Opinion
No. CV01-0096328
November 18, 2004
MEMORANDUM OF DECISION RE OBJECTION TO ACCEPTANCE OF REPORT OF ATTORNEY TRIAL REFEREE
The plaintiff and defendant own adjacent parcels of land in Essex, Connecticut. In June 2001, a dispute arose as to a right-of-way claimed by the plaintiff over the defendant's land after the defendant erected a masonry retaining wall and other structures that allegedly altered the configuration and contour of the land and obstructed the right-of-way. In a six-count amended complaint, the plaintiff alleged that the defendant's property was subject to a right-of-way in favor of her parcel pursuant to two separate deeds (counts one and two), that there existed easements by necessity (fourth count) and by implication (fifth count), and that the defendant maliciously obstructed her right-of-way (sixth count).
The plaintiff withdrew the third count, alleging adverse possession at the time of trial.
The plaintiff sought damages and a permanent injunction prohibiting the defendant from obstructing her right-of-way. In response, the defendant filed an answer, eight special defenses and a two-count counterclaim, the first count seeking to quiet title and the second claiming tortious interference with the defendant's right to use the property. The court referred the matter to an attorney trial referee (ATR) who, after conducting a hearing, filed a report and submitted a memorandum of decision. The referee found that the defendant's property was subject to a right-of-way in favor of the plaintiff and that an injunction should be issued requiring the defendant to dismantle the masonry retaining wall. The referee also concluded, however, that the plaintiff was not entitled to damages.
The defendant filed preliminary objections to the referee's report along with a motion for extension of time to file both the transcript of the hearing before the referee and any further objections. The court granted the motion for an extension of time, but the defendant did not file the transcript or further objections to the referee's report, nor did it file a motion seeking additional time in which to do so. When the parties next appeared before the court for a hearing on the defendant's preliminary objections, its counsel informed the court that it had not yet procured a copy of the transcript and requested additional time to do so. The plaintiff did not dispute that the defendant had seasonably ordered the transcript from the court reporter, but the court denied the defendant's oral motion for a continuance to file the transcript and further objections, and it overruled the defendant's preliminary objections. The court, Aurigemma, J., then rendered judgment in accordance with the referee's report.
The defendant appealed, based on the claim that the court had deprived the defendant of the opportunity to file a transcript of the proceedings conducted before the referee and to file further objections to the report, as provided for by Practice Book § 19-18, despite having requested an extension of time within which to do so. The Appellate Court reversed and remanded the case to this court for further proceedings. Irving v. Firehouse Associates, LLC, 82 Conn.App. 715, 846 A.2d 918 (2004).
The parties eventually obtained the transcript, and the defendant filed a pleading entitled "Additional Objections and Exceptions to Acceptance of Report of Attorney Trial Referee and Motion to Correct." The plaintiff filed a response, and argument was held before the undersigned.
Practice Book § 19-17(a) discusses the function of the trial court in reviewing reports of attorney trial referees. It provides:
The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court.
"[T]he trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report." (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). It must also insure that the report does not contain "legal conclusions for which there are no subordinate facts." (Internal quotation marks. omitted.) Id. Third, the report must be reviewed to determine if it is "legally and logically correct . . ." (Internal quotation marks omitted.) Id., 103. "A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . . . or the Superior Court reviewing the findings of . . . attorney trial referees." (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). A fact finder's recommendations should be accepted when "there is nothing that is unreasonable, illogical or clearly erroneous in the findings of the fact-finder and the reasonable inferences that may be drawn therefrom." Id., 425.
The defendant has now submitted the full transcript of the hearing before the attorney trial referee, Gregory Harris. Based on that transcript, it argues that findings four through nine, inclusive, and findings sixteen and seventeen of the attorney trial referee's report were not properly reached on the basis of the subordinate facts. It also argues that the referee erred as a matter of law in prohibiting relevant evidence and that it found in favor of the plaintiff contrary to General Statutes § 47-33b et seq., the Marketable Record Title Act.
