Thurlow v. Hulten

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APPENDIX
LUTHER E. THURLOW ET AL. v. LEE
ANN HULTEN ET AL.*
Superior Court, Complex Litigation Docket at Hartford
File No. X04-CV-05-4059315-S
LEE ANN HULTEN ET AL. v. LUTHER E.
THURLOW ET AL.
Superior Court, Complex Litigation Docket at Hartford
File No. X04-CV-09-4050303-S
Memorandum filed October 15, 2014
Proceedings
Memorandum of decision in action in first case, inter
alia, to quiet title, and, in second case, for, inter alia,
declaratory judgment. Judgment in part for the plain-
tiffs in the first case, defendants in the second case,
and in part for the defendants in the first case, plain-
tiffs in the second case.
Richard S. Cody and Jon B. Chase, for the plaintiffs
in the first case, defendants in the second case.
Michael S. Bonnano, for the defendants in the first
case, plaintiffs in the second case.
Opinion
BRIGHT, J.
I
INTRODUCTION
This case arises out of a property dispute between
adjoining landowners in Canterbury. The plaintiffs in
the 2005 action, Luther E. Thurlow, Anthony Denning
and Steven Pelletier (‘‘Thurlow Parties’’), claim that the
defendants in that action, Lee Ann Hulten and Linda
K. Dieters (‘‘Hulten Parties’’), have interfered with the
Thurlow Parties’ rights to access their lots from Goose-
neck Hill Road via an easement over the Hulten Parties’
property. The Hulten Parties deny that the Thurlow
parties have such an easement.
In the 2009 action, the Hulten Parties claim that the
Thurlow Parties have been trespassing on their property
because the Thurlow Parties have misidentified the
boundaries of one of their lots that abuts the Hulten
Parties’ property. The Thurlow Parties dispute this
claim. Thus, the Hulten Parties have asked the court
to resolve this boundary dispute by ruling on their quiet
title action in the 2009 action.
The specific claims asserted by the parties are as
follows. In the 2005 action, the First Count of the
Thurlow Parties’ Amended Substituted Complaint dated
September 17, 2013, seeks to quiet title in their alleged
easement over the Hulten Parties’ property. The Fourth
Count seeks an injunction prohibiting the Hulten Parties
from obstructing the easement.1 In the Fifth Count, the
Thurlow Parties claim that the Hulten Parties have tres-
passed on their easement. The Sixth Count claims that
the Hulten Parties have negligently breached a duty
they owed to the plaintiffs by not allowing them to haul
wood they cut on their property over the easement.
The Seventh Count alleges that this same conduct con-
stitutes a conversion of the Thurlow Parties’ cut wood.
The Eighth Count alleges that the Hulten Parties have
tortiously interfered with Denning’s business relations
by not letting him remove the cut wood. Finally, the
Ninth Count alleges that the Hulten Parties have tor-
tiously interfered with the Thurlow Parties’ contractual
relationship with the parties that sold them the lot,
which is supposed to benefit from the alleged easement.
The Hulten Parties have denied the existence of an
easement. They also dispute the Thurlow Parties’
claimed scope of any such easement.
In the 2009 action, in Count One of the Third
Amended Complaint dated May 19, 2011, the Hulten
Parties seek a declaratory judgment that the easement
claimed in the 2005 action, if proven to exist, is limited
to only a portion of the Hulten Parties’ property,
described as Lot A. They allege that the easement does
not extend over what they identify as Lot B. In Count
Two, the Hulten Parties seek an injunction prohibiting
the Thurlow Parties from using the alleged easement
on Lot B. In Count Three, the Hulten Parties seek to
quiet title as to the size and boundaries of Lot B. Count
Four seeks damages for the Thurlow Parties’ unautho-
rized cutting and removal of timber from what the Hul-
ten Parties believe is their Lot B.
In response, the Thurlow Parties have asserted coun-
terclaims in the 2009 action claiming an easement by
necessity and/or an easement by implication over Lot
B. They also dispute the Hulten Parties’ claims as to
the boundaries of Lot B.
The court severed the parties’ claims for damages
and instead went forward with a trial on the primary
questions that underlie all of the claims. First, do the
Thurlow Parties have an easement over the property
of the Hulten Parties? Second, if so, what is the scope
and precise location of the easement? Third, what are
the proper boundaries of the Hulten Parties’ Lot B?
Resolution of these questions would necessarily resolve
a number of the counts of the parties’ complaints and
counterclaims and could resolve all of the claims
asserted.
The trial proceeded before the court over three days.
The court heard from a number of witnesses, including
Denning, Hulten, Raymond Hulten (Hulten’s husband),
John Dieters (Dieters’ husband), Alexander Osiper (an
abutting landowner), Kristen Estabrooks (Thurlow Par-
ties’ title searcher), Bruce Woodis (Thurlow Parties’
expert land surveyor), and Gerald Stefon (Hulten Par-
ties’ expert land surveyor). The court also received hun-
dreds of exhibits, including deeds and maps relating
not just to the lots at issue but to several abutting
properties. Some of these records date back to the
1700s. Following trial, the parties submitted posttrial
briefs, supplemental briefs and reply briefs. The court
also conducted two site visits, one before trial and one
after all of the briefs had been filed.
