Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut

• Decision Date: 26 June 1990
• Docket Number: No. 8482,8482
• Citation: 576 A.2d 575,22 Conn.App. 124
• Parties: EXPRESSWAY ASSOCIATES II v. FRIENDLY ICE CREAM CORPORATION OF CONNECTICUT.
• Court: Connecticut Court of Appeals

Page 575

576 A.2d 575

22 Conn.App. 124

EXPRESSWAY ASSOCIATES II v. FRIENDLY ICE CREAM CORPORATION OF CONNECTICUT.

No. 8482.

Appellate Court of Connecticut.

Argued April 20, 1990.

Decided June 26, 1990.

Stephen Sakonchick II, for appellant (plaintiff).

William H. Champlin III, with whom were Donald Moffat and, on the brief, Kristine D. Ragaglia, for appellee (defendant).

Before SPALLONE, NORCOTT and LAVERY, JJ.

NORCOTT, Judge.

The plaintiff appeals from the trial court's denial of its request for injunctive relief and damages against the defendant for overburdening the plaintiff's right-of-way over the defendant's property. The plaintiff claims that the trial court failed to recognize that the plaintiff owns an unconditional right-of-way over the defendant's property with which the defendant is interfering.

The following facts are relevant to this appeal. In 1968, the plaintiff's predecessor, Regional Properties, Inc. (Regional), owned a parcel of real property known as 2944 Main Street in Glastonbury. On September 11 of that same year, Regional conveyed to the defendant that portion of the parcel fronting on Main Street, reserving a right-of-way over the property conveyed for the benefit of the remaining land in the parcel.

On August 1, 1974, Regional and the defendant entered into a purchase and sale agreement that provided that Regional convey to the defendant an additional portion of the property directly behind the Main Street frontage and that the parties would enter into a supplemental agreement of the same date. The supplemental agreement which was filed in the Glastonbury land records, provided for the relocation of the right-of-way, for the conditions precedent to construction of a permanent roadway over the right-of-way, and for the construction plans for the defendant's parking lot.

In accordance with these agreements, the additional land was conveyed by warranty deed dated November 15, 1974, and the relocated right-of-way was granted to Regional, its successors, grantees and assignees in a right-of-way agreement dated November 6, 1974. All documents were filed in the Glastonbury land records.

Thereafter, the defendant did not construct its parking area in accordance with the plan that it had provided as part of the supplemental agreement. The parking area that the defendant did construct encroaches on the right-of-way by allowing parking and other obstacles onto it, by blocking vehicular traffic and by limiting the direction of travel to one way.

The plaintiff, successor in interest to Regional, sought a permanent injunction restraining the defendant from interfering with the right-of-way, compelling the defendant to remove parking spaces and obstacles encroaching on and blocking the right-of-way, and to remove the restriction to one way traffic. The plaintiff also sought compensatory damages.

The trial court concluded, based on its interpretation of all of the documents when read together, that the plaintiff had no present interest in the right-of-way and that such a right could be created only if the certain conditions described in the supplemental agreement were met. On the basis of these conclusions, the trial court denied the plaintiff's request for relief and rendered judgment for the defendant. From this ruling, the plaintiff appeals.

The plaintiff claims that the trial court based its ruling on a misreading of the agreements and incorrectly failed to find that it had a present right to the right-of-way. We agree.

"In considering the expressed intent of a contract evidenced ... by multiple writings, all of the writings should be considered and an endeavor made to ascertain the expressed intent of the contract as a whole." Schubert v. Ivey, 158 Conn. 583, 587, 264 A.2d 562 (1969). " ' "The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used." ...' " (Citations omitted.) Id., 158 Conn., at 589, 264 A.2d 562; see also Marion Road Assn. v. Harlow, 1 Conn.App. 329, 332, 472 A.2d 785 (1984); compare American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 75, 574 A.2d 796 (1990) (because the court concluded the deed clearly expressed an intention to convey a fee simple interest, reference to surrounding circumstances was unnecessary). "A reservation will be interpreted as creating a permanent easement if, from all the surrounding circumstances, it appears that that was the intention of the parties." Kelly v. Ivler, 187 Conn. 31, 40, 450 A.2d 817 (1982). In cases involving the construction of deeds not based on the credibility of witnesses, "the reviewing court does not give the customary deference to the trial court's factual inferences and decides the question of intent as a matter of law." Marion Road Assn. v. Harlow, supra; Contegni v. Payne, 18 Conn.App. 47, 51, 557 A.2d 122 (1989).

In this case, the right-of-way was reserved at the time of the original conveyance. Thereafter, when the plaintiff's predecessor, Regional, sold an additional strip of land to the defendant, the original right-of-way was expanded so that it extended over the additional piece of land. Section C of the agreement, incorporated into the supplemental conveyance agreement, contains the revocation of the original right-of-way and the agreement for the new right-of-way. That section reads as follows: "1. Friendly and Regional hereby terminate and revoke the right-of-way designation recorded in the Glastonbury Land Records at Book 162, Page 673, it being the intent of the parties to completely nullify and eliminate said designation as it now exists.

"2. Friendly hereby grants and designates a right-of-way over the said Friendly Premises to Regional, its successors, grantees, and assigns for all vehicular and pedestrian purposes to and from the public highway known as Main Street. It is expressly understood that the right-of-way hereby granted by Friendly to Regional shall not be used in connection with the operation, maintenance and/or use upon the Regional Premises of a restaurant of a similar nature to a Friendly Ice Cream Restaurant...."

At the time the parties signed the supplemental agreement and right-of-way modification agreement, both parties were anticipating that Regional would begin construction of a motel on the Regional premises shortly after the agreements were finalized. Accordingly, the supplemental agreement, after acknowledging the right-of-way, states that Regional shall construct a roadway over said right-of-way and that Friendly's shall construct a parking area in accordance with its parking plan, the two obviously not to conflict with each other. The agreement then provides: "Construction of...