The factual findings to which the defendant objects are the following:
The Firehouse parcel is subject to a right of way in favor of Lot 25A referred to in a warranty deed from the town of Essex to the Essex Fire Engine Company No. 1, dated August 15, 1932, and recorded on August 17, 1932, in the Essex land records in volume 22 at page 422 (the "1932 deed"). [1.4]
The language in the 1932 deed concerning the right of way states: "the condition being that a right of way shall be left open to the property of Alfred W. Keiss in the rear." [1.5]
Alfred W. Keiss ("Keiss") no longer owned 25A at the time of the 1932 deed. He had earlier conveyed it and retained other land abutting 25A to the east. The right of way language in the 1932 deed nevertheless refers, not to the land Keiss owned in 1932, but to Lot 25A that he no longer owned. [1.6]
The land subject to the right of way lies immediately to the south of the principal structure on the Firehouse parcel. At that point, the land slopes sharply downhill (east), away from Prospect Street. In the first half of 2001, contractors acting for the defendant, as part of a large renovation project on the Firehouse parcel, built a parking pad immediately south of the building on the Firehouse parcel. The purpose of the parking pad was to serve a residential apartment in the southern part of the Firehouse building. Although there was an ample parking lot to the north of the Firehouse building, the parking pad was just a step or two from the door to the south apartment. It is a considerable convenience to any tenant of that apartment. The pad, however, occupies and obstructs all but a few feet of the space between the south end of the building and the southern boundary of the Firehouse parcel, where the parcel abuts 25 and 25A. As a result, there is no room for a motor vehicle to pass along the area of the plaintiff's right of way. Even passage by foot along the narrow space between the raised pad and the property line is difficult and inconvenient. The parking pad blocks the right of way for vehicles and limits it for traffic on foot. The tenants of 25A (the "back lot") park vehicles on Prospect Street. They make their way to the back lot along a downhill footpath on the south side of the two-family house on the front lot (lot 25). This alternative access is not a matter of right. [1.7]
The Firehouse parcel is subject to a right of way in favor of Lot 25A referred to in a warranty deed from the First Baptist Church to the Essex land records in volume 9 at page 350 (the "1897 deed"). [2.4]
The 1897 deed states in pertinent part: "the condition being that a right of way shall be left open to the property of William P. Gladwind in the rear." The property of William P. Gladwind referred to in the 1897 deed is 25A. [2.5, 2.6]
The defendant did not prove the allegations of the third and fourth special defenses by a preponderance of the credible evidence.
The right of way was not shown to be so ambiguous and uncertain as to length, width, purpose, and other particulars as to be void and unenforceable. The right of way extends in width from the line of the south side of the building on the Firehouse parcel to the southern boundary of the Firehouse parcel and in length from Prospect Street to the eastern end of 25A. The right of way permits any use that is reasonable connected with the reasonable use of the land to which it is appurtenant, not limited to the users to which the land was being put when the easement was granted. At present, use of the right of way for pedestrian and vehicular access to and from 25A is reasonable.
The defendant also complains that the attorney trial referee failed to accept its proposed findings of fact numbers 4, 6, 44 and 51 through 72 as follows:
No Counts in the plaintiff's complaint claim a right of way by virtue of the chain of title to the plaintiff of 25A Prospect Street, Essex, Connecticut
The deed from The Town of Essex to The Essex Fire Engine Company No. 1, Inc. dated August 15, 1932 includes "the condition being that a right of way shall be left open to the property of Alfred W. Keiss in the rear." This deed also incorrectly referenced Keiss as an abutter to the South of the parcel being conveyed.
The plaintiff failed to introduce any evidence that a horse or "horse and buggy" could have or did traverse the area between the Firehouse Associate's first piece and 25A Prospect Street, Essex, Connecticut.
Prior to the refurbishing of Firehouse Associates, LLC's property, a door together with a four-foot concrete pad existed on the southerly end of the Firehouse property between the Firehouse building and 25 Prospect Street and included a railing to protect from the severe slope between the Firehouse property and 25A Prospect Street, Essex, Connecticut.
Any right of way rising out of the Firehouse Associates LLC's chain of title in favor of an adjoining owner was void ab initio under the doctrine of unity of title which was the law in 1897, 1932, 1961 and 1995.
