Deane v. Kahn

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CURTIS D. DEANE v. AMY DAY KAHN ET AL.
(SC 19324)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 23—officially released June 9, 2015
Wesley W. Horton, with whom were Brandon P. Lev-
esque and F. Thor Holth, for the appellant (plaintiff).
Lloyd L. Langhammer, for the appellees (named
defendant et al.).
Sean P. Clark, with whom was Kerry R. Callahan,
for the appellee (defendant John Gorman).
Opinion
EVELEIGH, J. The plaintiff, Curtis D. Deane, claims
a right-of-way over land owned by the defendant John
Gorman and land owned by the defendants Amy Day
Kahn and Robert Kahn.1 In this certified appeal, the
plaintiff appeals from the judgment of the Appellate
Court reversing the judgment of the trial court quieting
title and establishing an easement by deed as of 1935
in favor of the plaintiff over the Gorman property and
establishing an easement by necessity as of 1960 in
favor of the plaintiff over the Kahn property. The plain-
tiff claims that the Appellate Court improperly con-
cluded that he failed to prove: (1) the location or use
of the easement by deed over the Gorman property;
and (2) the use of the easement by necessity or implica-
tion over the Kahn property at the time his property
became effectively landlocked. Regarding the Gorman
property, we reverse the judgment of the Appellate
Court as to the creation of an easement by deed and,
accordingly, remand the case to that court with direc-
tion to affirm the judgment of the trial court on that
count of the plaintiff’s complaint. Regarding the Kahn
property, we affirm the judgment of the Appellate Court
as to the creation of an easement by necessity, but
reverse as to the creation of an easement by implication
and, accordingly, remand the case to the Appellate
Court with direction to remand the case to the trial court
for further proceedings in accordance with this opinion.
The following undisputed facts and procedural his-
tory are relevant to the present appeal.2 ‘‘In the early
1900s, Harriet Warner owned a large estate of land along
the shore of the Connecticut River in Lyme. The estate
was shaped roughly like a triangle, with its base running
along the riverfront on the south side of the estate,
where the river flows from west to east. The estate
was accessible from the northeast via Brockway’s Ferry
Road, a public road that ran from northeast to south-
west along the upper left or northwest side of the estate.
As the road approached the river, however, near the
southwest corner of the estate, it split into two
branches, one of which continued southwestward while
the other turned sharply to the east and continued east-
ward, parallel to the river, part way across the south
side of the estate.’’ Deane v. Kahn, 149 Conn. App. 62,
64, 88 A.3d 1230 (2014).
The estate would later be divided into a series of
parcels that the parties in the present case would come
to own.3 The three properties owned by the parties are
contiguous, with the Gorman property to the west, the
Kahn property in the middle, and the Deane property
to the east. See footnote 2 of this opinion. Common to
all three properties is the private right-of-way at issue
in the present case, which extends from the end of
the eastward branch of Brockway’s Ferry Road, and
continues parallel to the river part of the way across
the south side of the estate. ‘‘In this action to quiet title,
the plaintiff . . . claims that he has the right to access
the southern, riverfront portion of his sloping property
from the west, across: (1) [the Gorman property] . . .
over which the plaintiff claims a right-of-way pursuant
to [a] 1935 deed; and (2) [the Kahn property] . . . over
which the plaintiff claims an easement by necessity
[that arose in 1960].’’ Deane v. Kahn, supra, 149 Conn.
App. 65.
‘‘On January 19, 1935, Harriet Warner conveyed a
fee simple interest in [the Gorman property] to Walter
Hastings.’’ Id., 64. ‘‘Under the terms of Harriet Warner’s
deed to Walter Hastings . . . the tract conveyed to him
was to be free of encumbrances, ‘except that a [right-
of-way] is reserved in perpetuity across said tract along
the route now in use.’ The 1935 deed contained no other
language describing the location, direction, dimensions,
uses or purposes of the right-of-way so reserved, or
of ‘the route now in use’ along which it was to run.’’
Id., 64–65.
‘‘In 1936, Harriet Warner conveyed the remainder of
her estate to her children, Hester Warner and [Musa
Warner] Caples. Although Harriet Warner reserved a
life use of the property so conveyed for herself, her
deeds to her daughters made no mention of the right-
of-way across the Gorman property reserved in the 1935
deed. On December 30, 1936, Hester Warner and Caples
split the property between themselves, Caples con-
veying the western portion of the property to Hester
Warner and Hester Warner conveying the eastern por-
tion of the property, including [what would become]
the Kahn and Deane properties, to Caples.
‘‘In 1938, the Gorman property was transferred by
certificate of devise from the estate of Walter Hastings
to William Hastings, whereafter, in 1945, it was con-
veyed by William Hastings to Kenneth Johnson. . . .
No mention of the 1935 right-of-way was made in any
of the above-described conveyances of the Gorman
property.
‘‘On February 8, 1955, Johnson conveyed the Gorman
property to [Marion Sreboff and Charles Sreboff]. The
1955 deed from Johnson to the Sreboffs mentioned the
right-of-way reserved by the 1935 conveyance for the
first time since that date. It provided, more particularly,
that the property so conveyed was subject: ‘To a [right-
of-way] reserved in [the 1935] deed recorded in Volume
51 at page 25 of the Lyme land records in perpetuity
across the land above described as parcel 1 and along
the route now in use.’ There has been no other reference
to the 1935 reservation in any other deed in the chain
of title by which the Gorman property ultimately
descended to Gorman from the Sreboffs . . . .
