevant facts and
procedural history. The plaintiffs own a parcel of land
located at 140 Grovers Avenue in the Black Rock neigh-
borhood of Bridgeport. The parcel is benefitted by an
express easement over 145 Anchorage Drive in Black
Rock, which is bounded by Anchorage Drive on the
west and by the waterline of Black Rock Harbor on the
east. 145 Anchorage Drive is owned by Green Power.
141 Anchorage, LLC, owns 141 Anchorage Drive, which
is a wedge shaped parcel directly to the south of 145
Anchorage Drive. The eastern border of 141 Anchorage
Drive fronts on the waterline of Black Rock Harbor,
and the tip of the wedge borders the end of Anchorage
Drive. 141 Anchorage Drive also is benefitted by an
express easement over 145 Anchorage Drive, which is
the same as the plaintiffs’ easement.
The Sterns directly or indirectly own or control both
Green Power and 141 Anchorage, LLC. At present,
Manca Building is constructing a large, waterfront resi-
dence on 141 Anchorage Drive, in which the Sterns
intend to reside after completion. Manca Building
erected a fence and gate along the western borders of
141 Anchorage Drive and 145 Anchorage Drive where
those properties abut Anchorage Drive, thereby
blocking the plaintiffs’ access to the right-of-way over
145 Anchorage Drive. The fence has signs that read
‘‘Keep Out’’ and ‘‘Private Property.’’ The site plan for
141 Anchorage Drive includes a driveway over part of
145 Anchorage Drive with a motor vehicle gate and a
pedestrian gate at the entrance to 145 Anchorage Drive,
where the plaintiffs regularly had accessed the right-of-
way. The intention of Green Power and 141 Anchorage,
LLC, is to allow the Sterns to drive through the motor
vehicle gate while restricting access for those who have
a deeded easement over 145 Anchorage Drive to the
pedestrian gate only. Prior to the defendants’ construc-
tion of the gate and fence, the plaintiffs and other ease-
ment holders traversed the length of 145 Anchorage
Drive in motor vehicles, parked vehicles on the way,
and used the right-of-way to store and launch boats,
paddleboards, and kayaks, and to watch Fourth of July
fireworks.
Prior to the 1920s, 140 Grovers Avenue and 145
Anchorage Drive were part of a single parcel of land
owned by the Bridgeport Yacht Club (Yacht Club prop-
erty), and 141 Anchorage Drive was part of a separate
parcel of land known as ‘‘The Anchorage’’ (Anchorage
property).3 On March 2, 1918, Kenneth W. McNeil pur-
chased the Anchorage property from J. Percy Bartram.
On April 17, 1922, McNeil acquired the Yacht Club prop-
erty ‘‘together with all buildings, piers and other struc-
tures that may be on said land; and also all the interest,
rights and privileges in connection with said land,
including the land below [the] high-water mark
extending from said premises to the main channel of
Black Rock Harbor.’’ In connection with his develop-
ment of the Yacht Club property, McNeil subdivided
the parcel into thirteen lots depicted on a map titled,
‘‘Map No. 1 Property of Kenneth W. McNeil, Black Rock,
Bridgeport Conn’’ (McNeil map), which was filed with
the town clerk on November 5, 1923. See Appendix 1
to this opinion.
On the McNeil map, lot 13—now known as 145
Anchorage Drive—is a strip of land running from the
end of Anchorage Drive to the waterfront, where a pier
is shown extending into Black Rock Harbor. As found
by the trial court, lot 13 ‘‘is approximately twenty feet
in width on the western border, 400 feet long on the
northern and southern borders, and sixty-six feet [wide]
on the eastern border. The western border is bounded
by Anchorage Drive. The eastern border is bounded by
the waterline of Black Rock Harbor.’’ Lots 1 through 12
on the McNeil map were single-family residential lots.
McNeil began conveying the residential lots in April,
1924, and continued to do so until December 31, 1926,
at which time he conveyed the remaining unsold lots—
lots 2, 3, 4, 5, 6 and 13—to the Black Rock McNeil
Corporation (McNeil Corporation), of which he was
the president. Lot 13 was conveyed ‘‘subject to certain
rights of way and easements appurtenant to all lots
shown on [the McNeil] map.’’ The McNeil Corporation
owned lot 13 until May, 2017, when Patrick Fenn pur-
chased it at a public auction by the Bridgeport tax
collector for delinquent taxes. In September, 2017, Fenn
sold lot 13 to Green Power, subject to ‘‘[t]he rights of
others to pass and repass over Lot No. 13 as granted
by Deed of Easement dated January 10, 1928 and
recorded in Volume 583, Page 487 of the Bridgeport
Land Records. NOTE: This easement is an appurtenance
to all Lots (Lots 1 through 12) as set forth on [the McNeil
map]. (affects 145 Anchorage Drive).’’
On June 10, 1927, the McNeil Corporation conveyed
lot 4—now known as 140 Grovers Avenue—to Irene
Wren Floeckher, the plaintiffs’ predecessor in interest,
by warranty deed (Floeckher deed). The Floeckher
deed granted an express easement providing: ‘‘That that
part of the land designated as Lot No. 13 as delineated
on [the McNeil] map shall remain open as a right of way
for the use and benefit of the grantee as appurtenant
to the land hereby conveyed in common with all other
present and future owners of all the parcels of land
as delineated on [the McNeil] map and also the land
described in a certain deed recorded in Volume 430,
Pages 272–[7]3 of said Land Records.’’ The Floeckher
deed also provided ‘‘[t]hat that part of the land on [the
McNeil] map designated as Anchorage Drive shall
remain open for appropriate street purposes and user4
for the use and benefit of the grantee as appurtenant
to the land hereby conveyed, in common with all other
present or future owners, of all the parcels of land
as delineated on [the McNeil] map and also the land
described in a certain deed recorded in Volume 430,
Pages 272–[7]3 of the Bridgeport Land Records.’’ (Foot-
note added.) The grants of easements in the Floeckher
deed are referenced in all deeds thereafter conveying
ownership of 140 Grovers Avenue. On November 23,
1987, Davidson Williams purchased 140 Grovers Ave-
nue, conveyed by warranty deed, and, in December,
1996, he quitclaimed the property to himself and his
wife, Barbara Williams.
The property located at 141 Anchorage Drive was not
part of the McNeil map subdivision, as it remained an
undivided part of the Anchorage property. On or about
May 9, 1927, McNeil subdivided the Anchorage property
into two parcels. He conveyed the larger of the two
parcels to Robert S. Hincks and retained for himself
the smaller parcel, known today as 141 Anchorage
Drive. See Appendix 2 to this opinion. On January 10,
1928, McNeil, as president of the McNeil Corporation,
executed a ‘‘Deed of Easement’’ conveying to McNeil
and his heirs and assigns, ‘‘the perpetual right, privilege
and easement of using . . . those certain parcels of
land . . . designated as Anchorage Drive and Lot No.
