Mary M. Burton v. Joshua G. Welch et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION (# 126) FOR SUMMARY JUDGMENT ON COUNT THREE OF THEIR COUNTERCLAIM

By complaint dated February 18, 2014, the plaintiff, Mary M. Burton, sued Joshua G. Welch and Alejandra DeLosada (counterclaimants) over a right of way over land owned by the plaintiff.¹  With their answer dated April 3, 2014, Welch and DeLosada counterclaimed against the plaintiff in three counts.²  On August 1, 2014, the defendants filed a motion for summary judgment only on count three of their counterclaim, with affidavits and exhibits substantially the same (plus one 1895 deed) as they submitted with a prior motion for summary judgment (# 119) on the first count of the plaintiff's complaint.   On September 15, 2014, the plaintiff filed a brief in opposition to both motions for summary judgment, with affidavits and exhibits.   On October 13, 2014, and November 3, 2014, the defendants filed replies to the plaintiff's brief.   The present motion was argued on November 24, 2014.

FACTS

For present purposes, the court views the evidence in the light most favorable to the nonmoving party.  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).   Viewing in this light the evidence pertinent to count three of the April 3, 2014, counterclaim, the court finds as follows.

The plaintiff owns real property in Stonington, Connecticut, known as 340 Al Harvey Road. She acquired that property in 2006 by deed from the Estate of Helen L. Petty dated June 6, 2006, and recorded at volume 603, page 504, of the Stonington land records (the land records).   The plaintiff's property includes two parcels separately identified in an executor's deed to the plaintiff.   The first parcel is “land with the dwelling house” conveyed to William C. Petty, Jr., and Helen L. Petty by deed from Elena Earle dated June 25, 1942, recorded at volume 78, page 343, of the land records and to Helen L. Petty by William C. Petty, Jr., on August 23, 1984, by quitclaim deed recorded at volume 251, page 693.   The second of the plaintiff's two parcels, described as “the laneway parcel” and forming the southerly boundary of the first parcel, is a narrow “lane leading from [Al Harvey Road] to the schoolhouse in the seventh school district.”   The plaintiff's grantor's decedent, Helen L. Petty (Petty), acquired the laneway parcel “subject to covenants and restrictions as of record may appear” by deed from the Stonington Tax Collector dated November 18, 1988, and recorded at volume 317, page 701, of the land records.

The counterclaimants own real property near the plaintiff, which property they acquired in 2002 from John M. Groton, Jr., and Betty J. Groton (the Grotons), by warranty deed dated October 28, 2002, recorded at volume 501, page 254, of the land records.   The counterclaimants' property consists of three parcels:  a residential parcel and acreage known as 357 Al Harvey Road, which is across the road from, and north of, the plaintiff's property;  a large, farm parcel which borders the plaintiff's property on its north and east sides;  and “the schoolhouse parcel” at the east end of the laneway.   The Grotons acquired the schoolhouse parcel from Petty ³ by warranty deed dated July 31, 1986, recorded at volume 279, page 239, of the land records “[t]ogether with the right to pass and repass over the laneway which leads from Al Harvey Road to the herein described property” (the right of way).   Petty (and William C. Petty) had acquired the schoolhouse parcel from one John Wilkinson by warranty deed dated July 22, 1946, recorded at volume 85, page 72, of the land records with the identically expressed right of way.⁴  The Grotons conveyed the schoolhouse parcel to the counterclaimants with the identically expressed right of way.

A dispute has arisen over whether the counterclaimants have a “right to pass and repass for all purposes over” the laneway.   By the subject third count, the counterclaimants seek summary judgment that they have that right.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In ruling on the present motion, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.   Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

Quiet title actions are authorized by General Statutes § 47–31, subsection (f) of which provides in essential part as follows:

The court shall hear the several claims and determine the rights of the parties, whether derived by deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.

An action to quiet title can involve a full determination of the parties' rights in land.  DeVita v. Esposito, 13 Conn.App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).   In this case, count three of the counterclaim alleges, in pertinent part, as follows:

the counterclaimants own “property located on the east side of Al Harvey Road, Stonington, Connecticut and more particularly described in Schedule ‘A’ hereto”;

The premises were conveyed together with the right to pass and repass for all purposes over land now owned by the Plaintiff ․

Title to the [Plaintiff's] property was conveyed subject to the rights of the CounterClaim Plaintiffs ․ to pass and repass over the lane way;  and

the counterclaimants seek ‘ “n order ․ setting forth [their] rights to pass and repass over the so called Lane Way for the purposes of accessing their property.”

“A deed shall, if possible, be construed to effectuate the intent of the parties.”  Mandes v. Godiksen, 57 Conn.App. 79, 90, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000).   In determining whether a grantor intended to create an easement, courts evaluate the relevant deeds, maps, and recorded instruments.  “Intent as expressed in deeds and other recorded instruments is a matter of law ․ [Nontheless,] the deeds, maps, and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine the nature and extent of the easement.”  (Citations omitted;  internal quotation marks omitted.)  Mandes v. Godiksen, supra, 57 Conn.App. 82–83;  see also Perkins v. Fasig, 57 Conn.App. 71, 76, 747 A.2d 54, cert. denied, 253 Conn. 925, 754 A.2d 797 (2000).