‘‘On July 6, 1960, Caples simultaneously conveyed a
portion of her property that would later become the
Kahn property to Marion Sreboff and an adjoining par-
cel directly to the east of it that would later become
the Deane property to Charles Sreboff. The deed to
Marion Sreboff created a common driveway easement
and a mutual boundary easement to provide the Kahn
property with access over the Deane property to and
from Brockway’s Ferry Road.’’ (Footnotes omitted.) Id.,69–71. This deed did not mention the right-of-way at
issue in the present case, though it did contain language
stating that it was conveyed ‘‘with the appurtenances
thereof.’’
‘‘On January 14, 1970, Marion Sreboff conveyed the
Kahn property to Frank [Heineman] and Denise Heine-
man . . . . On May 13, 1981, Marion Sreboff and her
daughter, [Carole] Schmitt, who then jointly owned the
Gorman property, granted the Heinemans a right-of-
way over the riverfront portion of that property, ‘along
that strip of land which is the easterly exten[sion] of
the ancient private dirt road, as it now lays, across’ the
property. . . . In none of [the] deeds in the chain of
title to the Kahn property, from Harriet Warner to Amy
Day Kahn, is there any reference to the 1935 reservation.
In all [but one] of them, however . . . the Kahn prop-
erty is conveyed ‘with the appurtenances thereof.’ ’’
Deane v. Kahn, supra, 149 Conn. App. 71.
‘‘All conveyances of the Deane property were specifi-
cally made subject to the common driveway and mutual
boundary easements created by Caples in favor of the
Kahn property when she first separated the Kahn prop-
erty from the Deane property and sold them respec-
tively to Marion Sreboff and Charles Sreboff. In none
of the deeds to the Deane property, however, is there
any mention of the right-of-way reserved by Harriet
Warner over what is now the Gorman property in 1935.
In all of those deeds, however, the Deane property is
conveyed ‘with the appurtenances thereof.’
‘‘On August 20, 2001, the plaintiff filed this action
seeking, inter alia, to quiet title to his alleged right-of-
way across the Gorman and Kahn properties to access
the lower portion of [the Deane property], and to enjoin
the defendants from interfering with his quiet enjoy-
ment and use of that right-of-way.’’ Id., 72.
‘‘In a thorough memorandum of decision, the trial
court concluded, inter alia, that the plaintiff has an
easement over the Gorman property by virtue of the
1935 deed and an easement by necessity over the Kahn
property, which arose in 1960 when . . . Caples, who
then owned the eastern portion of [Harriet Warner’s]
former estate, which included both the Deane property
and the Kahn property, divided those properties into
separate tracts and conveyed them, respectively, to
Charles Sreboff and Marion Sreboff . . . . Upon reach-
ing the foregoing conclusions, the court went on to rule
that ‘the scope of the deeded easement over the Gorman
property and the easement by necessity over the Kahn
property should be defined in identical terms,’ which
it then described in great detail, specifying its location
on the burdened properties, its dimensions and its
scope, including both the purposes for which and the
time and manner in which it could be used.’’ (Footnote
omitted.) Id., 65–66. Although the trial court ruled in
favor of the plaintiff with respect to two counts—
namely, the count alleging the creation of an easement
by deed over the Gorman property and the count alleg-
ing the creation of an easement by necessity over the
Kahn property—it did not rule on the count alleging
the creation of an easement by implication over the
Kahn property.
The defendants appealed from the judgment of the
trial court to the Appellate Court, which concluded that
‘‘the plaintiff failed to prove, either by the language of
the 1935 deed or by the circumstances existing at the
time of its execution, that the 1935 deed created an
easement [by deed] appurtenant to Harriet Warner’s
property across the Gorman property’’ and that ‘‘the
plaintiff failed to prove that he is entitled to an easement
by necessity over the Kahn property, either by showing
that his property would be landlocked without it, which
it would not be, or by showing that the parties intended
to create such an easement at the time of its alleged
creation in 1960, based upon evidence of the necessity
for or the use of the claimed easement at that time.’’
Id., 68. The Appellate Court, accordingly, reversed the
judgment of the trial court in part. Id.The plaintiff petitioned for certification to appeal
from the judgment of the Appellate Court. This court
granted the plaintiff’s petition for certification to appeal
limited to the following issues: (1) ‘‘Did the Appellate
Court properly reverse the judgment of the trial court
enforcing a right-of-way by deed on the ground that the
plaintiff failed to prove its location or use?’’; and (2)
‘‘Did the Appellate Court properly reverse the judgment
of the trial court enforcing a right-of-way by implication
or necessity on the ground that the plaintiff failed to
prove what use was made of the right-of-way at the time
the riverfront portion of the property became effectively
landlocked?’’ Deane v. Kahn, 312 Conn. 903, 91 A.3d 906(2014). The defendants raise two alternative grounds for
affirmance: (1) the easement by deed over the Gorman
property was not appurtenant to the land; and (2) an
easement by necessity over the Kahn property cannot
be imposed unless the dominant parcel is landlocked
and the easement connects the landlocked parcel to a
public road.4
I
THE GORMAN PROPERTY
In the first certified question of this appeal, which
pertains to the easement by deed over the Gorman
property, the plaintiff claims that the Appellate Court
improperly concluded that the plaintiff failed to prove
the easement’s location or use because the Appellate
Court would have required the plaintiff to prove such
location and use with evidence exclusively from the
time of the conveyance in 1935. Gorman claims that
the Appellate Court’s insistence on evidence solely from
1935 was proper, and further claims that the judgment
of the Appellate Court can be upheld on the alternative
ground that the easement by deed, if any, was in gross
and not appurtenant to the Deane property. We agree
with the plaintiff and reverse the judgment of the Appel-
late Court.
We begin with the standard of review. In the present
case the trial court concluded, and the parties agree,
that the language of the 1935 deed evinced an intent to
create an easement. ‘‘Although in most contexts the
issue of intent is a factual question on which our scope
of review is limited . . . the determination of the intent
behind language in a deed, considered in the light of
all the surrounding circumstances, presents a question
of law on which our scope of review is plenary. . . .
