Deane v. Kahn

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CURTIS D. DEANE v. AMY DAY KAHN ET AL.
(AC 31575)
(AC 31576)
Gruendel, Sheldon and Peters, Js.
Argued September 17, 2013—officially released April 1, 2014
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Hon. Joseph M.
Shortall, judge trial referee.)
Sean P. Clark, for the appellant in AC 31575 (defen-
dant John Gorman).
Lloyd L. Langhammer, for the appellants in AC 31576
(named defendant et al.).
Thor Holth, for the appellee in both appeals
(plaintiff).
Opinion
SHELDON, J. In the early 1900s, Harriet Warner
owned a large estate of land along the shore of the
Connecticut River in Lyme. The estate was shaped
roughly like a triangle, with its base running along the
riverfront on the south side of the estate, where the
river flows from west to east. The estate was accessible
from the northeast via Brockway’s Ferry Road, a public
road that ran from northeast to southwest along the
upper left or northwest side of the estate. As the road
approached the river, however, near the southwest cor-
ner of the estate, it split into two branches, one of
which continued southwestward while the other turned
sharply to the east and continued eastward, parallel to
the river, part way across the south side of the estate.
On January 19, 1935, Harriet Warner conveyed a fee
simple interest in a portion of her estate lying directly
on the river to Walter Hastings (1935 conveyance). The
tract deeded to Hastings was located immediately to
the east of and downstream from another riverfront
tract, which Harriet Warner previously had conveyed
to her brother-in-law, Robert Huey, in 1909.
Under the terms of Harriet Warner’s deed to Walter
Hastings (1935 deed), 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.
From the this 1935 conveyance from and, more partic-
ularly, from Warner’s reservation of a right-of-way
across the deeded tract, a dispute has now arisen among
the present owners of that tract and of two other riv-
erfront properties located to the east of and down-
stream from it, both of which were parts of the Warner
estate at the time of the 1935 conveyance. In this action
to quiet title, the plaintiff, Curtis D. Deane, who now
owns the easternmost of the three properties (Deane
property), claims that he has the right to access the
southern, riverfront portion of his sloping property from
the west, across: (1) the deeded tract, which is now
owned by the defendant John Gorman (Gorman prop-
erty), over which the plaintiff claims a right-of-way pur-
suant to the 1935 deed; and (2) the intervening property
lying directly to the east of and downstream from the
Gorman property and directly to the west of and
upstream from his own property, which is now owned
by the defendant Amy Day Kahn (Kahn property), over
which the plaintiff claims an easement by necessity.1
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 Harriet Warner’s
daughter, Musa Warner Caples, who then owned the
eastern portion of her mother’s former estate, which
included both the Deane property and the Kahn prop-
erty, divided those properties into separate tracts and
conveyed them, respectively, to Charles Sreboff and
Marion Sreboff (Sreboffs).2 Upon reaching the forego-
ing conclusions, the court went on to rule that ‘‘the
scope of the deeded easement over the Gorman prop-
erty and the easement by necessity over the Kahn prop-
erty 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.3
On appeal from the trial court’s judgment in favor of
the plaintiff, the defendants raise several claims of
error. Gorman claims initially that the plaintiff did not
meet his burden of proving the location, nature, scope
and purpose of the easement allegedly created over his
property by the 1935 conveyance. Because the plaintiff’s
claim of an easement over the Gorman property stems
from Harriet Warner’s reservation of a right-of-way
across that property in 1935, Gorman argues that that
claim is defeated by that failure of proof. Gorman fur-
ther claims that, even if the plaintiff could meet his
burden of proving that Harriet Warner created an ease-
ment appurtenant to her estate running across his prop-
erty along the riverfront, any such easement was
extinguished as to the Deane property in 1960, when
Caples severed the Deane property from the Kahn prop-
erty, and from her own property, and separately con-
veyed them to the Sreboffs, as a result of which the
Deane property no longer abutted the Gorman property.