13 as delineated on [the McNeil map] . . . .’’5 Floeckher
and the owners of the other lots depicted on the McNeil
map signed the deed as cograntors of the easement.
The deed provided in pertinent part: ‘‘That the parcel
of land designated as Anchorage Drive shall be for
appropriate street purposes and user and that the parcel
of land designated as Lot No. 13 shall be a right of way
for the use and benefit of said Grantee, his heirs and
assigns, as an appurtenance to all or any part or parts
of that portion of that certain parcel of land described
in that certain deed to said Kenneth W. McNeil dated
March 2nd, 1918 and recorded in Volume 380 Pages 341
and 342 of the Bridgeport Land Records, which is still
owned by said Grantee, in common, however, with all
the present and future owners of all the parcels of land
as delineated on the [McNeil] map hereinbefore referred
to.’’6 This deed of easement is referenced in all deeds
thereafter conveying ownership of 141 Anchorage
Drive. In April, 2012, Fenn purchased 141 Anchorage
Drive, and 141 Anchorage, LLC, purchased 141 Anchor-
age Drive from Fenn in September, 2017, when Green
Power purchased 145 Anchorage Drive.
The plaintiffs brought the present action by way of
a four count complaint filed August 18, 2021. The plain-
tiffs alleged, inter alia, that the defendants had, by rea-
son of their construction activities and building of the
fence, gate, and other improvements on 145 Anchorage
Drive, unreasonably interfered with the plaintiffs’ use
and enjoyment of the easement. In the first count, the
plaintiffs sought a declaratory judgment that the ease-
ment is valid and enforceable in accordance with its
terms and that the defendants had interfered with the
plaintiffs’ easement. In the second count, the plaintiffs
sought a temporary injunction restraining the defen-
dants from interfering with the plaintiffs’ easement and
requiring that the defendants take down the fence and
gate, cease and desist all construction activity on the
easement, and remove all structures erected on the
easement. In counts three and four of the complaint,
the plaintiffs alleged that the defendants’ actions consti-
tuted a trespass on their property and a nuisance. In
their prayer for relief, the plaintiffs also sought mone-
tary damages and attorney’s fees.
The defendants filed an answer on October 20, 2021,
denying the plaintiffs’ material allegations and raising
several special defenses. Green Power and 141 Anchor-
age, LLC, also filed a counterclaim alleging that the
deed the plaintiffs had obtained to 140 Grovers Avenue
in 1987 provided only ‘‘ ‘for ingress and egress over and
across the premises described as . . . Lot no. 13 [i.e.,
145 Anchorage Drive] . . . .’ ’’ (Emphasis omitted.)
Thus, the defendants contended that the plaintiffs’ deed
does not provide them with the right to (1) use the
easement for the purpose of recreational activities, (2)
access the shoreline, (3) access the water, or (4) use
the easement in furtherance of water related activities.
Green Power and 141 Anchorage, LLC, sought a declara-
tory judgment so as to definitely determine, inter alia,
the permissible uses of the easement, whether the hold-
ers of the easement have the right to access, use, and
traverse the easement in motor vehicles, and whether
‘‘the holders of the easement have the right to use the
easement to access the beach and/or shoreline and/or
waterfront, and, if so, whether . . . the easement hold-
ers have the right to use the easement for the purpose
of conducting and/or participating in water related
activities and/or transporting vehicles or equipment
across the easement in furtherance of such purposes.’’
The matter was tried before the court, Hon. George
N. Thim, judge trial referee, over the course of four
days in January and February, 2022. Thereafter both
parties filed posttrial briefs. On the basis of the language
of the Floeckher deed expressly granting the easement,
the location of lot 13, and the surrounding circum-
stances of the original grant, the plaintiffs argued that
the original parties to the grant clearly intended that
the easement provide easement holders with ‘‘dedicated
access to the waterfront . . . for their common use
and benefit.’’ In particular, the plaintiffs contended that
‘‘[t]he purpose of the easement was to provide the plain-
tiffs with access to the waterfront, including vehicular
access, for various water based recreational uses
including, without limitation, boating, sailing, kayaking,
fishing and for general use and enjoyment . . . .’’ They
further argued that the words ‘‘shall remain open’’ in
the grant mean that no gates or other obstructions on
the right-of-way are permissible and that the words ‘‘in
common with’’ mean that no easement holder has any
greater or lesser rights than the other easement holders.
The defendants, contrastingly, argued that the easement
is solely for the right to pass and repass over 145
Anchorage Drive and that ‘‘the explicit and unambigu-
ous language of [the plaintiffs’] deeded right-of-way
over 145 Anchorage [Drive] does not permit or contem-
plate using the right-of-way to launch boats or for other
recreational activities . . . .’’7
The court issued a memorandum of decision on May
24, 2022, finding that the easement was originally
intended to provide access to the shore of Black Rock
Harbor but that ‘‘the plaintiffs’ right of passage is limited
to foot passage . . . .’’ The court then denied the plain-
tiffs’ request for a temporary injunction, concluding
that, ‘‘[o]nce the construction work is completed, the
plaintiffs will have access to the entire parcel. In balanc-
ing the equities, the minor inconvenience to the plain-
tiffs does not weigh in favor of this court’s stopping
the defendants’ use of lot 13.’’ The court further con-
cluded that, because the plaintiffs’ easement is limited
to foot passage, a gate that controls passage by motor
vehicle does not interfere with their rights. Similarly, the
court found that the construction of a locked pedestrian
gate would not unreasonably interfere with the plain-
tiffs’ right of passage because the defendants would
provide persons who have a right to use the right-of-
way with the combination to the pedestrian gate.
In addition, the court determined that ‘‘[t]he defen-
dants have obtained from the Connecticut Department
of Energy and Environmental Protection a license to
erect a dock at 141 Anchorage Drive. The license is
subject to various conditions and states, in part, that
prior to construction of the work authorized by the
license ‘a Declaration of Restriction on the City of
Bridgeport Land Records for the properties located at
141 and 145 Anchorage Drive shall be recorded. . . .
