Taylor v. Dennehy

• Decision Date: 14 February 1950
• Court: Connecticut Supreme Court
• Parties: TAYLOR v. DENNEHY. Supreme Court of Errors of Connecticut

Page 596

71 A.2d 596

136 Conn. 398

TAYLOR v. DENNEHY.

Supreme Court of Errors of Connecticut.

Feb. 14, 1950.

Joseph B. Morse, New Haven, with whom, on the brief, was Thomas F. Seymour, New Haven, for the appellant (plaintiff).

J. J. Henry Muller, III, and William L. Beers, New Haven, for the appellee (defendant).

Before MALTBIE, C. J., JENNINGS, DICKENSON and BROWN, JJ., and INGLIS, Superior Court Judge.

MALTBIE, Chief Justice.

In this action the plaintiff sought damages and an injunction based on a claimed right of way over the land of the defendant, and from a judgment for the latter he has appealed. The plaintiff claimed the right of way both by grant and by prescription.

The facts stated in the finding, with such changes as the plaintiff is entitled to have made, present this general situation: In 1927 Margaret C. Taylor, the wife of the plaintiff, owned two lots in Madison, one of which, lot 8, fronts southerly on Long Island Sound, and the other, lot 22, lies directly north of and across a highway from lot 8. On both lots were summer cottages, and on the rear of lot 22 were two garages. The community then was and has since continued to be primarily one of summer residents. On April 7, 1927, Mrs. Taylor conveyed lot 8 to her niece, Helen Ward Dignan, by a warranty deed which, after referring to a map on file in the town clerk's office and stating the boundaries, contained these provisions: 'Together with an easement or right of way over lot #22 * * * 10 feet in width along the Westerly line of said lot extending Northerly to the garages in the rear of said lot, together with the use of one of said garages; and in the event that said garages are moved farther Northerly said right of way shall extend northerly to said garages. Hereby reserving a right of way over said lot #8 three feet in width along the Westerly line thereof from the highway to the Sound; together with the household furniture, furnishings and household equipment contained in the dwelling situated on lot #8 above described.' On May 21, 1946, Mrs. Dignan conveyed the lot to the defendant; the deed had the usual habendum clause with the words 'To have and to hold, the above granted and bargained premises, with the appurtenances thereof'; but no mention was made of the rights of way contained in the deed from Mrs. Taylor to Mrs. Dignan. Apparently to clear up any uncertainty in that deed, on June 13, 1946, Mrs. Dignan made a quitclaim deed to the defendant of the right of way over lot 22 to the garages located on it, 'together with such right as the Releasor has to use one of said garages.'

On June 7, 1927, Mrs. Taylor conveyed lot 22 to her brother-in-law Harry Rogers by warranty deed; it was executed in New Jersey and the plaintiff joined as a grantor; it contained the usual habendum provision in such deeds, 'To have and to hold, the above granted and bargained premises, with the appurtenances thereof'; but it made no specific mention of the rights created in Mrs. Taylor's previous deed to Mrs. Dignan. On March 31, 1947, Rogers conveyed this lot to the plaintiff; the deed contained this provision: 'Together with a right of way of 3 feet, along the west side of lot #8 * * * and subject to right of way of 10 feet along the west side extending from highway northerly to the garages in the rear of the premises herein conveyed; Together with the use of one of said garages, reference being had' to the deed from Mrs. Taylor to Mrs. Dignan.

Unless the occupants of the cottage on lot 22 can cross lot 8, the only access they have to the water front is by proceeding along the highway for a short distance to a beach open to the public. In 1927 and for a long time thereafter there was a fence along the highway where lot 8 abuts upon it. At the northwest corner of the lot there were trees of substantial size and bushes which would materially interfere with the use of the strip of land next the west boundary of the lot over which the right of way is claimed. For a number of years the occupants of the cottage on lot 22 crossed lot 8 for the purpose of going to the beach. To do so for most of the time they entered lot 8 through a gate near the middle of the north boundary, went diagonally to the west, then along the westerly boundary about 60 per cent of its length, crossed in front of the cottage and went down steps near the middle of the south boundary. During one or two seasons, however, separate steps were installed near the westerly boundary of the lot. During practically all the time between 1927 and 1947 the two properties were occupied by close relatives except that occasionally one or both cottages were rented to friends.

The trial court found as a subordinate fact that the intent of the reservation in the deed from Mrs. Taylor to Mrs. Dignan was to create a right of way over lot 8 personal to the grantor rather than one appurtenant to lot 22. The meaning and effect of the reservation is to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding...