Anthony D'Angelo v. Robert L. Pelikan et al. (2013)

MEMORANDUM OF DECISION

This action was brought in a three-count complaint by the plaintiff (“D'Angelo”) against the defendants, Robert and Jenne Pelikan (“Pelikans”), and the Cedarhurst Association Inc. (“Cedarhurst”).  In the first count which is against the Pelikans, D'Angelo seeks to quiet title to an easement through the Pelikans' property to gain access to Lake Zoar. In the second and third counts against Cedarhurst which is a homeowner's association which takes care of the trails, beach and docks, and promulgates rules and regulations for the owners of property in the Cedarhurst Development, D'Angelo alleges breach of fiduciary duty and breach of contract for failing to enforce the easement through the Pelikans' property for the benefits of the members of the association and himself in particular.

The parties stipulated to the court that D'Angelo's claim against the Pelikans was that he had an easement by deed and that his claims against Cedarhurst were derivative of his claim against the Pelikans.

After listening to the evidence and reviewing the exhibits and the briefs of the parties, the court finds:

In 1929, J. Walter Scheffer purchased a 143–acre tract of land adjacent to Lake Zoar and conveyed it to Cedarhurst Estates, Inc., of which he was the president.   The property was subdivided into small lots, mostly 25–foot strips, and a series of accessways were laid out and called trails.   Map 175 on the Newtown Land Records is referred to as Map # 1 Cedarhurst on Lake Zoar, Newtown Connecticut, on which the Pelikans' property in question is shown.   There is another map entitled “Proposed Map No. 2 Cedarhurst on Lake Zoar, Newtown Connecticut which was not found in the Newtown Land Records nor was it produced at trial.   D'Angelo's property is located and is described in deeds as being located on Map # 2.   There is no claim of any relationship between D'Angelo and the Pelikans.   D'Angelo's claims are based on an easement by deed by the developer for the benefit of the entire development.

The only expert witness at trial was Charles Johnson who was an attorney who dealt with real estate titles and was highly qualified to give title opinions.   The court gave great credibility to the opinion of Attorney Johnson.

A title opinion concerns the reliability of title to real property.   It is distinct from an abstract of title, “which merely recites what the land records disclose ‘without giving opinion or advice as to the legal effect of what is found.’  “ Grievance Committee v. Payne, 128 Conn. 325, 331, 22 A.2d 623 (1941).   See also Lunn v. Cummings and Lockwood, 56 Conn.App. 363, 372–73, 743 A.2d 653 (2000).

Cedarhurst Estates, Inc., on April 2, 1946, conveyed all the property it had not sold to the original owner, J. Walter Scheffer.   The Pelikans' chain of title to the land on which the disputed easement is located goes back to two deeds from J. Walter Scheffer to Lillian Cozzolino which are key to this case.

In the first deed dated February 5, 1952, but was recorded on February 4, 1952 in Volume 111 at page 198 of the Newtown Land Records, J. Walter Scheffer conveyed three parcels of land to Lillian Cozzolino including the Lot # 1 and reserve area at issue in this case.   The following restrictions and reservations were placed in the deed.

Together with the customary use of the trails on said Map # 1 in common with the owners of the other lots on said Map for foot or vehicular passage and repassage.

Subject to the rights of the other owners of lots on said Map # 1 to use the said mentioned part of Pequot Trail for necessary passage and repassage, to use so much as is necessary of a continuance of Mohawk Trail to the said Reserve in front of Lots 44, 45, 46, 47, Block D, for an automobile turn-around space and to use the stairs on said Reserve and said Lot No. 1, Block F, for passage and repassage to and from the beach.

No part of said premises shall be used for a hospital, asylum, cemetery, factory, store, hotel, gas station, lunch room, lunch stand, recreation hall or public garage, and no toilet shall be installed without a septic tank or cesspool for the disposal of sewage.

In the second deed from J. Walter Scheffer to Lillian Cozzolino, dated July 22, 1952 and recorded in the Newtown Land Records in Volume 114, page 353, the same three parcels of land were conveyed subject to the following restrictions and reservations.

Subject to the rights of the other owners of lots on said Map # 1 to use so much as is necessary of a continuance of Mohawk Trail to the said Reserve in front of Lots 44, 45, 46 and 47 for an automobile turn-around space.   No part of the premises shall be used for a hospital, asylum, cemetery, factory, store, hotel, gas station, lunch room, lunch stand, recreation hall or public garage and no toilet shall be installed without a septic tank or cesspool.

The following language was also placed in the second deed.

The purpose and intention of this instrument is to correct and take the place of deed recorded in Volume 111, pp. 198–201.

The deed recorded in Volume 111, pages 198–201 was the first deed from Scheffer to Cozzolino.

In the second deed, the following language was omitted:  “and to use the stairs on said reserve and said Lot no. 1, Block F for passage and repassage to and from the beach.”

The easement which is claimed by D'Angelo is the easement language which was omitted from the second deed.

The key question in this case is:  What does the omission of the easement language in the second deed have on the granting of the easement in the first deeds?