The dock authorized herein [at 141 Anchorage Drive]
shall be the sole means of littoral access for the lots
located on 141 and 145 Anchorage Drive.’ ’’ The court
concluded that, because ‘‘[t]he grantor of the easement
clearly intended to give its grantees the right to cross
over the ground of lot 13 to the shore of Black Rock
Harbor,’’ ‘‘[f]iling the proposed declaration on the land
records will interfere with the plaintiffs’ right of passage
to the shore.’’ Accordingly, the court granted the plain-
tiffs’ request for an order barring the defendants from
filing the declaration in its present form.8
The court also found in favor of the defendants on the
trespass claim because the plaintiffs are not in exclusive
possession of the property. On the nuisance claim, how-
ever, the court found that the plaintiffs’ use and enjoy-
ment of their easement had been temporarily harmed
by the construction project and awarded them ‘‘token
damages’’ in the amount of $500 because the evidence
did not provide a basis for measuring specific damages.
Last, the court determined that the plaintiffs were not
entitled to attorney’s fees because the defendants had
not engaged in deceitful and wanton behavior that
would justify such an award.
On June 13, 2022, the plaintiffs filed a motion to
reargue/reconsider, which the court denied on June 28,
2022. On June 30, 2022, the plaintiffs filed the present
appeal.9 Additional facts will be set forth as required.
Before we address the plaintiffs’ claims on appeal,
we set forth the following legal principles governing
easements. ‘‘It is well settled that [a]n easement creates
a nonpossessory right to enter and use land in the pos-
session of another and obligates the possessor not to
interfere with the rules authorized by the easement.
. . . [T]he benefit of an easement . . . is considered
a nonpossessory interest in land because it generally
authorizes limited uses of the burdened property for a
particular purpose. . . . [E]asements are not owner-
ship interests but rather privileges to use [the] land of
another in [a] certain manner for [a] certain purpose
. . . . Except as limited by the terms of the servitude
. . . the holder of an easement . . . is entitled to use
the servient estate in a manner that is reasonably neces-
sary for the convenient enjoyment of the servitude. . . .
Likewise, [e]xcept as limited by the terms of the servi-
tude . . . the holder of the servient estate is entitled
to make any use of the servient estate that does not
unreasonably interfere with enjoyment of the servi-
tude.’’ (Citations omitted; internal quotation marks
omitted.) 57 Broad Street Stamford, LLC v. Summer
House Owners, LLC, 184 Conn. App. 834, 841, 195 A.3d
1143 (2018).
‘‘The use of an easement must be reasonable and as
little burdensome to the servient estate as the nature
of the easement and the purpose will permit. . . . Ordi-
narily when [judicial] opinions speak of the use of an
easement, it arises in right-of-way cases. Thus use fre-
quently involves the amount of traffic over the easement
or alterations to the land to make it passable. . . . This
is not to overlook, however, that [t]he owner of an
easement has all rights incident or necessary to its
proper enjoyment, [although] nothing more.’’ (Citations
omitted; internal quotation marks omitted.) Kuras v.
Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).
Significantly, ‘‘the full scope of the use to be made
of [an easement] requires evaluation of the purpose
it was to serve.’’ (Internal quotation marks omitted.)
Stefanoni v. Duncan, 92 Conn. App. 172, 193, 883 A.2d
1271 (2005), rev’d in part on other grounds, 282 Conn.
686, 923 A.2d 737 (2007). ‘‘[A]ppellate case law . . .
[has] used the terms ‘location,’ ‘scope,’ and ‘use’ some-
what interchangeably. . . . [Our Supreme Court has]
read scope and use as having similar meanings insofar
as they involve ‘what [the] holder [of the easement]
may do with it, [and] the purposes for which it may be
used.’ ’’ (Citation omitted.) Deane v. Kahn, 317 Conn.
157, 166 n.5, 116 A.3d 259 (2015).
In the present case, it is undisputed that the plaintiffs
hold a valid, deeded easement over lot 13, which covers
the entirety of the property and runs from Anchorage
Drive to the mean high-water mark of Black Rock Har-
bor. What is disputed are the rights granted pursuant
to that easement and the use the plaintiffs may make
of it.
On appeal, the plaintiffs claim that (1) ‘‘[t]he trial
court’s conclusion that the grantor of the plaintiffs’
easement intended the right-of-way to be limited to foot
passage only was based on a flawed interpretation of
the [Floeckher] deed, the situation of the property, and
the surrounding circumstances,’’ and (2) the court erred
in finding that the defendants’ fences and gates across
the right-of-way and their exclusive use of the right-
of-way for construction purposes did not constitute
interference with plaintiffs’ easement. The plaintiffs
contend that a proper interpretation of the Floeckher
deed reveals that the clear purpose of the easement
was to provide easement holders with littoral access
to Black Rock Harbor for recreational use. The plaintiffs
further maintain that, because the easement was unam-
biguously granted in general terms, it may be used for
any purpose reasonably necessary for the party entitled
to use it; see Mackin v. Mackin, 186 Conn. 185, 189,
439 A.2d 1086 (1982); including the reasonable use of
vehicles, trailers, and dollies on and across the right-
of-way for purposes of accessing the waterfront for
recreational use.
In contrast, the defendants maintain that the question
at trial related not to an interpretation of the language
of the easement but, rather, to the scope of what was
permitted under the easement, including what consti-
tuted a reasonable use of the easement. They argue
that the court’s determination that ‘‘[t]he grantor of the
easement clearly intended to give its grantees the right
to cross over the ground of lot 13 to the shore of Black
Rock Harbor’’ and that ‘‘such right is limited to foot
passage and does not include the right to launch boats
or otherwise use for recreational purposes,’’ was not
clearly erroneous and did not grant the plaintiffs littoral
access to Black Rock Harbor.10 (Emphasis in original;
internal quotation marks omitted.) The defendants
assert that the easement simply grants the plaintiffs
and other easement holders the right to walk the length
of lot 13 from Anchorage Drive to the shore of Black
Rock Harbor, where they may stand and observe the
water, and walk back. According to the defendants, the
scope of the easement is therefore limited such that
the plaintiffs may not sit or picnic at the shore within
the boundary of lot 13. To the extent that lot 13 provides
access to a beach beyond the lot’s property line, the
defendants agree that the plaintiffs have the right to
traverse lot 13 to access that beach.
Because the parties frame the issues differently, they
disagree as to the proper standard of review. The defen-
dants argue that, rather than challenging the trial court’s
determination of the grantor’s intent from the language
of the deed, the plaintiffs ‘‘are appealing a determination
of the scope of the right-of-way and what constitutes the
reasonable use thereof.’’ Thus, the defendants contend
that the clearly erroneous standard is the proper stan-
dard of review on appeal.
