Opinion
No. CV05-4002282 S
November 9, 2006
MEMORANDUM OF DECISION
This is an action by the plaintiff seeking an injunction against the defendants prohibiting them from obstructing, blocking or otherwise interfering with her right to connect to a septic tank and septic fields on defendants' property and her right to enter upon the defendants' property to clean and repair the septic system.
Many of the facts that give rise to this action are not in dispute.
Plaintiff's late husband purchased and occupied a small lot and cabin in the Danbury neighborhood known as Wanarest bordering Candlewood Lake approximately 40 years ago. The purchase price was paid over time by installments and plaintiff's husband, John J. Watson, received a deed in 1980 when the purchase price was fully paid. Mr. Watson transferred the property into joint tenancy (survivorship) with the plaintiff by deed in 1983. He died in 1996 leaving plaintiff as the surviving owner. Plaintiff's property is Lot No. 4 on the Wanarest map, which map is attached as Appendix A.
Editor's Note: Appendix A is not reproduced herein.
The common grantor to both the plaintiff's and the defendants' chain of title is Ann G. Noce. The deed from Ann G. Noce to the plaintiff's late husband, dated May 22, 1980, contains the following language:
Together with and subject to the following:
1. A permanent right of way to a septic tank and drainage fields for the purpose of connecting, cleaning and repairing, which use and expenses are to be equally shared by the four units, Lots 2, 4, 6 and 7, and the Grantee agrees to pay his share of any such expenses.
2. The Grantor reserves a permanent easement and right of way over and across the above described premises for all electric lines and poles, water lines, gas lines, sewer lines and septic tanks as exist now or may be required in the future. (Emphasis provided.)
By deed dated September 15, 1983 and recorded on September 29, 1983, John J. Watson transferred the property into his name and the plaintiff's name in survivorship. That deed contained the same language as the deed from Ann G. Noce to the plaintiff's husband, John J. Watson.
Ann G. Noce also transferred to the defendants' predecessor in title, Arthur Lamme, Sr., the deed to Lot No. 7 on December 21, 1977. That deed contains the following language:
Together with and subject to the following:
1. A permanent right-of-way to the community septic tank and drainage fields, for the purpose of cleaning and repairing, which expenses are to be equally shared by four (4) units, Lots No. 2, 4, 6 and 7, using said tank and the Grantee agrees to pay his share of any such expense.
2. The Grantor, for her heirs and assigns, reserves a permanent easement and right-of-way over and across the above described premises for all electric lines and poles, water lines, gas lines, sewer lines and septic tanks as exist or may be required in the future. (Emphasis provided.)
Arthur Lamme, Sr. conveyed Lot No. 7 to Anna Valtsakis on June 8, 1978. That deed contained the same language referred to in the deed from Ann G. Noce to Arthur Lamme, Sr. Anna Valtsakis conveyed Lot No. 7 to Donna R. Cozza and Jens C. Krejlgaard on May 24, 1985, with that deed containing the same language as the deed to Arthur Lamme, Sr. deed referred to herein. Donna C. Krejlgaard, also known as Donna R. Cozza, and Jens C. Krejlgaard transferred Lot No. 7 to Lisa L. Lattin and Burton A. Lattin, Jr. by deed dated June 30, 1989. That deed also contained the following language:
Said premises are subject to the following: . . .
3. A permanent right of way to the community septic tank and drainage fields, for the purpose of cleaning and repairing and to the community well for the purpose of drawing water and repairing, which expenses are to be equally shared by four (4) units (Units Nos. 2, 4, 6 and 7) using said tank and said well, and the grantees agree to pay their share of any such expense.
4. Ann G. Noce, her heirs and assigns, reserves a permanent easement and right of way over and across the above-described premises for all electric lines and poles, water lines, gas lines, sewer lines, and septic tanks as exist or may be required in the future.
Lisa L. Lattin and Burton A. Lattin, Jr. transferred Lot No. 7 to the defendants by deed dated June 15, 2001. That deed also contained the following language:
Said premises are subject to the following: . . .
3. A permanent right of way to the community septic tank and drainage fields, for the purpose of cleaning and repairing and to the community well for the purpose of drawing water and repairing, which expenses are to be equally shared by four (4) units (Units Nos. 2, 4, 6 and 7) using said tank and said well, and the grantees agree to pay their share of any such expense.
4. Ann G. Noce, her heirs and assigns, reserves a permanent easement and right of way over and across the above-described premises for all electric lines and poles, water lines, gas lines, sewer lines, and septic tanks as exist or may be required in the future.
