Dunn Bros., Inc. v. Lesnewsky

• Decision Date: 06 February 1973
• Citation: 321 A.2d 453,164 Conn. 331
• Court: Connecticut Supreme Court
• Parties: DUNN BROTHERS, INC., et al. v. Wanda M. LESNEWSKY.

Page 453

321 A.2d 453

164 Conn. 331

DUNN BROTHERS, INC., et al. v. Wanda M. LESNEWSKY.

Supreme Court of Connecticut.

Feb. 6, 1973.

Michael E. Grossmann, Hartford, for appellant (defendant).

Rolland Castleman, Manchester, with whom, on the brief, was Jules A. Karp, Manchester, for appellees (plaintiffs).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

This is an appeal by the defendant from a judgment of the Superior Court which permanently enjoined her from interfering with the right of the three corporate plaintiffs to enjoy the use of a railroad spur track or siding running through her property. The court also awarded damages of $192 to the named plaintiff and refused the plaintiffs' prayer for a declaratory judgment. ¹

The facts are not disputed. The three plaintiffs and the defendant each own one of four contiguous parcels of land in the town of South Windsor once belonging to a common grantor. A railway main line, formerly of the New York, New Haven and Hartford Railroad Company, now operated by the Penn Central Railroad Company, runs in a north-south direction parallel to the westerly boundary of the defendant's parcel. A spur track or siding runs from this main line in an easterly direction across the land of the defendant, through the land of the plaintiff Quinnipiac Industrial Corporation, north of and adjacent to land owned by the plaintiff Propane Gas Service, Inc., and thence through the land of the plaintiff Dunn Brothers, Inc. The siding had been in continuous use by the plaintiffs and their predecessors in title as an appurtenance to their respective parcels of land since at least 1915. In June, 1970, the defendant caused to be erected a barricade consisting of a fence and a locked gate over the track and thereby denied the plaintiffs use of the spur track and access by rail to their land.

Prior to 1956, Robert P. Clark, William O. Clark and George H. Clark were the owners as tenants in common of all the land now owned by the parties to this action. In 1956, the Clarks, by warranty deed, conveyed to the defendant a portion of the land adjacent to the main railroad line. This deed reserved serveral rights-of-way. Of importance to the present controversy is the following language: 'Reserving the right to the use of the railroad track on the premises herein conveyed for and as an appurtenance to other land of the grantors adjoining on the east and the north of the above described premises.' The 'other land of the grantors' has passed by virtue of several deeds to the plaintiffs. Each such deed contained language conveying rights-of-way and appurtenances.

The trial court concluded that the plaintiffs owned an easement both by grant and by necessity to use the spur track running across the defendant's land and that the defendant, therefore, acted wrongfully in causing the barricade to be erected. Based on the limited evidence offered on the issue of damages, the court awarded damages only to the named plaintiff and in the amount of $192 but permanently enjoined the defendant from maintaining any barrier over the track and in any manner interfering with the right of each of the plaintiffs to use the track. Of the five assignments of error, the sole claim pressed on appeal and, therefore, the only claim considered by this court is that the trial court erred in concluding that the right to use the spur track reserved by the grantors in 1956 was appurtenant rather than, as the defendant claimed, in gross so that it did not pass to the plaintiffs.

The defendant claims that the language reserving the right-of-way 'for and as an appurtenance to other land of the grantors' reserved merely a personal right in the grantors that was not, and could not be, transferred to subsequent owners. She relies on a presumption that in the absence of specific words of inheritance, as 'heirs and assigns,' the reservation of an easement should be construed to be personal in nature. She also argues that since another clause in the same deed to her granted a right-of-way over other land of the grantors to the 'grantee, her heirs and assigns,' the absence of reference to heirs and assigns in the siding reservation in issue indicated an intent that the reservation was to be merely personal. With these contention we do not agree.

The question of whether an easement runs with the land or is merely personal 'is to be resolved by seeking the intent of the parties as expressed in the deed, and this intent is to be ascertained by reading the words of the deed in the light of the attendant circumstances.' Birdsey v. Kosienski, 140 Conn. 403, 410, 101 A.2d 274, 277. While it is true that the absence of words of inheritance may create a presumption that the easement was intended to be in gross; Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596; that presumption will be defeated if, 'from all the surrounding...