The plaintiffs, however, note that they sought a
declaratory judgment finding that ‘‘the easement is valid
and enforceable in accordance with its terms’’ and
assert that ‘‘this was not a case of the court needing to
determine the metes and bounds of the easement for
purposes of scope, or the use of the easement as if it
was an implied easement. . . . The plaintiffs’ ease-
ment, which is the same as 141 [Anchorage, LLC’s]
easement, [is] expressed in unambiguous terms; thus,
the standard of review is plenary.’’ (Citation omitted;
emphasis added.)
Both this court and our Supreme Court have noted
that Connecticut case law regarding the standard of
review in easement cases ‘‘is somewhat confusing
. . . .’’ (Internal quotation marks omitted.) Deane v.
Kahn, supra, 317 Conn. 167 n.6, quoting Sanders v.
Dias, 108 Conn. App. 283, 290, 947 A.2d 1026 (2008).
In an attempt to provide some clarity, our Supreme
Court, in Deane v. Kahn, supra, 167 n.6, stated: ‘‘Our
scope of review as to the intent behind language in a
deed is plenary. . . . Although the intent to create an
easement by deed is therefore a question of law over
which our review is plenary . . . if the language of the
deed is incomplete or ambiguous regarding the location,
scope, or use of the easement, the trial court’s resolu-
tion of those issues represents a question of fact subject
to the clearly erroneous standard of review. . . . In
the absence of unambiguous or complete language in
the deed, therefore, determining the location, scope,
and use of an express easement is a fact-intensive
inquiry properly subject to the clearly erroneous stan-
dard of review.’’ (Citations omitted.)
Nevertheless, ‘‘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. . . . The meaning and effect
of the [language in the deed] are to be determined, not
by the actual intent of the parties, but by the intent
expressed in the deed, considering all its relevant provi-
sions and reading it in the light of the surrounding
circumstances. . . .
‘‘Our basic rule of construction is that recognition
will be given to the expressed intention of the parties
to a deed . . . and that it shall, if possible, be so con-
strued as to effectuate the intent of the parties. . . .
In arriving at the intent expressed . . . in the language
used, however, it is always admissible to consider the
situation of the parties and the circumstances con-
nected with the transaction, and every part of the writ-
ing should be considered with the help of that evi-
dence. . . .
‘‘In the construction of a deed or grant, the language
is to be construed in connection with, and in reference
to, the nature and condition of the subject matter of
the grant at the time the instrument is executed, and
the obvious purpose the parties had in view. . . . [I]f
the meaning of the language contained in a deed or
conveyance is not clear, the trial court is bound to
consider any relevant extrinsic evidence presented by
the parties for the purpose of clarifying the ambigu-
ity. . . .
‘‘Furthermore, [a] reference to [a] map in [a] deed,
[f]or a more particular description, incorporates [the
map] into the deed as fully and effectually as if copied
therein. . . . [T]he identifying or explanatory features
contained in maps referred to in a deed become part
of the deed, and so are entitled to consideration in
interpreting the deed as though they were expressly
recited therein. . . .
‘‘Finally, we note that [t]he fact that servitudes are
intended to bind successors to interests in the land,
as well as the contracting parties, and are generally
intended to last for an indefinite period of time, lends
increased importance to the writing because it is often
the primary source of information available to a pro-
spective purchaser of the land. The language should be
interpreted to accord with the meaning an ordinary
purchaser would ascribe to it in the context of the
parcels of land involved. Searching for a particular
meaning adopted by the creating parties is generally
inappropriate because the creating parties intended to
bind and benefit successors for whom the written
record will provide the primary evidence of the servi-
tude’s meaning.’’ (Citations omitted; internal quotation
marks omitted.) Simone v. Miller, 91 Conn. App. 98,
108–10, 881 A.2d 397 (2005); see also Rocamora v.
Heaney, 144 Conn. App. 658, 665–66, 74 A.3d 457 (2013).
For this reason, ‘‘[i]n determining the scope of an
express easement, the language of the grant is para-
mount in discerning the parties’ intent.’’ Leposky v. Fen-
ton, 100 Conn. App. 774, 778, 919 A.2d 533 (2007). In
addition, ‘‘[a]ny ambiguity in the instrument creating
an easement, in a case of reasonable doubt, will be
construed in favor of the grantee.’’ Mackin v. Mackin,
supra, 186 Conn. 189.
The plaintiffs first claim that the court misconstrued
the Floeckher deed as limiting the plaintiffs’ right-of-
way to foot passage only. They argue that the court
failed to properly apply the rules of construction in
interpreting that deed. In particular, the plaintiffs con-
tend that there is no ambiguity in the Floeckher deed
and McNeil map and that those instruments created a
general and unrestricted easement granting them the
freedom to use lot 13 in any manner reasonably con-
nected to the land. We conclude that the language used
in the Floeckher deed, when considered in light of the
situation of the parties, the properties, and the circum-
stances connected with the transaction, is clear and
unambiguous. Accordingly, we agree with the plaintiffs
that our standard of review is plenary and conclude,
as a matter of law, that the plaintiffs’ easement is not
limited to foot passage only.
We begin our analysis with the language of the
Floeckher deed, which provides in relevant part: ‘‘That
that part of the land designated as Lot No. 13 as deline-
ated on [the McNeil] map shall remain open as a right
of way for the use and benefit of the grantee . . . .’’
The McNeil map, which is incorporated into the Floeck-
her deed by reference thereto, depicts lot 13 as a strip
of land running from the end of Anchorage Drive to the
‘‘[approximate] mean high water [mark].’’ See Appendix
1 to this opinion. A pier is shown on the McNeil map
extending from within the landward portion of lot 13
over the mean high-water mark and into Black Rock
Harbor. Lot 13’s border with Anchorage Drive is approx-
imately twenty feet in width, and the parcel is approxi-
mately 400 feet long. The lot’s shoreside border is about
sixty-six feet in width.
Significantly, the Floeckher deed designates a ‘‘right
of way’’ without limitation or reservation. The language,
‘‘open as a right of way for the use and benefit of the
grantee’’ clearly reflects the grantor’s intent to create
a general right-of-way easement. The Floeckher deed
contains no specifications of any particular manner in
which lot 13 should be used and imposes no limitation
on the scope of the easement. More particularly, the
language does not limit the right-of-way to foot passage
or to ingress and egress. Consequently, we conclude
that the Floeckher deed and the McNeil map expressly
grant a general right-of-way in terms that are clear and
unambiguous.
It is well established that ‘‘[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 con-
strued to include any reasonable use to which the land
may be devoted.’’ (Internal quotation marks omitted.)
