Thomas v. Primus

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WILLIAM THOMAS ET AL. v. BRUNO PRIMUS
(AC 35985)
DiPentima, C. J., and Lavine and Mihalakos, Js.
Argued November 22, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
David S. Rintoul, for the appellants (plaintiffs).
Benjamin Ancona, Jr., for the appellee (defendant).
Opinion
MIHALAKOS, J. The plaintiffs, William Thomas, Craig
B. Thomas and Andrea Thomas Jabs, appeal from the
trial court’s declaratory judgment granting an easement
by necessity and implication in favor of the defendant,
Bruno Primus. On appeal, the plaintiffs claim that the
court erred in finding an easement by necessity.1 The
plaintiffs also claim that the defendant’s claim for an
easement should have been barred by the defense of
laches. We affirm the judgment of the trial court.
The following facts, as found by the court, are rele-
vant to this appeal. The plaintiffs own property located
at 460 Camp Street in Plainville. The defendant owns
one and one-quarter acres of undeveloped land abutting
the eastern boundary of the plaintiffs’ property. The
dispute at issue here concerns the northernmost portion
of the plaintiffs’ property, a twenty-five feet wide by
three hundred feet long strip of land known as the
‘‘passway,’’ which stretches from the public road on
the western boundary of the plaintiffs’ property to the
defendant’s property to the east.
Both the plaintiffs’ and the defendant’s properties
originally were part of a single lot owned by Martha
Thomas, the grandmother of the plaintiffs. In 1959, Mar-
tha Thomas conveyed the one and one-quarter acres of
landlocked property, currently owned by the defendant,
to Arthur Primus, the defendant’s brother. At the con-
veyance, which the defendant attended, Martha Thomas
and Arthur Primus agreed that access to the landlocked
property would be through the passway, which until
that time had been used by Martha Thomas to access the
eastern portions of her property. In 1969, the defendant
took possession of the land. In 2002, the plaintiffs took
possession of the western portion of Martha Thomas’
property, including the passway.
In 2008, the plaintiffs decided to sell their property.
When the defendant learned of their intention, he sent
a letter to the plaintiffs asserting his right to use the
passway to access his land. In 2009, the plaintiffs signed
a contract to sell their property, but the prospective
purchasers cancelled the contract when they learned
of the defendant’s claimed right to use the passway.
The plaintiffs then brought the action to quiet title that is
the subject of this appeal, seeking, among other things, a
declaratory judgment that the defendant had no legal
interest in the property. The defendant brought a coun-
terclaim asking the court to establish his right to use
the passway uninterrupted by the plaintiffs. In response
to the defendant’s counterclaim, the plaintiffs asserted
the special defense of laches.
A trial was held on June 5 and 6, 2012. On August
31, 2012, the court issued its decision, finding in favor
of the defendant on the plaintiffs’ complaint and on his
counterclaim, and concluding that the defendant had an
easement by necessity and an easement by implication
over the passway. Specifically, the court found an ease-
ment by necessity was created when Martha Thomas
conveyed a landlocked parcel to Arthur Primus, as it
was absolutely necessary in order to access the prop-
erty. The court rejected the plaintiffs’ special defense
of laches. On September 20, 2012, the plaintiffs filed a
motion to reargue, which subsequently was denied. This
appeal followed. Additional facts will be set forth as
necessary.
I
EASEMENT BY NECESSITY
On appeal, the plaintiffs claim that the court erred
in finding an easement by necessity because (1) the
defendant’s predecessor in title had the right to buy
reasonable alternative access to the street, (2) the
defendant failed to present full title searches of all
adjoining properties, and (3) Martha Thomas and Arthur
Primus did not intend for an easement to exist.
The plaintiffs’ claims present questions concerning
the court’s application of the law of easements by neces-
sity, over which 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) (whether
court properly construed burden of party seeking ease-
ment by necessity is question of law over which review
is plenary); see also Montanaro v. Aspetuck Land Trust,
Inc., 137 Conn. App. 1, 27, 48 A.3d 107, cert. denied,
307 Conn. 932, 56 A.3d 715 (2012) (whether alternative
access precludes finding of easement by necessity is
question of law over which review is plenary). Nonethe-
less, ‘‘[t]he court’s factual findings are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole
. . . . We cannot retry the facts or pass on the credibil-
ity of the witnesses. . . . 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.’’ (Internal quotation marks
omitted.) Christensen v. Reed, supra, 583.
