Mark J. Christensen v. Linda L. Reed, et al.

The plaintiff, Mark J. Christensen,
appeals from the judgment of the trial court finding in
favor of the defendants, Linda L. Reed, Scott R. Reed
and S&P Ventures, LLC (S&P). The plaintiff commenced
a two count action against the defendants, seeking to
quiet title to a certain right-of-way and seeking a declaratory
judgment of an easement by necessity over the
defendants' properties.1 On appeal, the plaintiff claims
that the court improperly (1) concluded that he was
not entitled to an easement by necessity and (2)
required him to have searched the titles of all of the
abutting properties. We affirm the judgment of the
trial court.

The following facts are relevant to our resolution of
the issues on appeal. The plaintiff owns a twenty-five
acre parcel of land in Canterbury. The Reeds own property
that abuts the plaintiff's parcel of land to the west,
and S&P owns property that was carved out of the
Reeds' parcel, which as a result borders the Reeds'
property to the west.2 The defendants' properties have
direct access to North Society Road, a highway in Canterbury.
The root of the plaintiff's title to the property
can be traced back to a deed dated January 15, 1880,
from Francis B. Pellet to Thomas Shea. The deed contained
a right-of-way, or easement, to access a wood
lot retained by the plaintiff's predecessor in title. The
right-of-way was subject to a seasonal limitation from
October 1 to April 1 of each year. This right-of-way
appears only once in the chain of title of the parties
between 1880 and 1984. The plaintiff acquired title to
the property in 1984 by way of five quitclaim deeds and
a sixth document, which contained an ‘‘ ‘assignment of
interest' . . . .'' None of the conveyances to the plaintiff
contained a habendum clause or other language
purporting to convey the right-of-way across the defendants'
properties, despite the fact that without the rightof-
way the parcel is landlocked.

On May 19, 2003, the plaintiff served his complaint,
seeking (1) to quiet title to the right-of-way across the
defendants' properties and (2) a declaratory judgment
of an easement by necessity over the defendants' properties.
On January 6, 2006, the court found in favor of
the defendants on both counts. The court rejected count
one of the plaintiff's claim on two grounds. First, the
court concluded that the right-of-way had been abandoned
because there was clear evidence of physical
nonuse of the right-of-way, and it was absent from both
the plaintiff's and the defendants' chains of title in subsequent
recorded deeds. Second, the court held that
the plaintiff's claim for the right-of-way was barred by
the Marketable Record Title Act (act)3 because the
plaintiff's predecessors in title failed to include the easement
in the deeds in the defendants' chains of title. As
to count two of the complaint, the court concluded that
the plaintiff's property is landlocked but not entitled to
the claimed right-of-way because the plaintiff failed to
meet his burden of proof in establishing an easement
by necessity. Specifically, the court stated that ‘‘it is
not abundantly clear4 . . . that the plaintiff has any
reasonable necessity for the claimed easement over the
defendants' property. The defendants' property abuts
the plaintiff's property to the west, but not to the north,
south or east. The evidence does not establish that
the plaintiff's property is inaccessible save over the
defendants' lands; therefore, the court cannot find an
easement by necessity.'' (Emphasis in original.) This
appeal followed.

I

The plaintiff first claims that the court improperly
concluded that he was not entitled to an easement by
necessity over the defendants' properties. This contention
is twofold. First, the plaintiff asserts that the
court improperly found facts and improperly applied
the law as to easements by necessity. Second, the plaintiff
contends that the court failed to distinguish between
a license and an interest in real estate. We will consider
each claim in turn.

A

The plaintiff claims that the court misapplied the law
relating to easements by necessity when it concluded
that his parcel was landlocked but held that he did not
prove that reasonable enjoyment of the land required an
easement by necessity. Particularly, the plaintiff argues
that the court improperly found that there was no evidence
that his parcel was inaccessible by an alternate
means. In opposition, the defendants assert that the
court properly found that there was no need for an
easement by necessity because the plaintiff failed to
satisfied his burden of proof.5

The plaintiff's claim raises a question of law, and,
therefore, our review is plenary. See Kelley v. Tomas,
66 Conn. App. 146, 153, 783 A.2d 1226 (2001). ‘‘The
court's factual findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole . . . . We
cannot retry the facts or pass on the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.'' (Internal quotation marks omitted.)
Pender v. Matranga, 58 Conn. App. 19, 23, 752 A.2d
77 (2000).