The trial court agreed with Gorman on this aspect of
his claim, but nonetheless determined that an easement
by necessity arose over the Kahn property in 1960 as
a result of Caples’ separate conveyances to the Sreboffs
in order to effectuate what it found to have been the
intended transfer of the claimed riverfront easement
over the Gorman property to Charles Sreboff. Gorman
also challenges the court’s finding that the plaintiff has
an easement by necessity over the Kahn property on
the grounds that no reasonable necessity existed for
the creation of such an easement at the time of its
alleged creation, and, even if it did, that the court’s
orders defining the scope of that easement are overly
burdensome to the Gorman property and much broader
than necessary to accomplish any legitimate purpose
supported by the record in this case. Kahn joins Gorman
in claiming that the court erred in holding that the
plaintiff has an easement by necessity over her prop-
erty, because the plaintiff failed to establish the exis-
tence of any necessity for such an easement at the
time of the 1960 conveyances of the Kahn and Deane
properties to the Sreboffs. The essential basis for her
argument on this issue is that, from the moment of its
conveyance to Charles Sreboff, the Deane property
‘‘had road frontage [and] additional access via a naviga-
ble waterway.’’ Without any need for outside access
to the Deane property, the only claimed purposes for
creating an easement by necessity across her prop-
erty—‘‘to [enable the owners of the Deane property
to] perform minimal lawn maintenance [on the lower
portion of that property] and . . . [to take] leisure
walks’’—were too insubstantial to warrant burdening
her property in the manner proposed.
We agree with Gorman 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 appurtenant to
Harriet Warner’s property across the Gorman property.
We also agree with the defendants 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.
Accordingly, we reverse the judgment of the trial court.
I
HISTORY
By way of background, we begin by reviewing the
history of the land here at issue. In the early 1900s,
Harriet Warner was the owner of a large estate along
the shore of the Connecticut River. That estate would
gradually be split into several separate parcels, includ-
ing those parcels that are herein referenced as the
Deane, Kahn and Gorman properties. In 1909, Harriet
Warner conveyed a small portion of her property along
the riverfront to Huey, who was married to her sister.
In 1935, by deed, Harriet Warner conveyed the southern
portion of what is now the Gorman property, which is
immediately to the east of and downstream from the
Huey property, to Walter Hastings. The habendum
clause of the 1935 deed from Harriet Warner to Walter
Hastings provided that ‘‘a right of way is reserved in
perpetuity across said tract along the route now in use.’’4
That deed contained no other information regarding
the location, size, purpose, nature or scope of that right-
of-way.
In 1936, Harriet Warner conveyed the remainder of
her estate to her children, Hester Warner and Caples.
Although Harriet Warner reserved a life use of the prop-
erty 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 conveying the western por-
tion of the property to Hester Warner and Hester Warner
conveying the eastern portion of the property, including
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. On
October 30, 1945, Johnson added to his estate by
obtaining a small parcel along its northern boundary
from Caples. 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 the Sreboffs. 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 con-
veyed was subject: ‘‘To a right of way reserved in 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.’’5 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, including: the deed from Marion Sreboff to
herself and her daughter, Carole Schmitt, on December
21, 1977;6 the deed from Marion Sreboff and Schmitt to
Elliott and Linda Packman (Packmans) on April 30,
1982; the deed from the Packmans to Robert and Susan
Wright (Wrights) on March 1, 1984; and the deed from
the Wrights to Gorman on April 18, 1986.7
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.8 On January 14, 1970,
Marion Sreboff conveyed the Kahn property to Frank
and Denise Heineman (Heinemans). On May 13, 1981,
Marion Sreboff and her daughter, Schmitt, who then
jointly owned the Gorman property, granted the Heine-
mans a right-of-way over the riverfront portion of that
property, ‘‘along that strip of land which is the easterly
exten[s]ion of the ancient private dirt road, as it now
lays, across’’ the property. On November 17, 1986, the
Heinemans conveyed the Kahn property to Robert Kahn
and Amy Day Kahn, although on February 7, 1990,
Robert Kahn released his one-half interest in the prop-
erty to Amy Day Kahn. In none of these 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 of them, however, except for Robert
Kahn’s release, the Kahn property is conveyed ‘‘with
the appurtenances thereof.’’
On November 15, 1961, Charles Sreboff conveyed
what is now the Deane property to Howard Heffernan,
subject to the common driveway and mutual boundary
easements in favor of the Kahn property. On August
6, 1976, Heffernan conveyed the property to William
Blundin, who gradually transferred portions of his inter-
est in that property to the plaintiff. On April 18, 1996,
Blundin conveyed the last of his remaining interest in
the property to the plaintiff, making the plaintiff its sole
owner. All conveyances of the Deane property were
specifically 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
property 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 seek-
ing, inter alia, to quiet title to his alleged right-of-way
across the Gorman and Kahn properties to access the
lower portion of his own property, and to enjoin the
defendants from interfering with his quiet enjoyment
and use of that right-of-way. The trial court concluded
that the plaintiff has a right by deed to pass along the
riverfront over the Gorman property and a right by
necessity to pass over the Kahn property. The defen-
dants challenge both of those conclusions.