II
FINDINGS OF FACT
Based on all of the evidence submitted, the court
makes the following findings of fact. The court first
addresses the facts as they relate to the Thurlow Parties’
claim of an easement from Gooseneck Hill Road to
reach their property. The Thurlow Parties are owners
of a lot, approximately 9.33 acres in size, located west
of Route 169, north of Gooseneck Hill Road, west of
Lisbon Road and south of Phinney Lane in the town of
Canterbury. Exhibit 1. The parties have referred to this
lot as the Rainsford Lot, or Lot 21. Id. The property is
bordered on the east by property owned by Donald
Minski. It is bordered on the north (Lot 20), south (Lot
30),2 and east (Lot 31) by other lots owned by the
Thurlow Parties. The parties agree that exhibit 1 accu-
rately sets forth the dimensions of Lot 21. The Thurlow
Parties acquired their rights in Lot 21 from Leonard
Montesi, Steven Marien and Kenneth Thomas in two
deeds on April 10, 2003. A warranty deed conveyed title
to Lot 21 as set forth in schedule A to the deed. Exhibit
77. That deed made no mention of an easement or
right-of-way over any other property, even though it is
undisputed that Lot 21 is landlocked and does not have
direct access onto a public road or highway. A second
quitclaim deed conveyed to the Thurlow Parties any
interest the grantors had not only in the property itself
but also to a ‘‘second tract or right of way as deeded
to Frank Tillinghast by Mrs. George Bromley Adm. of
Estate of Joseph Farnum and is described as follows;—
A right of way from my house across two lots and
through wood; and following the path thence to what
is called the Rainsford Wood lot, for the purpose of
going to and from said lot, cut and cart wood and timber
standing on said lot and occupying said lot, always
putting up bars on said lot.’’ Exhibit 78. The right-of-
way language incorporated in exhibit 78 does in fact
quote from a deed from Mrs. George Bromley on
December 24, 1903, purporting to grant a right-of-way
from her house to the Rainsford Lot for the purposes
set forth in exhibit 78. Exhibit 70. At the time of this
grant, Mrs. Bromley, as administratrix for the estate of
Joseph Farnum, owned property abutting Gooseneck
Hill Road that is now owned by the Hulten Parties and
is described by them as Lot A. Exhibit 159 accurately
sets forth the boundaries and dimensions of the prop-
erty owned by Mrs. Bromley at the time she granted
the right-of-way to the Rainsford lot in 1903 and of Lot
A as owned by the Hulten Parties today. That lot is
identified on exhibit 159 as ‘‘Property of Lee Ann Hul-
ten & Linda K. Dieters 2nd Tract.’’ Exhibit 159. It is
undisputed that Bromley did not own either Lot B or
Lot 30, whether as described by the Thurlow Parties
(exhibits 2 and 144E) or by the Hulten Parties (exhibit
159, fourth tract). Furthermore, there is no evidence
that the owners of the property between Bromley’s
property and the Rainsford Lot (Lot 21) ever gave Brom-
ley or her predecessor in title a right-of-way to cross
their property to reach Lot 21. Consequently, Bromley
could not grant in exhibit 70 an express right-of-way
over land that she did not own. For this same reason,
the Thurlow Parties could not acquire an express right-
of-way across Lot B, even as they define it, when they
acquired Lot 21 because neither the grantors of that
lot, nor their predecessors in interest, had ever received
an expressed right-of-way beyond what is now
described as Lot A.3 For the above reasons, the court
finds that the Thurlow Parties have an expressed right-
of-way across Lot A (the second tract on exhibit 159)
to access Lot 21 provided that they have some other
rights to cross Lot B and Lot 30 to get to Lot 21.4
The Thurlow Parties argue that they have either an
easement by implication or an easement by necessity
to cross Lot B. In particular, the Thurlow Parties argue
that there is evidence of a well-worn path that travels
from Gooseneck Hill Road, through Lots A and B, Lot
30 and onto Lot 21. In fact, the parties have stipulated
that the path shown on an aerial photograph (exhibit
13A) in 1934 running from Gooseneck Hill Road,
through the Hulten Parties’ property and Lot 30, to Lot
21 has been in existence continually from 1934 until
the present. Furthermore, the court credits the Thurlow
Parties’ expert’s testimony that that path, also identified
on exhibit 144E, is most likely the right-of-way
described in the deed from Mrs. Bromley to Tillinghast
in 1903. The court further finds that this path represents
the location of the right-of-way, to the northern border
of Lot A, as opposed to the more westerly path depicted
on Lot A (second tract) on exhibit 159.5
There is no evidence, though, that any owner of Lot
21, prior to the Thurlow Parties, ever used the path to
access Lot 21. Hulten testified that during her fifty-four
years living on Lot A and Lot B, she has walked the
path, but only up to the border of what the Thurlow
Parties claim is the southern boundary of Lot 30. Exhibit
2. The court received no evidence of anyone other than
the owners of Lot B using the path as it exists on that lot.
The Thurlow Parties suggest that because the path
has been traveled uninterrupted from Gooseneck Hill
Road to Lot 21 for decades, the court should infer that
the various owners of the lots between those two points
always intended that the owners of Lot 21 would have
an easement over the entire path to and from Goose-
neck Hill Road. Other than the existence of the path
itself, there is no evidence to support this suggestion.
No witness testified to such use and no documents
prove it.
The only possible evidence of such intended use was
the February 11, 1918 deed from Stephen Finn to
Michael and James Shea that created Lot 30. Exhibit
29. After describing the property to be conveyed, the
deed describes the grant of ‘‘the right of way to and
from said land as the path now runs.’’ Id. At the time
of this grant, Finn also owned Lot B. Thus, the right-
of-way included in exhibit 29 could be read as granting
the right to use the path heading south toward Goose-
neck Hill Road. The problem with such an interpretation
is that Finn did not own Lot A, and therefore could not
grant a right-of-way to continue on the path to the road.
He did, however, own the land abutting Lot 30 to the
south, including Lot B, and running all the way east to
Route 169. The evidence established that there is a path
that runs easterly over the land owned by Finn in 1918
out to Route 169. The evidence further showed that
there is a path that runs from the lower part of what the
Thurlow Parties claim is Lot 30, briefly over a neighbor’s
(Osiper) property onto the land formerly owned by Finn
and connecting with the path that runs to Route 169.
Exhibit 2. In addition, one could travel from the bottom
of Lot 30, as claimed by the Thurlow Parties, unto Lot
B and travel east to access the path to Route 169.
Based on all of the above, the court concludes that
the more reasonable interpretation of the right-of-way
in the deed from Finn to Shea is that it expresses a
right-of-way from Lot 30, easterly to Route 169. This is
the same conclusion reached by the Thurlow Parties’
expert, Woodis. On his map designating his conclusions
as to the proper boundaries of Lot 30, Woodis set forth
his interpretation of the right-of-way language in exhibit
29. After quoting the right-of-way language from the
deed, Woodis concluded that ‘‘the existing path from
Lot #30 to Route #169 substantially fits this description
and is in fair condition.’’ Exhibit 2, n.5. For these rea-
sons, the court finds that exhibit 29 does not express
an intent to create an easement from Lot 30 south over
Lot B toward Gooseneck Hill Road.
Denning did testify about the path to Route 169 and
his attempted use of the path. In addition, the court
walked part of the path. Denning testified that the path
was difficult to travel and that he damaged his truck
while trying to traverse it. In addition, when the court
walked the path in June of this year, it noticed a number
of areas where the path was either wet or swampy.
Furthermore, Osiper, the landowner immediately north
of the path, described a swampy area along the path
where it bordered his property. These facts are some-
what at odds with Woodis’ overall description of the
path as being in fair condition. In addition, the court
heard no evidence regarding the condition of the path
when Finn created the right-of-way in 1918. Further-
more, the court was presented with no evidence as to
whether the portions of the path that were wet or
swampy could be maintained or improved to make the
path more suitable for its intended use. Consequently,
the evidence that part of the path to Route 169 is cur-
rently wet or difficult to pass does not undermine this
court’s conclusion, based on the entire record, that it
is the right-of-way Finn intended to create in 1918.
In connection with the Thurlow Parties’ easement by
necessity claim, the court also heard evidence regarding
access to Lot 21 from Phinney Lane to the north. Den-
ning admitted using a path that runs from Lot 21 north
to Phinney Lane to remove timber he cut from Lot 21
and the surrounding lots owned by the Thurlow Parties.
He testified, though, that it was less convenient than
going south to Gooseneck Hill Road. He also claimed
that a temporary bridge had to be built to allow passage
to Phinney Lane, and other temporary structures that
required permits had to be built to cross wetlands.6
By contrast, John Dieters testified that he walked
from Lot 21 north to Phinney Lane in the spring of
2013 and took pictures of the condition of the path.
He testified that the path was well traveled and, at
approximately twenty feet wide, was wide enough for
a truck or tractor. His pictures confirmed his testimony.
