Deane v. Kahn, No. X03 CV 01 0522640S (CT 2/2/2006)
| Decision Date | 02 February 2006 |
| Docket Number | No. X03 CV 01 0522640S,X03 CV 01 0522640S |
| Parties | Curtis D. Deane v. Amy Day Kahn Opinion No.: 92115 |
| Court | Connecticut Supreme Court |
Pursuant to Practice Book Section 17-45, the defendant, Amy Day Kahn, has moved for summary judgment against the plaintiff, Curtis Deane, with respect to the First, Third, Fourth, Thirteenth and Fourteenth Counts Deane's amended complaint dated October 31, 2001.
Deane has objected to the motion. Oral argument was held on December 12, 2005. Trial is scheduled to commence on February 28, 2006. For the reasons stated below, in light of the full record, including the oral arguments of the parties and their written submissions, the motion is denied in all respects. In the court's view, given the fact-specific nature of the interrelated disputes which constitute this lawsuit; the widely divergent views of the parties; the need of the trier to assess witness credibility and intention; the importance of evaluating the topography involved; differences involving expert opinions; and the complex legal issues presented, a full trial is necessary to resolve this case.
The facts relating to this dispute as set out in the parties' moving papers are involved and pertain to various claims relating to properties owned by the parties, all neighbors in Lyme. The parties' versions of the factual background of the various existing disputes, including the history of various parcels and claimed and disputed easements, are set out at length in their memoranda. Because of their complexity, the facts will not be set out here in detail. Exhibit 15, the affidavit of Gerald J. Stefon, and Exhibit 16, a chart of the history of the properties, attached to the October 27, 2005, Motion for Partial Summary Judgment of the Defendant, Amy Day Kahn, sets out some of the essential facts from Kahn's point of view.
The legal standards relating to motions for summary judgment are well known and need not be exhaustively recounted here. Such motions must be scrutinized with great care because when granted, they deprive the nonmoving party of their right to a trial.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski. 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Plouffe v. New York. N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The evidence must be viewed in the light most favorable to the nonmoving party. D.H.R. Construction Co. v. Donnelly. 180 Conn. 430, 434, 429 A.2d 908 (1980).
In the First Count Deane seeks to quiet title as to an equitable easement which he claims over the lower portion of Kahn's property along the Connecticut River. Kahn argues that the First Count "fails to set forth a basis for the claim." This count, and the Third Count, relate to the so-called "claimed riverfront easement." Deane disputes the contention that no claim has been properly set forth, asserting that Kahn's argument is properly raised in the procedural context of a motion to strike. The court agrees that Kahn's argument, from a procedural standpoint, should have been raised pursuant to a motion to strike. Burke v. Avitabile, 32 Conn.App. 765, 630 A.2d 624 (1993), cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). The court also agrees with Deane that the First Count, as it presently stands, complies with the requirements of General Statutes Section 47-31(f). If Deane believes that leave to amend the First Count should be granted to permit him to clarify his legal theories, he is free to request permission to do so, and Kahn is free to object, if she desires.
Substantively, citing Stiefel v. Lindemann, 33 Conn.App. 799, 813 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994), Kahn argues that when the Deane and Kahn properties were divided by conveyances in 1960 to Marion and Charles Sreboff, the Deane property had no legal right-of-way over the Kahn property, none was given, and that if an express right-of-way existed, it was lost when the properties were conveyed. But review of the record leads the Court to conclude that a genuine issue of material fact exists as to whether an easement by implication exists; Kelley v. Tomas, 66 Conn.App. 146, 783 A.2d 1226 (2001); and as to whether an express easement exists. Chaput v. Clarke. 26 Conn.App. 785, 603 A.2d 1195 (1992). See Deane's 12/7/05 Memorandum of Law, Exhibit L, deposition of Richard D. Dixon.
In the Third Count, Deane seeks a ruling that he has an easement by necessity over a portion of Kahn's property, alleging, in part, that due to the terKahn and slope of his property, he is unable to reasonably access the riverfront portion of his parcel without crossing Kahn's property. Kahn argues that because Deane does not claim that his property is landlocked, summary judgment should be granted. Citing Collins v. Prentice. 15 Conn. 39 (1842), and other cases, Kahn correctly notes the difficulty of establishing an easement by necessity. Deane contests Kahn's arguments, pointing to the need for the court to evaluate the riparian utilization of the plaintiff's property, both past and future. Stefanoni v. Duncan, 92 Conn.App. 172, 191-94, 883 A.2d 1271 (2005). For purposes of deciding the pending motion only, the court agrees with Deane. In Marshall v. Martin, 107 Conn. 32, 139 A.2d 348 (1972), the court stated that reasonable, not strict, necessity is the rule in Connecticut governing easements created by necessity. A key issue in such cases is whether "the means of...
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