Eis v. Meyer, 17 Conn. App. 664, 667–68, 555 A.2d 994,
aff’d, 213 Conn. 29, 566 A.2d 422 (1989). Nevertheless,
[t]he determination of the scope of an easement is a
question of fact . . . [and] is for the trier of fact whose
decision may not be overturned unless it is clearly erro-
neous. . . . Simone v. Miller, 91 Conn. App. 98, 111,
881 A.2d 397 (2005).’’ (Internal quotation marks omit-
ted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d
737 (2007). The parties thus dispute whether the factual
findings that the trial court set forth in its memorandum
of decision as to the easement’s location and use are
clearly erroneous.5 See McBurney v. Paquin, 302 Conn.
359, 368, 28 A.3d 272 (2011). ‘‘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 conviction that a mis-
take has been committed.’’6 (Internal quotation marks
omitted.) Id.We first consider the plaintiff’s claim that the Appel-
late Court improperly concluded that he failed to prove
the easement’s location or use in 1935. The 1935 deed
to Walter Hastings reserved, to Harriet Warner, ‘‘a right
of way . . . in perpetuity across said tract along the
route now in use.’’ Because the language of the deed did
not sufficiently identify the location of the easement,
however, the trial court looked to ‘‘the surrounding
circumstances in 1935’’ to identify the easement’s pre-
cise location.
The trial court relied on the testimony of Robert
Sutton, who has lived in the area since the 1940s, and
Carole Schmitt, who lived in the area between 1955 and
1968, both of whom confidently described the route as
the well worn path along the shore of the Connecticut
River eastward from the public road.7 The trial court
also relied on maps from 1945 and 1951 as establishing
the location of the easement as the private extension
of ‘‘a public road leading from Brockway’s Ferry Road
along the riverfront in the direction of the Gorman,
Kahn and Deane properties.’’8 Finally, the trial court
noted that, in 1981, Schmitt and Marion Sreboff, who
owned the Gorman property, granted an easement to
the Heinemans, who owned the Kahn property, which
was located ‘‘ ‘along that strip of land which is the
easterly [extension] of the ancient private dirt road, as
it now lays [across the property],’ ’’ which demonstrated
that the location of the easement was evident to all
parties both before and after the 1935 deed. (Empha-
sis omitted.)
On appeal, after concluding that the language of the
1935 deed was insufficient to describe the location of
the right-of-way, the Appellate Court concluded that
‘‘none of the evidence relied upon by the trial court
sheds light on circumstances surrounding the execution
of the deed in 1935 from which such details [about the
easement’s location or use] can be inferred.’’ Deane v.
Kahn, supra, 149 Conn. App. 76–77. The Appellate Court
therefore noted that, in the absence of evidence ‘‘as to
use of the purported right-of-way in 1935 . . . the
plaintiff failed to prove that he has a deeded easement
over the Gorman property.’’ (Emphasis added.) Id., 78.
The plaintiff claims that the Appellate Court improperly
restricted the scope of evidence that the trial court
could consider to evidence immediately preceding and
during the 1935 conveyance. Gorman responds that the
meaning of the reservation in the 1935 deed is properly
determined by the facts and circumstances existing
solely in 1935. We agree with the plaintiff.
Our case law provides that, in considering ‘‘relevant
extrinsic evidence presented by the parties for the pur-
poses of clarifying the ambiguity’’ in a conveyance; Il
Giardino, LLC v. Belle Haven Land Co., 254 Conn.
502, 511, 757 A.2d 1103 (2000); ‘‘the circumstances that
existed at the time of [the conveyance’s] creation’’ are
relevant. McBurney v. Paquin, supra, 302 Conn. 379.
In McBurney, this court stated that ‘‘[e]vidence of pres-
ent, or relatively recent, actual use of the easement
bears little relation to what was considered reasonably
necessary for its use and normal enjoyment more than
100 years ago.’’ Id., 380. ‘‘[U]se in other periods far
removed in time from the creation of the implied ease-
ment, is not reasonably viewed as part of the sur-
rounding circumstances . . . in and around [the time
of the conveyance].’’ Id., 379.
But McBurney does not prohibit the use of all post-
conveyance evidence to determine the scope of an ease-
ment; it merely sets the outer temporal limit, specific
to the facts and circumstances of each individual case,
to the evidence that bears a reasonable relation to the
surrounding circumstances at the time of the convey-
ance. Indeed, in McBurney, this court found no clear
error in the trial court’s consideration of evidence of
use of an easement from the date of creation of the
easement in 1885 to the ‘‘early twentieth century.’’ Id.,
380. So long as the evidence bears a reasonable ‘‘relation
to what was considered reasonably necessary for [the
conveyance’s] use and normal enjoyment’’ at the time
of the conveyance and consideration of such evidence
does not pose a risk of ‘‘expand[ing] or contract[ing]
the scope of [a conveyance] in contravention of the
intent of its creator,’’ postconveyance evidence may
properly be considered by a trial court. (Internal quota-
tion marks omitted.) Id.; accord Porter v. Morrill, 108
Conn. App. 652, 662, 949 A.2d 526 (The court rejected
a claim that evidence of a conveyance in 1852 was not
probative of the intent of the parties to a 1816 deed
because ‘‘[t]his title problem originated with a deed that
is nearly 200 years old. The intention of [the predecessor
owners of interest] cannot be determined if the court
is restricted solely to a review of the 1816 deed; the
individuals who could provide information relative to
that conveyance died many years ago.’’), cert. denied,
289 Conn. 921, 958 A.2d 152 (2008).
In the present case, the trial court’s consideration of
evidence of the location and use of the right-of-way
before and immediately after the 1935 conveyance,
including credible evidence of use of the well worn
path in the 1940s and 1950s by Schmitt and Sutton, was
not clearly erroneous. Because the trial court properly
considered this evidence, and because ‘‘the determina-
tion of the scope of an easement is a question of fact
that will not be overturned unless clearly erroneous’’;
McBurney v. Paquin, supra, 302 Conn. 367–68; we con-
clude that there is sufficient evidence in the record to
support the trial court’s finding of the location and use
of an easement by deed over the Gorman property.
