Stiefel v. Lindemann, s. 11827

• Decision Date: 06 May 1994
• Docket Number: Nos. 11827,11834,s. 11827
• Citation: 33 Conn.App. 799,638 A.2d 642
• Court: Connecticut Court of Appeals
• Parties: Herbert J. STIEFEL et al. v. George L. LINDEMANN et al. BELLE TERRE ASSOCIATES et al. v. George L. LINDEMANN et al.

Page 642

638 A.2d 642

33 Conn.App. 799

Herbert J. STIEFEL et al. v. George L. LINDEMANN et al.

BELLE TERRE ASSOCIATES et al. v. George L. LINDEMANN et al.

Nos. 11827, 11834.

Appellate Court of Connecticut.

Argued Nov. 2, 1993.

Decided March 22, 1994.

Certification Denied May 6, 1994.

Robert M. Davison, Stamford, with whom, on the brief, was Howard B. Naylor, for appellant (plaintiff Steven Grossman).

Douglas R. Steinmetz, Stamford, with whom, on the brief, was Stephen J. Curley, for appellant (plaintiff Elizabeth G. Dubois).

Steven R. Humphrey, Stamford, with whom were Roger J. Pearson and, on the brief, Bram S. Lehman, for appellees (defendants).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FOTI, JJ.

DUPONT, Chief Judge.

In these appeals from the judgments that followed two actions tried to the court, the primary questions to be resolved are whether the defendants have an easement (1) over land of the plaintiff Steven Grossman, ¹ and (2) over the land of Elizabeth G. Dubois. The resolution of the first question is dependent on the interpretation of a reservation of a right-of-way in a deed from the predecessor in title of the defendants to a predecessor in title of Grossman, or on whether, if the deed is ineffective, an easement by prescription exists in favor of the defendants. In both actions, the plaintiff seeks injunctive relief and damages, claiming that the defendants are prohibited from using a driveway that crosses his land and terminates on Indian Field Road, a public highway in the town of Greenwich. Dubois, as the owner of property adjacent to the land of the plaintiff, was joined as a party to the actions. Dubois filed a complaint against the defendants, George L. and Frayda Lindemann, alleging that the Lindemanns have no right-of-way over that portion of the driveway that lies on the Dubois land. She also sought injunctive relief and damages against the Lindemanns.

In both actions, the defendants, by way of two special defenses, claim that they have a right-of-way by virtue of an express grant by deed, and, in the alternative, by virtue "of adverse possession, prescriptive easement and easement by necessity." The trial court rendered judgment for the defendants on the first special defense, after an extensive discussion of the deeds in the parties' chains of title, and on their second special defense. The court also rendered judgment for the defendants on Dubois' complaint. The plaintiff and Dubois have filed separate appeals.

Three properties are involved in these appeals, all situated in the Mead's Point section of Greenwich. The defendants own property known as the Lindemann estate, and claim they have rights-of-way over two other properties described in the appeals as lot 3, now owned by the plaintiff, and the Dubois property. ²

The Lindemann estate is a 9.7 acre parcel that is bounded by Long Island Sound on the east and by Indian Field Road on the west. Lot 3 is situated north of the Lindemann estate and is bounded by Long Island Sound on the east. Lot 3 is not situated directly on Indian Field Road, but has access to the road by crossing property described as lot 1. Lot 1 runs from the northwestern tip of lot 3 to Indian Field Road. The Dubois property is north of lots 1 and 3, and is bounded by Long Island Sound on the east and by Indian Field Road on the west.

The driveway in issue proceeds north from the Lindemann estate over the western boundary of lot 3. As it nears the northwest corner of lot 3, it curves until it is proceeding west over the northwestern section of lot 3 and the southern boundary of the Dubois property. After reaching the western boundary of lot 3, the driveway continues over the northern boundary of lot 1 and the southern boundary of the Dubois property until it reaches Indian Field Road.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The trial court found that the easements establishing the driveway over lot 3 and the Dubois property were appurtenant easements created in favor of the Lindemann property. As a result, the court concluded that the easements ran with the land to bind the subsequent owners of lot 3 and the Dubois property. The trial court also found that the easements over lot 3 and the Dubois property were created by separate warranty deeds. We will consider the easements over lot 3 and the Dubois property in turn.