Peck v. Mackowsky, 85 Conn. 190, 194, 82 A. 199 (1912);
see also Makin v. Makin, supra, 186 Conn. 189 (ease-
ment created by grant in general terms without restric-
tions on use ‘‘is to be construed as broad enough to
permit any use which is reasonably connected with the
reasonable use of the land to which it is appurtenant’’
(internal quotation marks omitted)); Birdsey v. Kosien-
ski, 140 Conn. 403, 413, 101 A.2d 274 (1953) (same);
Myers v. Dunn, 49 Conn. 71, 78 (1881) (general grant
conveys ‘‘unlimited way of necessity for all legal uses’’).
‘‘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. . . .
For instance, the owner of an easement may use the
easement in ways which take advantage of modern
innovations such as commercial utilities.’’ (Citations
omitted; internal quotation marks omitted.) Francini
v. Goodspeed Airport, LLC, 164 Conn. App. 279, 293,
134 A.3d 1278 (2016), aff’d, 327 Conn. 431, 174 A.3d
779 (2018).
Therefore, because the language of the Floeckher
deed clearly and unambiguously created an easement
in general terms without restrictions on its use, the
scope of the easement includes ‘‘any use which is rea-
sonably connected with the reasonable use of the land
to which [the easement] is appurtenant.’’ (Internal quo-
tation marks omitted.) Makin v. Makin, supra, 186
Conn. 189; see also Peck v. Mackowsky, supra, 85 Conn.
194; Hagist v. Washburn, 16 Conn. App. 83, 86, 546
A.2d 947 (1988).
Despite the general language of the Floeckher deed,
the well established principles relating to such general
grants, and the principle that ‘‘[a]ny ambiguity in the
instrument creating an easement, in a case of reason-
able doubt, will be construed in favor of the grantee’’;
Mackin v. Mackin, supra, 186 Conn. 189; the court in
the present case held that the plaintiffs’ easement con-
stituted a ‘‘right of passage . . . limited to foot passage
. . . .’’ At the outset of its decision, the court stated
that ‘‘[t]here is no dispute that the plaintiffs are the
beneficiaries of a private right-of-way over Green Pow-
er’s property. What is at issue is the scope of the ease-
ment, which was created by deed in the late 1920s.’’
The court then reasoned that ‘‘[t]he [Floeckher] deed
that created the right-of-way contains two relevant
clauses, section 4 and section 5. In section 4, the grantor
created a nonexclusive right-of-way over Anchorage
Drive. Section 4 provides ‘that parcel of land on [the
McNeil] map designated as Anchorage Drive shall
remain open for appropriate street purposes and user
for the use and benefit of the grantee . . . .’ In section
5, the grantor created the right-of-way over lot 13. The
grantor did not mention in section 5 ‘street purposes’
or motor vehicle use. The inference raised by these
omissions in section 5 is that the grantor did not intend
to grant a right of vehicular passage over lot 13.
‘‘Photographs from the early [1900s] of the area sur-
rounding lot 13 do not show any vehicles on lot 13 or
any evidence of vehicular use. A photograph from the
1910s shows a woman traversing lot 13 on foot from
the shoreline toward Anchorage Drive. The [McNeil]
map that is referenced in the [Floeckher] deed does
not depict a beach area within the boundaries of lot
13. The map does not depict a place for recreation, a
place to park vehicles, or a place for launching or stor-
ing boats. Photographs and a written history of the area
show that to the south of the right-of-way there was a
beach known as Money Beach. The inference is that
the creator of the right-of-way intended to increase the
value of the residential lots it was selling by granting
purchasers a means of accessing the shore by foot pas-
sage over lot 13. This limited manner of access appears
to be consistent with the manner in which lot 13 had
been used before 1927. This court concludes that the
[Floeckher] deed and the circumstances that existed at
that time show that the grantor intended the right-of-
way to be limited to foot passage from Anchorage Drive
to the shore of Black Rock Harbor and from the shore
back to Anchorage Drive.’’ We conclude that the court’s
construction of the Floeckher deed was incorrect as a
matter of law.
As an initial matter, we agree with the trial court that
the obvious purpose that McNeil had in granting a right-
of-way easement over lot 13 was to ‘‘increase the value
of the residential lots’’ on the McNeil map ‘‘by granting
purchasers a means of accessing the shore’’ of Black
Rock Harbor. Nevertheless, given the language of the
Floeckher deed conveying a ‘‘right of way for the use
and benefit of the grantee,’’ coupled with the absence
of any limiting language in the grant, there is no support
for the court’s conclusion that the plaintiffs’ easement
is limited to foot passage only.11
‘‘ ‘Right-of-way’ is generally defined as ‘a legal right
of passage over another person’s ground . . . .’ ’’
(Emphasis omitted.) Double I Ltd. Partnership v.
Plan & Zoning Commission, 218 Conn. 65, 74, 588 A.2d
624 (1991); see also Black’s Law Dictionary (11th Ed.
2019) p. 1587 (defining ‘‘right-of-way’’ as ‘‘[t]he right to
pass through property owned by another’’). Further, as
emphasized throughout this opinion, ‘‘[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.’’ (Internal quotation marks omitted.) Peck v.
Mackowsky, supra, 85 Conn. 194. Accordingly, the plain
language of the deed clearly and unambiguously created
a general right-of-way, without restrictions on its use.12
See, e.g., Heuer v. Webster, 187 Ill. App. 273, 274–76
(1914) (language of grant, ‘‘ ‘shall be and remain an
open court for light, air, access and right of way, for
the common benefit of the parties hereto,’ ’’ was plain
and unambiguous); Cox v. Glenbrook Co., 78 Nev. 254,
261–62, 371 P.2d 647 (1962) (‘‘Here the grantor conveyed
an easement [and right-of-way] with ‘full right of use.’
To our mind, that phrase is clear and without ambiguity.
It may not, under the veil of interpretation, be consid-
ered to mean a ‘restricted right of use.’ ’’).
Thus, given both the obvious purpose of the easement
and the general terms of the Floeckher deed, the court
should have considered whether the plaintiffs’ use of
the easement was reasonable in light of the broad lan-
guage of the grant. As this court has explained, ‘‘[i]n
the context of an easement granted in general terms,
we have applied the reasonable use factors to ascertain
its proper scope because it is well settled that a right-
of-way granted in general terms may be used for any
purpose reasonably necessary for the party entitled to
use it.’’ (Emphasis in original; internal quotation marks
omitted.) Fitch v. Forsthoefel, 194 Conn. App. 230, 238,
220 A.3d 876 (2019). In determining the scope of the
easement, however, the court did not apply the reason-
able use factors and, instead, limited its consideration
to what it viewed as the circumstances that existed
when the easement was granted. In so doing, the court
failed to give effect to the plain and unambiguous lan-
guage in the Floeckher deed. Furthermore, the court’s
conclusion as to the import of those surrounding cir-
cumstances was incorrect for several reasons.
