Mcburney v. Peter Paquin James R.G. Mcburney v. Antoinette Verderame.

Decision Date04 October 2011
Docket Number18346.,Nos. 18345,s. 18345
Citation28 A.3d 272,302 Conn. 359
CourtConnecticut Supreme Court
PartiesJames R.G. McBURNEY et al.v.Peter PAQUIN et al.James R.G. McBurney et al.v.Antoinette Verderame.


William F. Gallagher, with whom, on the brief, was David McCarry, New Haven, for the appellants-cross appellees (defendants and intervening defendant Leslie Carothers).Daniel J. Klau, Hartford, for the appellees-cross appellants (plaintiffs).Richard T. Meehan, Jr., Bridgeport, and Christopher J. Sochacki, Avon, for the appellee-cross appellant (intervening plaintiff Beachcroft, LLC).William H. Clendenen, Jr., with whom, on the brief, was Maura A. Mastrony, New Haven, for the appellees (intervening plaintiff Roger A. Lowlicht et al.).


The issues presented by these appeals and cross appeals center on the scope of an implied easement located on a lawn that lies between a beachfront development and Long Island Sound (sound) in the town of Branford. The defendants 1 appeal from the judgments rendered by the trial court concluding that the implied easement over the lawn in favor of the defendants conferred only a right-of-way to access the shoreline. The defendants claim on appeal that the trial court improperly: (1) found that the implied easement was limited to a right-of-way; (2) failed to give sufficient evidentiary weight to the trial record and to the decision of this court in Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903), a case concerning the same property that is the subject of this case; 2 and (3) granted the plaintiffs' 3 motion in limine, limiting the evidence of the use of the lawn to that occurring between the creation of the implied easement and the early twentieth century. We disagree with each claim and, with respect to the defendants' appeals, affirm the judgments of the trial court.

On cross appeal, Beachcroft, LLC (Beachcroft),4 an intervening plaintiff, argues that the trial court improperly ordered, in a supplemental memorandum of decision, that the right-of-way also could be used for the purpose of accessing areas other than the shoreline. According to Beachcroft, the record is devoid of any evidence supporting that supplemental order. We agree and, with respect to the cross appeal, reverse the judgments of the trial court.

The record and procedural history reveal the following facts. In July, 1885, Ellis Baker filed in the Branford land records a development plan (Baker plan) for a beachfront community on the sound. At the time Baker filed the plan, he owned the property within the development, including the lawn, as trustee for the beneficiaries of a trust. The beneficiaries of the trust included Baker himself.

The Baker plan is a map depicting thirty-five lots, a strip of land labeled [a]venue” and an area labeled [l]awn.” The lawn lies between the lots and the beach that borders on the sound. The avenue, which formerly was known as Maple Avenue and presently is known as Crescent Bluff Avenue (avenue), runs north and south through the development, perpendicular to the sound. Each residential lot is numbered. Four of the lots abut the lawn and face the sound (waterfront lots), while the remaining lots are located behind the waterfront lots and do not have direct access to the lawn or the beach (rear lots). From the west to the east, the waterfront lots are numbered lots 2, 4, 3, and 1, respectively. The rear lots, lots 5 through 36,5 line the avenue.6

The avenue runs between the center two waterfront lots, lots 4 and 3, and, at its southern terminus, meets the lawn, over which the implied easement extends. At present, the lawn is approximately forty feet deep between the southern border of the waterfront lots and the beginning of a concrete slope that leads down to the beach. Alongside the concrete slope is a concrete ramp running down to a seawall, on top of which is a concrete walkway. Alongside the ramp, a set of stairs leads down to the water.