Exhibit 153C. The court reached the same conclusion
when it walked the path to Phinney Lane in June of
this year. In fact, the condition of the path to Phinney
Lane was at least as good for travel, if not better, than
the path to Gooseneck Hill Road. Unlike the path that
leads to Route 169, the path to Phinney Lane was
nowhere wet or swampy. Nor was there any indication
of water having retreated from the property recently.
There was simply no indication whatsoever that the
path could not be used to haul timber from Lot 21. For
these reasons, the court finds the path from Lot 21 to
Phinney Road to be an acceptable alternative route for
the Thurlow Parties to access Lot 21.7
The court now turns to the facts relating to the Hulten
Parties’ claims relating to the boundaries of Lot B. The
Hulten Parties acquired what they refer to as Lot B
from Margaret Davignon on December 30, 1992, by a
quitclaim deed. Exhibit 65. The deed actually conveyed
five separately described tracts. The Fourth Tract is
what the Hulten Parties refer to as Lot B. It is described
as: ‘‘Bounded northerly by land, now or formerly of
Shea Brothers and land now or formerly of Andrew
Lutzyk; Easterly by land now or formerly of E. LaVerne
Kilpatrick at a stone wall on the easterly side of this
25 acre lot; southerly by land formerly of Ira Smart and
land formerly of Kuzzyk and Olenik; Westerly by land
now or formerly of Rose Salpietro; This described tract
contains about twenty-five (25) acres of land.’’ Id.8 This
description has remained unchanged in the chain of
title for Lot B since the property was first conveyed by
E. LaVerne Kilpatrick in 1928 to Kuzzyk and Olenik
from Kilpatrick’s larger parcel that he had acquired
from Stephen Finn and which extended to Route 169.
Exhibit 59A.
The history of the entire parcel that Finn first
acquired and then conveyed to the Shea brothers and
Kilpatrick is at the heart of the parties’ boundary dis-
pute. On November 12, 1889, Simeon Vinton and Nathan
White conveyed a large parcel, known as the Ensworth
Farm, to Finn. Exhibit 34. The deed conveying the par-
cel included a detailed description that set forth a math-
ematical calculation of the property. The parties agree
that the property conveyed to Finn is accurately set
forth in the blue area of the compilation plan prepared
by Stefon and entered into evidence as exhibit 94. The
total area of the parcel was 147 acres and 127 rods.9
On February 11, 1918, Finn conveyed a portion of
the Ensworth Farm, in particular what the parties call
Lot 30, to Michael and James Shea. Unfortunately, Finn
did not describe his grant to the Shea brothers with the
same precision as Vinton and White used in conveying
the property to Finn. Finn described the grant as: ‘‘One
certain tract of land being a wood lot with all cut wood
and timber thereon. Situated in the Town of Canterbury
on the West side of the highway leading from Nathan
Newton’s residence to the residence of Henry Baldwin.
Said lot is located about one half mile from said high-
way. Bounded as follows—viz: North, by the lands of
George Tillinghast and Nathan Newton. West by the
lands of Mary E. Sawyer and Nathan Newton. South by
land of Mary E. Sawyer. East by land of Stephen Finn:
Containing about Twenty acres be the same more or
less: With the right of way to and from said land as the
path now runs.’’ Exhibit 29. The deed was not recorded
until over ten years later on July 7, 1928. Id.
The parties and their experts all agree that this deed
is ambiguous. First, although Finn called out the eastern
boundary of the wooded lot as his property, he did not
say how far into his property the conveyed lot went.
Because Finn did not identify his property as being on
the western boundary of the conveyed lot, one can
reasonably infer that the eastern boundary of the grant
was on the most westerly side of what Finn received
from Vinton and White. From that point, Finn’s prop-
erty, though, extended easterly for dozens of acres to
Route 169. Exhibit 29 fails to specify how far east into
his land he intended the conveyed property to extend.
Second, no matter where one tries to set the grant
from Finn to Shea, it is not possible to get all of the
abutter calls to match. Both experts tried to do so and
were unsuccessful.
Third, while the deed estimated the amount of prop-
erty it intended to convey, it made clear by the use of
‘‘more or less’’ that the acreage grant was not intended
to be precise. Furthermore, if one attempts to limit the
Shea grant to twenty acres, as Stefon does, it leads
to inaccuracies in acreage calls in deeds for abutting
properties, including Lot B.
The deed, though, does give some indication of the
intentions of Finn and Shea through the use of the
phrase ‘‘wood lot.’’ The court credits Woodis’ testimony
that this phrase shows an intention to convey an area
of land enclosed by some monuments or visible bound-
aries.10 Woodis and his team conducted field work to
determine if any such monuments existed. What they
found were stone walls and stone piles that created the
boundaries of a lot that matches the Thurlow Parties’
claim as to the boundary of Lot 30. Exhibit 2. There
were no stone walls, stone piles or other monuments
within the boundaries identified by Woodis that indi-
cated an intention by Finn and Shea to confine the
wood lot to a smaller or different area.
On April 13, 1922, Finn then conveyed the rest of the
Ensworth Farm, other than what he conveyed to the
Shea brothers, to E. LaVerne Kilpatrick. Exhibit 46G.
While the deed for this conveyance was recorded six
years before exhibit 29, it is clear that Kilpatrick was
aware of the grant to Shea when he received his grant
from Finn. The deed he received specifically excluded
‘‘the (20) Twenty Acres sold to the Shea Brothers of
Jewett City, Town of Griswold.’’ Exhibit 46G. The deed
otherwise described the property being conveyed to
Kilpatrick mathematically, using most of the same mea-
surements from the deed from Vinton and White to
Finn. Unfortunately, the mathematical description in
the deed is incomplete. It does not describe a closed
plot. Exhibit 95. Depending on which expert opinion the
court accepts, Finn’s mathematical description either
leaves a small gap at the top of what the Thurlow Parties
claim is Lot B or it fails to describe the mathematical
calculations of four much larger lengths that encompass
what the Hulten Parties claim are the boundaries of
Lot B. (Compare red outline on exhibit 95 with hatched
blue area on same exhibit.) Consequently, the court
must turn to other extrinsic evidence to determine what
Finn and Kilpatrick intended to include in their transac-
tion, and what they understood to be excluded as having
already been conveyed to the Shea brothers.
The court finds that such evidence exists in the con-
veyance six years later, on October 31, 1928, from Kil-
patrick to Kuzzyk and Olenik. Exhibit 59A. As noted
above, this conveyance is of the same parcel that is
the Fourth Tract the Hulten Parties acquired in 1993,
referred to by the parties as Lot B. In fact, the descrip-
tion Kilpatrick gave of the part of the Ensworth Farm
he was conveying in the deed to Kuzzyk and Olenik is
functionally identical to the description of the Fourth
Tract in the deed from Davignon to the Hulten Parties:
‘‘Bounded northerly by land, now or formerly of Shea
Brothers and land now or formerly of Andrew Lutzyk;
Easterly by other land of this Grantor at a stone wall
on the easterly side of this 25 acre lot; southerly by
land formerly of Ira Smart and land formerly of Kuzzyk
and Olenik; Westerly by land now or formerly of Rose
Salpietro; This described tract contains about twenty-
five (25) acres of land.’’ Compare exhibits 59A and 65.
