Carbone v. Vigliotti

• Decision Date: 02 June 1992
• Docket Number: No. 14350,14350
• Citation: 222 Conn. 216,610 A.2d 565
• Court: Connecticut Supreme Court
• Parties: Carmine CARBONE v. Alex VIGLIOTTI et al.

Page 565

610 A.2d 565

222 Conn. 216

Carmine CARBONE v. Alex VIGLIOTTI et al.

No. 14350.

Supreme Court of Connecticut.

Argued Jan. 8, 1992.

Decided June 2, 1992.

[222 Conn. 217] Mark T. Kelly, New Haven, for appellant (plaintiff).

Roy H. Scharf, Branford, for appellee (named defendant).

Before PETERS, C.J., and SHEA, COVELLO, BORDEN and BERDON, JJ.

SHEA, Associate Justice.

The plaintiff, Carmine Carbone, who owns the land over which the named defendant Alex Vigliotti, claims a right-of-way for access to a public street from a two-family house constructed on this defendant's property, brought this action to enjoin such a use, to obtain a declaratory judgment that the construction of the house violates the zoning regulations of the town of Branford and to secure other appropriate relief, including damages. The trial court rendered judgment for the defendants. ¹

In his appeal ² the plaintiff claims: (1) that the unity of title doctrine; Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968); bars the conclusion of the trial court that the defendant is entitled to use the right-of-way for the two-family house he has constructed; and (2) that the undisputed facts establish that the construction and location of the house violate the zoning regulations as a matter of law, despite the contrary holding of the court. We conclude that the plaintiff cannot prevail on either of these claims, and we affirm the judgment.

There is no dispute about the facts, to most of which counsel commendably stipulated. The plaintiff owns a two-family house on East Main Street in Branford, in which he resides and also conducts his business as a certified public accountant. He purchased this property on June 16, 1978. At its northwest corner, a strip of land 26.5 feet wide, which is used as a driveway, extends westerly about 165 feet to Chestnut Street. The plaintiff maintains the driveway to provide his tenants, employees and clients with access from Chestnut Street to a parking lot at the rear of his house. The occupants of another two-family house fronting on East Main Street and situated on a lot adjoining the plaintiff's land on the east also use the driveway for access from Chestnut Street to the rear of their property, and the plaintiff concedes their right to do so.

On October 6, 1986, the defendant purchased a tract of land lying north of the plaintiff's driveway and comprised of four contiguous parcels designated as parcels 1, 2, 3 and 4 on the diagram included in the appendix to this opinion. After his original proposal to develop the entire tract for the purpose of building condominium units was rejected by the Branford planning commission, the defendant proceeded to divide parcel 1 into two lots, both of which front on Chestnut Street. He reconstructed the existing two-family house on one of these lots and erected a new two-family house on the other lot. The remainder of the tract, parcels 2, 3, and 4, which lie along the rear of the two lots fronting on Chestnut Street, were combined into one lot for the purpose of building another two-family house thereon. A strip of land twenty feet wide was taken from the rear of the two lots that front on Chestnut Street and added to the westerly boundary of parcels 2, 3 and 4 in order to construct a driveway extending to the plaintiff's driveway, which leads to Chestnut Street and over which the defendant claims a right-of-way. ³ The defendant obtained a building permit on February 8, 1988, to erect a two-family house on the interior lot and began construction soon afterward.

Although the plaintiff had observed the construction activity on the interior lot comprised of parcels 2, 3 and 4 some time earlier, he first learned in the late summer or fall of 1988 of the defendant's intention to use for ingress and egress the portion of the driveway extending from the southerly boundary of that lot to Chestnut Street. The defendant used a strip of land along the boundary between the two lots fronting on Chestnut Street for access to the interior lot during the course of construction of the house on that property. In this strip he has installed water and sewer lines that service the house on the interior lot.

The plaintiff commenced this action on January 10, 1989, after the foundation had been installed, the house had been framed, rough plumbing, heating, air-conditioning and electrical wiring had been completed and the defendant was preparing to install sheetrock. The defendant continued his work on the house and completed its construction by July 20, 1989, when he obtained a certificate of occupancy from the town of Branford. At the time of trial in May, 1991, the house was occupied by the defendant's tenants, who continued to use the strip of land between the two lots fronting on Chestnut Street for access to the interior lot during the pendency of this litigation.