The plaintiff filed a response to the defendant's objections to acceptance of the ATR's report on June 18, 2004. Argument was had before the undersigned, who, after reviewing the transcripts, exhibits and memoranda of law, concludes that the objections to the ATR's report should be overruled, for the reasons which follow:
1. Findings of Fact 4, 5, 6, 8 and 9
The defendant first objects to the ATR's finding that the Firehouse lot is subject to a right of way in favor of lot 25A referred to in the 1932 deed according to the language, "the condition being that a right of way shall be left open to the property of Alfred W. Keiss in the rear," and the 1897 deed according to the language, "the condition being that a right of way shall be left open to the property of William P. Gladwind in the rear." The defendant bases its objection on the claim that the language in the 1897 and 1932 deed is ambiguous. The defendant contends that at the time the easement was referenced in the 1932 deed, Keiss no longer owned lot 25A, and therefore the ATR improperly concluded that "[t]he right of way language in the 1932 deed nevertheless refers, not to the land Keiss owned in 1932, but to Lot 25A that he no longer owned."
The ATR interpreted the language in the 1932 deed to be a mistake, a misnomer. He maintained that the finding of an easement in favor of lot 25A remained in line with the original intent of the parties to the deed. This finding is supported by the record. Although the defendant points out that Keiss and Gladwind may have owned other properties in the surrounding area to which the easement may have belonged, the defendant's own witness contended that the easement was only seventy feet long, rendering the easement unable to serve any alternative property that may have been owned by Keiss and Gladwind at the time of these conveyances. A right of way, therefore, in favor of the land that Keiss or Gladwind owned at that time would be an unreasonable interpretation because plots of land other than lot 25A were too far from the easement to reap the benefits of the right of way. The plaintiff's witness offered testimony that Keiss and Gladwind were both prior owners of lot 25A. This evidence suggests that it is possible that a deed preserving the right of way in favor of property owned by Keiss or Gladwind may have intended to maintain the-easement in favor of lot 25A which had formerly been owned by Keiss and Gladwind, and may have mistakenly identified Keiss or Gladwind as the property owner at the time of The conveyance. As a result of this evidence, the ATR could have properly concluded that an easement existed in favor of lot 25A as created in the 1932 deed.
2. Finding of Fact 17 CT Page 17882
The defendant bases its objection to Finding of Fact 17 on its assertion that "[t]he right of way was not shown to be so ambiguous and uncertain as to length, width and purpose, and other particulars, as to be void and unenforceable." The defendant claims that, to the contrary, the language in the 1897 deed and subsequently in the 1932 deed was ambiguous in terms of the length and width of the easement, and, that the easement referred to in these deeds is therefore void and unenforceable. In fact upon cross examination of the plaintiff's witness, Attorney Johnson, the defense elicited an admission consistent with its interpretation of the language in the 1897 and 1932 deeds.Connecticut has recognized easements where the party claiming the easement fails to provide a particular length or width that existed at the time of the grant. See Beneduci v. Valadares, 73 Conn.App. 795, 802, 812 A.2d 41 (2002). "[W]hen an easement is not specifically defined [however] the rule is that the easement be only such as is reasonably necessary and convenient for the purpose for which it was created." Id., 803, citing Pudim v. Moses, 20 Conn.Sup. 311, 313, 134 A.2d 478 (1957). Although the defense successfully presented testimony and evidence to suggest that the initial 1897 deed and subsequent deeds failed to explicitly set forth the dimensions of the right of way, the plaintiff presented compelling evidence demonstrating that the present and historical use of the right of way, and the physical composition of the right of way in relation to surrounding lots, imply given dimensions of the right of way in question. As part of his opinion testimony, Attorney Cronan, a defense witness, conceded that should a right of way exist, it must be seventy feet long. Although no writings have provided clear dimensions for the right of way, evidence in the record, including testimony regarding the use of the right of way, the physical characteristics of the right of way and the surrounding land and pictures, all provide support for the ATR's concluding that the dimensions of the right of way and its purpose are not so ambiguous as to render the right of way void and unenforceable. Attorney Irving, a plaintiff's witness, testified as to his use of the right of way to drive maintenance vehicles up to the dwelling on lot 25A to make repairs. Additional testimony was offered by the plaintiff regarding a foot path that had been worn within the proposed boundaries of the easement. Within this finding of fact, the ATR offers an explanation as to what he concludes to be the dimensions of the right of way; "The right of way extends in width from the line of the south side of the building on the Firehouse parcel and in length from Prospect Street to the eastern end of 25A. The right of way permits any use that is reasonably connected with the reasonable use of the land to which it is appurtenant."