We now consider Gorman’s claim that the judgment
of the Appellate Court should be affirmed on the alterna-
tive ground that the claimed right-of-way was not appur-
tenant to the land retained by Harriet Warner in 1935.
Only if the right-of-way was appurtenant to Harriet War-
ner’s property in 1935 may the plaintiff claim that its
benefit ran with the land, and upon severance of the
property in 1960, passed to him through the chain of
title. See Il Giardino, LLC v. Belle Haven Land Co.,
supra, 254 Conn. 512. Gorman claims that the plaintiff
failed to rebut the presumption that, where a ‘‘reserva-
tion creating an easement does not mention the heirs
and assigns of the grantee . . . the grantor and grantee
intended the right-of-way to be in gross’’; Stiefel v. Lind-
ermann, 33 Conn. App. 799, 806, 638 A.2d 642 (1994);
and that the easement lacked an identified dominant
estate. The plaintiff responds that the same post-1935
evidence he offered to establish the easement’s location
and use also establishes the appurtenance of the ease-
ment granted to Harriet Warner’s property. We agree
with the plaintiff.
‘‘It is well settled that [i]f the easement makes no
mention of the heirs and assigns of the grantee, a pre-
sumption is created that the intent of the parties was
that merely a personal right-of-way was reserved. This
presumption, however, is not conclusive. A reservation
will be interpreted as creating a permanent easement
if, from all the surrounding circumstances, it appears
that that was the intention of the parties.’’ (Internal
quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31,
39–40, 450 A.2d 817 (1982). ‘‘One circumstance which
must be given great weight in the ascertainment of the
intent of the parties is . . . [if the easement] is of value
to the property to which it is appurtenant and will
continue to be of value [to] whoever may own the prop-
erty, that is strong evidence that the parties intended
a permanent easement.’’ (Internal quotation marks
omitted.) Id., 42. ‘‘Also significant is whether the owner
of the servient estate recognized the right of the subse-
quent owners of the dominant estate to exercise the
easement.’’ (Internal quotation marks omitted.) Id., 43.
‘‘Finally, we will look to the actual language of the
reservation clause itself.’’ Id., 44. ‘‘The burden of proof
rests upon [the party claiming appurtenance] to show
the existence of all facts necessary to prove the right-
of-way was created as an appurtenance,’’ although our
review of the trial court’s conclusion as to whether the
parties to a conveyance intended it to be appurtenant
is plenary. Branch v. Occhionero, 239 Conn. 199, 205,
681 A.2d 306 (1996); see also footnote 6 of this opinion.
The trial court acknowledged that the reservation in
the 1935 deed lacked words of inheritance, but never-
theless concluded that the circumstances surrounding
the creation of the easement confirmed that Harriet
Warner intended to create an easement appurtenant.
As to the language of the reservation, the trial court
relied on the words ‘‘in perpetuity’’ in the reservation
as demonstrating that the grantor wished the reserva-
tion to continue after her death. The trial court further
found that the easement ‘‘would be of obvious benefit’’
to ‘‘anyone who might thereafter come to own the
Deane and Kahn properties’’ because of the steep slope
hindering easy access from upper portions of the Deane
property to the riverfront. The record also reveals testi-
mony indicating that the prior owners of the Gorman
property, specifically the Sreboffs, recognized the rights
of subsequent owners of the surrounding dominant
estates to use the right-of-way. We conclude that there
was sufficient evidence to support the trial court’s con-
clusion that it was the intent of the parties to the 1935
deed to create an easement appurtenant.
Gorman nevertheless claims that, even if the ease-
ment were appurtenant, severance of Caples’ property
in 1960 would have extinguished any appurtenant right
as to the Deane property. See Stiefel v. Lindemann,
supra, 33 Conn. App. 813 (‘‘where an easement is appur-
tenant to any part of a dominant estate, and the [domi-
nant] estate is subsequently divided into parcels, each
parcel may use the easement . . . if the easement
directly abuts on the new parcel, or . . . if the owner
of the new parcel can reach the easement by traveling
over intervening land over which the owner has a legal
right of passage’’ [citation omitted]), citing Phoenix
National Bank v. United States Security Trust Co., 100
Conn. 622, 630, 124 A. 540 (1924). According to Gorman,
although the Kahn property would have retained the
benefit of the appurtenant right-of-way over the Gorman
property upon severance in 1960 because the two prop-
erties were adjacent, the Deane property would not
have retained the benefit of the appurtenant right-of-
way over the Gorman property if this court concludes
that the Deane property does not enjoy a legal right
of passage—an easement by necessity—over the Kahn
property. As we will discuss in further detail in part II
of this opinion, although we conclude that an easement
by necessity did not arise upon severance by Caples in
1960, we remand the case on the issue of whether the
plaintiff enjoys an easement by implication over the
Kahn property. Because the legal conclusions on
remand are dispositive of Gorman’s claim that the ease-
ment by deed was extinguished in 1960 as to the Deane
property, that claim does not provide an alternative
ground on which this court may affirm the judgment
of the Appellate Court. On remand, if the trial court
concludes that the plaintiff enjoys an easement by impli-
cation over the Kahn property, the easement by deed
over the Gorman property in favor of the Deane prop-
erty may not have been extinguished because the plain-
tiff will have been able to reach the easement by
traveling over intervening land. See Stiefel v. Linde-
mann, supra, 813. We therefore reverse the judgment
of the Appellate Court with respect to the easement by
deed over the Gorman property.