Originating in the common law, easements by neces-
sity are premised on the conception that ‘‘the law will
not presume, that it was the intention of the parties,
that one should convey land to the other, in such man-
ner that the grantee could derive no benefit from the
conveyance . . . .’’ Collins v. Prentice, 15 Conn. 39, 44
(1842). An easement by necessity is ‘‘imposed where a
conveyance by the grantor leaves the grantee with a
parcel inaccessible save over the lands of the grantor
. . . .’’ Hollywyle Assn., Inc. v. Hollister, 164 Conn.
389, 398, 324 A.2d 247 (1973). The party seeking an
easement by necessity has the burden of showing that
the easement is reasonably necessary for the use and
enjoyment of the party’s property. Schultz v. Barker,
15 Conn. App. 696, 702, 546 A.2d 324 (1988).
A
First, the plaintiffs claim that an easement by neces-
sity does not exist because the defendant’s predecessor
in title had the right to buy reasonable alternative access
to the street. We disagree.
In considering whether an easement by necessity
exists, ‘‘the law may be satisfied with less than the
absolute need of the party claiming the right of way.
The necessity need only be a reasonable one.’’ Hol-
lywyle Assn., Inc. v. Hollister, supra, 164 Conn. 399.
In this case, the plaintiffs presented evidence at trial
that, at the time he purchased the property from Martha
Thomas in 1959, Arthur Primus maintained bonds for
deed that allowed him to purchase access to Camp
Street through a different piece of property for $900.
Although he did not exercise this right, the plaintiffs
contend that the fact that Arthur Primus held this option
establishes that the defendant’s use of the passway is
not reasonably necessary.
The plaintiffs correctly note that the ability of a party
to create alternative access through his or her own
property at a reasonable cost can preclude the finding
of reasonable necessity required to establish an ease-
ment by necessity. See Marshall v. Martin, 107 Conn.
32, 38, 139 A. 348 (1927) (‘‘the test of necessity is
whether the party claiming the right can at reasonable
cost, on his own estate, and without trespassing on his
neighbors, create a substitute’’). Nonetheless, we are
aware of nothing in our case law that suggests that a
party is required to purchase additional property in
order to create alternative access, even at a reason-
able price.2
Furthermore, easements by necessity need not be
created at the time of conveyance. See D’Addario v.
Truskoski, 57 Conn. App. 236, 247, 749 A.2d 38 (recog-
nizing easement by necessity created by state taking
and natural disaster), cert. denied, 253 Conn. 918, 755
A.2d 214 (2000); see also Pender v. Matranga, 58 Conn.
App. 19, 26, 752 A.2d 77 (2000) (‘‘[a]n easement of neces-
sity 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 neces-
sary for the enjoyment of the parcel’’). Even if we were
to assume, arguendo, that Arthur Primus’ bonds for
deed made use of the passway unnecessary at the time
he owned the property, those bonds for deed expired
in 1962, several years before the defendant owned the
property, and provide no reasonable alternative access
today. Thus, we see no reason to disturb the court’s
finding that use of the passway is currently necessary
for the use and enjoyment of the defendant’s property.
B
Next, the plaintiffs claim that the court improperly
found an easement by necessity because the defendant
failed to present full title searches of all adjoining prop-
erties. We are not persuaded.
In this case, the court found that the defendant met
his evidentiary burden. See Schultz v. Barker, supra, 15
Conn. App. 702. Although the defendant did not provide
evidence of title searches for all adjacent properties,
the court was presented with maps and deeds of the
property at issue and testimony to the effect that the
defendant’s property was landlocked. This, coupled
with the evidence that the passway traditionally had
been used to provide access, was sufficient to support
the court’s finding that the easement was reasonably
necessary.
The plaintiffs argue that this court’s holding in Chris-
tensen v. Reed, supra, 105 Conn. App. 578, imposes
an obligation on any party seeking an easement by
necessity to perform title searches on all adjacent prop-
erties and to present those title searches to the court
in order to satisfy the burden of showing reasonable
necessity. We decline to subscribe to such a broad inter-
pretation of Christensen. In that case, the party
defending against the claimed easement by necessity
specifically argued that there was alternative access
through property owned by a third party, and the trial
court found that the party seeking the easement had
made use of that property for access on several occa-
sions. Id., 584–87. The trial court concluded that, under
those circumstances, a title search of that property and
other adjacent properties was necessary to show that
the purported easement was truly the sole means of
access, as the party seeking the easement had claimed.
Id., 586–87. On appeal, this court deemed that determi-
nation to be proper. Id., 587. In the present case, how-
ever, the plaintiffs did not argue at trial that the
defendant had access through an alternate property,
nor did they present any evidence that the defendant
had used alternate access in the past. Thus, the court
here acted properly in relying upon the maps, docu-
ments, and testimony before it as sufficient evidence
to establish the reasonable necessity of the easement.
C
Finally, the plaintiffs argue that an easement by
necessity does not exist because Martha Thomas and
Arthur Primus did not intend for the easement to exist.
