Mandes v. Godiksen, (AC 18532)

• Decision Date: 28 March 2000
• Docket Number: (AC 18532)
• Citation: 747 A.2d 47,57 Conn. App. 79
• Court: Connecticut Court of Appeals
• Parties: GEORGE M. MANDES v. ROBERT GODIKSEN ET AL.

57 Conn. App. 79

747 A.2d 47

GEORGE M. MANDES v. ROBERT GODIKSEN ET AL.

(AC 18532)

Appellate Court of Connecticut.

Argued December 9, 1999.

Officially released March 28, 2000.

Landau, Spear and Dupont, Js. Kenneth J. Bartschi, with whom were Wesley W. Horton and Gerald E. Farrell, Jr., and, on the brief, Gerald E. Farrell, Sr., and Allison Wood, certified legal intern, for the appellant (plaintiff).

Geraldine Battistoli, for the appellees (defendants).

Opinion

DUPONT, J.

The plaintiff, George M. Mandes, brought this action (1) to quiet title, (2) for slander of title pursuant to General Statutes § 47-33j and (3) for damages. The defendants¹ counterclaimed, also seeking to quiet title.² The dispute of the parties centers about the existence and extent of certain easements over the plaintiffs property. The court rendered judgment, which, in effect, quieted title in the plaintiff, but construed deed reservations and rights-of-way over the plaintiffs land in favor of the defendants. No damages were awarded to the defendants or to the plaintiff.

This plaintiffs appeal solely concerns easements over the plaintiffs land. There is no dispute as to the plaintiffs title in fee simple to his deeded parcels. The court rendered judgment that the defendants have (1) a rightof-way to pass and repass to the beach adjoining Long Island Sound over a portion of the plaintiffs land, namely a parcel seven and one-half feet wide and 110 feet long located at the easternmost seven and one-half feet of the plaintiffs land,³ (2) an easement consisting of beach rights to the entire beach area fronting the plaintiffs land and fronting a concrete patio immediately adjacent to the plaintiffs dwelling, (3) an easement to use the patio area lying to the south of and immediately adjacent to the plaintiffs dwelling, and (4) the right to use two sets of steps leading to the beach, one of which is located at the end of the seven and one-half foot right-of-way and the other, approximately in the middle of the concrete patio.⁴ The court ordered and described certain other conditions and obligations to implement its judgment.⁵ The defendants have not appealed from any of the court's orders or its judgment. The plaintiff claims that the trial court should not have concluded that (1) the defendants have deeded rights to use the patio on the plaintiffs land, (2) the defendants have the right to use the plaintiffs beach and (3) the unity of title doctrine should not be applied. We need to discuss the first two claims only.⁶

"Intent as expressed in deeds and other recorded documents is a matter of law. Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988)." Perkins v. Fasig, 57 Conn. App. 71, 76, A.2d (2000). If, after a plenary review, an appellate court concludes that deeded easements exist, their nature and extent usually must be decided by a trial court, and ordinarily a remand is required for a finding of relevant facts to establish their boundaries. See Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 146-47, 735 A.2d 798 (1999). Although the intent to create an easement by recorded instruments is a question of law, the deeds, maps and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine the nature and extent of the easement. Perkins v. Fasig, supra, 76. In the present case, however, if we determine that the easements exist, no remand would be necessary because the trial court has already defined the precise limits of the easements.⁷ Unless the facts that support those limits were improperly found, without supporting evidence, the judgment of the trial court should be affirmed.