Chapter IV of the Connecticut Bar Association Standards of Title is entitled “The Alteration and Correction of Recorded Instruments.”

Standard 4.1 states:

EFFECT OF MATERIAL ALTERATIONS

A material alteration of any instrument affecting real estate will be ineffective even though made by consent of all the parties, unless there is a new attestation by two witnesses and a new acknowledgement as well as a rerecording of the instrument as corrected.

The second deed followed the standards and requirements of 4.1.

Standard 4.2 states:

LIMITATIONS ON THE USE OF CORRECTING DEEDS AND INSTRUMENTS

In the absence of intervening equities an error may be corrected by a subsequent deed or instrument affecting real estate.   A correcting deed is appropriate to correct an error contained in a prior deed so long as the correcting deed does not make any substantial change in the name of the grantee, decrease the size of the premises or the extent of the estate granted, or impose a condition or limitation upon the interest granted.

The second deed had the effect of giving the grantee a greater fee title by eliminating the easement Scheffer could grant to others in the subdivision on Map # 1.   The second deed in effect ended any easement rights by anyone in Cedarhurst Map # 1 to Lot # 1 and the reserve to use the stairs from the trail to gain access to the water.

Prior to the second deed, no one in the land owned by Scheffer was granted this easement.   The corrected deed ended Scheffer's legal rights to the easement.   Since D'Angelo's property was from Map # 2 and no specific reference was made in his deeds of the “Lot 1 and reserve easement” and he had no privity with the Pelikans and their predecessors in title, he has absolutely no right to the easement that no longer exists.

There was a third deed from the estate of J. Walter Scheffer to the defendant Cedarhurst Association, Inc., dated July 24, 1962 and recorded in Volume 170, page 132.   This deed conveyed the remaining common properties, the trails, the water supply system, a few lots and the following:

Together with all easements and rights of way which J. Walter Scheffer had or ought to have at the time of his death or which the grantor, as his administrator, has or ought to have over the lands of others in the Cedarhurst Development on Lake Zoar, and including the right to use for boats, docks, floats, bathing, fishing and similar recreational purposes the South cove in front of the Reserve hereinabove described as the “Third Piece” and Cedarhurst cove, sometimes known as the North cove, located in front of the Reserve at the Northerly end of Mohawk Trail and in front of lot numbers 1, 2, 3, 4, 5 and 6, Block “F,” all as appear on said “Map No. 1, Cedarhurst On Lake Zoar, Newtown, Conn.,” together with the right of passage and repassage on foot over Pequot Trail, said Reserve and the steps in lot No. 1 of Block “F” to and from the water and over the path along the shoreline between the waters of said North Cove and said Mohawk Trail reserve, lot Numbers 1, 2, 3, 4, 5 and 6 of Block “F” as they appear on said Map No. 1.

J. Walter Sheffer at the time of his death had no easement or right of way or right of passage on the reserve and Lot # 1 since that easement was eliminated in the corrected deed from Scheffer to Cozzolino recorded in Volume 114, page 353 of the Newtown Land Records.

The defendant Cedarhurst gained no easement rights over defendant Pelikans' Lot # 1 and reserve because the estate of Scheffer could not convey what it did not have.

In summing up, the plaintiff D'Angelo owns properties shown on proposed Map # 2 on Lake Zoar, Newtown, Connecticut.   The only rights and restrictions on his deeds are as follows:

Together with the customary use of the trails as shown on said map and on Map No. 1 in common with the owners of other lots shown on said maps, for foot and vehicular passage and repassage.

No part of said premises shall be used for a hospital, asylum, cemetery, factory, store, hotel, gas station, lunch room, lunch stand, recreation hall or public garage.   No toilet shall be installed without the installation of a septic tank or cesspool for the disposal of sewage.

There is no mention in his deeds of any easement to access Lake Zoar through the reserve area and Lot # 1 of the Pelikans' property.   There is no privity between the Pelikans or their predecessors in title and D'Angelo.   The easement through the reserve and Lot # 1 in the first deed specifically stated:  “Subject to the rights of the other owners of lots on said Map # 1.”   D'Angelo's properties are all on the proposed Map # 2.   The easement through Lot # 1 and the reserve area was eliminated in the corrected deed.   Scheffer did not include that easement in any deeds to others in Cedarhurst between the first deed and the corrected deed to Cozzolino.   This would defeat any claim by the plaintiff to a uniform covenant executed by the owner of a property who is dividing his property into lots under a general development scheme which would allow any grantee to enforce the restrictions against any other grantee.   See Mannweiler v. LaFlamme, 46 Conn.App. 525, 700 A.2d 57 (1997).   D'Angelo presented no title experts.   D'Angelo had the burden of proof to prove title to the easement and he did not meet that burden.   Pelikan's title expert's opinion that no easement exists is found credible by the court.

Simply stated, the easement alleged in the complaint does not exist.   Judgment will enter for the defendants Pelikans and, as stipulated by the parties, the claims in Counts two and three are derivatives of Count one.   Judgment shall enter for the defendant Cedarhurst on Counts two and three.

William J. Lavery, Judge Trial Referee

Lavery, William J., J.T.R.