Deane v. Kahn

179 Conn.App. 58

178 A.3d 403

Curtis D. DEANE

v.Amy Day KAHN et al.

AC 39006, (AC 39011)

Appellate Court of Connecticut.

Argued September 19, 2017

Officially released January 2, 2018

Lloyd L. Langhammer, for the appellants (named defendant et al.).

Kerry R. Callahan, with whom, on the brief, was Sean P. Clark, for the appellant (defendant John Gorman).

Wesley W. Horton, with whom were Brendon P. Levesque and, on the brief, F. Thor Holth, for the appellee (plaintiff).

Alvord, Prescott and Kahn

PRESCOTT, J.

Since at least 2001, the parties in this case have been engaged in a lengthy legal dispute regarding abutting properties that sit along the bonny banks of the Connecticut River in Lyme. The defendants Amy Day Kahn, Robert Kahn, and John Gorman¹ appeal from the judgment of the trial court finding that an easement exists in favor of the plaintiff, Curtis D. Deane, over the parcels of real property owned by Amy Day Kahn (Kahn property) and Gorman (Gorman property).

The defendants' principal claim is that the evidence was insufficient to support the court's ultimate legal conclusion that an easement by implication exists over the Kahn property and, correspondingly, that an easement by deed continues to exist over the Gorman property.² We affirm the judgment of the court.

The following facts and procedural history, much of which was set out in the prior appeal in this case, are relevant to the defendants' appeals. To aid the reader, we include the following visual representation of the area, which was constructed from a map entered into evidence at trial as plaintiff's exhibit 49.

"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 north-west side of the estate. As the road approached the river, however, near the southwest corner of the estate, it split into two branches, one of which continued south-westward while the other turned sharply to the east and continued eastward, parallel to the river, part way across the south side of the estate....

"The estate would later be divided into a series of parcels that the parties in the present case would come to own. The three properties owned by the parties are contiguous, with the Gorman property to the west, the Kahn property in the middle, and the [plaintiff's property (Deane property) ] to the east.... Common to all three properties is the private right-of-way at issue in the present case, which extends from the end of the eastward branch of Brockway's Ferry Road, and continues parallel to the river part of the way across the south side of the estate. In this action to quiet title, the plaintiff ... claims that he has the right to access the southern, riverfront portion of his sloping property from the west, across: (1) [the Gorman property] ... over which the plaintiff claims a right-of-way pursuant to [a] 1935 deed; and (2) [the Kahn property] ... over which the plaintiff claims an easement by necessity [that arose in 1960]....

"On January 19, 1935, Harriet Warner conveyed a fee simple interest in [the Gorman property] to Walter Hastings. Under the terms of Harriet Warner's deed to Walter Hastings ... the tract conveyed to him was to be free of encumbrances, except that a [right-of-way] is reserved in perpetuity across said tract along the route now in use. The 1935 deed contained no other language describing the location, direction, dimensions, uses or purposes of the right-of-way so reserved, or of the route now in use along which it was to run....

"In 1936, Harriet Warner conveyed the remainder of her estate to her children, Hester Warner and [Musa Warner] Caples. Although Harriet Warner reserved a life use of the property so conveyed for herself, her deeds to her daughters made no mention of the right-of-way across the Gorman property reserved in the 1935 deed. On December 30, 1936, Hester Warner and Caples split the property between themselves, Caples conveying the western portion of the property to Hester Warner and Hester Warner conveying the eastern portion of the property, including [what would become] the Kahn and Deane properties, to Caples.

"In 1938, the Gorman property was transferred by certificate of devise from the estate of Walter Hastings to William Hastings, whereafter, in 1945, it was conveyed by William Hastings to Kenneth Johnson.... No mention of the 1935 right-of-way was made in any of the above-described conveyances of the Gorman property.