After examining the deeds of title to the land involved, the trial court concluded that parcels 2, 3 and 4, which the defendant had combined to form the interior lot, had "an appurtenant right-of-way" over the 26.5 foot wide driveway of the plaintiff from the southerly boundary of the interior lot to Chestnut Street, a distance of approximately 165 feet, for "[v]ehicular and pedestrian use ... for ingress and egress to and from" the interior lot. The court rejected claims advanced at trial by the plaintiff that the defendant had abandoned by nonuser the right-of-way granted in the deeds and that to permit his proposed use would overburden that easement. ⁴ With respect to the claimed violations of zoning and subdivision regulations, the court concluded that the defendant had adequately satisfied the requirements of the regulations involved.

I

On appeal the only challenges raised by the plaintiff to the trial court's conclusion that the defendant's interior lot has an appurtenant right-of-way over the portion of the plaintiff's driveway extending from that lot to Chestnut Street are: (1) the insufficient basis for finding in the relevant conveyances an intention to create an easement for the benefit of that parcel; and (2) the failure of the court to recognize that, even if such an intention had existed, the "unity of title doctrine" precludes the creation of such an easement for parcel 2, which lies between parcels 3 and 4, and, therefore, bars its use by occupants of the house on the interior lot, which comprises the three parcels. We agree with the plaintiff that the documents relied upon by the defendant do not adequately support the conclusion that an easement appurtenant to parcel 2 over the plaintiff's driveway has been created. We hold, nevertheless, that the unquestioned grant of a right-of-way over the plaintiff's driveway for access to Chestnut Street contained in the deed to parcel 4, which the defendant has now acquired, allows the use of the right-of-way for the benefit of the occupants of the house, which is situated on the boundary line between parcels 2 and 4. Because of these conclusions it is not necessary to resolve the issue of the continuing viability of the unity of title doctrine in this state.

A

The first reference in the exhibits introduced at trial to the disputed right-of-way to Chestnut Street is contained in a November 30, 1936 deed from Gustave Hamre conveying parcel 4 to Harry Carsten "[t]ogether with a right of way across [parcel 2] ... also across a strip of land ten feet wide, located [on parcel 3] ... and thence through a [26.5] foot right of way ... to Chestnut St[reet]." On the same date, Gustave Hamre deeded parcel 2 to Frank Beach subject to the right-of-way granted to Carsten for parcel 4, but without creating as an appurtenance to parcel 2 any right to use the 26.5 foot right-of-way to Chestnut Street. At that time Beach owned land bounding parcel 2 on the east and fronting on East Main Street, and parcel 2 was an addition to his rear yard. Beach later transferred parcel 2 to Carsten, who on March 19, 1947, conveyed both parcels 2 and 4 to George Edwards. ⁵

On September 10, 1947, Edwards acquired title to parcel 3 from John Hamre, who then owned the 26.5 foot strip of land constituting the disputed right-of-way. The deed for this transfer, following the description of parcel 3, contains a recital that "[s]aid grantee has right of way over land of Grantor to Chestnut Street" and also refers to a map dated August 11, 1947, showing parcel 3 with the legend, "Land of John A. Hamre to be deeded to George Edwards," as well as a further legend indicating that George Edwards and two others "have a right of way" over the strip leading to Chestnut Street. This recital and the map are apparently the sole basis for the trial court's conclusion that John Hamre intended to give to George Edwards, the plaintiff's predecessor in title to parcels 2, 3 and 4, a right-of-way as an appurtenance to parcel 2 over the 26.5 foot strip. Prior to this conveyance, Edwards possessed such a right by virtue of his ownership of parcel 4, as the plaintiff concedes.

The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). On appeal the scope of review of such a question is plenary and does not require " 'the customary deference to the trial court's factual inferences.' " Contegni v. Payne, 18 Conn.App. 47, 51, 557 A.2d 122 (1989). In this case the language of the deed as well as of the map legends does not unequivocally create an easement over the strip for the benefit of parcel 2, but may have been intended simply to acknowledge that the grantee, as the owner of parcel 4, had such an easement. See Ozyck v. D'Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988). Even if this language could reasonably be construed to have created a right-of-way over the strip, the absence of any...