Contegni v. Payne, 6493

• Decision Date: 11 May 1989
• Docket Number: No. 6493,6493
• Parties: John A. CONTEGNI et al. v. C. Meyrick PAYNE et al.
• Court: Connecticut Court of Appeals

Page 122

557 A.2d 122

18 Conn.App. 47

John A. CONTEGNI et al. v. C. Meyrick PAYNE et al.

No. 6493.

Appellate Court of Connecticut.

Argued Oct. 13, 1988.

Decided April 4, 1989.

Petition for Certification Denied May 11, 1989.

Charles A. Deluca, Stamford, for appellants (plaintiffs).

Leo Gold, Stamford, for appellees (defendants).

BORDEN, DALY and EDWARD Y. O'CONNELL, JJ.

BORDEN, Judge.

The plaintiffs ¹ appeal from the judgment rendered in favor of the defendants on the plaintiffs' complaint seeking an injunction to enforce a restrictive covenant. The dispositive issues are whether the trial court erred (1) in concluding that the plaintiffs had failed to prove the existence of a uniform plan of development, and (2) in concluding that the covenant in the defendants' deed did not limit the number of dwelling houses that could be built upon the defendants' lot. We find error in part.

Certain facts are not in dispute. The plaintiffs and the defendants are residents of the Shippan Point area of Stamford. All the parties own property that fronts on either Rogers Road or Saddle-Rock Road. The parcels of land presently owned by the parties were at one time owned by the Shippan Point Land Company (SPLC). The present litigation resulted from the defendants' attempt to convey a subdivided portion of their lot to a purchaser who intended to build a house thereon.

In 1904, SPLC purchased from Henry Harris, a trustee for the estate of Moses Rogers, a large parcel of land (Harris purchase) in the southwesterly tip of Shippan Point. The large majority of this property fronted on Long Island Sound or Stamford Harbor, but a sizeable portion was completely inland, bordered on three sides by Ocean Drive West and Verplanck Avenue and separated from the larger waterfront property by Ocean Drive West. SPLC conveyed the northernmost portion of the Harris purchase to Bartholomew Jacob, by four separate deeds executed between 1908 and 1910. In 1908, SPLC also conveyed a large parcel situated on the southeast extremity of the Harris purchase to Elbert Barlow.

Beginning in 1909, SPLC augmented its remaining waterfront property between the Jacob and Barlow lots by roughly doubling its size through a dredging and landfill operation. (This area, consisting of SPLC's waterfront property, including the landfill, and bounded by Jacob's and Barlow's property, is hereinafter referred to as the "developed area.") SPLC built two private roads on the property, which were later named Rogers and Saddle-Rock Roads. A map, entitled "South-Westerly Tract of the Shippan Point Land Co. and Private Roads thereon at Shippan Point, Stamford, Conn.," was filed in the Stamford Town Clerk's office, and was designated "Map 312." This map shows the developed area, bounded by the Jacob and Barlow lots. See Appendix, p. 68.

In 1911, SPLC began transferring title by separate deeds to various lots within the developed area. Twenty-five building lots were eventually conveyed out of the developed area by SPLC; thirteen bordered on Long Island Sound or Stamford Harbor and twelve were inland. The deeds for these lots were substantially uniform; all of these deeds, along with those for the Barlow and Jacob lots, contained first cost provisions ² for the various buildings that could be built pursuant to the covenants and all restricted the property conveyed to residential uses.

In 1929, SPLC conveyed one of the inland lots in the developed area to Marguerite Daly, the defendants' predecessor in title. The language of the restrictive covenants of Daly's deed was unique in that her deed provided in part that "there shall not be erected or maintained thereon any building other than (1) one family dwelling...." (Emphasis added.) The majority of the deeds from SPLC had employed a slightly different phrase: "there shall not be erected or maintained thereon any buildings other than (1) a dwelling house arranged for and occupied by a single family...." (Emphasis added.) Three months later, SPLC conveyed the lot adjacent to Daly's to George Brown, predecessor in title to the plaintiffs Madeline D. and John A. Contegni. Brown's deed was typical of three others in the developed area in that it contained yet another permutation of the restriction: "there shall not be erected or maintained thereon any buildings other than (1) one dwelling house arranged for and occupied by a single family...." (Emphasis added.) The lot conveyed to Brown was SPLC's last buildable lot in the developed area.