II
CLAIM OF EASEMENT BY DEED
We begin with the plaintiff’s claim that he has an
easement by deed over the Gorman property, which
originated with the 1935 conveyance. The trial court
found, ‘‘from all of the evidence, that the language [Har-
riet] Warner used, in light of the surrounding circum-
stances in 1935, was sufficient to identify the dominant
estate as the property she retained along the riverfront,
direct access to which was provided via the existing
public/private route shown on [Gerald] Stefon’s map.’’9
Gorman claims that the plaintiff failed to prove the
location, nature, scope and purpose of the easement
purportedly created by Harriet Warner in 1935. Specifi-
cally, Gorman claims that the plaintiff failed to identify
either the precise location of the easement claimed to
have been created by the 1935 deed or the intended
use of the easement. Consequently, Gorman contends,
the court erred in concluding that the plaintiff enjoys an
easement by deed along the riverfront over the Gorman
property. We agree.
‘‘[T]he scope of an easement is what its holder may
do with it, the purposes for which it may be used. . . .
Typically, to discern the scope of an easement, the
deeds, maps and recorded instruments that created the
easement must be considered in light of the surrounding
circumstances to determine [its] nature and extent
. . . . In a case . . . however, [in which] . . . the
[deed] provides no guidance as to the type of use con-
templated, the scope of the intended easement rests on
inference from the circumstances. 4 R. Powell, Real
Property (2010) § 34.12, p. 34-147; see also 1
Restatement (Third), Property, Servitudes § 4.1, com-
ment (a), p. 498 (2000) (in interpreting servitudes cre-
ated without an expression of intention by the parties,
the relevant focus of inquiry is on the expectations the
circumstances should reasonably have engendered in
the parties).’’ (Citations omitted; internal quotation
marks omitted.) McBurney v. Paquin, 302 Conn. 359,
367, 28 A.3d 272 (2011).
‘‘The fact that servitudes are intended to bind succes-
sors to interests in the land, as well as the contracting
parties, and are generally intended to last for an indefi-
nite period of time, lends increased importance to the
writing because it is often the primary source of infor-
mation available to a prospective 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
servitude’s meaning.’’ 1 Restatement (Third), Property,
Servitudes § 4.1, comment d, pp. 499–500 (2000).
‘‘The language of the grant will be given its ordinary
import in the absence of anything in the situation or
surrounding circumstances which indicates a contrary
intent. . . . [T]he 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. . . . In
determining the scope of an express easement, the lan-
guage of the grant is paramount in discerning the par-
ties’ intent. In order to resolve ambiguities in the
language, however, the situation and circumstances
existing at the time the easement was created may also
be considered.’’ (Internal quotation marks omitted.)
Hurlburt v. DeRosa, 137 Conn. App. 463, 470, 49 A.3d
249 (2012).
Consistent with the foregoing rules and principles,
our Supreme Court has held: ‘‘When a grant of a right
of way does not fix the exact route it is to follow, its
location is established, in accord with the reasonable
convenience of the dominant and servient owners, by
the practical location and use by the grantee, acqui-
esced in by the grantor at the time.’’ Gaffney v. Pesce,
144 Conn. 17, 19, 126 A.2d 926 (1956). The burden of
proof rests upon the party who is claiming the right-
of-way to show the existence of all facts necessary to
establish said right-of-way. Branch v. Occhionero, 239
Conn. 199, 205–206, 681 A.2d 306 (1996).
We thus begin with an examination of the deed itself.
The 1935 deed from Harriet Warner to Walter Hastings
reserved a ‘‘right of way . . . in perpetuity . . . along
the route now in use’’ across the Gorman property.
The deed does not contain any additional information
regarding that route.10 It thus is devoid of any measure-
ments or any indication as to the location of the route.
Hence, although the contested easement has been
referred to by the parties and the trial court as the
‘‘riverfront easement,’’ there is nothing in the 1935 deed
that identifies the purported right-of-way as running
along the riverfront.11 In fact, there is nothing in the
deed from which to infer even the approximate location
of that route, much less to support a finding that the
route crossed the lower portion of the Gorman property
along the riverfront.12 Likewise, the deed is silent as to
the intended use or purpose of the right-of-way or of
‘‘the route now in use’’ to which the deed refers.13
Not only is the deed itself silent as to the location
and scope of the right-of-way reserved in Harriet War-
ner’s 1935 deed to Walter Hastings, but 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 can be inferred.14 The
court specifically credited the testimony of ‘‘Robert Sut-
ton, who has lived in the immediate area of the proper-
ties at issue all his life and testified that he had crossed
over the Gorman and Kahn properties via the riverfront
easement ‘thousands and thousands of times’ and Car-
ole Schmitt, who lived there in the late 1950s and 1960s
when her parents, Marion and Charles Sreboff, owned
the Gorman, Kahn and Deane properties.’’ Neither Sut-
ton nor Schmitt, however, testified as to the circum-
stances surrounding the 1935 conveyance.15 In fact, no
evidence whatsoever was presented as to use of the
purported right-of-way in 1935. In the absence of any
evidence regarding the location and scope of the
claimed easement, the plaintiff failed to prove that he
has a deeded easement over the Gorman property.16
Even if the plaintiff had presented sufficient evidence
to establish that in 1935, Harriet Warner created an
easement appurtenant to her property, including land
that later became the Deane and Kahn properties, along
the riverfront over the Gorman property, he then had
the burden of proving that that right-of-way passed to
his property. As previously noted, in 1960, Caples was
the owner of a parcel of land that included, in part, the
Deane and Kahn properties. In 1960, Caples conveyed
the Kahn property, which lay directly to the east and
north of the Gorman property, to Marion Sreboff; and
conveyed the Deane property, which lay directly to the
east of the Kahn property property, to Charles Sreboff.