‘‘The requirements for an easement by necessity are
rooted in our common law. . . . [A]n easement by
necessity will be imposed where a conveyance by the
grantor leaves the grantee with a parcel inaccessible
save over the lands of the grantor, or where the grantor
retains an adjoining parcel which he can reach only
through the lands conveyed to the grantee. . . . [T]o
fulfill the element of necessity, the law may be satisfied
with less than the absolute need of the party claiming
the right of way. The necessity element need only be
a reasonable one.'' (Citation omitted; internal quotation
marks omitted.) First Union National Bank v. Eppoliti
Realty Co., 99 Conn. App. 603, 608, 915 A.2d 338 (2007).

‘‘Although the requirements for an easement by necessity
once included a showing of unity of ownership;
Hollywyle Assn., Inc. v. Hollister, [164 Conn. 389, 399,
324 A.2d 247 (1973)]; our Supreme Court has eliminated
that requirement.'' First Union National Bank v. Eppoliti
Realty Co., supra, 608 n.6. Moreover, although it is
true that ‘‘[a]n easement of necessity may occur when
a parcel has become landlocked from outside access
such that the owner would have no reasonable means
of ingress or egress except over lands promised by
another and a right-of-way is necessary for the enjoyment
of the parcel . . . [t]he inverse also is true; that is,
a common-law right-of-way based on necessity expires
when the owner of a dominant estate acquires access
to a public or private road through another means.''
(Citations omitted.) Pender v. Matranga, supra, 58
Conn. App. 26.

In his complaint, the plaintiff alleged that he was
entitled to the claimed right-of-way because it ‘‘is the
exclusive manner of access between [his] [p]roperty
and the public highway known as North Society Road,
and represents the only access to [his] [p]roperty from
any highway.'' (Emphasis added.) At trial, the court
concluded that the plaintiff had not satisfied his burden
of proof as to the right-of-way being the ‘‘ ‘exclusive
manner of access' . . . .'' Particularly, the court found
that the ‘‘evidence presented to the court demonstrate[
d] that the plaintiff and/or his guests had
accessed his property on several occasions by alternate
access routes. Additionally, the plaintiff's title searcher
never completed a full title search on any of the abutters'
properties to the north, south or east of the plaintiff's
parcel. . . . [I]t is not abundantly clear to the
court that the plaintiff has any reasonable necessity for
the claimed easement over the defendants' property.''6
(Emphasis in original.)

The plaintiff challenges this decision claiming that
under Myers v. Dunn, 49 Conn. 71 (1881), and its progeny7
the ‘‘law presumes the intent of the common
grantor (Francis B. Pellet) was to permit [the] easement
to be for all purposes to ensure the ‘most profitable
use, the most beneficial enjoyment' of [the] easement
. . . .'' (Citation omitted.) The plaintiff further contends
that because the court found the parcel was landlocked,
it should have then concluded that he was
entitled to an easement by necessity. Thus, the plaintiff
argues that the court misapplied the law in finding that
there was no easement by necessity.

Conversely, the defendants argue that because the
plaintiff alleged in his complaint that the right-of-way
was the ‘‘exclusive manner of access'' to his property,
he had the burden of proving that the claimed right-ofway
was the exclusive manner of access and that he
failed to do so.8 In his reply brief, the plaintiff takes issue
with the defendants' argument concerning exclusivity,
claiming that the term exclusive is merely an adjective
and has no evidentiary value. The plaintiff asserts that
under Connecticut case law there is no authority that
requires proof of ‘‘exclusivity'' for access in an easement
by necessity claim. Although this contention may be
an accurate characterization of the law, the plaintiff
specifically chose to plead exclusivity.9 Moreover, the
court noted that although the plaintiff had not satisfied
his burden of establishing exclusivity of access, he also
did not adduce sufficient evidence to demonstrate that
he had a reasonable necessity. The court stated that ‘‘it
is not abundantly clear to the court that the plaintiff
has any reasonable necessity for the claimed easement
over the defendants' property.'' (Emphasis in original.)
In reaching its conclusion, the court took into
account the evidence that on five separate occasions
people gained access to the plaintiff's parcel of land by
means other than through the defendants' land. The
court also found that ‘‘the plaintiff's title searcher never
completed a full title search on any of the abutters'
properties to the north, south or east of the plaintiff's
parcel.'' The Reeds argue that this was the correct result
because ‘‘the plaintiff did not offer any evidence of a
title search of the Shea chain of title to the north even
though Shea was an abutter to the plaintiff's property
and the same name had owned the abutting property
for seventy consecutive years. . . . The . . . ‘surrounding
circumstances' considered by the trial court
include[d] the plaintiff's failure to present evidence concerning
any rights-of-way over the Shea parcel to the
northeast of the plaintiff's land. It is likely that the 1880
right-of-way was limited to the winter months to drag
wood across the frozen ground and wetlands to the
west because the same person (Shea) probably owned
the abutting property to the east and did not need an
easement for any other purpose.'' (Citation omitted.)
In reply, the plaintiff claims that the Reeds' argument
is ‘‘pure speculation.'' Pure speculation or not, the principal
elements of an easement by necessity remain the
same, which are whether a common grantor left a parcel
landlocked and whether there is a reasonable necessity
for ingress and egress over the burdened land. See
Pender v. Matranga, supra, 58 Conn. App. 26. If there
were other modes of ingress and egress, the plaintiff
had the burden to prove, at the least, that the claimed
right-of-way was reasonable and that the alternative
modes did not exist. Here, even though the plaintiff
claimed exclusivity of access, he did not meet even the
minimum burden of reasonableness, nor did he demonstrate
that there were no alternate reasonable modes
of access. Thus, the court correctly concluded that
because the plaintiff's title searcher never completed
a full search, it was not convinced that the plaintiff's
property is ‘‘inaccessible save over the defendants'
lands . . . .''10