A 1922 map of Shippan Point shows that, in addition to certain still unsold lots on the land it had acquired in the Harris purchase, SPLC had title to numerous other lots on the Shippan Point peninsula. In March, 1982, the defendants purchased the property once owned by Daly and received a deed which stated that the premises were "conveyed subject to any and all ... restrictive covenants and agreements of record...." On December 31, 1986, the defendants conveyed a subdivided portion of their property, and the plaintiffs brought the present action to enjoin the building of a second dwelling house on the property. The construction of a second dwelling house on the property, the plaintiffs claimed, would violate the deed restrictions mentioned above that the plaintiffs argued allowed only a single house to be built on the defendants' lot. After a court trial, the court rendered judgment for the defendants. This appeal followed.

I

As a preliminary matter, we ascertain the appropriate scope of review for the issues on appeal, all of which ultimately concern the intent of the grantor, SPLC. "Although in most contexts the issue of intent is a factual question on which our scope of review is limited; see, e.g., Finley v. Aetna Life & Casualty Co., 5 Conn.App. 394, 408, 499 A.2d 64 (1985), rev'd on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); the 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. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Marion Road Assn. v. Harlow, 1 Conn.App. 329, 332, 472 A.2d 785 (1984)." Grady v. Schmitz, 16 Conn.App. 292, 295-96, 547 A.2d 563 (1988). 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." Marion Road Assn. v. Harlow, supra, 1 Conn.App. at 332, 472 A.2d 785.

II

The plaintiffs first claim that the trial court erred in determining that a uniform or general plan of development did not exist with respect to the developed area, the tract of land in question. We disagree. "In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee 'presumptively or actually for the benefit and protection of his adjoining land which he retains.' Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928)." Grady v. Schmitz, supra, 16 Conn.App. at 296, 547 A.2d 563. With respect to the second class of covenants, any grantee under such a general or uniform development scheme " 'may enforce the restrictions against any other grantee.' Pulver v. Mascolo, 155 Conn. 644, 650, 237 A.2d 97 (1967)." Marion Road Assn. v. Harlow, supra, 1 Conn.App. at 333, 472 A.2d 785.

The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance upon the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner, who is also subject to the same restriction, to violate it. Whitton v. Clark, 112 Conn. 28, 35, 151 A. 305 (1930).

This simple explanation is most persuasive where a challenged restriction is contained in a deed to an entire tract through which title to all lots can be traced, or where the restriction is stated on a map of the tract referred to in the conveyances. Id. Where, as in this case, the uniform plan of development must be divined from the language of the covenants inserted in the deeds of various owners of lots, the situation is more complicated and it is necessary to determine "the intent of the owner in creating the restrictions upon any lot to make the benefit of them available ... to the owners of the other lots in the tract." Id. The intent of the grantor must be determined by reading the deeds in light of the surrounding circumstances attending the transactions. Marion Road Assn. v. Harlow, supra. " 'The meaning and effect of the [restrictions] 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....' Kelly v. Ivler, [supra, 187 Conn. at 39, 450 A.2d 817]." Marion Road Assn. v. Harlow, supra, 1 Conn.App. at 332, 472 A.2d 785; Grady v. Schmitz, supra, 16 Conn.App. at 296, 547 A.2d 563.

There are several factors that help to establish the existence of a common grantor's intent to develop the land according to a uniform plan. These factors include (1) the common grantor's selling or stating an intention to sell an entire tract of land, (2) the common grantor's exhibiting a map or plot of the entire tract at the time of the sale of one of the parcels, (3) the actual development of the tract in accordance with the restrictions, and (4) a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor. 5 R. Powell, Real Property § 672, p. 60-26.

Our review of the record does not persuade us that SPLC, the original...