As the Thurlow Parties point out, these abutter calls
match precisely their understanding of the boundaries
of Lot B. Exhibit 25A through C. By contrast, the abutter
calls do not match the Hulten Parties’ proposed bound-
aries. For example, under the Hulten Parties’ proposal,
Andrew Lutzyk abuts Lot B not just to the north, but
also to the east. Exhibit 96. Exhibit 59A makes no such
call. The same is true for Rose Salpietro to the south
(exhibit 96), Donald Minski to the north (exhibit 97),
and John D’Amato to the west. Id.
The Thurlow Parties also presented additional cor-
roborating evidence to support their reliance on the
deed from Kilpatrick to Kuzzyk and Olenik. Alexander
Osiper testified as someone who has lived on property
abutting Lot 30 and Lot B since 1942.11 He was the son-
in-law of John Lutzyk. John Lutzyk was the nephew of
Andrew Lutzyk. Andrew Lutzyk conveyed his 100 acres
more or less to his nephew, who later conveyed the
property to Osiper. Osiper testified credibly that he
knew Kilpatrick very well and walked the boundaries
of his property with Kilpatrick to identify where the
property lines were located and who the abutting land-
owners were. Osiper, with information he learned from
Kilpatrick, helped Kilpatrick and John Lutzyk fence
both the Lutzyk-Osiper property and Kilpatrick’s prop-
erty. They did so using railroad ties and wire fencing.
Osiper testified that Kilpatrick described the border
between the Shea property (Lot 30) and the Lutzyk-
Osiper property by referencing a stone wall that started
at the southwest corner of the Lutzyk-Osiper property
and proceeded north. Exhibits 2 and 32D. This under-
standing is consistent with the Thurlow Parties’ position
regarding the boundaries of Lot 30 and Lot B, and con-
trary to the claim of the Hulten Parties. Osiper also
testified that the eastern boundary of Lot B, as identified
by Kilpatrick, was the second stone wall to the east
from Lot B’s western border with Salpietro. Osiper testi-
fied that he worked with Kilpatrick to place a fence
along this second stone wall. Evidence established that
remains of that fence are still present today.
The court found Osiper to be a very credible witness.
His recall was sharp and specific. He had no interest
in the outcome of the case. If anything, he seemed to
identify more with the Hulten Parties, who he contacted
when he thought their property was being illegally
logged by a third party.12
The court also received as evidence tax assessor
maps, which showed the boundaries of Lot 30 consis-
tent with the claim of the Thurlow Parties. Exhibit 172.
These maps showing this configuration for Lot 30 date
back to the late 1960s-early 1970s. While Woodis said
that such maps can be notoriously inaccurate, he none-
theless considered them, and the court cannot ignore
the fact that the maps’ boundaries for Lot 30 match
precisely the walled lot Woodis identified through his
field work.13
Finally, the court heard from two witnesses related
to the Hulten Parties regarding the boundaries issue.
Hulten herself acknowledged testifying at the original
2007 trial in the 2005 case that, for the fifty years her
family owned Lots A and B, she would walk the loop
trail that started on Lot A and ended on Lot B at the
stone wall that the Thurlow Parties claim is the southern
boundary between Lot 30 and Lot B. She testified that
that was the property her family owned and used for
fifty years. The court finds that this is a significant
admission as to what Hulten understood as the northern
boundary of Lot B. She made the admission under oath
in an adversary proceeding, but before she decided
to take a contrary position in the 2009 action. Hulten
claimed that her 2007 testimony may have been in error
and did not have the benefit of Stefon’s survey work.
Neither of those claims change the fact, though, that
for most of her life her understanding as to where the
northern boundary of her property lies is consistent
with the Thurlow Parties’ claim and contrary to the
position she has taken in this case.
Dieters’ husband, John, also testified. He testified
that he walked the property with his father-in-law, Leo
Davignon, the prior owner of Lot B, and discussed the
boundary lines with him. While Davignon did not know
precisely where the northern boundary of Lot B was
located, he described his land as extending beyond
where the Thurlow Parties claim that boundary is
located. The court does not give much weight to Dieters’
testimony on this point for a number of reasons. First,
his recounting of his conversation with Davignon was
brief and vague. He did not place it in context at all.
Second, Davignon’s description of the property line was
admittedly imprecise. Dieters explicitly stated that Dav-
ignon did not know his northern boundary. This stands
in stark contrast to the testimony of Osiper regarding
his conversation with Kilpatrick, which is also sup-
ported by the boundary calls in Kilpatrick’s deed of Lot
B to Kuzzyk and Olenik. Third, while Dieters has a
pecuniary interest in the outcome of this case, Osiper
had none. Consequently, to the extent that Dieters’ testi-
mony conflicts with Osiper’s, the court credits Osiper’s
testimony. Finally, Dieters admitted to attending the
first trial and hearing Hulten identify the northern
boundary of Lot B as where the loop trail ended. Despite
hearing this testimony, he did not testify that it was in
any way incorrect or that he had a different under-
standing.
In addition to Dieters’ testimony, the only other evi-
dence relied upon by the Hulten Parties for their bound-
aries claim are the reference to twenty acres in the
deeds from Finn to Shea and Finn to Kilpatrick and
the incomplete mathematical description in the Finn
to Kilpatrick deed that does identify a northeastern
boundary beyond the boundary claimed by the
Thurlow Parties.
The court attaches little weight to the call for twenty
acres. The call in the Finn to Shea deed uses the words
‘‘more or less,’’ indicating that the parties to that deed
did not intend the acreage call to be precise. While the
description of the twenty acre grant to the Shea brothers
in the Finn to Kilpatrick deed does not say ‘‘more or
less,’’ the court attaches little weight to this fact. Read-
ing the two deeds together, it is clear to the court that
in the Kilpatrick deed, the parties were simply carving
out whatever had been previously conveyed to the Shea
brothers. Finn believed that to be twenty acres, so that
was the shorthand he used to describe it. The subse-
quent deed from Kilpatrick to Kuzzyk and Olenik shows
that Kilpatrick had a much more specific understanding
of the Shea grant than may have been conveyed by the
language of the Finn to Kilpatrick deed.14
In addition, relying on the acreage call to limit Lot
30 to twenty acres, as Stefon does, results in Lot B
having over thirty-seven acres. Exhibit 96. However,
the Kilpatrick to Kuzzyk and Olenik deed that created
Lot B described it as containing about twenty-five acres.
Exhibit 59A. Consequently, relying on the acreage call in
the deeds simply trades one inaccurate call for another.