First, the court’s reliance on the right-of-way over
Anchorage Drive was misplaced. The court read the
inclusion of ‘‘street purposes’’ in paragraph 4 of the
Floeckher deed, which granted a right-of-way to use
Anchorage Drive, and the fact that no such language
appears in paragraph 5, which granted the right-of-way
over lot 13, as an indication that the grantor intended
to permit vehicular traffic on Anchorage Drive but not
over lot 13. We see no basis for such a conclusion.
Paragraph 4 of the Floeckher deed provides in relevant
part: ‘‘That that part of the land on [the McNeil] map
designated as Anchorage Drive shall remain open for
appropriate street purposes and user for the use and
benefit of the grantee . . . .’’ This language plainly and
unambiguously limits what use the grantees can make
of Anchorage Drive. They may use Anchorage Drive
only for ‘‘appropriate street purposes . . . .’’ No such
limitation appears in paragraph 5, which provides in
relevant part that ‘‘Lot No. 13 . . . shall remain open
as a right of way for the use and benefit of the grantee
. . . .’’ Consequently, contrary to the court’s conclusion
that the grant in paragraph 4 is broader than the grant
in paragraph 5, the opposite is true. The fact that the
grantor limited the scope of use in paragraph 4 to street
purposes but included no such restriction in paragraph
5 confirms the broad and unrestricted nature of the
easement granted as to lot 13.13
Second, the extratextual evidence of the surrounding
circumstances relied on by the court does not support
its conclusion. The fact that photographs of the area
surrounding lot 13 from the time of the granting do not
display vehicles or evidence of vehicular use on lot
13 does not lead to the conclusion that the grantors
intended to prohibit passage via motor vehicle. The
absence of evidence of a use does not definitively indi-
cate an intent to preclude such use, especially where
the grant of the easement was a general right-of-way.
In fact, the photographs on which the court relied show
no vehicles on Anchorage Drive, any of the surrounding
streets, or parked at any of the homes in the area. Yet
one would not infer that from the absence of vehicles
in those areas that vehicular traffic was not permitted.
Furthermore, that a means of traversing a right-of-way
was not in use at the time of the granting does not
indicate a prohibition against such a means of travel.
See Francini v. Goodspeed Airport, LLC, supra, 164
Conn. App. 293 (‘‘[t]he reasonable uses, to which the
granted right-of-way may be put . . . are not limited
to those to which the land was being put when the way
was granted’’ (internal quotation marks omitted)); Rowe
v. Lavanway, 180 Vt. 505, 511–12, 904 A.2d 78 (2006)
(‘‘[t]he manner, frequency, and intensity of the use may
change over time to take advantage of developments
in technology and to accommodate normal develop-
ment of the dominant estate’’ (internal quotation marks
omitted)); Wagoner v. Jack’s Creek Coal Corp., 199 Va.
741, 744, 101 S.E.2d 627 (1958) (‘‘the beneficiary of the
right is not restricted to the type of vehicles or mode of
travel existing at the time the easement was created’’).
Likewise, the court’s reliance on a photograph from
1910 displaying a woman walking on the Bridgeport
Yacht Club wharf toward the beach provides no evi-
dence of McNeil’s intent years later when he acquired
and subdivided the property that once was the yacht
club. As the court, quoting McBurney v. Paquin, 302
Conn. 359, 379, 28 A.3d 272 (2011), noted in its memo-
randum of decision: ‘‘ ‘Evidence of the lot owners’ cur-
rent use of the [easement], as well as use in other
periods far removed [in time] from the creation of the
[easement], is not reasonably viewed as part of the
surrounding circumstances.’ ’’ Furthermore, as with the
photographs that show no automobiles, the fact that
an individual is walking along the way does not lead
to the conclusion that the right-of-way may be used
solely for foot passage. The photograph reveals nothing
about the intent of the grantor, as it could easily be
concluded that walking was one of the many permissi-
ble uses of the right-of-way. In addition, the photograph
of a woman on the wharf reveals nothing about how
the woman arrived there or whether she even traveled
the 400 feet over lot 13 to arrive to the wharf.
Third, we disagree with the court’s conclusion that
the McNeil map did not ‘‘depict a place for recreation,
a place to park vehicles, or a place for launching or
storing boats.’’ Although the map does not have specific
portions of lot 13 designated for recreation and parking,
it is undisputed that lot 13 is large enough to accommo-
date such activities. Lot 13 is approximately twenty
feet wide on the western border, 400 feet long on the
northern and southern borders, and sixty-six feet wide
on the eastern border. The easement expressly states
that ‘‘that part of the land designated as Lot No. 13 as
delineated on [the McNeil] map shall remain open as
a right of way for the use and benefit of the grantee
. . . .’’ Thus, as recognized by the defendants, the right-
of-way extends over the entirety of lot 13. In the absence
of any indication otherwise, it is unreasonable to pre-
sume that an easement twenty feet wide at its entrance
and 400 feet long was intended to be limited to foot
traffic. See, e.g., Mazzola v. O’Brien, 100 Mass. App.
424, 428, 178 N.E.3d 870 (2021) (‘‘Where nothing in
the easement language or the objective circumstances
supports an express limitation, the easement ‘may be
used for such purposes as are reasonably necessary to
the full enjoyment of the premises to which the right
of way is appurtenant’ . . . . Especially where the
easement is 450 feet long, a distance that is difficult or
impossible for some to walk, using ATVs to transport
people and equipment to the beach is a reasonably
necessary use.’’ (Citations omitted.)). The fact that lot
13 is large enough to accommodate parking and recre-
ational activities is further evidenced by the plaintiffs
and others using it for such purposes for decades. Fur-
thermore, accepting the court’s reasoning would mean
that every map incorporated into a deed granting a
right-of-way must list or depict in exhaustive detail all
the reasonable uses of an easement and that, where
such a use is not depicted or listed, it is prohibited.
This is contrary to the well established law in this state
that ‘‘a right-of-way granted in general terms may be
used for any purpose reasonably necessary for the party
entitled to use it.’’ Hagist v. Washburn, supra, 16 Conn.
App. 86. Moreover, the McNeil map did, in fact, depict
a place for recreation in that it depicted a pier extending
from the landward side of lot 13 into Black Rock Harbor.