He who claims an easement has the burden of proving its existence.  Deane v. Kahn, 149 Conn.App. 62, 74, 88 A.3d 1230, cert. granted, 312 Conn. 903, 91 A.3d 906 (2014).   In granting the counterclaimants' motion # 119, this court found that the plaintiff's denial of the existence of the counterclaimants' right of way to get to and from the schoolhouse parcel is without merit.   On the present motion, it is the counterclaimants who have the burden of proof of the easement they claim.   This is a burden they must bear on the strength of their title, not on any weakness of the plaintiff's title.   See Koennicke v. Maiorano, 43 Conn.App. 1, 9, 682 A.2d 1046 (1996).   For several reasons, neither the ruling on the counterclaimants' motion # 119 nor, in general, the existence of a right of way over the laneway means that the counterclaimants are entitled to judgment on count three of their counterclaim.

First, by count three, the counterclaimants do not distinguish the schoolhouse parcel, which cannot reasonably be said to be located “on ․ Al Harvey Road,” from the much larger parcel which borders the plaintiff's parcel on two sides (three sides, counting the west-to-east course of the laneway east of the eastern boundary of the plaintiff's dwelling parcel).⁵  Count three claims that “the premises”—apparently including the large farm property—”were conveyed together with the right to pass and repass for all purposes over land now owned by the Plaintiff.”   Setting aside that claim's failure to limit “land owned by the Plaintiff” to the laneway parcel, there is no basis in the evidence that the counterclaimants' right of way over the laneway parcel is appurtenant to “the premises” or “their property,” i.e., to land other than the schoolhouse property (including other land accessed over the schoolhouse property), let alone that that is true as a matter of law.

Second, there is no basis in the evidence that the counterclaimants' right of way over the laneway parcel is “for all purposes.”

Third, the plaintiff has claimed that the right of way was abandoned by the counterclaimants' grantors, including by blocking it with a stone wall and nonuser.

Because the status and the scope of the right of way are in dispute, the counterclaimants are not entitled to judgment on the third count of their counterclaim.   Motion for summary judgment # 126 is denied.

Cole–Chu, J.

FOOTNOTES

FN1. On September 15, 2014, the plaintiff requested leave to amend her complaint.   There was no objection to that request.   However, count three of the counterclaim to the original complaint is the subject of this motion..  FN1. On September 15, 2014, the plaintiff requested leave to amend her complaint.   There was no objection to that request.   However, count three of the counterclaim to the original complaint is the subject of this motion.

FN2. The plaintiff has not filed an answer to the counterclaim, which for present purposes is deemed denied.   On January 29, 2015, the defendants requested leave again to amend their answer and counterclaim.   Although there was no objection to that request, count three of the April 3, 2014, counterclaim is the subject of this motion..  FN2. The plaintiff has not filed an answer to the counterclaim, which for present purposes is deemed denied.   On January 29, 2015, the defendants requested leave again to amend their answer and counterclaim.   Although there was no objection to that request, count three of the April 3, 2014, counterclaim is the subject of this motion.

FN3. The Grotons' deed to the plaintiffs states that both Petty and William C. Petty deeded the schoolhouse parcel to the Grotons.   Actually, the deed to the Grotons was after William C. Petty, Jr., quitclaimed to Petty the schoolhouse parcel along with what is now the plaintiff's dwelling parcel.   The latter deed does not mention the right of way appurtenant to the schoolhouse parcel but, being a quitclaim of all of Mr. Petty's interest, did not need to do so..  FN3. The Grotons' deed to the plaintiffs states that both Petty and William C. Petty deeded the schoolhouse parcel to the Grotons.   Actually, the deed to the Grotons was after William C. Petty, Jr., quitclaimed to Petty the schoolhouse parcel along with what is now the plaintiff's dwelling parcel.   The latter deed does not mention the right of way appurtenant to the schoolhouse parcel but, being a quitclaim of all of Mr. Petty's interest, did not need to do so.

FN4. The deed from Wilkinson to Petty recorded at volume 85, page 72, is not among the deeds submitted on this motion.   However, the uncontroverted testimony (by affidavit) of Richard Johnson is that, “[f]rom 1895 through 2006, all conveyances of title contained language which incorporated the rights of others to pass and repass over and upon the laneway parcel included within the property of Mary Burton.”.  FN4. The deed from Wilkinson to Petty recorded at volume 85, page 72, is not among the deeds submitted on this motion.   However, the uncontroverted testimony (by affidavit) of Richard Johnson is that, “[f]rom 1895 through 2006, all conveyances of title contained language which incorporated the rights of others to pass and repass over and upon the laneway parcel included within the property of Mary Burton.”

FN5. The counterclaim refers to a Schedule “A” but attaches none..  FN5. The counterclaim refers to a Schedule “A” but attaches none.

Cole–Chu, Leeland J., J.