In response, the Hulten Parties argue that such a
result is more reasonable than the Thurlow Parties’
proposal, which results in Lot B being only approxi-
mately twelve acres. This argument assumes, though,
that Lot B’s eastern boundary ends at the first stone
wall. As noted above, Osiper testified credibly that Kil-
patrick intended the eastern boundary of Lot B to be
the second stone wall to the east. Doing so would
increase the size of Lot B to approximately nineteen
acres.15
Finally, both experts agree that acreage calls are the
next to the last factor to consider when determining
boundaries, less important than record calls, calls for
surveys, natural monuments and man-made monu-
ments. Given that Woodis was able to identify monu-
ments (stone walls and stone piles) that laid out a
boundary for the wood lot, and that boundary was cor-
roborated by the record calls in the Kilpatrick to Kuzzyk
and Olenik deed just six years after Kilpatrick acquired
the property from Finn, the court attaches no weight
to Finn’s acreage calls in the two deeds. Similarly, the
court attaches little weight to the incomplete mathemat-
ical description set forth in the deed from Finn to Kil-
patrick. The Hulten Parties are correct that the
description in that deed of what is being conveyed to
Kilpatrick extends northerly along the stone wall that
Osiper identified as his border with the Shea brothers’
property. However, as noted above, the mathematical
description just ends and does not connect to any other
point to close the description of the property being
conveyed to Kilpatrick. Consequently, it is impossible
to determine the intent of Finn and Kilpatrick from this
incomplete description. Simply drawing a line westerly
from this point to the western boundary of Finn’s prop-
erty such that the Shea grant is limited to approximately
twenty acres, as Stefon did, is arbitrary and ignores the
substantial other evidence discussed above that shows
a contrary intent.
Additional facts will be discussed as required.
III
DISCUSSION
A
Thurlow Parties’ Easement Claims
The Thurlow Parties initially asserted four different
theories in support of their claim that they have an
easement that runs from Gooseneck Hill Road over the
Hulten Parties’ property to Lot 30 and Lot 21.16 They
have since withdrawn and abandoned their express
easement claim, because it is undisputed that Mrs.
Bromley did not own Lot B when she granted an ease-
ment over Lot A for the benefit of Lot 21. Similarly,
the Thurlow Parties have abandoned their easement by
prescription claim because there is no evidence of any
use of the path over Lot B by any owner of Lot 21 or
Lot 30 prior to when the Thurlow Parties acquired Lot
21 in 2003. Consequently, the Thurlow Parties claim
either an easement by necessity or an easement by
implication. For the reasons set forth below, the court
concludes that they have proved neither.
1
Easement by Necessity
An easement by necessity typically arises when a
piece of property is landlocked with no direct access
onto a public road. Here, there is no dispute that Lot
21 is landlocked. That fact alone is not enough to find
that the Thurlow Parties are entitled to an easement
by necessity over the Hulten Parties’ Lot B. ‘‘One seek-
ing an easement by necessity has the burden to prove
the existence of such easement, and that the easement
is reasonably necessary for the enjoyment of the land,
by clear and convincing evidence. The burden of prov-
ing that an alternative mode of access is not available is
also on the person claiming the easement by necessity.’’
(Internal quotation marks omitted.) Christensen v.
Reed, 105 Conn. App. 578, 589 n.11, 941 A.2d 333, cert.
denied, 286 Conn. 912, 944 A.2d 982 (2008). ‘‘[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 need only be a reasonable
one.’’ Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389,
399, 324 A.2d 247 (1973). Furthermore, ‘‘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 the dominant estate acquires access
to a public or private road through another means.’’
(Internal quotation marks omitted.) Christensen v.
Reed, supra, 583–84.
Finally, the clear and convincing burden requires the
presentation of ‘‘clear, precise and unequivocal evi-
dence.’’ (Internal quotation marks omitted.) J. Freder-
ick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464
A.2d 795 (1983). The standard is met ‘‘if the evidence
induces in the mind of the trier a reasonable belief that
the facts asserted are highly probably true, that the
probability that they are true or exist is substantially
greater than the probability that they are false or do
not exist.’’ (Internal quotation marks omitted.) Lopinto
v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981). Put
another way, the clear and convincing standard should
‘‘operate as a weighty caution upon the minds of all
judges, and it forbids relief whenever the evidence is
loose, equivocal or contradictory.’’ (Internal quotation
marks omitted.) Id., 539.
Here, the Thurlow Parties have failed to establish
reasonable necessity by clear and convincing evidence.
The evidence showed that the path that runs from Lot
21 north to Phinney Lane is at least as suitable an access
to Lot 21 as is the path south to Gooseneck Hill Road.
The pictures submitted by the Hulten Parties (exhibit
153 C), taken in the spring of 2013, show a wide, easily
passable way, wide enough for a truck or tractor. The
court’s observations of the path in June of this year
were the same. In fact, having walked both the path
from Gooseneck Hill Road to Lot 21 and the path from
Lot 21 to Phinney Lane, the court is unable to under-
stand the Thurlow Parties’ claim of necessity. This is
particularly true given that Denning admitted hauling
timber from Lot 21 and abutting lots over the path to
Phinney Lane.17 Given the evidence to the contrary, the
court does not credit Denning’s claim that the path to
Phinney Lane is often too wet to pass and requires
the construction of temporary structures. The Thurlow
Parties submitted no corroborating evidence for Den-
ning’s testimony or other evidence to contradict the
photographs submitted by the Hulten Parties or the
court’s actual observations. Similarly, the Thurlow Par-
ties submitted no evidence to support their claim that
they would need permits to construct temporary struc-
tures to take the path out to Phinney Lane or that those
permits would be difficult to obtain.
In addition, because they now own Lot 30, the
Thurlow Parties have not established necessity because
they may very well have express access to Lot 21 via
the right-of-way Finn granted to the Shea brothers in
exhibit 29. As noted above, Woodis reasonably con-
cluded that the right-of-way set forth in that deed was
intended to provide the Shea brothers with access to
Lot 30 by crossing the property Finn owned to the east
of Lot 30 out to Route 169. Exhibit 2 shows the location
of the path across the property Finn owned at the time.
It is true that exhibit 2 shows the path crossing from
Lot 30 over the southwest corner of the Lutzyk-Osiper
property before going back onto the property owned
at the time by Finn. It is also true that Osiper testified
definitively that neither he nor his father-in-law or his
uncle ever granted a right-of-way across his property.
Nevertheless, the evidence established that Finn
granted the Shea brothers a right-of-way across his
property, which included what is today Lot B, to gain
access from Route 169. Thus, because the Thurlow Par-
ties own both Lot 21 and Lot 30 they may no longer
require an easement by necessity because the root deed
to Lot 30 from Finn to Shea gives them an express right
to access Lot 30, and thereby Lot 21 from Route 169.
The Thurlow Parties argue that the court should give
no consideration to this path because it goes through
wetlands and is not passable. This argument ignores
the fact, though, that the evidence establishes that they
have an express right to use this path. With such a right
they also have a right to maintain the easement for its
intended purpose. Labbadia v. Bailey, 147 Conn. 82,
89, 157 A.2d 237 (1959). The Thurlow Parties presented
no evidence that the path to Route 169 could not be
maintained to make it passable.