II
THE KAHN PROPERTY
In the second certified question of this appeal, which
pertains to the easement by necessity over the Kahn
property, the plaintiff claims that the Appellate Court
improperly concluded that the plaintiff failed to prove
the use of the right-of-way in 1960 when Caples split
her property into the Deane property and Kahn prop-
erty. The defendants disagree and further claim that
the judgment of the Appellate Court can be upheld on
the alternative ground that an easement by necessity
cannot be imposed unless the dominant parcel is land-
locked and the easement connects the landlocked par-
cel to a public road. We agree with the defendants as
to their alternative ground and, therefore, we need not
address the second certified question in this appeal.
For the reasons set forth subsequently in this opinion,
however, we reverse the judgment of the Appellate
Court in part and remand the case to that court with
direction to remand the case to the trial court for further
proceedings on the plaintiff’s claim of an easement by
implication over the Kahn property.
We begin with the standard of review. The parties
do not challenge the trial court’s factual finding that
the plaintiff’s parcel is not truly landlocked because his
property accesses a public road. Instead, the parties
dispute whether the plaintiff’s difficulty in accessing the
riverfront portion of his property renders that portion of
the Deane property ‘‘effectively landlocked’’ or dimin-
ishes the value of his property such that, as a matter
of law, he is nevertheless entitled to an easement by
necessity. Because the question of whether a nonland-
locked parcel may benefit from an easement by neces-
sity is a question of law, our review is plenary. See
Christensen v. Reed, 105 Conn. App. 578, 583, 941 A.2d
333, cert. denied, 286 Conn. 912, 944 A.2d 982 (2008).
The Appellate Court appropriately set forth the law
of easements by necessity. ‘‘ ‘The requirements for an
easement by necessity are rooted in our common law.
. . . [A]n easement by necessity will be imposed where
a conveyance by the grantor leaves the grantee with a
parcel inaccessible save over the lands of the grantor,
or where the grantor retains an adjoining parcel which
he can reach only through the lands conveyed to the
grantee. . . . [T]o fulfill the element of necessity, the
law may be satisfied with less than the absolute need
of the party claiming the [right-of-way]. The necessity
element need only be a reasonable one. . . . Moreover,
although it is true that [a]n easement of necessity may
occur when a parcel has become landlocked from out-
side access such that the owner would have no reason-
able means of ingress or egress except over lands
promised by another and a right-of-way is necessary
for the enjoyment of the parcel . . . [t]he inverse also
is true; that is, a common-law right-of-way based on
necessity expires when the owner of a dominant estate
acquires access to a public or private road through
another means.’ . . . Montanaro v. Aspetuck Land
Trust, Inc., 137 Conn. App. 1, 27–28, 48 A.3d 107, cert.
denied, 307 Conn. 932, 56 A.3d 715 (2012). ‘The basis
of the right is the presumption of a grant arising from
the circumstances of the case. If the situation is such
that the landowner has absolutely no access to his prop-
erty except across the land of his grantor, the presump-
tion is clear and the right undoubted. If he has such
access over other land of his own, the mere fact that
such access is inconvenient or expensive will not raise
the presumption of a grant of a more convenient way
over the land of his grantor. It may be, however, that,
while access to the property is not absolutely cut off,
the circumstances of the case are such that the means
of access available would not afford the landowner
any real beneficial enjoyment of his property. Such a
situation would arise when the expense of making the
means of access available would exceed the entire value
of the property to which access was sought. Such a
means of access would be no better than none at all,
and there would seem to be equal reason for presuming
a grant under such circumstances as in the case where
there was no access. Although there are cases which
hold that the way must be one of strict necessity, the
weight of authority supports what seems to us to be
the better rule—that the necessity need only to be [a]
reasonable one. . . .
‘‘ ‘It has been said that the test of necessity is whether
the party claiming the right can at reasonable cost, on
his own estate, and without trespassing on his neigh-
bors, create a substitute. . . . In most of the cases
which have held that a way of necessity does not exist
when a man can get to his own property through his own
land, the way was sought on the grounds of convenience
and economy only.’ . . . Marshall v. Martin, 107 Conn.
32, 37–38, 139 A. 348 (1927). ‘[T]he necessity does not
create the way, but merely furnishes evidence as to
the real intention of the parties; [f]or the law will not
presume that it was the intention of the parties that
one should convey land to the other in such manner
that the grantee could derive no benefit from the con-
veyance; nor that he should so convey a portion as to
deprive himself of the enjoyment of the remainder. The
law, under such circumstances, will give effect to the
grant according to the presumed intent of the parties.
A way of this kind is limited by the necessity which
creates it.’ . . . Robinson v. Clapp, 65 Conn. 365, 385,
32 A. 939 (1895). ‘[T]he element of necessity has been
rather strictly construed and made to depend on the
situation of both parties, the nature and adaptability of
the property, and surrounding circumstances.’ Hol-
lywyle Assn., Inc. v. Hollister, 164 Conn. 389, 401, 324
A.2d 247 (1973).’’ Deane v. Kahn, supra, 149 Conn. App.
80–82. ‘‘The presumption as to the intent of the parties
is a fiction of law, as the court recognized long ago in
Robinson . . . and merely disguises the public policy
that no land should be left inaccessible or incapable of
being put to profitable use.’’ Hollywyle Assn., Inc. v.
Hollister, supra, 400.