Finally, although the court found that ‘‘[t]he only man-
ner in which one may enter and leave 141 Anchorage
Drive by motor vehicle is by passing over lot 13 . . .
to Anchorage Drive’’ and that McNeil, less than one year
after executing the Floeckher deed, granted himself the
same easement over lot 13 that he had granted in the
Floeckher deed, the court did not consider those facts
in its consideration of the situation of the properties and
the surrounding circumstances. Those facts, however,
undermine the court’s conclusion that the easement is
limited to foot passage only. Indeed, they support the
opposite inference—that McNeil, the grantor in the
Floeckher deed, understood that the easement over lot
13 included the right to travel by motor vehicle because
he granted himself the same easement appurtenant to
141 Anchorage Drive as the only means of accessing
his residence by motor vehicle.14 Accordingly, the evi-
dence of the surrounding circumstances does not sup-
port the court’s conclusion that the scope of the ease-
ment in the Floeckher deed was ‘‘limited to foot passage
from Anchorage Drive to the shore of Black Rock Har-
bor and from the shore back to Anchorage Drive.’’
In sum, on the basis of the plain and unambiguous
language of the Floeckher deed, which expressly grants
an open right-of-way in general terms without restric-
tions on its use, the scope of the plaintiffs’ right-of-way
‘‘must be construed to include any reasonable use to
which the land may be devoted.’’ (Internal quotation
marks omitted.) Francini v. Goodspeed Airport, LLC,
supra, 164 Conn. App. 293. In other words, because
nothing in the language granting the express easement
or the objective circumstances surrounding the grant
indicates an intent to impose any limitation on the use
of the right-of-way, the scope of the easement is such
that it may be used for those purposes reasonably neces-
sary to the full enjoyment of the premises to which the
right-of-way is appurtenant. Whether a particular use
is reasonable is a question of fact and must ‘‘be deter-
mined on a case by case basis, considering all the rele-
vant circumstances, including such factors as the
amount of harm caused, its foreseeability, the purpose
or motive with which the act was done, and the consid-
eration of whether the utility of the use of the land
outweighed the gravity of the harm resulting.’’ (Internal
quotation marks omitted.) Hagist v. Washburn, supra,
16 Conn. App. 86; see also Fitch v. Forsthoefel, supra,
194 Conn. App. 238.
As previously noted in this opinion, the plaintiffs’
complaint sought a declaratory judgment that the defen-
dants’ activities on 145 Anchorage Drive had interfered
with their use and enjoyment of the easement. ‘‘Except
as limited by the terms of the servitude . . . the holder
of an easement . . . is entitled to use the servient
estate in a manner that is reasonably necessary for the
convenient enjoyment of the servitude. . . . Likewise,
[e]xcept as limited by the terms of the servitude . . .
the holder of the servient estate is entitled to make any
use of the servient estate that does not unreasonably
interfere with enjoyment of the servitude.’’ (Internal
quotation marks omitted.) 57 Broad Street Stamford,
LLC v. Summer House Owners, LLC, supra, 184 Conn.
App. 841. Accordingly, to resolve the plaintiffs’ claims,
the trial court was required to determine (1) the charac-
ter, extent, and scope of the easement granted to the
plaintiffs, (2) whether the plaintiffs’ use of the easement
was reasonable in light of the character and extent of
the easement, and (3) whether the defendants’ actions
had interfered with the plaintiffs’ use of the easement.
Because the court failed to give proper effect to the
general and unrestricted language of the Floeckher
deed, it failed to consider whether the plaintiffs’ uses
of the easement were reasonable. As a result, the court’s
analysis of the parties’ claims was distorted by its mis-
construction of the Floeckher deed as limiting the per-
missible use of the easement to foot passage only. Con-
sequently, because the court’s erroneous construction
of the Floeckher deed necessarily affected the court’s
analysis of the parties’ claims, except for the plaintiffs’
trespass claim,15 a new trial is required.16
The judgment is reversed as to the first, second, and
fourth counts of the plaintiffs’ complaint and as to the
counterclaim and those matters are remanded for a
new trial; the judgment is affirmed as to the third count
of the plaintiffs’ complaint.
In this opinion the other judges concurred.
1
The court held that the defendants are jointly and severally liable for
the token damages.
2
The court rendered judgment for the defendants on the plaintiffs’ trespass
claim, and the plaintiffs do not challenge that portion of the court’s judgment.
Accordingly, we affirm the court’s judgment for the defendants on that count.
3
The following narrative describes the early history of the properties at
issue in the present case. ‘‘The sandy point on the waterfront property at
the end of Anchorage Drive had been called ‘Money Beach’ from the time
of the colonies. There was a hopeful legend that pirates had once buried
treasure on the beach, but treasure was never found there. Some time after
1764, Captain John Squire built a wharf at the beach—‘Squire’s Wharf.’ This
was the ‘lower wharf,’ the first one encountered when sailing into the harbor.
During the [latter] part of the nineteenth century, the Money Beach property
was owned by the brothers Joseph and Thomas Burr Bartram. It was Joseph’s
son, J. Percy Bartram, who [in] about 1904 built the waterfront estate called
‘The Anchorage . . .’ [o]n . . . property . . . which then bordered the
Bridgeport Yacht Club . . . .’’ Black Rock: A Bicentennial Picture Book (D.
Jones ed., 1976) p. 42.
‘‘The Bridgeport Yacht Club was located at the end of Anchorage Drive
on waterfront land purchased by the club founders from the Bartram family.
. . . The club building was an imposing structure, three stories high and
surrounded by a broad, two-story veranda. . . . In front of the clubhouse
there was a large wharf for boating and a sandy beach for swimming.
The three hundred club members maintained a fleet of steamers, naptha
launches, schooners, sloops, cutters, yawls, and cat-rigged boats. . . .
‘‘The decline of the Bridgeport Yacht Club began about 1910, when the
twin advent of the automobile and the country club turned sportsmen’s
interests away from yachting. During World War I the clubhouse was used
as a Naval Reserve barracks. In 1923 when the building was torn down,
sections were salvaged and converted into summer houses. One still stands
at the site of the original clubhouse location at 123 Anchorage Drive, and
another was moved to the corner of Grovers Avenue.’’ Id., 40.
4
In this context ‘‘user’’ means ‘‘[t]he exercise or employment of a right
or property’’; for example, ‘‘the neighbor argued that an easement arose by
his continuous user over the last 15 years.’’ Black’s Law Dictionary (11th
Ed. 2019) p. 1856.
5
A similar grant of easement was executed for the benefit of Hincks.
6
The March 2, 1918 deed identified in the grant is the warranty deed
conveying the Anchorage property from J. Percy Bartram to McNeil.
7
The defendants contended that the plaintiffs’ argument was based on a
theory of expanding the scope of their deeded easement by prescriptive
use. At no point, however, did the plaintiffs rely on prescriptive use to
advance their claims. Rather, the plaintiffs argued that their use of the
easement always had been permissible. They pointed to the history of the
use and the fact that the original grantor—the McNeil Corporation, which
owned lot 13 for about ninety years—did not protest such use, as evidence
that the McNeil Corporation intended such use to be within the scope of
the easement.