The court finds the following additional facts. The plaintiff's property is served by a septic tank located in the southeast corner of the adjoining Lot No. 7 and has never, during the plaintiff's approximate 35 years of use, been served by another septic system. The City of Danbury will not approve an independent septic system on Lot No. 4. The original owners of the other three lots were: Berkowitz (Lot No. 2), Coppola (Lot No. 6), and Lamme (Lot No. 7).
The deeds in evidence all acknowledge the right of Lot Nos. 2, 4, 6, and 7 to connect to the tank and fields. Until the last few years there have been no difficulties or problems with the septic. When Mr. Watson and Mr. Omasta, a potential buyer of Lot No. 4, turned on the water and flushed the toilets, the water backed up into the house which had never before happened. There appeared to be a blockage between the house and the tank when he and John Watson inspected the house and tested the water service and plumbing. He based his conclusion on a physical inspection of the septic tank which revealed nothing running into the septic tank from the pipe which connected to the Watson house. He determined that there was a clog 6 to 12 inches into the pipe from the point at which the pipe enters the tank. Robert Arconti, a licensed septic inspector and installer, was hired to inspect and diagnose the problem. Mr. Arconti identified a blockage in the line 47.5 feet from the house at a point just prior to entering the tank on Lot No. 7.
The defendant, Michael Sweeney, admitted that the septic tank in question is on his property on Lot No. 7. He does not believe that Lot No. 4 is connected to the septic tank on the basis that nothing flows through the Watson pipe. There are four lines which run into the septic tank. It is obvious that a blockage in the pipe would prevent any flowage into the septic tank from the plaintiff's property.
The defendants raised two claims in defense of this action, namely: (1) the plaintiff's deed fails to contain any language which would entitle her to an easement or a right-of-way to a septic tank or drainage fields located on the property of the defendants, because the purported right-of-way language fails to identify the property that is burdened by the right-of-way; and (2) even if there is sufficient language in the deed, said language ran for the benefit of the original owner only and not for the plaintiff because it failed to contain the necessary language that it was for the benefit of the heirs and assigns of the grantee.
These claims will be discussed seriatim: CT Page 20698
THE DEFENDANTS' CLAIM THAT THE PLAINTIFF'S DEED FAILS TO CONTAIN ANY LANGUAGE THAT WOULD ENTITLE HER TO AN EASEMENT OR A RIGHT-OF-WAY TO A SEPTIC TANK OR DRAINAGE FIELDS LOCATED ON THE PROPERTY OF THE DEFENDANTS BECAUSE THE PURPORTED RIGHT-OF-WAY LANGUAGE FAILS TO IDENTIFY THE PROPERTY THAT IS BURDENED BY THE RIGHT-OF-WAY. In support of this claim the defendants make the following argument:
The specific language that forms the basis of the plaintiff's claim can be found in numbered paragraph 1 of Plaintiff's Exhibit 2A. That paragraph indicates that title to the property is being transferred to the plaintiff "Together with and subject to the following: 1. A permanent right of way to a septic tank and drainage fields for the purpose of connecting, cleaning and repairing, which use and expenses are to be equally shared by the four units, Lots 2, 4, 6 and 7, and the Grantee agrees to pay his share of any such expenses." It is the contention of the defendants that since this language fails to generally identify the property that is to be burdened by the right of way and more importantly fails to specifically identify the Sweeney parcel, it cannot create a deeded right of way on the property of the defendants.
The above quoted language fails to provide any information as to the location of the septic tank and drainage fields and fails to describe the property that is to be burdened by the right of way. Moreover, it does not indicate whether the septic tank and fields are in existence or are to be built. "In order to create a right-of-way as an appurtenance to the dominant estate, both the dominant and servient estates must be identified." Branch v. Occhionero, 239 Conn. 199, 204, 681 A.2d 306, 308 (1996), Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725, 727 (1968).
The court is not persuaded by that argument.
It is true that the deed to Lot No. 4 does not identify the property that is burdened by the right-of-way. In order to create a right-of-way as an appurtenance to the dominant estate, both the dominant and servient estates must be identified. Branch v. Occhionero, 239 Conn. 199, 681 A.2d 306 (1996). That identification does not have to be in the deeds themselves. In Dean v. Riley Jr., 31 Conn.App. 87, 623 A.2d 521 (1993), the trial court admitted testimony as to the creation of the right-of-way and the property the right-of-way was intended to benefit. That procedure was approved of on appeal. The issue in this case is whether there is evidence presented to identify the servient estate. In this case the plaintiff presented substantial evidence to identify the servient estate as Lot No. 7. The defendant Michael Sweeney, one of the owners of the servient estate, admitted that the septic tank in question is on his property on Lot No. 7. He also testified that he now owns both Lot Nos. 6 and 7. He further admitted that Lot Nos. 2, 6 and 7 are connected to the septic tank on his property. The plaintiff's son testified that from his personal observation, four lines run into the septic tank on Lot No. 7. He further testified that in the early 1990s, he replaced the entire line from Lot No. 4 to the tank on Lot No. 7 and that Lattin resided on Lot No. 7 at that time. This court finds that the servient estate has been identified as Lot No. 7.
II. THE DEFENDANTS' CLAIM THAT EVEN IF THERE IS SUFFICIENT LANGUAGE IN THE DEED, SAID LANGUAGE RAN FOR THE BENEFIT OF THE ORIGINAL OWNER ONLY AND NOT FOR THE PLAINTIFF BECAUSE IT FAILS TO CONTAIN THE NECESSARY LANGUAGE THAT IT WAS FOR THE BENEFIT OF THE HEIRS AND ASSIGNS OF THE GRANTEE.In support of that claim the defendants argue in part as follows:
"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." Stiefel v. Lindemann, 33 Conn.App. 799, 806, 638 A.2d 642, 647 (1994). An easement in gross is one that belongs to the owner of the easement and is personal to the owners. An easement appurtenant is one that benefits a dominant estate and burdens a servient estate and unlike an easement in gross, it runs with the land. Dean v. Riley, 31 Conn.App. 87, 90-91, 623 A.2d 521, 524 (1993) . . .CT Page 20700
As a result of the foregoing, it is the defendants' position that even if the Court determines that a right of way has been created by the deed language at issue, such language failed to create an easement appurtenant that would benefit this plaintiff and, as a result, judgment for the defendants must enter.
A
The threshold question is whether or not the deeds in question mention heirs and assigns of the grantee. The granting clause of the right-of-way to the plaintiff's predecessor in title granted a permanent right-of-way to the community septic tank and drainage fields without mentioning heirs and assigns. The habendum clause in the deed to the plaintiff's predecessor in title reads as follows:
To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto him the said grantee his heirs, successors and assigns forever, to him and their own proper use and behoof.
And also, I the said grantor do for myself and my heirs, executors and administrators, covenant with the said grantee his successors, heirs and assigns, that at and until the ensealing of these presents, I am well seized of the premises, as a good indefeasible estate in FEE SIMPLE; and have good right to bargain and sell the same in manner and form as is above written; and that the same is free from all incumbrances whatsoever, except as hereinbefore mentioned.
And furthermore, I the said grantor do by these presents bind myself and my heirs, executors and administrators forever to WARRANT AND DEFEND the above granted and bargained premises to him the said grantee his successors, heirs and assigns, against all claims and demands whatsoever, except as hereinbefore mentioned. (Emphasis provided.)
The concept of appurtenant in the context of property law denotes a connection between two objects such that one is incident to the other. Bowman v. Williams, 5 Conn.App. 235, 497 A.2d 1015 (1985). This court finds that the permanent right-of-way to the community septic tank and drainage fields are appurtenant to Lot No. 4. The granting clause in the plaintiff's chain of title was for a "permanent" right-of-way. Webster's Dictionary defines permanent as existing perpetually, everlasting, intended to serve, for a long, indefinite period. In 58 A.L.R.2d 1374, the annotation deals with the effects of conflicts between the granting and the habendum clauses. While the annotation deals with cases from thirty-six states, none of the states include Connecticut. The updated annotation (August 2004) states in part as follows:
The inference which may be drawn from many of the foregoing cases, and generally also from certain of those . . . is that the rule giving decisive weight to the granting clause as against a habendum which conflicts with it as to the estate conveyed is in most connections a mere rule of construction subordinate to the purpose of ascertaining the real intention of the parties . . .
The rule of most jurisdictions, as disclosed by the later cases, is that, ordinarily at least, the real intention of the parties to a conveyance gathered from the instrument as a whole will prevail as to the estate conveyed, notwithstanding conflicts between the granting and habendum clauses in that respect. This holds true despite the fact that in most jurisdictions in which the rule of intention is laid down cases may be found . . . which recognize or even in particular instances apply, the rule giving superior weight to the granting clause . . .