The trial court concluded, and we agree, that ‘‘Caples’
severance of the dominant estate in this manner extin-
guished the Deane property’s right to use the riverfront
easement over the Gorman property unless the new
owner of it, Charles Sreboff, had a legal right of passage
over the intervening land owned by Marion Sreboff.’’
See Stiefel v. Lindemann, 33 Conn. App. 799, 813, 638
A.2d 642 (‘‘[i]t is a well established principle that where
an easement is appurtenant to any part of a dominant
estate, and the estate is subsequently divided into par-
cels, each parcel may use the easement as long as the
easement is applicable to the new parcel . . . (1) if
the easement directly abuts on the new parcel, or (2)
if the owner of the new parcel can reach the easement
by traveling over the intervening land over which the
owner has a legal right of passage’’ [citation omitted]),
cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994).
III
CLAIM OF EASEMENT BY NECESSITY
The trial court further concluded, however, that, ‘‘at
the time of the conveyance by Musa Caples to Charles
Sreboff, an easement by necessity was created over the
property she simultaneously deeded to Marion Sreboff,
now the Kahn property.’’ (Footnote omitted.) The court
found that ‘‘the surrounding circumstances in 1960 were
the same as they are today: . . . Caples was conveying
to [Charles] Sreboff a tract of land, the lower portion of
which along the riverfront was inaccessible to vehicular
traffic from the upper portion due to a steep slope
separating the two, thus precluding its reasonable and
productive use and development without access to the
road via the riverfront easement. Even access by foot
was problematic due to the steepness of the slope.’’ In
so concluding, the court found that, by employing the
language ‘‘with the appurtenances thereof’’ in the deed
of conveyance to Charles Sreboff, Caples had indicated
an intent to transfer to Charles Sreboff as well as Marion
Sreboff the benefit of the riverfront easement over the
Gorman property, and that the ‘‘recognition of an ease-
ment by necessity is both consonant with the intent of
Musa Caples when she conveyed the Deane property
to Charles Sreboff in 1960 and reasonably necessary to
provide [the plaintiff] with the beneficial enjoyment of
his property.’’ We are not persuaded.
‘‘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. . . . Although the requirements for
an easement by necessity once included a showing of
unity of ownership . . . our Supreme Court has elimi-
nated that requirement. . . . Moreover, although it is
true that [a]n easement of necessity may occur when
a parcel has become landlocked from outside access
such that the owner would have no reasonable means
of ingress or egress except over lands promised by
another and a right-of-way is necessary for the enjoy-
ment 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.’’
(Citations omitted; internal quotation marks omitted.)
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 property except across
the land of his grantor, the presumption is clear and
the right undoubted. If he has such access over other
land of his own, the mere fact that such access is incon-
venient 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 avail-
able 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 sup-
ports what seems to us to be the better rule—that the
necessity need only to be 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.’’ (Citations omitted.) 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 conveyance; 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.’’ (Internal quotation marks omitted.)
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.’’ Hollywyle Assn., Inc. v.
Hollister, 164 Conn. 389, 401, 324 A.2d 247 (1973). The
extent of necessity is determined by examining the cir-
cumstances which existed at the time of the convey-
ance, in addition to the use being made by the dominant
estate at that time. McBurney v. Paquin, 302 Conn.