8
The defendants did not appeal or cross appeal from the court’s order
barring them from filing the declaration on the Bridgeport land records. We
note that, in February, 2023, the plaintiffs filed in the trial court a motion
for contempt in which they alleged that the defendants had filed an improper
declaration on the Bridgeport land records in violation of the court’s order.
As of September 13, 2023, that motion remains pending before the trial court.
9
On July 13, 2022, the plaintiffs filed a motion for articulation in which
they asked the court to articulate the factual and legal basis for its determina-
tion that the easement was limited to foot passage only. On July 13, 2022,
the court, Stevens, J., denied the motion, as Judge Thim had retired on June
30, 2022. On July 27, 2022, the plaintiffs filed a motion for review of the
court’s denial of their motion for articulation. On September 28, 2022, this
court granted review but denied the relief requested.
10
According to the defendants, ‘‘[t]he trial court’s decision that [the plain-
tiffs] have the right to cross over the ground of lot 13 . . . involves the
[plaintiffs’] right to make use of the landward, rather than seaward, side of
the high-water mark.’’ (Emphasis omitted.)
11
Considering the nature of general right-of-way easements and the well
established principles indicating that such general grants permit all reason-
able uses of the land to which the easement is appurtenant, we disagree
with the defendants’ contention that the court was not required to point to
evidence giving rise to a conclusion that the grantors intended the easement
be limited to foot traffic only.
12
The defendants contend that there was a latent ambiguity within the
Floeckher deed arising from extraneous facts in the case. They fail, however,
to identify any such extraneous facts giving rise to the ambiguity. ‘‘A latent
ambiguity arises from extraneous or collateral facts that make the meaning
of a deed uncertain although its language is clear and unambiguous on its
face. . . . Latent ambiguity exists where, although language in a deed
appears to be certain on its face, it is rendered uncertain when compared
to the land that it is purported to describe.’’ (Citation omitted; internal
quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 704, 923
A.2d 737 (2007).
In the present case, the Floeckher deed expressly granted the right-of-
way over the entirety of lot 13. Nothing in the physical situation of the lot
renders that grant ambiguous. In addition, as discussed further in this opin-
ion, nothing in the circumstances surrounding the grant supports the conclu-
sion that the right-of-way was limited to pedestrian passage only.
13
We also fail to see a basis for the court’s conclusion that ‘‘ ‘street
purposes’ ’’ is synonymous with motor vehicle use. Streets are used not just
by motor vehicles but also by bicycles and pedestrians. This would have
been especially true in 1927 when motor vehicles were a relatively new
mode of transportation. Thus, if, as the court concluded, Anchorage Drive
could be used for ‘‘ ‘street purposes’ ’’ but lot 13 could not, the result would
be that the grantee of the broad unrestricted right-of-way over lot 13 would
have no way of traversing it, rendering it meaningless. We will not adopt a
construction of a deed that would lead to such an absurd result. See Freid-
heim v. McLaughlin, 217 Conn. App. 767, 791, 290 A.3d 801 (2023) (‘‘in
giving meaning to the language of the deed, we presume that the parties did
not intend to create an absurd result’’ (internal quotation marks omitted)).
14
The plaintiffs note this point in their reply brief, arguing that ‘‘[i]t is not
possible that McNeil would use the same language he used in granting an
easement to the plaintiffs’ predecessor in interest, [Floeckher] . . . to mean
that he and Hincks had the right to drive cars from their parcels over lot
13 to access Anchorage Drive going west, or the water and the pier going
east, but the twelve easement holders had to park on Anchorage Drive . . .
and then walk to the water because their easements were limited to foot
traffic only.’’ (Citation omitted.)
15
The court held that the plaintiffs failed to prove their trespass claim
because they are not in exclusive possession of 145 Anchorage Drive, which
is a necessary predicate to such a claim. See Rickel v. Komaromi, 144 Conn.
App. 775, 782, 73 A.3d 851 (2013) (‘‘it is the right of the owner in possession
to exclusive possession that is protected by an action for trespass’’ (internal
quotation marks omitted)). As previously noted in this opinion, the plaintiffs
do not challenge the court’s judgment as to their trespass claim. See footnote
2 of this opinion.
16
Although the plaintiffs invite this court to conclude, as a matter of law,
‘‘that the defendants’ gates and fences across the right-of-way interfere with
the plaintiffs’ use and enjoyment of their easement,’’ we decline to do so.
Where a grant or reservation of an express easement demonstrates an
intention that no fence or gate shall be erected, it is controlling. See, e.g.,
Mineral Springs Mfg. Co. v. McCarthy, 67 Conn. 279, 285, 34 A. 1043 (1896)
(where grant of right-of-way expressly stated that way was ‘‘not to be incum-
bered in any way, or by any person whatever,’’ owner of servient estate
could not lawfully prevent owner of dominant estate from permanently
removing gate obstructing way (internal quotation marks omitted)). In the
absence of any express intention to preclude gates or fences, the right of
the owner of the servient estate to erect a gate depends on whether it
unreasonably interferes with the dominant estate’s enjoyment of the ease-
ment. See Kelly v. Ivler, 187 Conn. 31, 48–49, 450 A.2d 817 (1982) (‘‘[w]e
cannot say, after viewing the photographs included as exhibits and in light
of the use of the easement, that the fence materially or substantially inter-
feres with pedestrian passage over the easement’’); see also id., 49 n.7 (noting
that, ‘‘[h]ad the purpose of the . . . easement been to provide for automo-
bile or other means of travel to the beach area, [the slight] encroachment
might very well materially or substantially interfere with its reasonable
enjoyment’’); 57 Broad Street Stamford, LLC v. Summer House Owners,
LLC, supra, 184 Conn. App. 844, 846 (court properly concluded that construc-
tion of service access structure did not impair plaintiffs’ easement rights
where ‘‘nothing in the language of the declaration prohibit[ed] the construc-
tion of permanent structures within the easement area’’ and ‘‘plaintiffs still
[were] able to access their unit and make improvements’’).
The Floeckher deed states that lot 13 is to ‘‘remain open as a right of
way . . . .’’ Such language does not, as a matter of law, preclude an access
gate or fence. Thus, in light of our remand for a new trial, the trial court
must determine whether the defendants’ fence and gates across the entrance
of lot 13 unreasonably interfere with the plaintiffs’ enjoyment of the right-
of-way.
APPENDIX 1
APPENDIX 2