Some of the granting clauses in question in the preceding sections hereof were in a mere general form, in that they purported to grant and convey the premises described without a use of any such words of inheritance or their equivalent as in the absence of statute have frequently been deemed essential to a conveyance in fee. It is to be observed, however, that only those cases whose rulings or propositions have been distinctly predicated on the merely general character of the granting clauses are noticed in the present section.
Those later cases which particularly deal with the point confirm the proposition that where a granting clause is merely general in form, purporting simply to convey premises described, without using words of inheritance or making any specification of the estate conveyed, habendum defining, explaining, or qualifying the estate intended will be given effect.
This court has been unable to find any cases dealing specifically with conflicts between the habendum clause and the granting clause.
In construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.
(Citations omitted; emphasis provided.) Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 728, 898 A.2d 270 (2006).
This court finds that the above rule in Irving should be applied when there is a conflict between the granting and habendum clauses.
In discussing "surrounding circumstances," the court in Kelly v. Ivler, 187 Conn. 31, 42-44, 450 A.2d 817 (1982), stated in part as follows:
"One circumstance which must be given great weight in the ascertainment of the intent of the parties is that the easement is of value to the dominant tenement itself. If it is of value to the property to which it is appurtenant and will continue to be of value whoever may own the property, that is strong evidence that the parties intended a permanent easement.". . .
(Citation omitted; emphasis provided.)
First it is clear that the grant in this case was for a permanent easement because the grant itself stated that it was for a permanent easement. Secondly, the grant is of value to the plaintiff's property because without the easement she would not have the use of a septic tank and sewer system to service her property since a septic tank and sewer system cannot be built on her property.
A reservation will be interpreted as creating a permanent easement if, from all the surrounding circumstances, it appears that that was the intention of the parties.
"One circumstance which must be given great weight in the ascertainment of the intent of the parties is that the easement is of value to the dominant tenement itself. If it is of value to the property to which it is appurtenant and will continue to be of value whoever may own the property, that is strong evidence that the parties intended a permanent easement. . . ."
In Blanchard v. Maxson, [ 84 Conn. 429, 433, 80 A. 206 (1911)] we stated that among the "surrounding circumstances" to be considered "are the relation or want of relation of the rights of way to the estate of the person to whom the grant is made, or to the other estate of the person by whom they are reserved or excepted, and the necessity they will meet or the benefit they will contribute in the enjoyment of such estate by its owner." . . . "Also significant is whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to exercise the easement . . ." . . . Relevant to this point is the trial court's observation that "[t]he testimony herein indicated that every deed in the chain of title from Marion McKenzie [sic] until the present indicates that the property was subject to the aforementioned right of way, including the mortgage deed executed by the defendants at the time of their purchase."
(Citations omitted.) Kelly v. Ivler, 187 Conn. 31, 39-43, 450 A.2d 817 (1982).
The easement in this case is of value to the dominant estate and will continue to be of value to the dominant estate whoever may own the property. That is strong evidence that the parties intended the easement to be a permanent easement. The court finds the following additional facts regarding the question of whether the easement was intended to be permanent. When the plaintiff and her husband moved out of the home located on Lot No. 7 in 1995, they turned over to Lisa Lattin all of the papers dealing with the collection of money for the cleaning of the septic tank. Lisa Lattin was the record owner of Lot No. 7 since June 13, 1989. For the previous approximate 35 years prior to 1995, the plaintiff and her husband had collected the funds needed to pay for the cleaning of the septic tank. That cleaning had been accomplished twice a year. Of significance is the fact that when Lisa Lattin transferred title to the defendants on June 15, 2001, that deed recognized the right of the plaintiff to the exercise of the permanent right-of-way. The plaintiff became a subsequent owner of the dominant estate when her husband died in 1996.
All of the deeds in the defendants' chain of title recognize the permanent right-of-way to the community septic tank and drainage fields for Lot No. 4.
An easement in gross belongs to the owner of it apart from his ownership or possession of any specific land and, in contrast to an easement appurtenant, its ownership is personal to its owners. Lichteig v. Churinetz, 9 Conn.App. 406, 411, 519 A.2d 99 (1986). If the easement is in its nature an appropriate and useful adjunct to the land conveyed, with nothing to show that the parties intended it to be a mere personal right, then it is an easement appurtenant. Birdsey v. Kosienski, 140 Conn. 403, 410, 101 A.2d 274 (1953). "Whether an easement . . . is appurtenant or in gross depends mainly on the nature of the right created and the intention of the parties creating it." Lichteig v. Churinetz, supra.