The trial court found that the plaintiff’s parcel was
not truly landlocked because the upper portion of his
property, on which the plaintiff’s house is located,
accesses a public road. Nevertheless, the trial court
concluded that the ‘‘lower portion of [the Deane prop-
erty] along the riverfront [is] inaccessible to vehicular
traffic from the upper portion due to a steep slope
separating the two, thus precluding its reasonable and
productive use and development without access to the
road via the riverfront easement. Even access by foot
[is] problematic due to the steepness of the slope.’’ The
trial court therefore concluded that, ‘‘[w]ithout direct
vehicular access from the road, [the plaintiff] has been
and will continue to be unable to conduct ordinary
maintenance of the lower portion of his property on a
regular basis, to deal with damage to that portion
caused by unusual events, such as a severe storm or
flooding, to maintain his well or seawall or to construct
a beach or boat dock on the river.’’
In applying the law of easement by necessity, the trial
court concluded that, although ‘‘[the Deane] property is
not landlocked, in the technical sense, because he has
a way out of his property . . . to the road . . . that
part of his property which has access to the water,
a characteristic of property that has repeatedly been
recognized by Connecticut [c]ourts as intrinsically valu-
able; see, e.g., Kelly v. Ivler, [supra, 187 Conn. 42]; is
of little beneficial use to him in the absence of access
over the riverfront easement and the Kahn property.’’
The trial court rendered judgment for the plaintiff on
the third count of his complaint, concluding that ‘‘recog-
nition of an easement by necessity is . . . reasonably
necessary to provide [the plaintiff] with the beneficial
enjoyment of his property.’’
The Appellate Court reversed the judgment of the
trial court on the ground that the trial court failed to
make any findings related to the ‘‘use of the right-of-way
at the time of the 1960 conveyances’’ or ‘‘the existence of
the need for vehicular access at the time of the pur-
ported creation of the easement by necessity.’’ Deane
v. Kahn, supra, 149 Conn. App. 83–84. Although the
plaintiff had raised, as an alternative ground for
affirmance, a claim that the factual findings of the trial
court would also support an easement by implication,
the Appellate Court rejected this claim in a footnote.
Specifically, the Appellate Court concluded that ‘‘the
[trial] court made no findings as to the use of the pur-
ported riverfront easement at the time of the 1960 sever-
ance, and that the record, in fact, discloses no such use
. . . .’’ Id., 85 n.24.
On appeal, the defendants claim that the Appellate
Court’s reversal of the judgment of the trial court can
be affirmed on the ground that the Deane property was
not landlocked and, therefore, that the plaintiff is not
entitled to an easement by necessity. The plaintiff
responds that any necessity need only be a ‘‘reasonable
necessity’’ pursuant to Hollywyle Assn., Inc. v. Hol-
lister, supra, 164 Conn. 398–99, and that, therefore, he
is entitled to an easement by necessity if the lower
portion of his property is ‘‘effectively landlocked.’’ The
plaintiff relies on Hollywyle Assn., Inc. v. Hollister,
supra, 399–401, and Marshall v. Martin, supra, 107
Conn. 36, for the proposition that a parcel need not be
landlocked to be entitled to an easement by necessity.
We agree with the defendants.
In Marshall, the defendant purchased the subject par-
cel, which was bounded on the north by another prop-
erty that he had purchased previously and bounded on
the west by a railroad and the plaintiff’s property. Id.,35–36. Each of the defendant’s parcels had been con-
veyed to him at separate times over a series of years,
with the subject parcel and the plaintiff’s parcel having
once been owned by a common grantor. Id. The prop-
erty to the north of the subject parcel, purchased by
the defendant in prior years, was bounded on the east
by another of the plaintiff’s properties, both of which
were bounded on the north by a public highway. Id.Despite the northern two properties’ access to the pub-
lic road, the defendant was unable to reach the public
road from the subject parcel by way of the two northern
properties because the land of those two northern prop-
erties was low and marshy, making access impractica-
ble without extensive construction that would yield
costs in excess of the value of all of the defendant’s
properties combined. Id., 39. The defendant sought an
easement by necessity over the plaintiff’s property to
the west in order to access the public road. Id., 34–35.
This court concluded that, ‘‘[i]f [the defendant] has
[access to the subject parcel] over other land of his
own, the mere fact that such access is inconvenient or
expensive will not raise the presumption of a grant of
a more convenient way over the land of his grantor. It
may be, however, that while access to the property is
not absolutely cut off, the circumstances of the case
are such that the means of access available would not
afford the landowner any real beneficial enjoyment of
his property. Such a situation would arise when the
expense of making the means of access available would
exceed the entire value of the property to which access
was sought. Such a means of access would be no better
than none at all and there would seem to be equal
reason for presuming a grant under such circumstances
as in the case where there was no access. Although
there are cases which hold that the way must be one
of strict necessity, the weight of authority supports
what seems to us to be the better rule—that the neces-
sity need only be a reasonable one.’’ (Emphasis added.)
Id., 37. ‘‘If the cost of obtaining access to one’s land
[through other land owned by the defendant] is greater
than the value of the land, he is no better off than if
the land were quite inaccessible . . . .’’ Id., 39.
This court granted the defendant in Marshall an ease-
ment by necessity over the lands of the plaintiff because,
even though the subject parcel, when added to the two
northern properties and thereby viewed as one large
parcel, technically accessed the public road, when
viewed in isolation and without reference to the two
northern parcels, as the parcel had been viewed prior
to the defendant’s purchase of it, the parcel was, indeed,
landlocked because it had no actual access to a public
road. See id., 39–40. But, even viewing the subject parcel
as one large parcel by reference to the two northern
properties, access to a public road remained impractica-
ble because ‘‘difficulties of the ground’’ meant that the
expense of constructing passage through the adjacent
parcels would exceed the value of all of the land hold-
ings combined, including the landlocked parcel. Id., 37.