Nevertheless, the court cannot definitively determine
the Thurlow Parties’ rights in the path to Route 169 for
at least two reasons. First, the parties presented little
evidence of the scope of the right-of-way. The reference
in the deed from Finn to the Shea brothers describing
Lot 30 as a ‘‘wood lot with all cut wood and timber
thereon,’’ as well as the evidence that the Shea brothers
were in the timber or logging business, do suggest that
the right-of-way was intended to permit the Shea broth-
ers to remove timber along the path. However, the par-
ties never joined issue on the scope of the right-of-way
because no claims have been made to it in either of
these cases. Second, for the court to determine what
rights the Thurlow Parties have in the right-of-way, the
owners of the property between Lot 30 and Route 169
would need to be joined as parties because their rights
to use their properties would be affected.
The uncertainty of the Thurlow Parties’ rights to use
the path from Lot 30 to Route 169 does not aid them
in their easement by necessity claim. To the contrary,
it is their burden to prove that there are no reasonable
alternatives to access except from the easement they
seek. The possibility of access from an express right-
of-way from Route 169 to Lot 30 is a possible reasonable
alternative that the Thurlow Parties have not proven by
clear and convincing evidence is not available to them.
For the above reasons, the Thurlow Parties’ claim to
an easement by necessity is rejected.
2
Easement by Implication
The court must consider two principal elements to
determine whether an easement by implication exists:
‘‘(1) the intention of the parties, and (2) if the easement
is reasonably necessary for the use and normal enjoy-
ment of the dominant estate.’’ Utay v. G.C.S. Realty,
LLC, 72 Conn. App. 630, 637, 806 A.2d 573 (2002). ‘‘The
intent of the grantor to create an easement may be
inferred from an examination of the deed, maps and
recorded instruments introduced as evidence. . . . A
court will recognize the expressed intention of the par-
ties to a deed or other conveyance and construe it to
effectuate the intent of the parties. . . . In doing so, it
always is permissible to consider the circumstances of
the parties connected with the transaction. . . . Thus,
if the meaning of the language contained in a deed or
conveyance is not clear, the court is bound to consider
any relevant extrinsic evidence presented by the parties
for the purpose of clarifying the ambiguity.’’ (Citations
omitted.) Id.
Here, the Thurlow Parties allege in their Fourth Coun-
terclaim in the 2009 action that ‘‘[the Hulten Parties’]
predecessors in title, Mrs. George Bromley, Adm. of the
Estate of Joseph Farnum, and E. LaVerne Kilpatrick,
each intended that an easement or right-of-way should
exist upon the [Hulten Parties’] Property for purposes
including access to and egress from the [Thurlow Par-
ties’] Property, and subsequent owners of the [Hulten
Parties’] Property intended that the easement of right
should continue for the same purpose.’’ Amended
Revised Counterclaims (#244), Fourth Counterclaim,
¶ 4.
There is no question that Mrs. Bromley so intended.
In fact, she explicitly said so in her grant to Tillinghast.
Exhibit 70. That intent only gets the Thurlow Parties
as far as the boundary of Lot A, though, because that
is all that Mrs. Bromley owned at the time of her grant
in 1903. What she intended beyond Lot A is therefore
irrelevant, as she had no authority to grant an easement,
whether expressed or by implication, over land then
owned by Finn.
There is no evidence that Kilpatrick ever intended to
grant an easement for the benefit of Lot 21 or Lot 30
over Lot B, either when he owned it or transferred it
to Kuzzyk and Olenik. Kilpatrick never owned Lot 21
or Lot 30. In addition, unlike Mrs. Bromley, he never
granted in any documents a right to pass from Lot A
over Lot B for the purpose of getting to Lot 21 or Lot
30. Nor did his deed from Finn of all of the Ensworth
Farm except what was granted to the Shea brothers
make any reference to Lot 21. Exhibit 46G. And,
although that deed did make reference to the grant to
Shea (Lot 30), it does not include any reference to
a right-of-way across Lot B. Furthermore, Kilpatrick’s
conveyance of Lot B to Kuzzyk and Olenik makes no
reference whatsoever to Lot 21 or access to it. Exhibit
59A. None of the deeds make reference to any deed,
map or plan that shows the existence of an easement
to Lot 21. Certainly, if Kilpatrick (or Finn before him)
intended to convey an easement across Lot B for the
benefit of Lot 21 or Lot 30, they could have done so by
referencing the deed from Mrs. Bromley to Tillinghast.
They did not. Overall, the deeds relating to Lot B are
unambiguous in that they express no intent to extend
an easement running from Gooseneck Hill Road, over
Lot A and through Lot B for the benefit of Lots 21 and 30.
The lack of evidence of intent here is similar to that
in Utay. In that case, there was no reference in the
deed to an easement, nor to any map or other instru-
ment from which an intent to create an easement could
be inferred. Consequently, the Appellate Court con-
cluded that ‘‘the grantor did not intend to create an
easement by implication over the defendant’s land when
he conveyed the property to the plaintiff. Accordingly,
there is no need to consider extrinsic evidence of such
an intention.’’ Utay v. G.C.S. Realty, LLC, supra, 72
Conn. App. 637–38. The court went on to note that ‘‘the
use of intent to find an implied easement long has been
disfavored in Connecticut, largely because of the obvi-
ous statute of frauds problem, but also because the
practical impact is to make land records less reliable.
. . . Consequently, implied grants of any interest in
land are allowed to a very much more limited extent
[in Connecticut] than in many other states.’’ (Citations
omitted; internal quotation marks omitted.) Id., 638 n.9.
The Thurlow Parties attempt to avoid this result by
pointing to the right-of-way language in the deed from
Finn to the Shea brothers relating to Lot 30. Exhibit
29. They argue that the reference to ‘‘the right-of-way
to and from said land as the path now runs’’ refers to
the path that ran from Gooseneck Hill Road to Lot 21.
The problem with this argument is that their expert,
Woodis, does not believe that the right-of-way refers
to that path. Instead, Woodis testified that he believes
the reference is more reasonably understood as refer-
ring to the path to the east to Route 169. Exhibit 2.
For the reasons discussed above, the court agrees with
Woodis. Consequently, the reference in the deed from
Finn to Shea is not evidence of an intention to create an
easement or right-of-way south to Gooseneck Hill Road.
The only other evidence the Thurlow Parties rely
upon is the fact that the path has existed in its current
state since at least 1934. This fact, though, cannot, in
the absence of some evidence in the deeds, be used to
prove that any owner of Lot B ever intended to create
an easement over that parcel for the benefit of Lot 21
or Lot 30. Furthermore, the existence of such a path is
as consistent with use by the owners of Lot B as it is
with use by the owners of Lots 21 and 30. The Thurlow
Parties have simply failed to prove the first element of
an easement by implication.
Nor have they proved the second element—that the
easement is reasonably necessary to the use and enjoy-
ment of their property. In evaluating the reasonably
necessary factor, the Appellate Court has stated that
the claimant must prove that ‘‘the easement is highly
convenient and beneficial for the enjoyment of the dom-
inant estate.’’ (Internal quotation marks omitted.) Sand-
ers v. Dias, 108 Conn. App. 283, 294, 947 A.2d 1026
(2008). Put another way, ‘‘[a]n easement by implication
does not arise by mere convenience or economy, but
exists because of some significant or unreasonable bur-
den as to access that demands the easement’s pres-
ence.’’ (Internal quotation marks omitted.) Utay v.