Dean v. Riley, 31 Conn.App. 87, 90, 623 A.2d 521 (1993).
It is clear that this easement in its very nature is an appropriate and useful adjunct to the land conveyed and there is nothing to show that the parties intended the use of the community septic tank and drainage fields as a personal right to the plaintiff's deceased husband.
This court further finds that even if the conflict between the habendum clause and the granting clause should not be resolved in favor of the habendum clause, that the presumption that the grantor and grantee intended the right-of-way to be in gross has been rebutted in this case. The three factors described in Stiefel as well as the surrounding circumstances and other relevant provisions of the deed clearly establishes that the presumption has been rebutted.
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 . . . The presumption, however is rebuttable . . . 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 . . . 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.
(Citations omitted; emphasis provided.) Stiefel v. Lindemann, 33 Conn.App. 799, 806-07, 638 A.2d 642 (1994).
These three factors in Stiefel will be considered seriatim:
(1) WHETHER THE LANGUAGE OF THE GRANT OF THE RIGHT-OF-WAY INDICATES THAT THE EASEMENT IS INTENDED TO RUN WITH THE LAND.
The language in the plaintiff's chain of title grants a permanent right-of-way to the community septic tank and drainage fields. The habendum clause includes the following:
To have and to hold the above granted and bargained premises, with the appurtenances thereto, unto him the said grantee his heirs, successors and assigns forever, to him and their own proper use and behoof.
This language indicates that the easement was intended to run with the land.
(2) THE ISSUE OF WHETHER THE EASEMENT IS OF VALUE TO THE DOMINANT ESTATE ITSELF.
The plaintiff testified in part as follows:
Q. Now, Mrs. Watson, it's true that the plan has been prepared for the installation of a septic system entirely within the boundary of your property. Is that correct?
A. The what?
Q. That the plan has been prepared for the installation of a septic system entirely within the boundaries of your property?
A. I don't understand what you mean.
Q. In other words, the construction of a brand-new septic system, tank and fields, that would exist entirely within the boundaries of your property?
A. There's no room for it.
Q. All right. So, you're not aware of any plan that's been prepared to allow that to happen?
A. No.
Q. Were you aware of any soil testing that was performed on your property to determine feasibility for constructing a septic system?
A. We tried, but they wouldn't even let us have a tank.
Q. And, when did — when was that?
(Transcript, 8/29/06, pp. 31-32.) It is clear that the use of the tank and septic system on the defendants' property is of value to the dominant estate since the plaintiff's property is not adequate to have a septic system with tank and fields on the plaintiff's property.
(3) THE ISSUE OF WHETHER THE OWNER OF THE SERVIENT ESTATE RECOGNIZED THE RIGHT OF THE SUBSEQUENT OWNERS OF THE DOMINANT ESTATE TO USE THE EASEMENT.
The subsequent owner of the dominant estate is the plaintiff since the original deed was only in her husband's name. The plaintiff became the sole owner when her husband died in 1996. The issue then is whether the owner of Lot No. 7 recognized the plaintiff's right to the use of the easement after the death of the plaintiff's husband in 1996.
It is significant that all of the deeds in the defendants' chain of title recognize the fact that Lot No. 4 has a permanent right-of-way to the community septic tank and drainage fields. After the plaintiff became the sole owner of Lot No. 4 in 1996, the deed to the defendants on June 15, 2001 also recognized the permanent right-of-way to the community septic tank and drainage fields for Lot No. 4.
From all the evidence presented, the court finds that the presumption that the grantor and grantee intended the right-of-way to be in gross has been rebutted in this case.
The defendants raised two special defenses in their September 20, 2005 pleading. The first special defense has to do with adverse possession. The court finds that there is no credible evidence to sustain that special defense. The second special defense had to do with a violation of the City of Danbury and/or State of Connecticut regulation and code. The court invited counsel to brief that issue and the defendants did not brief the issue. The court therefore considers that claim to have been abandoned.
ORDER
The court enters an order permanently enjoining the defendants from blocking or impeding the plaintiffs, her successors, heirs and assigns, right-of-way for ingress and egress over the defendants' property on Lot No. 7 for the purpose of cleaning and repairing the sewer line from the plaintiff's property on Lot No. 4 to the community septic tank on Lot No. 7.