In addition, the defendant contends that there is little or no physical evidence to suggest that the easement has been used on a regular basis for vehicle or foot passage since its creation in the defendant's root of title deed, the 1932 deed. In Connecticut, easements may be created by, inter alia, grant, necessity, implication and prescription. D'Addario v. Truskoski, 57 Conn.App. 236, 242, 749 A.2d 38, cert. denied, 253 Conn. 918, 755 A.2d 214 (2000). Therefore, where an easement has been created by grant, the court need not address the requirements of alternative types of easements such as continuous use. In addition, as explained by the plaintiff's witness, Attorney Johnson, where a right of way has been created by grant and is of record, the party claiming the right of way need not continue to use the easement with any regularity in order to maintain an interest in the land. This finding by the ATR is based logically on evidence in the record and is therefore not erroneous.
3. Finding of Fact 7
The defendant also objects to the entirety of Finding of Fact Seven, which describes the location of the land subject to the right of way and the physical characteristics of the land surrounding and including the easement. In addition, this finding of fact describes the construction and purpose of the parking pad and the extent of the obstruction of the right of way caused by the parking pad. Since a right of way does indeed exist where the parking pad now stands, it is clear that the parking pad inhibits the Irvings' ability to move foot or vehicular traffic through the right of way. The parking pad built by Firehouse "blocks the right of way for vehicles and limits it for traffic on foot."
4. Finding of Fact 16
The defendant objects to the finding of fact 16, that it "did not prove the allegations of the third and fourth special defenses by a preponderance of the credible evidence." In the third special defense, the defendant asserts that "[t]he plaintiff's claim of easement, if one existed, was personal to Gladwind and Keiss and did not run with the land." The defendant claims that because deeds in the plaintiff's chain of title to the property fail to convey the interest stating "heirs, successors and assigns," the right of way is personal to Gladwind and Keiss. The defendant is correct in that, "[t]he absence of words of inheritance [or succession in a covenant] while not conclusive, is indicative that only a personal right . . . was intended." Brown v. Connecticut Light and Power Co., 145 Conn. 290, 298, 141 A.2d 634 (1958). "The general rule is that an easement may be construed as personal only when the deed language fails to contain the words `heirs, successors and/or assigns.'" Mandes v. Godisken, 57 Conn.App. 79, 82 n. 6, CT Page 17884 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000). The mere absence of such language, however, does not automatically create an interest in land that is personal to the immediate parties to the conveyance. See Brown v. Connecticut Light and Power Co., supra, 145 Conn. 290.
In the present case, the plaintiff has offered into evidence the chains of title to both the Firehouse property and lot 25A. Through examination of all of the deeds, it is clear that each deed indicates, through varying language, that the benefits and burdens regarding the easement in question carry on to the subsequent owner of the property. The defendant attempts to place significance on the changed language from deed to deed. Attorney Johnson, however, testifying as an expert witness on behalf of the plaintiff, explained throughout his testimony that although the language from deed to deed may have varied from warranty language to quitclaim language, each conveyance nonetheless preserved the easement. In fact, the defendant's witness, Attorney Cronan, admitted that while representing the defendant at the time of the closing on the Firehouse property, he had traced the easement through the chain of title deeds. He knew that there was an easement but was not sure that the easement pertained to the Firehouse property. Since the defendant did not prove his third special defense by a preponderance of the evidence, the ATR's finding is logically supported by evidence in the record and is not erroneous.