359, 380, 28 A.3d 272 (2011). ‘‘Evidence of present, or
relatively recent, actual use of the easement bears little
relation to what was considered reasonably necessary
for its use and enjoyment [at the time of convey-
ance].’’ Id.Here, although the court acknowledged that the plain-
tiff’s property is not landlocked, it found that, due to
the topography of his land, the lower, riverfront portion
of it is ‘‘of little beneficial use to him in the absence
of access over the riverfront easement and the Kahn
property.’’17 The court thus granted an easement by
necessity over the Kahn property, explaining: ‘‘[T]his is
not a case where access to the lower portion from
the upper portion of [the plaintiff’s] property is merely
inconvenient. . . . Without direct vehicular access
from the road [along the riverfront, 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.’’18
In so ruling, the trial court did not make any findings
as to the use of the right-of-way at the time of the
1960 conveyances.19 The court simply found that the
surrounding circumstances in 1960 were the same as
they are today, in that the steepness of the slope of the
Deane property prevented vehicular traffic from the
upper portion to the lower portion of that property
and made pedestrian traffic to that area problematic.20
Although the court then determined that those hin-
drances ‘‘precluded the reasonable and productive use
and development’’ of the lower portion of the Deane
property, the court made no findings as to why this
was the case in 1960. The court determined that direct
vehicular access to the lower portion of the property
was necessary for the plaintiff, but made no findings
as to the existence of the need for vehicular access at
the time of the purported creation of the easement by
necessity.21 In fact, the court made no findings whatso-
ever as to the reasonable necessity to access the lower
portion of the Deane property in 1960.
Moreover, our review of the record reveals that
although there was testimony regarding the use at one
time of a route across the Gorman property to deliver
groceries to the Mitchell house, that use ceased when
the Mitchell house was destroyed in the early 1950s.
After that time, until the Sreboffs built a house for
Schmitt on the Kahn property, there were no other
structures on either the Kahn property or the Deane
property, both of which were ‘‘pretty much overgrown.’’
There was also testimony that the Sreboffs and Schmitt
used the area of the claimed right-of-way on the Kahn
property to park their vehicles or to turn their vehicles
around to return to Brockway’s Ferry Road in the late
1950s. Schmitt also testified that her children would
sometimes play in the area on the lower portion of the
Kahn property. There was no evidence, however, that
the claimed right-of-way was ever used to access the
lower portion of the Deane property in 1960.22 Thus,
not only did the plaintiff fail to prove the necessity of
the easement in 1960, but he failed to show any use of
it at that time.23 In the absence of such evidence, we
conclude that the trial court erred in ruling that the
plaintiff, as the owner of the Deane property, is entitled
to an easement by necessity over the Kahn property.24
The judgment is reversed as to the court’s determina-
tion of the existence of an easement over the Kahn
property in count three of the plaintiff’s complaint, and
over the Gorman property in count eight of the plain-
tiff’s complaint and the case is remanded with direction
to render judgment in favor of the defendants on those
counts. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
We refer in this opinion to John Gorman, Amy Day Kahn, and Robert
Kahn collectively as the defendants, and to them individually by name. The
plaintiff alleges in count three of the operative complaint that he has an
easement by necessity over the Kahn property and alleges in count eight
that he has an easement by grant over the Gorman property. The court
rendered judgment in favor of the plaintiff on these counts. In AC 31575,
Gorman primarily challenges the judgment with respect to count eight. In
AC 31576, Amy Day Kahn and Robert Kahn challenge the judgment with
respect to count three.
2
There are two other easements that involve the Kahn and Deane proper-
ties, which were addressed by the trial court. The court’s determinations
as to those easements have not been challenged on appeal.
3
The court held: ‘‘There shall be an easement 13 feet, 8 inches in width,
which shall run from the west to east over the Gorman property and the
Kahn property and into the Deane property, terminating on the Deane prop-
erty. The easement shall follow the course of the gravel path visible on the
ground directly in front of the residence located on the Gorman property
. . . and shall run along the foot of the slope on the Kahn property. This
easement is for the purpose of giving owners of the Deane property a
nonexclusive means of gaining access on foot and in vehicles from that
property to and from the road, and they may pass and repass along the
easement for that purpose. The vehicles which may use this easement are
those used for personal transportation and for the transport of supplies and
equipment necessary for the maintenance and development of the lower
portion of the Deane property. This easement may be used for traffic on
foot and in vehicles used for personal transportation without limitation,
except that no such use shall be made of the easement from 12:00 midnight
on Saturday until 9:00 a.m. on Monday. The easement may be used for
traffic in vehicles used for transportation of supplies and equipment without
limitation, except that no such use shall be made of the easement from 5:00
p.m. on Friday until 9:00 a.m. on Monday, and provided that any such use
shall be preceded by at least forty-eight hours written notice to Mr. Gorman
and Mrs. Kahn. While using the easement, [the plaintiff] and any persons
in his company or on his behalf shall do so in such a manner as not to
disturb the peaceful enjoyment of their property by Mr. Gorman and Mrs.