The plaintiffs own waterfront lots,7 and the defendants own rear lots in the development. In a 2006 appeal from previous proceedings involving some of the same parties, this court held that the filing of the Baker plan in the land records, along with specific references to that plan in deeds conveying property within the development, had created an implied easement over the lawn for the benefit of the defendants and other lot owners in the development. McBurney v. Cirillo, 276 Conn. 782, 799–806, 889 A.2d 759 (2006), overruled in part on other grounds, Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284–89, 914 A.2d 996 (2007). After concluding that an implied easement existed, we remanded the case for further proceedings to determine the scope of that easement, and we ordered the trial court to give notice of the pendency of this action to all lot owners in the development to allow them the opportunity to join as parties. Id., at 823, 914 A.2d 996.

On remand, the plaintiffs argued that the scope of the implied easement was limited to a right-of-way to access the shoreline. The defendants argued that the easement's scope was broader and afforded them the right to recreate and socialize on the lawn. During an evidentiary hearing on March 10, 2008, the trial court reviewed four types of documentary evidence to determine the scope of the implied easement: maps, including the Baker plan itself; photographs and picture postcards; deeds evidencing various conveyances within the development; and the record in Fisk v. Ley, supra, 76 Conn. at 295, 56 A. 559. The court also heard testimony from Jane Bouley, the Branford town historian, and Lawrence Fisher, a licensed land surveyor. After examining the evidence and considering the testimony, the trial court, in an August 6, 2008 memorandum of decision, found that the defendants had an implied easement “only to pass and repass over the entire lawn ... as a means of accessing the shoreline.” The defendants now challenge this determination.

When the trial court issued its August 6, 2008 decision, it withheld final judgment and ordered a posttrial hearing to address questions regarding who should be bound by the judgments and who should be responsible for maintaining the easement. After that hearing on September 8, 2008, the trial court issued a supplemental memorandum of decision, in which it stated that it did not “mean to limit the rear lot owners' right to pass and repass over the lawn only when they are on their way to the shoreline.” Rather, the trial court issued supplemental orders, which provided in relevant part that [t]he rear lot owners may use their easement ... to pass and repass to property to the east of [the] ... [a]venue, including any open space or alternate access to the shoreline....” This portion of the supplemental orders is the subject of the cross appeal. Additional facts and procedural history will be set forth as necessary.


The defendants claim first that the trial court improperly determined that the implied easement afforded the lot owners a mere right-of-way, and not the additional right to recreate on the lawn. The defendants argue that Baker intended to grant lot owners the right to recreate on the lawn, and that the trial court's contrary finding is unsupported by the evidence. Additionally, according to the defendants, the label [l]awn” on the Baker plan conveys a right to unrestricted “common” use absent a clear statement of Baker's contrary intent. We are not persuaded.

As an initial matter, we set forth the governing legal principles. As we explained in our decision in McBurney, an implied easement arises when it is intended by the parties, “as shown by the instrument [here, the Baker plan] and the situation with reference to the instrument,” and when “the easement is reasonably necessary for the use and normal enjoyment of the dominant estate[s].” (Internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. at 800, 889 A.2d 759.

[T]he ‘scope’ of an easement ‘is what its holder may do with it, the purposes for which it may be used.’ Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987). Typically, to discern the scope of an easement, “the deeds, maps and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine [its] nature and extent....” Mandes v. Godiksen, 57 Conn.App. 79, 83, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000). In a case like the present one, however, where “the easement has been created only by a reference in the conveyance to a map,” such as the Baker plan, and the map provides no guidance as to the type of use contemplated, “the scope of the intended easement rests on inference from the circumstances.” 4 R. Powell, Real Property (2010) § 34.12, p. 34–147; see also 1 Restatement (Third), Property, Servitudes § 4.1, comment (a), p. 498 (2000) (in interpreting servitudes “created without an expression of intention by the parties, the relevant focus of inquiry is on the expectations the circumstances should reasonably have engendered in the parties).8 We are further guided by the general principle that [t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 701, 923 A.2d 737 (2007).

As to our standard of review, the determination of the scope of an easement is a question of fact that will not be overturned unless clearly erroneous. Id., at 699, 923 A.2d 737; see also Sanders v. Dias, 108 Conn.App. 283, 295, 947 A.2d 1026 (2008). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction...

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