Sanders v. Dias

• Decision Date: 10 June 2008
• Docket Number: No. 28487.,28487.
• Citation: 947 A.2d 1026,108 Conn.App. 283
• Court: Connecticut Court of Appeals
• Parties: Michael A. SANDERS v. Jose C. DIAS et al.

947 A.2d 1026

108 Conn.App. 283

Michael A. SANDERS v. Jose C. DIAS et al.

No. 28487.

Appellate Court of Connecticut.

Argued March 12, 2008.

Decided June 10, 2008.

William C. Bieluch, Jr., Darien, for the appellant (plaintiff).

Joshua A. Winnick, New Haven, for the appellees (defendants).

FLYNN, C.J., and ROBINSON and PELLEGRINO, Js.

FLYNN, C.J.

The plaintiff, Michael A. Sanders, appeals from the judgment of the trial court in favor of the defendants, Jose C. Dias and Lisa M. Murray, in which the court concluded that the defendants had an easement by implication over a portion of the plaintiff's driveway. On appeal, the plaintiff claims that the court improperly (1) rendered judgment on the basis of a theory that was not pleaded in the defendants' counterclaim, (2) applied the law regarding easements by implication and (3) granted an overbroad and undefined easement to the defendants. We affirm the judgment of the trial court as to the grant of the easement by implication but remand the case for further proceedings to determine the precise scope and location of that easement.

The court found the following facts, which are not contested. "The lots which the parties own were parts of a subdivision developed by Mario Demelis of Middletown .... The subdivision is described in a final subdivision map ... recorded in the Killingworth land records on April 4, 1972. The subdivision declarations of restrictions and covenants running with the land was filed on August 7, 1975.... The subdivision documents and the parties' deeds ... do not reference an easement or right-of-way in favor of the defendants over the plaintiff's property.

"The defendants' property was developed first by the developer and sold to the defendants' predecessor in title in 1976. The plaintiff's lot and home [were] subsequently developed and sold to the plaintiff's predecessor in title in 1977.... The defendants and their predecessors in title have used the front portion of the driveway located on the plaintiff's property since 1976.

"The subdivision map shows that the driveway for the defendants' lot should be on an area adjacent to lot 10 accessing Quarry Hill Road. The plaintiff's property is essentially situated behind the defendants' lot but with a lengthy [twenty-five] foot wide strip connecting the lot to Quarry Hill Road. The plaintiff's driveway is approximately 600 feet in length. The plaintiff, after purchasing the property in 2003, learned that it appeared that the defendants were encroaching on his property with respect to the use of the portion of his driveway adjacent to Quarry Hill Road. The defendants' driveway encompasses a small portion of the plaintiff's driveway near Quarry Hill Road and then veers off toward the defendants' house." (Citations omitted.)

On May 3, 2005, the plaintiff filed an action for trespass, seeking to enjoin the defendants from continued use of his property. The defendants, in turn, filed a counterclaim seeking a declaratory judgment as to whether they have a right-of-way over the plaintiff's land and the exact location of that right-of-way. After a trial to the court, the court rendered judgment for the defendants on the plaintiff's complaint and for the defendants on their counterclaim, recognizing a right-of-way in favor of the defendants "over the driveway apron located on the plaintiff's property. This right-of-way measures approximately ten feet wide by twenty feet long." This appeal followed.

I

The plaintiff's first claim appears to allege¹ that the court improperly found an easement by implication where the defendants in their counterclaim pleaded only a right-of-way by necessity. He also argues that the defendant did not plead or prove "the existence of a prescriptive easement and therefore none should [have] been found by the trial court." The plaintiff contends that the defendants are bound by their pleadings and that the court improperly rendered judgment for the defendants on the basis of a theory that was not pleaded in their counterclaim. We conclude that this claim lacks merit.

"Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein.... A judgment upon an issue not pleaded would not merely be erroneous, but it would be void." (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn.App. 146, 160-61, 783 A.2d 1226 (2001).

The plaintiff relies on the case of O'Brien v. Coburn, 39 Conn.App. 143, 664 A.2d 312 (1995), to support his argument. In O'Brien, this court reversed the judgment of the trial court, which had found an easement by implication where the plaintiff had pleaded the elements necessary for a prescriptive easement and not for an implied easement. Id., at 148-49, 664 A.2d 312. Explaining the elements necessary to prove a prescriptive easement, we stated: "With regard to a prescriptive easement, General Statutes § 47-37 provides: `No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.' In Connecticut, therefore, a prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right." (Internal quotation marks omitted.) O'Brien v. Coburn, supra, at 148, 664 A.2d 312.

We further explained that "[a]n implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property.... In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners.... There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." (Internal quotation marks omitted.) Id.

Although the plaintiff argues the similarity between the present case and the O'Brien case, we find the two cases readily distinguishable. In O'Brien, the plaintiff pleaded a cause of action for a prescriptive easement, claiming that they had "used the ... driveway in an open and visible manner continuously and uninterrupted, for a period greater than fifteen years, and engaged in such use under a claim of right." (Internal quotation marks omitted.) Id., at 148-49, 664 A.2d 312. We explained that the complaint specifically did not contain the allegations necessary to establish an easement by implication. Id., at 149, 664 A.2d 312. In contrast, the defendants in the present case specifically pleaded in their special defense that they have "a right-of-way over the front portion of the plaintiff's driveway." They further pleaded in their counterclaim that in order for them "to use and enjoy their land, it is necessary that the existence and location of their [right-of-way] over the defendant's land and the extent of permissible use be judicially determined."

Additionally, we note that although there exists a similarity between an easement by necessity and an easement by implication; see Kelley v. Tomas, supra, 66 Conn.App. at 169 n. 5, 783 A.2d 1226; these easements are not identical: "The difference between the two types of easements is that an easement by necessity requires the party's parcel to be landlocked, and an easement by implication does not require that the parcel be landlocked." Id., at 170 n. 5, 783 A.2d 1226. The defendants, in their counterclaim and special defenses, did not allege that their parcel was landlocked. We conclude that the allegations in the defendants' pleadings were sufficient to alert the court and the plaintiff that the defendants were claiming an easement by implication. Accordingly, we conclude that the plaintiff's first claim is without merit.

II

The plaintiff next claims that the court improperly applied the law regarding easements by implication. Specifically, the plaintiff argues that the court improperly applied the unity of title doctrine in this case, which, he argues, the Supreme Court specifically abandoned in Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999) (en banc). Without the improper application of this doctrine, the plaintiff argues, the court could not have recognized an easement in favor of the defendants. We do not agree.

Initially, we address the plaintiff's assertion that it became improper for the court to consider prior unity of title in implied easement cases after the Supreme Court's decision in Bolan. Although the requirements to establish an easement by necessity once required a showing of unity of ownership; see Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968); in Bolan, our Supreme Court eliminated that requirement. See Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. at 144-45, 735 A.2d 798. In abrogating that doctrine, however, the Supreme Court did not make it improper to consider that there once existed unity of title in easement cases. See generally Kelley v. Tomas, supra, 66 Conn. App. at 169-70 n. 5, 783 A.2d 1226. Rather, it simply omitted the requirement that there be unity of title to establish an easement. Accordingly, we conclude that the court acted properly in considering that there once was unity of title in this case.

We next must decide the appropriate standard of review for a claim challenging the existence of an easement by implication. The plaintiff, in his main appellate and reply briefs, states that the appropriate standard of review is the clearly erroneous standard. During oral argument before this court, however, he argued that our review is plenary. The defendants, in their appellate brief,...