G.C.S. Realty, LLC, supra, 72 Conn. App. 638.
As noted above, the Thurlow Parties have not proven
that it is highly more convenient for them to access Lot
21 and Lot 30 from Gooseneck Hill Road than it is to
access those lots from the path running north to Phin-
ney Lane. Similarly, they have not offered any evidence
as to the cost and effort involved in maintaining the
express right-of-way Finn granted to the Shea brothers
in exhibit 29 that appears to use the path to Route 169.
For the foregoing reasons, the Thurlow Parties have
failed to prove an easement by implication across Lot
B. The evidence is clear that they have an express ease-
ment from Gooseneck Hill Road to the boundary of Lot
A and Lot B as depicted on exhibit 159. Exhibit 70.
Furthermore, the court finds that the easement is the
easterly of the two paths depicted on exhibit 159.
Exhibit 2. The Thurlow Parties, though, have proven
no right to go farther on that path than the boundary
between Lots A and B. Given this conclusion, the court
need not consider the scope of the easement from
Gooseneck Hill Road across Lot A, as the easement is of
little value for any purpose without the right to continue
onto Lot B.18
B
Boundaries of Lot B and Lot 30
The parties have submitted competing descriptions
of the boundaries for Lot B and Lot 30. The Hulten
Parties rely upon the conclusions of Stefon as set forth
in exhibit 159. The Thurlow Parties rely upon the con-
clusions of Woodis as set forth in exhibit 2.
In an action to quiet title to lands and to determine
boundaries between parties, ‘‘[w]here the testimony of
witnesses as to the location of the land described in
deeds is in conflict, it becomes a question of fact for
the determination of the court which may rely upon
the opinions of experts to resolve the problem and it
is the court’s duty to accept that testimony or evidence
which appears more credible.’’ (Internal quotation
marks omitted.) Har v. Boreiko, 118 Conn. App. 787,
796, 986 A.2d 1072 (2010). Where, as here, the deeds at
issue are ambiguous, ‘‘the intention of the parties is a
decisive question of fact. . . . In ascertaining the inten-
tion of the parties, it [is] proper for the trial court to
consider the surrounding circumstances.’’ (Citations
omitted; internal quotation marks omitted.) Koennicke
v. Maiorano, 43 Conn. App. 1, 10, 682 A.2d 1046 (1996).
‘‘Thus, if the meaning of the language contained in a
deed or conveyance is not clear, the trial court is bound
to consider any relevant extrinsic evidence presented
by the parties for the purpose of clarifying the ambigu-
ity.’’ Lakeview Associates v. Woodlake Master Condo-
minium Assn., Inc., 239 Conn. 769, 780–81, 687 A.2d
1270 (1997).
The parties have relied upon a variety of extrinsic
evidence in support of their respective positions. Fortu-
nately, our Supreme Court has provided some guidance
on the weight to be given such evidence. First, ‘‘[w]here
the boundaries of land are described by known and
fixed monuments which are definite and certain, the
monuments will prevail over courses and distances.’’
(Internal quotation marks omitted.) Velsmid v. Nelson,
175 Conn. 221, 227, 397 A.2d 113 (1978). ‘‘A monument
is only controlling, however, if it is referred to in the
deed.’’ (Internal quotation marks omitted.) Chebro v.
Audette, Superior Court, judicial district of Windham
at Putnam, Docket No. CV-09-5004630 S (September 23,
2010) (50 Conn. L. Rptr. 690, 693) (Riley, J.), aff’d, 138
Conn. App. 278, 50 A.3d 978 (2012). On the other end of
the spectrum, ‘‘[t]he general rule is that the designated
quantity of land called for, here acreage, is the least
reliable aspect of the description determining the intent
by the parties. See Texas Eastern Transmission [Corp.]
v. McCrate, 76 Ill. App. 3d 828, 395 N.E.2d 624 (1979);
Erickson v. Wick, 22 Wash. App. 433, 591 P.2d 804
(1979); J. Backman & D. Thomas, A Practical Guide to
Disputes Between Adjoining Landowners—Easements
(1990) § 8.02; 12 Am. Jur. 2d, Boundaries § 75.’’ Koen-
nicke v. Maiorano, supra, 43 Conn. App. 10–11.
The problem for the court here is that none of the
evidence submitted by the parties is clear or definitive.
The deed from Finn to Shea, which created Lot 30, does
not explicitly identify any monuments. Exhibit 29. It
does make a reference to a ‘‘wood lot.’’ Both experts
agree that it is reasonable to conclude that such a refer-
ence was meant to identify a closed area. Yet, the deed
does not identify the monuments that closed the area.
The deed does make reference to abutting property
owners, but those calls are imprecise and inaccurate,
no matter where one tries to set Lot 30. The deed also
makes an approximate acreage call, but, as noted above,
using this acreage call as a basis for drawing the bound-
ary lines for Lot 30 results in inaccurate acreage calls
in the deeds for abutting properties. Similarly, the deed
from Finn to Kilpatrick, which conveyed everything
Finn had not conveyed to the Shea brothers, describes
the conveyance by an incomplete mathematical
description.
Weighing all of the evidence, though, and for the
reasons set forth above, the court concludes that the
extrinsic evidence establishes that Woodis’ conclusion
is more reasonable, more logical and more credible.
Although not called out in the deed from Finn to Shea,
Woodis was able to locate monuments—stone walls
and stone piles—that set forth the boundaries of a wood
lot. His conclusion as to those boundaries was corrobo-
rated by other evidence, including exhibit 59A, Osiper’s
testimony, Hulten’s testimony, and tax assessor maps.
By contrast, Stefon ignored clear evidence of what
one of the key parties—Kilpatrick—intended by giving
no weight to the abutter calls in the deed from Kilpatrick
to Kuzzyk and Olenik that created Lot B, or the testi-
mony of Osiper regarding what Kilpatrick understood
to be the property lines for Lot B and Lot 30. Stefon
also ignored Hulten’s belief for virtually all of her life,
until she asserted her claim in the 2009 action, that the
boundary for Lot B ends where Woodis says it does.
Instead, Stefon relied upon an incomplete mathemati-
cal description and a clearly imprecise acreage call.
Furthermore, he then drew a somewhat arbitrary line
to create what he believes is the Lot 30 Finn and the
Shea brothers intended to create in 1918. Exhibit 29.
Yet, his Lot 30 does not result in better matching abutter
calls for Lot 30, results in incorrect abutter calls for
Lot B, and creates an acreage disparity in the deed for
Lot B. The court found Stefon’s conclusions neither
reasonable nor credible.
For all of these reasons, the court concludes that the
boundaries for Lot 30 are accurately set forth in exhibit
2. It further finds that the northern boundary for Lot B
ends at the southern boundary of Lot 30 on exhibit 2.
