Bird Peak Road Assn., Inc. v. Bird Peak Corp.

• Decision Date: 03 April 2001
• Docket Number: (AC 19843)
• Citation: 771 A.2d 260,62 Conn. App. 551
• Court: Connecticut Court of Appeals
• Parties: BIRD PEAK ROAD ASSOCIATION, INC. v. BIRD PEAK CORPORATION ET AL. BIRD PEAK CORPORATION v. BIRD PEAK ROAD ASSOCIATION, INC., ET AL.

62 Conn. App. 551

771 A.2d 260

BIRD PEAK ROAD ASSOCIATION, INC. v. BIRD PEAK CORPORATION ET AL.

BIRD PEAK CORPORATION v. BIRD PEAK ROAD ASSOCIATION, INC., ET AL.

(AC 19843)

Appellate Court of Connecticut.

Argued October 27, 2000.

Officially released April 3, 2001.

Zarella, Pellegrino and Peters, JS. Martin A. Gould, with whom, on the brief, was William F. Healey, for the appellant (named defendant in the first case, plaintiff in the second case).

Frank J. Scinto, for the appellee (plaintiff in the first case, named defendant in the second case).

Opinion

PELLEGRINO, J.

This is an appeal from judgments quieting title to a private road¹ in favor of Bird Peak Road Association, Inc. (association). Bird Peak Corporation (corporation) claims that the trial court improperly construed the language in a deed as granting the corporation only a right-of-way over the road rather than a fee interest in the road. We affirm the judgments of the trial court.

The parties initially instituted two separate actions in which each claimed title to the road.² The cases were consolidated and submitted to the court in accordance with joint stipulations and admissions. The undisputed facts are as follows.

The road was formerly owned by Robert F. Weltzien, who acquired it as a portion of a large tract of land deeded to him by Shagroy Farms, Inc. (Shagroy Farms), in 1961. Weltzien developed and subdivided the southern portion of the tract into several lots and constructed the road to provide access to the lots. After he sold all of the lots, he conveyed a tract to the north of the developed tract to Thorpe Mountain, Inc. (Thorpe Mountain), in a deed recorded on May 9, 1983 (1983 deed). Thorpe Mountain never developed the land, and its interest in the land was foreclosed by New Milford Savings Bank. The corporation is successor to whatever title Thorpe Mountain held, having acquired it from New Milford Savings Bank in a 1993 foreclosure sale.

The owners of the lots in the subdivision, pursuant to their deeds, had rights-of-way over the road. They formed the association for the stated purpose of maintaining the road. Thereafter, the association claimed to have acquired the fee interest in the road by virtue of a quitclaim deed from Weltzien dated July 23, 1993 (1993 deed).

Sometime in 1994, a representative of the corporation began to cut trees in or about the road area, precipitating the actions that led to this appeal. The association claimed that it held the fee interest in the road pursuant to the 1993 deed and sought to quiet title.³ It also claimed damages for the corporation's unauthorized cutting of trees along the road.⁴ The corporation claimed a fee interest in the road by virtue of the 1983 deed, and it, too, sought to quiet title. The corporation also alleged that the association slandered the corporation's title when the association recorded the 1993 deed in the town land records.

The parties agreed in their written stipulation that the first issue that the court should resolve was whether the 1983 deed conveyed to the corporation a fee interest in the road or merely a right-of-way over it. If the 1983 deed conveyed only a right-of-way to the corporation, then the 1993 deed effectively transferred the fee interest in the road to the association. The remaining issues hinged on the determination of which party had title to the road.

The parties also agreed that to resolve the critical issue of what interest in the road was conveyed by the 1983 deed, the court needed to analyze four paragraphs in that deed. Paragraph two described the parcel of land north of the subdivision and merely referenced the northern terminus of the road as part of the land's southern border.⁵ The parties agree that paragraph two does not otherwise describe the road. Paragraph eleven transfers a right-of-way over the road.⁶ Paragraph fifteen conveys any covenants and hereditaments in the subdivision property together with any strips, gores or premises that Weltzien may have retained in the subdivision.⁷ Paragraph nineteen, the final paragraph in the deed and the "meaning and intending" clause, expressed Weltzien's intent to convey the premises conveyed to him by Shagroy Farms in 1961, less those portions that he already had conveyed.⁸

