Powers v. Olson

Decision Date11 January 2000
Docket Number(SC 16043)
Citation742 A.2d 799,252 Conn. 98
CourtConnecticut Supreme Court
PartiesPAUL D. POWERS v. EDWARD OLSON, JR.

Borden, Norcott, Katz, Sullivan and Peters, Js. Michael D. O'Connell, with whom, on the brief, was Julia B. Morris, for the appellant (plaintiff).

Jon C. Leary, for the appellee (defendant).

Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the trial court improperly determined that the plaintiff had actual and constructive notice of the slope rights affecting his property. We conclude that the trial court improperly determined that the plaintiff, Paul D. Powers, had such notice of the slope rights affecting the property in question. We further conclude that by granting permission to the defendant, Edward Olson, Jr., to enter the plaintiff s property for purposes of exercising slope rights, the trial court improperly adjudicated rights that rightfully can be exercised only by the town of Rocky Hill (town), which was not a party to this action, and has not at any time asserted any claims against either the plaintiff or the defendant. In so doing, we conclude that the trial court improperly cloaked the defendant with rights that could belong only to the town, which have not been properly raised in the present case. We also conclude that the trial court properly found that the defendant did not possess any reservation of slope rights to the plaintiffs property and that the defendant properly was found to be responsible for damage to the plaintiff's trees and property. We further conclude that the trial court improperly granted the defendant permission to enter the plaintiffs property in order further to comply with the subdivision plan. Accordingly, we reverse the judgment of the trial court in part and affirm the judgment of the trial court in part.

The plaintiff brought this action against the defendant, the owner and developer of Burtonwood Estates in the town. The plaintiff sought to enjoin the defendant from further excavating the plaintiffs property and to require the defendant to provide lateral support for the trees damaged by his earlier excavation of the property.1 The trial court, Hon. Jerry Wagner, judge trial referee, determined that the defendant had the right to enter the plaintiff's property for the purpose of fulfilling the defendant's obligations under the property's subdivision plan, but that the defendant was required to provide lateral support for the trees on the plaintiff's property that were damaged as a result of the ensuing excavation. Accordingly, the trial court determined that the defendant had not retained slope rights to the property, but granted the defendant permission to enter the property to satisfy his obligations to the town. Furthermore, the trial court also determined that the plaintiff had suffered irreparable harm as a result of the defendant's actions and granted the plaintiff limited injunctive relief to remedy that harm.2

The plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff claims that the trial court improperly imposed slope rights on his property despite its specific finding that the defendant had reserved no slope rights in the property. The plaintiff further claims that the trial court, by granting permission to the defendant to enter the plaintiffs property and to regrade the area adjacent to Cobey Road, which runs along the westerly side of the his property, effectively adjudicated rights of the town, which, as noted previously, was not a party to this action and had not asserted any such claims against the defendant or the plaintiff. Furthermore, the plaintiff claims that the trial court's issuance of a mandatory injunction compelling the defendant to erect a barrier sufficient to protect the trees on the plaintiffs property is inconsistent with the trial court's determination that the defendant had the right to enter the plaintiffs property to comply with other requirements of the recorded subdivision plan. We agree with the plaintiff and, therefore, we reverse in part the judgment of the trial court.

The following material facts are not disputed. On October 10, 1990, the plaintiff entered into a written sales agreement with Mark Olson, the defendant's son, to purchase lot no. 7 in the Burtonwood Estates subdivision. The sales agreement contained the following language: "SLOPE RIGHTS. Seller reserves the right to grade and slope said premises and relocate property line in connection with the reconstruction and relocation of Cobey Road, provided, however, said Lot #7 shall conform to the zoning regulations of the Town of Rocky Hill." Prior to the closing, the defendant, who was acting as his son's attorney for this transaction, forwarded a draft deed to the plaintiffs attorney. The draft deed included the reservation of slope rights. At that time, however, the plaintiff objected to the reservation of slope rights. The parties then agreed that neither the defendant nor his son would reserve any slope rights in the plaintiffs property.

At trial, the defendant testified that he specifically had authorized the removal of the reservation of slope rights from the deeds when lot no. 7 was conveyed to the plaintiff.3 Accordingly, the warranty deeds conveying title of the lot and the newly constructed house on the lot to the plaintiff contained no reservation of slope rights. Each deed described lot no. 7 by appropriate bounding distances and specifically incorporated by reference a map or plan entitled: "`Subdivision Plan: Burtonwood Estates Property of Jean W. Olson, Cobey Road & New Britain Avenue, Rocky Hill, Connecticut... Scale 1"=40' Date August, 1988 ... Drawing No. 1 Revision No. 1 10-26 Staff Comments J.R. No. 2 01-06-89 Lots 5, 7, 8, No. 3 04-18-89 San. Esmt Data, House #s'...." Each deed also contained the following language: "Said premises are conveyed subject to any ordinance, municipal regulations, public or private law ... and to a sewer easement to The Metropolitan District as shown on said map."

At trial, the subdivision plan of Burtonwood Estates was admitted as a full exhibit. The plan consisted of six pages, approved by the town and recorded in the land records on pages 1900A through 1900F, on July 10, 1989. Because only the first page of this exhibit was labeled "Subdivision Plan," only that page corresponded to the designation cited in the warranty deeds. The other pages of the exhibit reflected drawing numbers and dates other than those specifically referred to in the warranty deeds.

Pursuant to the map, lot no. 7 is bounded westerly by Cobey Road for a distance of 169.12 feet. The plan indicates the presence of a grove of trees, including the two large sugar maple trees that are the subject of the present case, located in the northwest corner of the lot, situated on a sharply sloping bluff above the present road level of Cobey Road. At the time of the closing, the road had not been relocated, and the sidewalks had not been installed.

In April, 1996, a contractor hired by the defendant excavated portions of Cobey Road near the northwest corner of the plaintiffs lot. The plaintiff claimed that the defendant had trespassed on his property and, accordingly, had no right to excavate the property. The defendant claimed, to the contrary, that the excavation was a reasonable exercise of his responsibility as a developer to the town, and that pursuant to General Statutes § 7-31, he had the right to enter the plaintiffs property for purposes of sloping the property line.4

The trial court concluded that the plaintiff had actual and constructive notice of reserved slope rights by reason of the aforementioned subdivision plan, despite the fact that no such reservation appeared in the deeds. Nonetheless, the court also concluded that the harm to the plaintiffs trees was "irreparable and limited injunctive relief is appropriate because the harm is actual and imminent."

In this appeal, we address the following substantive issues: (1) Did the plaintiff have actual notice of a reservation of slope rights because of the terms of the contract of sale?; (2) Did the plaintiff have constructive notice of such a reservation because of the deeds' reference to a subdivision plan?; and (3) Did the plaintiff have constructive notice of such a reservation because the recorded subdivision plan included the town's requirements for road construction and property development?

As a threshold matter, we set forth the standard by which we review the trial court's rulings. "An appellate court's review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.... SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996)." (Internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 118-19, 733 A.2d 817 (1999). "It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible.... Transportation Plaza...

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    ...(2000); and whether they "find support in the facts that appear in the record." (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000). Because "[t]he issue of standing implicates this court's subject matter jurisdiction," we address it first. Fish Unlim......
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