Kahn and members of their families or damage or destroy the property of
Mr. Gorman or Mrs. Kahn or interfere with the use of their property by Mr.
Gorman or Mrs. Kahn. Any use of said easement by [the plaintiff] or others
in his company or on his behalf shall be at their own risk and peril, and
the owners of the Gorman and Kahn properties shall be in no way liable
for any injury to person or damage to property suffered by reason of any
such use. The owners of the Gorman and Kahn properties shall have no
obligation to maintain said easement in any particular manner or condition.’’
4
We note that Harriet Warner did not reserve any right-of-way over the
parcel of land that she had conveyed to Huey in 1909.
5
The 1935 deed from Harriet Warner to Walter Hastings is recorded in
Volume 51 at page 25, to which the 1955 deed makes reference. No party
contends that the 1955 deed from Johnson to the Sreboffs created a new
right-of-way.
6
When Charles Sreboff died on November 29, 1972, Marion Sreboff took
title to this property, which they previously had owned jointly. We note that
Marion Sreboff subsequently married Elwood Maynard. For consistency of
reference, we will refer to her as Marion Sreboff throughout this opinion.
7
The Wrights’ conveyance to Gorman is, however, subject to a right-of-
way over the portion of the property granted by the Sreboffs to Frank and
Denise Heineman in 1981, which will be discussed more fully herein.
8
As the trial court found: ‘‘The[se two easements] created as one ‘perpet-
ual’ right-of-way twenty feet in width running 538 feet south from the road,
then west to the land conveyed to [Marion] Srebroff (providing access from
the road to [Marion] Srebroff’s property) and then 350 feet southwesterly
along and within the boundary between the property conveyed to [Marion]
Srebroff and the property conveyed to [Charles] Srebroff. The purpose of
the entire easement is given as ‘for passage on foot and in vehicles and for
the installation of public utility services for the benefit of the land herein
conveyed (to [Marion] Srebroff) in common with other land of the grantor
(Musa Warner Caples) conveyed or to be conveyed to Charles M. Srebroff.’ ’’
9
Gerald Stefon, who is a surveyor and title searcher, testified at trial and
produced a map of the area at issue, which was admitted into evidence as
defendants’ exhibit 516.
10
No map of the deeded tract accompanied the deed.
11
Indeed, in 1909, when Harriet Warner conveyed a portion of her land,
which portion was immediately to the west of the now Gorman property,
to Huey, she did not reserve a right-of-way over that tract. The absence of
such a right-of-way would, as Gorman contends, suggest that any right-of-
way reserved over his property would not have been along the riverfront
because it would be cutoff at the boundary between his property and the
Huey property. The trial court dismissed that notion, however, on the basis
that because Huey and Harriet Warner were related by marriage, it is a fair
inference that she did not need an easement to cross over her relative’s
land. In the absence of any evidence as to the circumstances existing either
at the times of either the 1909 or 1935 conveyances, there is no basis in the
record for such an inference. We further note that if Harriet Warner had
not reserved a right-of-way over the Huey property because she was related
to him, any easement that she created in the 1935 deed was an easement
in gross for her personal use and benefit, not an easement appurtenant
to her estate, which could be conveyed to others as an appurtenance of
her estate.
12
Because Harriet Warner owned only one large parcel of land in the
pertinent location at that time, we may fairly presume that she intended
that entire parcel to be the dominant estate to which the benefit of the
right-of-way would belong. That presumption, however, lends no clarity to
her intention in reserving the right-of-way in the 1935 deed. Because Harriet
Warner’s remaining property, as a result of the conveyance, abutted the
deeded tract on more than one side—specifically, the north and the east—
it is difficult to ascertain the precise location of the purported right-of-way
if, as the deed suggested, it was to lead ‘‘across’’ the tract along the route
now in use, unless it proceeded from the north side to the east side or
vice versa.
Indeed, the defendants contended at trial that Harriet Warner might have
intended to create an easement from the Gorman property through a gate and
along a path generally northward across the upper portion of the property she
retained, allowing her to traverse from property she retained northwest of
the Gorman property to property she retained southeast of the Gorman
property. The trial court rejected that argument, stating: ‘‘This is speculation
supported by no contemporary evidence. There is no apparent reason why
[Harriet] Warner would have wanted to retain such a right-of-way: The
property she retained was mostly undeveloped, and she did not live there.