B

The plaintiff next claims that the court failed to distinguish
between a license and an interest in real property.
The plaintiff asserts that the court's finding that the
‘‘evidence does not establish that the plaintiff's property
is inaccessible save over the defendants' lands'' indicates
that the court misunderstood the law concerning
licenses because a license does not convey an interest
in land. ‘‘[A] license in real property is a mere privilege
to act on the land of another, which does not produce
an interest in the property . . . .'' (Internal quotation
marks omitted.) Mulle v. McCauley, 102 Conn. App.
803, 814 n.2, 927 A.2d 921, cert. denied, 284 Conn. 907,
931 A.2d 265 (2007). ‘‘Generally, a license to enter [a]
premises is revocable at any time by the licensor.''
(Internal quotation marks omitted.) Walton v. New
Hartford, 223 Conn. 155, 163, 612 A.2d 1153 (1992). ‘‘[A]
license must be exercised only in the manner and for the
special purpose for which consent was given.'' (Internal
quotation marks omitted.) Miller v. Grossman Shoes,
Inc., 186 Conn. 229, 237, 440 A.2d 302 (1982).

The plaintiff argues that because the court considered
the permissive entries onto his land, it misapplied the
law concerning easements and licenses. Specifically,
the plaintiff points to the evidence that on five different
occasions his parcel was accessed by means other than
the claimed right-of-way because he sought permission
from his neighbors. The plaintiff claims that because
he was given permission by his neighbors, which would
create a revocable license, this fact does not mean that
he had alternate modes of access to his parcel.

S&P argues that ‘‘[r]egardless of whether the plaintiff's
property could be accessed through [a] license or
through an interest in real estate, the plaintiff had to
prove exclusivity of access to prove the allegations of
his complaint.'' We agree with S&P. Although the plaintiff
might have had a license on those five separate
occasions, this does not change the fact that he failed
to meet his burden of proof to establish the claimed
easement by necessity.

II

The plaintiff next claims that the court improperly
required him to have searched the titles to all of the
abutting properties. The plaintiff argues that because
the court found one common grantor for the defendants'
and plaintiff's properties, requiring a full search of the
titles of the owners of abutting property was irrelevant
to ascertaining the intent of the common grantor. Furthermore,
he claims that the word ‘‘exclusive'' does not
require such a search of the abutting property. S&P
disagrees, asserting that the court did not misapply the
law because a title search was just ‘‘one way that the
plaintiff could have met his burden to show that the
one easement he sought over the defendants' property
was the only means of access.'' S&P correctly asserts
that a full title search of all of the abutting properties
would have shown whether there were other easements
that were not in the plaintiff's chain of title but may
have been in one of the abutting owners' chains of
title.11 The plaintiff had the burden to prove that there
were no reasonable alternate modes of access, and he
failed to satisfy this burden. Thus, the court correctly
concluded that he did not satisfy his burden of proof
and that the evidence concerning the abutting property
would not have satisfied his burden, particularly where
one of the abutting properties was owned by a Shea,
which was the name of one of the plaintiff's predecessors
in title. We agree with the court that such a search
would have disclosed the existence or absence of
another means of access.

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http://www.jud.ct.gov/external/supapp/Cases/AROap/AP105/105AP24.pdf