I

In 1966, John and Carolyn Otto acquired both lot 3 and the Lindemann estate. In 1971, they conveyed lot 3 to Pamela Coyne by warranty deed (Otto-Coyne deed). The deed contained the following provision: "Grantors herein reserve a right of way for their remaining property over the existing driveway for all lawful purposes of travel and for connecting with any utilities which may be located thereon." The executors of Coyne's estate conveyed lot 3 to Herbert and Lucy Stiefel in 1976. The deed to the Stiefels stated that the conveyance was subject to the right-of-way reserved in the Otto-Coyne deed. ³ In 1988, the Stiefels conveyed lot 3 to Louis Grossman, who conveyed the property to Belle Terre Associates, which conveyed the property to the plaintiff Steven Grossman. These deeds all stated that the conveyance was subject to the right-of-way reserved in the Otto-Coyne deed.

The Ottos used the existing driveway, albeit somewhat infrequently, over lot 3 until they conveyed their remaining property, the Lindemann estate, to Frayda and Carol Lindemann in 1982. The deed stated that the conveyance included "all right, title and interest reserved" in the Otto-Coyne deed. In 1987, Frayda and Carol Lindemann conveyed the property by deed to the defendants, George and Frayda Lindemann. The deed stated that the conveyance included the right-of-way over lot 3.

The trial court found that the driveway over lot 3 was used primarily as a service entrance by the Lindemann estate without interruption until 1985, when a chain link fence was installed across the driveway at roughly the boundary line of lot 3 and the Lindemann estate. The Stiefels then planted grass and shrubbery on their side of the fence.

The plaintiff claims that the trial court improperly found that the right-of-way over lot 3 was an appurtenant easement. The plaintiff contends that the right-of-way was personal to the grantors and did not run with the land because the reservation of the right-of-way in the deed lacked words of inheritance and assignment. He also claims that the defendants do not have a prescriptive easement over lot 3.

The primary issue is whether the right-of-way over lot 3 is appurtenant or in gross. The question of whether an easement is appurtenant or in gross ⁴ is resolved by ascertaining the intent of the parties as expressed in the deed. Leabo v. Leninski, 182 Conn. 611, 614, 438 A.2d 1153 (1981); Dunn Bros., Inc. v. Lesnewsky, 164 Conn. 331, 335, 321 A.2d 453 (1973); Dean v. Riley, 31 Conn.App. 87, 90, 623 A.2d 521 (1993). This intent is determined by considering the language and the relevant provisions of the deed in light of the then existing situation of the property and the current surrounding circumstances. Lago v. Guerrette, 219 Conn. 262, 267, 592 A.2d 939 (1991); Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra; Dean v. Riley, supra. The determination of the intent expressed in a deed presents a question of law. Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992). Thus, our review of the trial court's conclusions as to intent is plenary, and does not require deference to the trial court's factual findings. ⁵ Id.

It is well established that where the reservation creating an easement does not mention the heirs and assigns of the grantee, a presumption exists that the grantor and grantee intended the right-of-way to be in gross. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Leabo v. Leninski, supra, 182 Conn. at 614, 438 A.2d 1153; Dunn Bros., Inc. v. Lesnewsky, supra, 164 Conn. at 335, 321 A.2d 453. The presumption, however, is rebuttable. Kelly v. Ivler, supra; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra. The reservation will be interpreted as creating an appurtenant easement if it appears, from the surrounding circumstances and other relevant provisions in the deed, that the parties intended the easement to run with the land. Kelly v Ivler, supra; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra. Several factors may rebut the presumption. They are (1) whether the language of the reservation indicates that the easement is intended to run with the land, (2) whether the easement is of value to the dominant estate itself, and (3) whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to use the easement. Kelly v. Ivler, supra, 187 Conn. at 43-44, 450 A.2d 817; Leabo v. Leninski, supra, 182 Conn. at 614-15, 438 A.2d 1153; Dunn Bros., Inc. v. Lesnewsky, supra, 164 Conn. at 335-36, 321 A.2d 453.

In this case, the easement is presumed to be in gross because the reservation in the Otto-Coyne deed does not use the language "heirs and assigns." After considering the language of the reservation and the other relevant provisions of the deed in light of the surrounding circumstances, we conclude that the presumption has not been rebutted.

The language of the deed expressed an intent to create an easement in gross. The reservation not only lacked words of inheritance, it also lacked the terms "appurtenant" and "runs with the land," which have been recognized as expressions of an intent to create an easement appurtenant. See Kelly v. Ivler, supra, 187 Conn. at 44, 450 A.2d 817; Dunn Bros., Inc. v. Lesnewsky, supra, 164 Conn. at 336, 321 A.2d 453. In fact, the reservation used language indicating that the easement was personal. The reservation stated that the right-of-way was reserved for the "grantors herein " (emphasis added), which indicates that the reservation was in favor of the particular...