In the fourth special defense the defendant claims that "the plaintiff or her predecessors in interest have abandoned any claim to any right of way or easement." In support of this defense, the defendant offered testimony that the easement was not mentioned after 1932 until more recent deeds in the chain of title, and that therefore, the easement had long been abandoned since the first references to it in the 1897 and 1932 deeds. In addition, the defendant asserts that by erecting a fence that partially inhibits access to 25A from the Firehouse property, and by failing to prove recent and consistent use of the easement, the plaintiff has effectively abandoned the easement.
"Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law. The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement." Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241 (1930). Usually, abandonment will be found where there has been "some affirmative act indicative of an intention to abandon." (Internal quotation marks omitted.) Friedman v. Westport, 50 Conn.App. 209, 212, 717 A.2d 797, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). "[N]onuser, as of an easement, or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." (Internal quotation marks omitted.) Carothers v. Capozriello, 215 Conn. 82, 130, 574 A.2d 1268 (1990).
In the present case, the defendant claims that little evidence has been presented to the court regarding continued use of the easement, and that in constructing a fence, the plaintiff has abandoned the easement. In addition, the defendant presented aerial photos and testimony from the town's historian, claiming that while he attended Essex Grammar School from 1939 until 1947, located across the street from the proposed easement, he did not notice a path between the Firehouse property and the adjacent property. The plaintiff, however, has presented physical evidence and testimony regarding the continued use of the easement. In addition, it is clear from the record that regardless of the frequency of use of the right of way and the frequency with which the easement is mentioned in deeds subsequent to the root of title deeds, the plaintiff continues to have no intention of abandoning the easement. Therefore, the ATR's conclusion that the defendant also has not proved the fourth special defense by a preponderance of the evidence is logically founded on evidence in the record and is not erroneous.
5. Marketable Record Title Act
The defendant also argues that since a clear and unambiguous easement is mentioned for the first time in the 1961 deed, such creation of an easement does not meet the requirements of § 47-33b, the Marketable Record Title Act ("Act"). The defendant interprets the Act to state that to have a marketable record title to an interest in land, the owner must have an uninterrupted interest in the land for forty years from the date of the root of title.
General Statutes § 47-33b(a) defines a "marketable record title" as "a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title." "Root of title" is defined in General Statutes § 47-33b(e) as, "that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined." In addition, General Statute § 47-33c provides: "Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest."
Although § 47-33c clearly establishes marketable record title for landowners who have an unbroken chain of title to an interest in land for forty years or more, it does not provide that unbroken title for forty years is the exclusive means by which to establish a transferable interest in an easement. The Act automatically extinguishes all prior interests in land (unless excepted) when a landowner has an unbroken chain of title for forty years. The Act, however, does not appear to suggest that an interest in land is only considered marketable record title if the conveyor has had an unbroken chain of title for not less than forty years. Therefore, the mere fact that the root of title for the easement for the plaintiff may be the 1961 deed does not preclude the plaintiff from possessing marketable record title to the easement she claims. As described by the plaintiff's witness, Attorney Johnson, language establishing the easement is clearly referenced as far back as the 1897 and 1932 deeds.
In addition, the plaintiff argues that should the Act apply, the plaintiff has, nonetheless, possessed an uninterrupted chain of title for not less than forty years. "[A] purchaser of the dominant estate — the estate benefitted by the easement — may have problems discovering such easements by way of a title search . . . We note, [however], that a purchaser of the servient estate — the estate burdened by the easement — will have sufficient notice of such easements because the language of its deed and the surrounding circumstances will manifest such an intent." Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 145 n. 8, 735 A.2d 798 (1999). Although the case was decided within the context of the unity of title doctrine, Bolan seems to suggest that the duration of the existence of an easement, and notice thereof, should be based on the servient estate's chain of title. Therefore, the root of title deed for the defendant, the 1932 deed, would be the relevant deed from which to measure forty years. Accordingly, the Marketable Record Title Act does not render the easement in favor of lot 25A unenforceable.