"On February 8, 1955, Johnson conveyed the Gorman property to [Marion Srebroff and Charles Srebroff]. The 1955 deed from Johnson to the Srebroffs mentioned the right-of-way reserved by the 1935 conveyance for the first time since that date. It provided, more particularly, that the property so conveyed was subject: To a [right-of-way] reserved in [the 1935] deed recorded in Volume 51 at page 25 of the Lyme land records in perpetuity across the land above described as parcel 1 and along the route now in use. There has been no other reference to the 1935 reservation in any other deed in the chain of title by which the Gorman property ultimately descended to Gorman from the Srebroffs ....

"On July 6, 1960, Caples simultaneously conveyed a portion of her property that would later become the Kahn property to Marion Srebroff and an adjoining parcel directly to the east of it that would later become the Deane property to Charles Srebroff. The deed to Marion Srebroff 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.... This deed did not mention the right-of-way at issue in the present case, though it did contain language stating that it was conveyed with the appurtenances thereof....

"On January 14, 1970, Marion Srebroff conveyed the Kahn property to Frank [Heineman] and Denise Heineman .... On May 13, 1981, Marion Srebroff and her daughter, [Carole] Schmitt, who then jointly owned the Gorman property, granted the Heinemans a right-of-way over the riverfront portion of that property, along that strip of land which is the easterly exten[sion] of the ancient private dirt road, as it now lays, across the property.... In none of [the] deeds in the chain of title to the Kahn property, from Harriet Warner to Amy Day Kahn, is there any reference to the 1935 reservation. In all [but one] of them, however ... the Kahn property is conveyed with the appurtenances thereof....

"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 respectively to Marion Srebroff and Charles Srebroff. In none of the deeds to the Deane property, however, is there any mention of the right-of-way reserved by Harriet Warner over what is now the Gorman property in 1935. In all of those deeds, however, the Deane property is conveyed with the appurtenances thereof.

"On August 20, 2001, the plaintiff filed this action seeking, inter alia, to quiet title to his alleged right-of-way across the Gorman and Kahn properties to access the lower portion of [the Deane property], and to enjoin the defendants from interfering with his quiet enjoyment and use of that right-of-way....

"In a thorough memorandum of decision, the trial court concluded, inter alia, that the plaintiff has an easement over the Gorman property by virtue of the 1935 deed and an easement by necessity over the Kahn property, which arose in 1960 when ... Caples, who then owned the eastern portion of [Harriet Warner's] former estate, which included both the Deane property and the Kahn property, divided those properties into separate tracts and conveyed them, respectively, to Charles Srebroff and Marion Srebroff .... Upon reaching the foregoing conclusions, the court went on to rule that the scope of the deeded easement over the Gorman property and the easement by necessity over the Kahn property should be defined in identical terms, which it then described in great detail, specifying its location on the burdened properties, its dimensions and its scope, including both the purposes for which and the time and manner in which it could be used.... Although the trial court ruled in favor of the plaintiff with respect to two counts—namely, the count alleging the creation of an easement by deed over the Gorman property and the count alleging the creation of an easement by necessity over the Kahn property—it did not rule on the count alleging the creation of an easement by implication over the Kahn property.

"The defendants appealed from the judgment of the trial court to the Appellate Court, which concluded that the plaintiff failed to prove, either by the language of the 1935 deed or by the circumstances existing at the time of its execution, that the 1935 deed created an easement [by deed] appurtenant to Harriet Warner's property across the Gorman property and that the plaintiff failed to prove that he is entitled to an easement by necessity over the Kahn property, either by showing that his property would be landlocked without it, which it would not be, or by showing that the parties intended to create such an easement at the time of its alleged creation in 1960, based upon evidence of the necessity for or the use of the claimed easement at that time.... The Appellate Court, accordingly, reversed the judgment of the trial court in part....

"The plaintiff petitioned for certification to appeal from the judgment of the Appellate Court. [Our Supreme Court] granted the plaintiff's petition for certification to appeal limited to the following...