The parties agree that paragraph eleven transferred only a right-of-way or easement over the road. The corporation argues, however, that the transfer of "other premises" in paragraph fifteen effectively transferred the remaining fee interest in the road. It claims that the grantor's intent to transfer all of the lands acquired in 1961 that he still held at the time of the 1983 conveyance, as expressed in paragraph nineteen, supports that position. In other words, because the fee interest in the road was not otherwise specifically conveyed, paragraph nineteen indicated the grantor's intent to convey the fee to the road. The corporation claims that this intent is also alluded to in paragraph two by the grantor's reference to the road "as hereinafter described and conveyed." In response, the association argues that paragraph eleven is clear and specific in conveying only a right-of-way in the road and, therefore, the other paragraphs cannot be read to convey a fee interest in the road because that interpretation would render the language in paragraph eleven superfluous.

The court analyzed the critical paragraphs in the 1983 deed and, in a well reasoned memorandum of decision, concluded that the deed merely transferred to the corporation a right-of-way or easement over the road. The court, therefore, quieted title to the road in favor of the association. We agree with the judgments of the trial court.

I

Both the corporation and the association claim a fee interest in the road. The determination of which party owns the fee to the road requires us to construe the relevant terms of the 1983 deed and to discern whether they express an intent to convey the fee to the road or merely a right-of-way over it.

"[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.... Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court's factual inferences.... The meaning and effect of the [paragraphs in the 1983 deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation ... is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met." (Citation omitted; internal quotation marks omitted.) Wood v. Amer, 54 Conn. App. 601, 604-605, 736 A.2d 162 (1999), affd, 253 Conn. 514, 755 A.2d 175 (2000).

Further, "[i]t is a well established principle of construction that wherever possible each part of the scrivener's phraseology should be given some import.... Every word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted...." (Citation omitted; internal quotation marks omitted.) DAddario v. D'Addario, 26 Conn. App. 795, 800, 603 A.2d 1199 (1992).

In light of the foregoing principles, we must review the relevant provisions of the 1983 deed, in the context of the overall instrument and the surrounding circumstances, to determine whether Weltzien expressed an intent therein to convey a fee interest in the road.

Paragraph eleven of the 1983 deed is clearly at odds with paragraph fifteen and paragraph nineteen, the meaning and intent clause. Paragraph eleven explicitly conveys only a right-of-way over the road, whereas paragraphs fifteen and nineteen may be read, arguably, to transfer the fee in the road. The court relied on the rule enunciated in Barri v. Schwarz Bros. Co., 93 Conn. 501, 107 A. 3 (1919), to reconcile the discrepancy. In Barri, our Supreme Court ruled that when a deed sets forth two different descriptions of the property to be conveyed, "the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled." Id., 510; see also Pinney v. Winsted, 79 Conn. 606, 612-14, 66 A. 337 (1907); Benedict v. Gaylord, 11 Conn. 332, 336-37, 29 Am. Dec. 299 (1836); Mt. Maumee Partnership v. Peet, 40 Conn. App. 752, 755, 673 A.2d 127, cert. denied, 237 Conn. 924, 677 A.2d 947 (1996); 23 Am. Jur. 2d, Deeds § 298 (1983); 14 R. Powell, Real Property (1999) § 81A.05 [3] [c].

The language used in paragraph eleven was very specific. It clearly conveys only a right-of-way over the road. Any reference to the road in paragraphs fifteen and nineteen, however, is oblique at best. The corporation, nonetheless, argues that the rule in Barri is inapplicable in this case. The corporation contends that the paragraphs do not, in fact, conflict because we need not choose between giving effect to one or the others, i.e., they may all be given effect by reading paragraph eleven to transfer an easement in the road and the other paragraphs to convey, indirectly, the remaining interest in the road. We disagree with that characterization because the meanings of those paragraphs, as argued by the corporation, present a clear conflict of the type to which the rule of Barri applies to give paragraph eleven primary effect.

The court relied on the specificity of the language in paragraph eleven and gave it precedence over the vague language in paragraphs fifteen and nineteen. We believe that analysis was appropriate and sound. Although the court in Barri was faced...