The question to be determined here is whether there was an intent as expressed in the plaintiffs and the defendants' chains of title to establish the easements as they were found to exist by the trial court. We do so by an examination of the deeds, the map referenced in the plaintiffs deed and the recorded instruments that appear in the chain of title to the particular parcel of land. Powers v. Olson, 252 Conn. 98, 108, 742 A.2d 799 (2000); Perkins v. Fasig, supra, 57 Conn. App. 76. We must also examine the facts found by the court as relevant to the establishment of the particular dimensions of the easements. The plaintiff obtained title to premises known as 7 Pepperidge Avenue in the town of Westbrook by two deeds, a warranty and a quitclaim, both dated May 22, 1991. The warranty deed contained the following language: "Together with and subject to the reservations, restrictions and limitations as to use as are set forth in a certain quit claim deed dated January 8, 1948...." The quitclaim deed referenced in the plaintiffs warranty deed states that the owners of lots nos. 23, 26, 27, 28, 30, 31 and 43 on a map of Seaside Park, Westbrook, on file in the office of the town clerk of Westbrook, have an easement over a "strip of land 7 1/2 feet wide located along the eastern boundary of the premises conveyed for its entire depth." The eastern boundary of the plaintiffs land as described in his warranty deed is 110 feet long. The defendants are the owners, successors, heirs or assigns of the lots named in the 1948 deed, as well as being the prior owners, successors, heirs or assigns of the land now owned by the plaintiff. The language of the quitclaim deed also states that the grantors reserve for themselves, "their heirs and assigns," and for the "owners, families and guests occupying the houses of the lots or premises" (lots nos. 23, 26, 27, 28, 30, 31 and 43) "the right to use in common with [the grantees], their heirs and assigns, for all purposes which owners, tenants, guests, bathers and others would use land adjacent to Long Island Sound, a strip of land eighteen (18) feet ten (10) inches in width and forty (40) feet in length lying immediately in front of the dwelling herein conveyed [the plaintiffs dwelling], the southeast corner of which is one hundred and fifty (150) feet from the northeast corner of said premises." (Emphasis added.) From these deeds and the map of Seaside Park, the trial court concluded that the defendants possessed deeded easements to use portions of the plaintiffs land.

The trial court also found certain facts that were relevant to its determination of the location and parameters of the easements. The dwelling on the subject property was damaged by a 1938 hurricane. In 1939, the predecessors in title to the defendants and some of the defendants acquired their lots. They also obtained title to the land now owned by the plaintiff on July 10, 1939. They enjoyed the fronting beach from 1939 to 1948. In 1948, the defendants and their predecessors in title bid among themselves on a sale of the subject property, with the highest bidders, Peter S. Marchese and Josephine Marchese, taking title to the land now owned by the plaintiff. The trial court found that these grantors "anticipated and intended that the deed to the successful bidder would reserve to the grantors and certain lot owners [not fronting on Long Island Sound] beach rights, the so-called patio rights and the seven and one-half foot right-of-way." The trial court found that "prior to the plaintiff acquiring [the land in question], the dwelling was remodeled, with the result that both the porches on the first and second stories were closed in and are now part of the interior dwelling spaces in said cottage.

"As a result of the remodeling, the interior portions of the cottage have been extended so that the lowerstory porch no longer function[s] as a buffer between the interior of the cottage and the patio easement. Obviously, such alterations have resulted in a closer proximity between the living quarters of the cottage and the easement."

Other evidence showed that the patio area was used for the storage of the defendants' chairs, bicycles and boats. Beach usage by the defendants and their predecessors was shown in numerous photographs. The trial court concluded that the quitclaim deed of 1948 reserved "beach rights lying in front of the patio" and concluded that the deed granted rights in the plaintiff's patio, namely land eighteen feet, ten inches in width and forty feet in length lying immediately in front of the dwelling.

The plaintiff does not attack the finding of the court that the defendants have a seven and one-half foot wide easement along the easternmost boundary of the plaintiffs land. He argues, however, that the length of 150 feet as provided in the quitclaim deed of 1948 was not a scrivener's error, as determined by the trial court,⁸ but an intent to convey an easement in littoral rights. The plaintiff attempts to show that the defendants and their predecessors in title were not thereby reserving an easement in the patio, but reserving the right to exercise littoral rights for forty feet beyond its deeded boundary. The plaintiff claims that the eighteen foot, ten inch by forty foot strip of land referred to in the 1948 deed lies in Long Island Sound.

The easement over the seven and one-half foot strip as described in the 1948 deed did not delineate its length, but used the words "for its entire depth." In addition to this strip, the 1948 deed also reserves the right to use a strip of land eighteen feet, ten inches wide and forty feet long, and describes that land's southeast boundary as being 150 feet from the northeast corner of the premises conveyed. The plaintiff argues that if the seven and one-half foot strip is in fact 150 feet long, the last forty feet of it would extend beyond 110 feet, namely beyond the southeast corner of the existing patio and the southeast corner of the premises conveyed, beyond the high-water mark of the beach and then into the water of Long Island Sound beyond the low-water mark. The...