The southern boundary of Lot B is depicted on exhibit
159 where the fourth tract (Lot B) is shown to border
the second tract (Lot A).
IV
CONCLUSION
Based on the conclusions set forth above, the court
enters judgment as follows. In the 2005 action, judgment
on the First Count of the September 17, 2013 Amended
Substitute Complaint shall enter for the plaintiffs as to
an express easement to use the path as depicted on
exhibit 159 from Gooseneck Hill Road to the boundary
between the second tract (Lot A) and the fourth tract
(Lot B).19 To the extent the plaintiffs are claiming that
they have an easement from the northern border of Lot
A across Lot B, to its northern border with Lot 30,
judgment shall enter for the defendants. As to the
Fourth Count seeking an injunction, judgment shall
enter for the defendants because the defendants have
the right to block access to Lot B. To the extent they
also blocked access to Lot A, the court can see no harm
to the plaintiffs, irreparable or otherwise, given that
they have failed to prove that they have any right to
traverse Lot B. As to the Fifth Count, judgment shall
enter for the defendants because the plaintiffs have
failed to prove that they had an exclusive possessory
interest in the easement across Lot A. As to the Sixth,
Seventh, Eighth and Ninth Counts, judgment shall enter
for the defendants because the plaintiffs have failed to
prove a right to access their property through Lot B.
Consequently, the defendants’ actions in blocking
access to Lot B were not tortious. To the extent that
the defendants blocked access to Lot A, the plaintiffs
can prove no damages because they had no right to
cross from Lot A to Lot B.
In the 2009 action, judgment on Count One of the
Third Amended Complaint shall enter for the plaintiffs.
The defendants’ easement over Lot A ends at the north-
ern boundary between Lot A and Lot B. As to Count
Two, judgment shall enter for the defendants, as the
court does not see the need for a permanent injunction.
The court has no reason to believe that the defendants
will not abide by the judgment of the court now that
their rights have finally been adjudicated. As to Count
Three, judgment shall enter for the defendants. The
northern boundary for Lot B and the boundaries for
Lot 30 are as set forth on exhibit 2. As to Count Four,
judgment shall enter for the defendants because the
logging done by the defendants occurred on their
property.
As to the defendants’ Amended Revised Counter-
claims in the 2009 action, judgment shall enter for plain-
tiffs. The defendants failed to prove an easement by
necessity or implication.
* Affirmed. Thurlow v. Hulten, 173 Conn. App. , A.3d (2017).
1
The Thurlow Parties withdrew their Second and Third Counts, which
sought rights based upon a claim of a prescriptive easement.
2
While the parties disagree over the boundaries of Lot 30, because it
abuts what the Hulten Parties call their Lot B, and the parties disagree as
to where the boundary is between Lot B and Lot 30, the parties nonetheless
agree that the northern boundary of Lot 30 abuts the southern boundary of
Lot 21.
3
Between 1903 and 2003, Lot 21 was conveyed a number of times. Exhibits
71 through 76. With one exception, each of these conveyances made refer-
ence to the right-of-way described in exhibit 70. The only exception was a
1926 probate deed from the estate of Helen Tillinghast to her mother, Mary
Tillinghast. Exhibit 73. The right-of-way language was picked up in the next
deed in 1938 from Mary Tillinghast to Louise T. Ellsworth. Exhibit 74. The
Hulten Parties do not argue that the missing right-of-way language in the
probate deed somehow extinguishes Mrs. Bromley’s earlier grant. Nor could
they, as the right-of-way language was clearly a matter of record when they
acquired Lot A.
4
Because the Thurlow Parties now own Lot 30, they would only need to
acquire or prove the existence of some right to get from Lot A, through Lot
B, to Lot 30.
5
In the notes on exhibit 159, the Hulten Parties’ expert, Stefon, identifies
the eastern path as the possible location of the right-of-way. However, he
does not identify the western path as such.
6
Denning later testified that a permanent bridge is now in place, eliminat-
ing a need for a temporary bridge in the future.
7
The court heard little evidence regarding access to Lot 21 from Lisbon
Road to the east. Denning testified that three wetlands have to be crossed
between Lot 21 and Lisbon Road. The Hulten Parties offered no evidence
to the contrary. Consequently, the court finds that access from Lisbon Road
to Lot 21 is not practicably feasible.
8
On January 6, 1993, Davignon signed a second quitclaim deed conveying
the same five tracts to the Hulten Parties. Exhibit 66. The reason she did
so is unclear. In any event, the description of the Fourth Tract in both deeds
is exactly the same.
9
A rod is a unit of measurement equal to 16.5 feet.
10
Stefon also testified that it was reasonable to assume that the reference
to a ‘‘wood lot’’ was meant to identify a defined area.
11
Woodis’ opinion as to the boundaries of Lot 30 and Lot B also relied
on Osiper’s testimony. The Standards for Surveys and Maps in the State of
Connecticut make clear that under circumstances like those here, it is
appropriate to do so. Section 300b-17 (b) provides in relevant part: ‘‘Where
properties are poorly described or where the location of the boundaries
have become lost or uncertain, the surveyor may contact adjacent owners
or other persons for their knowledge as to the locations of boundary lines.’’
Exhibit 157, p. 12.
12
It was unclear whether that third party was one of the Thurlow Parties.
13
The Standards for Surveys and Maps in the State of Connecticut require
that a land records search for determining boundary lines shall include ‘‘an
examination of tax assessor’s plats and records.’’ Exhibit 157, § 20-300b-16
(a) (4).
14
Attempting to diminish the significance of the deed from Kilpatrick to
Kuzzyk and Olenik, Stefon testified that he believes that Kilpatrick just did
not understand what he bought from Finn. There is no evidence to support
this claim. In fact, as exhibit 59A and the testimony of Osiper make clear,
Kilpatrick always maintained the same firm and definitive view of what
he owned.
15
Extending Lot B farther east would call into question the eastern bound-
ary between the Hulten Parties and Brian Burchman. Exhibit 97. The court
raised this issue during trial and asked whether Burchman needed to be
added as a party to the action. The Hulten Parties ultimately represented
to the court that they were making no claim to Burchman’s property, even
if they had the right to do so. They did so despite knowing Osiper’s testimony.
Based on that representation, the court went forward with the trial with-
out Burchman.
16
As noted above, although Lot 30 lies in between Lot B and Lot 21,
because the Thurlow Parties now own Lot 30, they only need to prove an
easement over Lot B.
17
Denning identified the wood hauled as firewood or ‘‘pole wood.’’
18
The fact that the easement across only Lot A is of little value to the
owner of Lot 21 does raise a question as to why Tillinghast would bother
acquiring it in 1903 if he did not already have rights beyond Lot A. Unfortu-
nately for the Thurlow Parties, they never presented evidence answering
this question. It may have been that Tillinghast intended to acquire other
rights after he acquired the right-of-way from Mrs. Bromley, but never did.
19
To be clear, exhibit 159 does not accurately represent Lot B as deter-
mined by the court. Nevertheless, the southern boundary for Lot B on exhibit
159 does accurately represent the boundary between Lot A and Lot B.