6. Unity of Title Doctrine
Finally the defendant argues that the unity of title doctrine precludes the recognition of an easement in favor of lot 25A. The unity of title doctrine explains that, "[n]o right of way appurtenant can be created without a dominant as well as a servient estate . . . The dominant estate enjoys the benefit of the way, and the servient estate bears the burden. The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate." (Internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 143. In Bolan, the Connecticut Supreme Court overruled the unity of title doctrine stating that there is, "no reason to adhere to the unity of title doctrine and ignore the expressed intention of the parties to the . . . deeds." Id. 144. The court further concluded that, "the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve." Id. 144-45.
The defendant argues that Connecticut courts have not abolished the unity of title doctrine in cases similar to the instant case where, "the intentions of Gladwind and Keiss are virtually unknown," and that "[t]he purported abandonment of the doctrine does not negate the value of inquiry about the common grantor's intent." Bolan, however, abolished the unity of title doctrine in its entirety including the need for any inquiry regarding the intent of the grantor. Bolan v. Avalon Farms Property Owner's Assn., Inc., supra, 250 Conn. 136.
In addition, the plaintiff asserts that the abolition of the unity of title doctrine may be retroactively applied to the present case. Although Bolan abolished the unity of title doctrine well after the present easement was created, courts have ruled that the abolition of this doctrine may be retroactively applied to easements created prior to Bolan. "Judgments rendered in decisions that are not limited by their terms to prospective application in other cases usually are applied retroactively to other cases pending at the time." Perkins v. Fasig, 57 Conn. App 71, 75, 747 A.2d 54 (1999), cert. denied, 253 Conn. 925, 754 A.2d 797 (2000). "[T]here is good reason to conform to the general rule that allows Bolan to be applied retroactively." Id. Therefore, the court concludes that the unity of title doctrine does not apply in this case.
7. The Defendant's Objection to the Sustaining of Objections to the Town Historian's Testimony
The defendant lastly contests the repeated sustaining of the plaintiff's objections to the testimony of the town historian. The defense sought to have the town historian testify, inter alia, to the ownership of property surrounding and including the Firehouse property and lot 25A. The plaintiff repeatedly objected to this testimony asserting that his testimony as to the ownership of the properties was based on hearsay, that the defense had not qualified him as an expert, and, therefore, as a lay witness, he could not testify as to the title ownership of each property, but only as to his personal knowledge and observations. In addition, the plaintiff objected to testimony regarding the town historian's personal knowledge where the defense had failed to lay a foundation for such knowledge.
The plaintiff claimed that the town historian's testimony as to the ownership of surrounding properties was based on a review of paperwork that was not in the record.
"The trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion . . . Additionally, before a party is entitled to a new trial because of an erroneous evidentiary ruling, [he or she] has the burden of demonstrating that the error was harmful . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result." (Internal quotation marks omitted.) Advanced Financial Services, Inc., v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 28-29, 830 A.2d 240 (2003).
Even if the town historian had been allowed to testify as to his opinion of the ownership of the properties, the outcome of the fact finding and this court's ruling on the objection to the acceptance of the ATR report in light of all of the evidence would remain the same. The sustained objections the defendant contests relate to questions designed to elicit information about ownership of the Firehouse parcel, lot 25A, and surrounding properties. The plaintiff does not appear to contest the defendant's stance as to who owned the relevant properties. In addition, ownership of the Firehouse Parcel, lot 25A and the surrounding properties was not found to be relevant to the issue of whether an easement was preserved since the intention to create a lasting easement in favor of lot 25A is clear. Therefore, this court need not address the merits of these objections.
The ATR acknowledged that Keiss and Gladwind may not have owned the properties referred to in the 1897 and 1932 deeds at the time the easement was created in these deeds. The ATR, however, found that the reference to Keiss and Gladwind was likely a mistake, and that the intention to create a lasting easement for lot 25A was clear.
CONCLUSION
The findings of fact in the ATR's report are based on evidence in the record and supported by underlying facts presented at the hearing. Accordingly, the defendant's objections to the acceptance of the ATR's report are overruled, and judgment will enter in accordance with that report.
Johathan E. Silbert, Judge