All of the property she retained was contiguous. Had she any reason to,
she could have gone from the property north of the Gorman property to
the property east of it simply by walking across her own property. If she
wanted to avoid traversing the slope, she could have used the established
route along the river to access her riverfront properties. Finally, Carole
Schmitt, who testified that in the 1960s she used such a path to walk from
her house on the Kahn property downhill to her parents’ house on the
Gorman property, also testified that there was no indication that such a
path was in existence before that, and that she wore it down in her travels
back and forth.’’ In the absence of any evidence as to the location or purpose
of the ‘‘route now in use’’ in 1935, the trial court’s findings as to the right-
of-way reserved by Harriet Warner are no less speculative.
13
Although the court found that there was a public road leading from
Brockway’s Ferry Road along the riverfront, and that ‘‘the obvious purpose
of this road was to provide easy access to certain residential and commercial
premises along the water,’’ there was no evidence that said road represented
the ‘‘route’’ referenced by Harriet Warner in 1935.
It is noteworthy that the court found that there was ‘‘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.’’ If this path stopped at the western
boundary of the Kahn property, it would have been of no benefit to what
is now the Deane property.
14
The court noted the language utilized in 1981 when Marion Sreboff and
Schmitt granted the Heinemans an easement over the Gorman property.
The court construed that conveyance as ‘‘persuasive evidence that the ‘route’
of the easement reserved by [Harriet] Warner was understood both before
and after her reservation to be along the shore of the Connecticut River
eastward from the road.’’ The court noted that ‘‘the description of the location
and purpose of the right-of-way to the Heinemans is relevant to the location
of the ‘route now in use’ referred to in [Harriet] Warner’s 1935 reservation.’’
The court further explained, however, that ‘‘[t]he grant of the right-of-way
. . . was unnecessary because the Heinemans already possessed an ease-
ment over the Gorman property by virtue of [Harriet] Warner’s reservation.’’
The court’s reasoning in this regard is problematic for two reasons. First,
why would Marion Sreboff grant the Heinemans an easement if she believed
that one already existed? The fact that Marion Sreboff granted the Heinemans
an easement is less probative of an understanding of an existing easement
and is, in fact, evidence of the belief that no such easement existed until
Marion Sreboff herself created it. Second, and more fundamentally however,
is that the court improperly considered the creation of an easement that
was granted forty-six years after Harriet Warner’s reservation in 1935 as
evidence of the scope and intention of that reservation.
15
The court relied on testimony that the right-of-way reserved by Harriet
Warner in 1935 was used to access a dwelling located on the lower, riverfront
portion of the Deane property. The record reflects that that house was
occupied by Fannie Mitchell, that the riverfront route was used regularly
to bring groceries and other supplies to that house in the 1940s and that
the house was torn down in the early 1950s. There was no evidence regarding
the nature of the relationship between Harriet Warner and Mitchell; nor
was there any evidence that Harriet Warner used the right-of-way to access
that dwelling. Harriet Warner never lived on either the Kahn or the Deane
properties. There was, in fact, no evidence that said dwelling existed in
1935. Indeed, plaintiff’s counsel acknowledged at trial that no testimony
had been presented that there was a residence on the lower portion of what
is now the plaintiff’s property in 1935.
16
Because the plaintiff has failed to prove the location or intended purpose
of the easement purportedly created by Harriet Warner in 1935, Gorman
contends, and we agree, that he has also failed to prove whether the easement
was appurtenant to the land. ‘‘If an easement is created to benefit and does
benefit the possessor of the land in his use of the land, the benefit of that
easement is appurtenant to the land. The land is being benefited by the
easement in the neighboring property. . . . An important characteristic of
appurtenant easements is that they continue in the respective properties,
rather than being merely personal rights of the parties involved. The ease-
ment’s benefit or its burden passes with every conveyance affecting either
the servient or dominant property.’’ (Internal quotation marks omitted.)
Kepple v. Dohrmann, 141 Conn. App. 238, 249–50, 60 A.3d 1031 (2013). ‘‘It
is well established that where the reservation creating an easement does
not mention the heirs and assigns of the grantee, a presumption exists that
the grantor and grantee intended the right-of-way to be in gross.’’ Stiefel v.
Lindemann, 33 Conn. App. 799, 806, 638 A.2d 642, cert. denied, 229 Conn.
914, 642 A.2d 1211 (1994). Whether the covenants’ burdens run with the
land is, primarily, a question of the parties’ intent. Carlson v. Libby, 137
Conn. 362, 367, 77 A.2d 332 (1950) (‘‘[w]hether a promise with respect to
the use of land is a covenant real as distinguished from a personal covenant
depends upon the intent of the parties to the promise, to be determined in
the light of the attendant circumstances’’); see Pulver v. Mascolo, 155 Conn.