Decades later, this court cited Marshall for the propo-
sition that the necessity for an easement by necessity
‘‘need only be a reasonable one.’’ Hollywyle Assn., Inc.
v. Hollister, supra, 164 Conn. 399. Hollister has, in turn,
been cited as establishing our state as one that allows
for the creation of an easement by necessity upon a
showing of ‘‘reasonable necessity,’’ as opposed to
‘‘absolute necessity.’’ See J. Bruce & J. Ely, Law of
Easements and Licenses in Land (2011) § 4:10, pp. 4-
31 through 4-33. While we do not quarrel with this char-
acterization, we note that Marshall has never been
interpreted as broadly as the plaintiff has suggested
and represents only a narrow exception to the vast
extent of our case law, which generally provides for
the creation of an easement by necessity only when a
parcel is truly landlocked. Moreover, to the extent that
Marshall allows an easement by necessity upon a show-
ing of ‘‘reasonable necessity,’’ it defined that term as
present ‘‘when the expense of making the means of
access available [through a landowner’s adjacent, yet
separate lot] would exceed the entire value of the prop-
erty to which access was sought.’’ Marshall v. Martin,
supra, 107 Conn. 37.
In the present case, the plaintiff claims that the
‘‘steepness of the slope and . . . the impediment it pre-
sents to [vehicular] passage’’ by the plaintiff from the
upper portion of his property to the lower, riverfront
portion of the property precludes the plaintiff’s ‘‘reason-
able use’’ of the property and therefore renders the
lower portion of his property ‘‘effectively landlocked.’’
But, unlike the subject parcel in Marshall, the lower
portion of the Deane property was never a separate
parcel conveyed separately to him. Furthermore, even if
this court overcame that factual distinction to Marshall,
and even if this court concluded that difficulties posed
by the slope on the Deane property were similar in
scope to the difficulties posed by the marshy, adjacent
lands in Marshall, the trial court in the present case
did not make a factual finding that the cost of providing
access to the riverfront portion of the Deane property
without a right-of-way would exceed the value of the
entire property.9 Hollister did not expand Marshall to
allow creation of an easement by necessity to one por-
tion of a parcel through the lands of others even though
the remainder of a landowner’s parcel abuts and easily
accesses a public road without the factual predicates
present in Marshall.10 At oral argument, the plaintiff
conceded that no case has concluded as such, and we
decline to extend Marshall to so conclude. Because the
facts of Marshall are distinguishable from the facts of
the present case, we affirm the judgment of the Appel-
late Court insofar as it reverses the judgment of the
trial court establishing an easement by necessity over
the Kahn property in favor of the plaintiff.11
Affirming the judgment of the Appellate Court as to
the easement by necessity does not dispose of all the
claims relating to the Kahn property, however, because
the plaintiff raised an alternative ground for affirmance
before the Appellate Court, namely, the creation of an
easement by implication, a claim that does not require
that a parcel be landlocked. See McBurney v. Paquin,
supra, 302 Conn. 380. Because the trial court did not
render judgment on this count, we must consider
whether the record presently before this court contains
sufficient factual findings to support an easement by
implication.
The plaintiff claims that the trial court’s findings of
fact with respect to an easement by necessity are suffi-
cient for an easement by implication. Our review of the
record leads us to conclude that, although the trial court
made some factual findings that likely will support the
plaintiff’s claim for an easement by implication over
the Kahn property, such findings may merely be inciden-
tal to the judgment that the trial court rendered solely
on the plaintiff’s count of easement by necessity. We
decline to surmise whether the trial court would have
made any additional factual findings if it had rendered
judgment on other counts of the plaintiff’s complaint,
especially in light of the fact that this opinion clarified
what evidence is probative of the parties’ intent with
respect to the scope and use of an easement. We there-
fore reverse the judgment of the Appellate Court as to
easement by implication and remand the case to that
court with direction to remand the case to the trial
court for further proceedings on that count of the plain-
tiff’s complaint.12
The judgment of the Appellate Court is reversed as
to the creation of an easement by deed over the Gorman
property and the case is remanded to that court with
direction to affirm the judgment of the trial court on
that count of the plaintiff’s complaint. The judgment of
the Appellate Court is affirmed as to the creation of
an easement by necessity over the Kahn property, but
reversed as to the creation of an easement by implica-
tion over the Kahn property, and the case is remanded
to the Appellate Court with direction to remand the
case to the trial court for further proceedings in accor-
dance with the preceding paragraph.
In this opinion the other justices concurred.
APPENDIX
1
We refer in this opinion to John Gorman, Amy Day Kahn, and Robert
Kahn collectively as the defendants and individually by name. For the sake
of simplicity, we refer to the three properties at issue in the present case
as the Gorman property, the Kahn property, and the Deane property. See
footnote 2 of this opinion.
2
We note that the trial court attached a map of the properties at issue
in the present case to its memorandum of decision. For the sake of conve-
nience, a portion of this map is set forth as an appendix to this opinion.
The Gorman property is labeled as parcel 19 on the map. The Kahn property
lies to the northeast of the Gorman property and is shaded on the map.
Finally, the Deane property lies east of the Kahn property and extends north
to Brockway’s Ferry Road.
3
We note that the conveyances in 1935 and 1960 are the most pertinent
to the resolution of the present case. For the sake of simplicity, this opinion
omits some facts pertaining to other conveyances that have no bearing on
our disposition of the parties’ claims.
4
We note that the defendants did not file a statement of alternative grounds
on which the judgment could be affirmed in compliance with Practice Book
§ 84-11. Nevertheless, we will review these claims because doing so does
not prejudice the plaintiff insofar as the plaintiff addressed them in his reply
brief and at oral argument. See Perez-Dickson v. Bridgeport, 304 Conn. 483,
499 n.22, 43 A.3d 69 (2012).