We disagree.
The seminal case in this state on easements by neces-
sity recognized that ‘‘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 . . . . The law,
under such circumstances, will give effect to the grant
according to the presumed intent of the parties.’’ Collins
v. Prentice, supra, 15 Conn. 44. This rationale does not,
as the plaintiffs suggest, establish intent as an element
of an easement by necessity. Instead, ‘‘[t]he presump-
tion as to the intent of the parties is a fiction of law
. . . and merely disguises the public policy that no land
should be left inaccessible or incapable of being put to
profitable use.’’ (Citation omitted.) Hollywyle Assn.,
Inc. v. Hollister, supra, 164 Conn. 400. Thus, absent an
explicit agreement by the grantor and grantee that an
easement does not exist, a court need not consider
intent in establishing an easement by necessity. See
O’Brien v. Coburn, 46 Conn. App. 620, 633, 700 A.2d
81 (holding that ‘‘the intention of the parties [was] irrele-
vant’’ in case establishing easement by necessity), cert.
denied, 243 Conn. 938, 702 A.2d 644 (1997).
In this case, the court found that the defendant’s
property was landlocked and that access over the pass-
way was reasonably necessary for the use and enjoy-
ment of the defendant’s property. Therefore, the court
found an easement by necessity to exist over the pass-
way. This conclusion was supported by the record and
there is no legal deficiency in the court’s analysis.
II
LACHES
The plaintiffs also claim that the trial court incor-
rectly concluded that the defendant’s claims for an ease-
ment were not barred by the defense of laches.
Whether the defense of laches applies is ‘‘[a] conclu-
sion . . . of fact for the trier and not one that can be
made by this court, unless the subordinate facts found
make such a conclusion inevitable as a matter of law.
. . . We must defer to the court’s findings of fact unless
they are clearly erroneous. . . .
‘‘The defense of laches, if proven, bars a [party] from
seeking equitable relief . . . . First, there must have
been a delay that was inexcusable, and, second, that
delay must have prejudiced the [opposing party]. . . .
The burden is on the party alleging laches to establish
that defense. . . . The mere lapse of time does not
constitute laches . . . unless it results in prejudice to
the [opposing party] . . . as where, for example, the
[opposing party] is led to change his position with
respect to the matter in question.’’ (Citations omitted;
internal quotation marks omitted.) Caminis v. Troy,
112 Conn. App. 546, 552, 963 A.2d 701 (2009), aff’d, 300
Conn. 297, 12 A.3d 984 (2011).
In this case, the defendant did not assert a right to
an easement over the passway until 2008, decades after
he took an interest in the property. Nonetheless, the
trial court found that this delay was not inexcusable,
as the defendant ‘‘had not yet decided what to do with
his easement but took action when he learned that . . .
the sale of the [plaintiffs’ property] would cut off access
to his property.’’
The plaintiffs contend that, as a matter of law, any
claim based on a nonrecord interest in property should
be barred by laches in cases where that interest would
have been extinguished by the Marketable Title Act3 if
the interest had been duly recorded. The plaintiffs’ brief
contains no case law or other authority in support of
this contention. ‘‘We repeatedly have stated that [w]e
are not required to review issues that have been improp-
erly presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . Where a claim is
asserted in the statement of issues but thereafter
receives only cursory attention in the brief without sub-
stantive discussion or citation of authorities, it is
deemed to be abandoned.’’ (Internal quotation marks
omitted.) Baranowski v. Safeco Ins. Co. of America,
119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Accord-
ingly, we decline to consider this argument.
We are left to review the court’s factual finding that
the defendant’s delay in asserting his right to an ease-
ment over the passway was not inexcusable. This find-
ing is supported in the record by the defendant’s
testimony that he had no reason to assert his right until
the looming sale jeopardized his access to his property.
As such, there is no cause to disturb the court’s conclu-
sion that the defendant’s claim is not barred by the
defense of laches.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs also claim that the court erred in finding an easement by
implication. Because we conclude that the court properly found an easement
by necessity, we need not consider this claim.
2
The plaintiffs’ sole authority in support of their position; Griffeth v. Eid,
573 N.W.2d 829 (N.D. 1998); is distinguishable from the case before us. In
that case, the North Dakota Supreme Court upheld a trial court’s ruling
that a party seeking an easement by necessity had not met his burden of
establishing reasonable necessity because potential alternate access existed,
including the possibility of purchasing an easement over another abutting
property, and the party had not provided evidence that he had pursued
these options and found them unavailing. Id., 834. In this case, there is no
evidence in the record that the defendant had the opportunity to purchase
alternate access.
3
See General Statutes § 47-33b et seq.