644, 649, 237 A.2d 97 (1967) (‘‘[i]n the determination of the meaning in
which words in a restrictive covenant are used, the controlling factor, when
discovered, is the expressed intent’’). In finding that Harriet Warner created
an appurtenant easement in 1935, the court misplaced the burden of proof
on the defendants when it stated that, ‘‘the defendants have offered no
reason why Mrs. Warner would have wanted to retain an easement over
the Gorman property for herself alone, and the court can conceive of none.’’
As stated, there is a presumption that all easements are in gross and the
burden is on the party claiming an easement to rebut that presumption.
Because the plaintiff failed to present any evidence as to the location or
use of the easement, which is fatal to his claim of a deeded easement over
the Gorman property, we need not address the issue of whether the phrase
‘‘in perpetuity’’ is sufficient to establish an appurtenant easement.
17
The court noted that no evidence of the actual cost of decreasing the
slope of the plaintiff’s property was offered, but based upon its own viewing
of the property, the court inferred ‘‘that the cost would be very substantial.’’
The court also noted the plaintiff’s testimony that the absence of the riv-
erfront easement would cause a diminution in the value of his property in the
amount of $500,000. Although the court noted that the plaintiff’s testimony in
that regard was self-serving, and that no expert testimony had been offered
as to said financial impact on the plaintiff’s property, the court relied upon
its own ‘‘general knowledge of the value of property with direct access to the
river and its view of the Deane property’’ in concluding that ‘‘the riverfront
easement is of great value to the Deane property.’’
18
In light of the limited nature of the court’s finding of necessity, we are
perplexed by its ruling that the easement can be used ‘‘for traffic on foot
and in vehicles used for personal transportation without limitation . . . .’’
(Emphasis added.)
19
As noted herein, when Caples deeded the now Kahn property to Marion
Sreboff in 1960, she created the common driveway and mutual boundary
easements in order to afford that property access to Brockway’s Ferry Road.
The express creation of these easements by the parties can be construed
as evidence that they would have expressly provided for access along the
riverfront had they thought that such access was necessary.
20
In his brief to this court, the plaintiff states that his use of the riverfront
easement is ‘‘predominantly for passage on foot.’’ Because it is undisputed
that the plaintiff has stairs connecting the upper and lower portions of his
property, which facilitate his pedestrian access to the lower portion of his
property, we are further puzzled by his claim of necessity to access his
property by crossing that of his neighbors.
21
It is also noteworthy that by virtue of the two 1960 conveyances, the
entire area of the purported riverfront easement was then owned by then-
married Marion Sreboff and Charles Sreboff, jointly as to the Gorman prop-
erty and then individually as to the Kahn and Deane properties. Thus, not
only was there no evidence of necessity to access the lower portion of the
Deane property via the riverfront easement in 1960, but because the land
to the west of that property was owned by the same parties, there presumably
would be no necessity to create such a right.
22
We note that none of these uses are even similar to the activities for
which the plaintiff currently claiming that access to the lower portion of
his property through that of his neighbors is necessary. The plaintiff claims
that such access is necessary ‘‘for several reasons, including, but not limited
to: motor vehicle and lawn equipment access; grounds maintenance and
improvement; preventative maintenance against corrosion and deposits of
debris along the shoreline; fire department access to the Connecticut River
to pump water in the event of a fire at my home or those of my neighbors;
convenient pedestrian access to neighboring properties located to the west
of my property; boat launching and retrieval; prospective dock usage; handi-
capped access.’’
23
To be sure, however, evidence of use does not constitute evidence
of necessity.
24
The plaintiff claims that the court’s judgment granting an easement over
the Kahn property may be affirmed on the alternative ground that ‘‘the same
facts found by the [trial] court with respect to the easement by necessity
would also support a finding of easement by implication.’’ ‘‘In this state,
the law regarding easements by implication arising out of the severance of
title of two adjoining or commonly owned properties is well settled. Where,
during the unity of title, an apparently permanent and obvious servitude is
imposed on one part of an estate in favor of another, which at the time of
the severance is in use, and is reasonably necessary for the fair enjoyment
of the other, then, upon a severance of such ownership . . . there arises
by implication of law a . . . reservation of the right to continue such use.
. . . [I]n so far as necessity is significant it is sufficient if the easement is
highly convenient and beneficial for the enjoyment of the dominant estate.’’
(Internal quotation marks omitted.) Schultz v. Barker, 15 Conn. App. 696,
700–701, 546 A.2d 324 (1988). Concluding, as we do, that the court made
no findings as to the use of the purported riverfront easement at the time
of the 1960 severance, and that the record, in fact, discloses no such use,
the plaintiff’s claim of an implied easement must fail.