5
The parties, and appellate case law, have used the terms ‘‘location,’’
‘‘scope,’’ and ‘‘use’’ somewhat interchangeably. See St. Germain v. Hurd,
128 Conn. App. 497, 506 n.5, 17 A.3d 516 (2011). We 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.’’
(Internal quotation marks omitted.) McBurney v. Paquin, 302 Conn. 359,
367, 28 A.3d 272 (2011).
6
This standard of review merits some explanation for clarity. See Sanders
v. Dias, 108 Conn. App. 283, 290, 947 A.2d 1026 (2008) (‘‘case law on th[e]
issue [of the proper standard of review in the context of easements] is
somewhat confusing’’). Our scope of review as to the intent behind language
in a deed is plenary. See Il Giardino, LLC v. Belle Haven Land Co., 254
Conn. 502, 510–11, 757 A.2d 1103 (2000) (‘‘[our] construction of [conveyance
instruments] in order to ascertain the intent expressed in the deed presents
a question of law and requires consideration of all its relevant provisions
in the light of the surrounding circumstances’’). Although the intent to create
an easement by deed is therefore a question of law over which our review
is plenary; see Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992);
if the language of the deed is incomplete or ambiguous regarding the location,
scope, or use of the easement, the trial court’s resolution of those issues
represents a question of fact subject to the clearly erroneous standard of
review. See McBurney v. Paquin, supra, 302 Conn. 367–68 and n.9 (conclud-
ing scope of implied easement is question of fact where deeds considered
by trial court ‘‘did not define the scope of the implied easement, but provided
indirect evidence [of] intent’’ and parties ‘‘do not quarrel with the trial court’s
interpretation of the deeds and request that we interpret them differently,
which would present a subsidiary legal issue’’ but rather claimed solely that
‘‘the trial court should have relied on other evidence, and drawn particular
inferences from that evidence, to make a different finding as to scope’’);
Castonguay v. Plourde, 46 Conn. App. 251, 261, 699 A.2d 226 (1997) (‘‘In
reviewing [the trial court’s construction of the scope of a restriction in
declaration], we are confronted with a review of not just the language of
the declaration, but also the trial court’s factual findings underlying its
conclusions. ‘[W]hen the underlying facts that form the basis of the trial
court’s legal conclusion as to intent are challenged, our review is limited
to determining whether the findings as to those underlying facts are sup-
ported by the evidence or whether, in light of the evidence and the pleadings
in the whole record, those findings are clearly erroneous.’ ’’); 1 Restatement
(Third), Property, Servitudes § 4.1, comment (d), pp. 499–500 (2000) (princi-
ples of contract interpretation ‘‘should be applied to determine the intent
of the parties and the meaning of the terms expressed’’ but ‘‘ascertaining
the intentions . . . of the parties [by interpretation of the language of the
conveyance may] not resolve all disputed questions as to the scope and
terms of a servitude’’). 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
standard of review. See Sanders v. Dias, supra, 296; see generally annot.,
24 A.L.R.4th 1053 (1983).
7
Sutton testified that he and his family regularly used the route during
the 1940s and later. He testified that the route serviced a house previously
located on the lower portion of the Deane property and was used frequently
and continuously to bring supplies from the road and over the Gorman
property and Kahn property to the house until it was torn down in the 1950s.
Carole Schmitt testified to use of the route after the 1950s, which the trial
court took as ‘‘persuasive evidence that the ‘route’ of the easement reserved
by [Harriet] Warner was understood both before and after [the 1935 deed]
to be along the shore of the Connecticut River eastward from the road.’’
8
The trial court credited the testimony and maps provided by Gerald
Stefon, a surveyor retained by the Kahns, as demonstrating ‘‘what the sur-
veyor [at the time of the survey] sees on the ground and [which] might
properly be labeled as evidence of a right-of-way to pass, which is the way
in which the court is using them.’’ The trial court concluded that ‘‘[t]he
obvious purpose of this road was to provide easy access to certain residential
and commercial premises along the water. This road existed well before
[Harriet] Warner’s 1935 conveyance. . . . Stefon’s map further shows the
existence, historically, of a private path extending from the public road in
the same easterly direction along the riverfront and continuing through the
Gorman property, stopping at the boundary with the Kahn property. Again,
the obvious purpose of this path is to provide ready access from the road
to residences . . . and businesses . . . further along the shore of the river.
There is still clear evidence of this public/private ‘route’ on the ground,
which photographs have evidenced and the court has observed.’’
9
Instead, the trial court noted that ‘‘general knowledge of the value of
property with direct access to the river and [the court’s] view of the Deane
property convinces [the court] that the riverfront easement is of great value
to the property’’ and inferred that the cost of constructing a path for vehicular
access from the upper to lower portions of the property ‘‘would be very
substantial.’’ The plaintiff failed to meet his burden of persuasion in proving
that the cost of the access would have exceeded the value of his entire
property. See Branch v. Occhionero, supra, 239 Conn. 205.
10
Nor did Hollister or Marshall suggest that a landowner must be able
to access each and every portion of his property, notwithstanding general
access to the property from a public road, in the exact modality that the
landowner claims is most convenient.
11
We express no opinion as to the parties’ other claims of error about
the trial court’s or Appellate Court’s statements of the law of easement
by necessity.
12
The Kahns claim that, because the trial court found in favor of the
plaintiff only on the theory of easement by necessity, if the plaintiff had
wished to prevail on the theory of easement by implication, the plaintiff
should have sought an articulation from the court pursuant to Practice Book
§§ 61-10 and 66-5. Under the particular circumstances of the present case—
where the claim of an easement by implication remains unadjudicated and
where either the plaintiff or the Kahns could have sought an articulation
from the trial court—and in light of the fact that this opinion has clarified
what evidence is probative of the intent of parties to a conveyance with
respect to the location, scope, and use of an easement, we conclude that
the trial court is in the best position to consider any issues that remain.