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

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION (# 119) FOR SUMMARY JUDGMENT ON THE FIRST COUNT OF THE COMPLAINT

By complaint dated February 18, 2014, the plaintiff, Mary M. Burton, sued the defendants, Joshua G. Welch and Alejandra DeLosada, in five counts, only the first of which is the subject of this motion.¹  The first count seeks only a declaratory judgment that the defendants have no right of any kind or degree to pass and repass over her “laneway parcel.”   On April 23, 2014, the defendants filed a motion for summary judgment only on the first count of the complaint, with two affidavits and various exhibits.   On September 15, 2014, the plaintiff filed an opposing brief, with two affidavits and various exhibits.²  On October 14, 2014, the defendants filed a reply brief.   The 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).   Statements that are merely conclusions are not considered evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Viewing in this light the evidence pertinent to the first count, 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 defendants own real property near the plaintiff.   The defendants acquired their property 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 defendants' 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 and the Grotons conveyed the schoolhouse parcel to the defendants with the identically expressed right of way.

When Petty conveyed the schoolhouse parcel to the Grotons, with the right to pass and repass over the laneway, she did not own the laneway.   Petty only acquired title to the laneway about twenty-eight months later, by way of the Tax Collector's November 18, 1988, deed.

A dispute has arisen over whether the defendants have a “right to pass and repass over the laneway which leads from Al Harvey Road and crosses the property of” the plaintiff:  the defendants claim that right and the plaintiff, by the subject first count, denies such a right exists.

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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, supra, 299 Conn. 210.   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).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id. 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.”  (Internal quotation marks omitted.)  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 full, 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, the first count only seeks a declaration that the defendants have no right of way over the laneway parcel.⁵

Normally, he who claims an easement has the burden of proving its existence.   Deane v. Kahn, 149 Conn.App. 62, 74–75, 88 A.3d 1230, cert. granted, 312 Conn. 903, 91 A.3d 906 (2014).   This rule does not relieve the plaintiff of her burden of proving that she is entitled to the requested declaratory judgment quieting her title to the laneway as to the right of way.   The plaintiff is required to prevail on the strength of her title, not on any weakness of the defendants' claim.  Koennicke v. Maiorano, 43 Conn.App. 1, 9, 682 A.2d 1046 (1996).   However, even if all the facts alleged by the plaintiff in the first count were true, it would not matter if the defendants had the burden of proving the existence of their right of way.   That is because the sole basis for the plaintiff's claim in the first count is not, for example, that the defendants' title searcher's affidavit or the chain-of-title summaries attached to it are in error.⁶  The sole basis of the first count is one fact:  Petty did not acquire title to the laneway until after she had conveyed the schoolhouse parcel to the Grotons with the right of way.   But Petty did not need to own the laneway to convey the schoolhouse parcel to the Grotons with the right of way.   Petty only needed to own the schoolhouse parcel and the right of way interest in the laneway for access to that parcel.   Petty did own that parcel, with that right of way over the laneway as servient tenement, by virtue of the deeds from Wilkinson to Petty and William C. Petty and the quitclaim deed from William C. Petty.   Petty did convey that parcel, with that right of way, to the Grotons.   And, upon delivery of the deed from the Grotons to the defendants, the defendants acquired the schoolhouse parcel and the right of way over the laneway serving the schoolhouse parcel.

In the first count, the existence of the right of way is the sole issue.   Deane v. Kahn, supra, 149 Conn.App. 65, is no help to the plaintiff because she challenges neither the location of the right of way (over the laneway) nor the purpose of the right of way (to pass and repass to get to and from the schoolhouse parcel) nor the plaintiff's notice of the right of way (her acceptance of the deed from Perry's executor subject to the right of way).

“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 are to evaluate the relevant deeds, maps, and recorded instruments.  “Intent as expressed in deeds and other recorded documents is a matter of law ․ [Nonetheless] 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).   In this case, the plaintiff admits that the defendants' deed from the Grotons included the schoolhouse parcel and the right of way.   She does not dispute that her title to the laneway is subject to that right of way.   There is no need for equitable considerations such as estoppel.

For the foregoing reasons, the defendants are entitled to judgment on the first count.   Their motion for summary judgment as to that count is granted.

Cole–Chu, J.

FOOTNOTES

FN1. On September 15, 2014, the plaintiff requested leave to amend her complaint.   Although there was no objection to that request, the first count of the original complaint is the subject count for purposes of this motion..  FN1. On September 15, 2014, the plaintiff requested leave to amend her complaint.   Although there was no objection to that request, the first count of the original complaint is the subject count for purposes of this motion.

FN2. The plaintiff's opposition was also to the defendants' motion # 126, decided separately..  FN2. The plaintiff's opposition was also to the defendants' motion # 126, decided separately.

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 home 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 home 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 plaintiff claims abandonment of the right of way in the third count and adverse possession is in the fourth count..  FN5. The plaintiff claims abandonment of the right of way in the third count and adverse possession is in the fourth count.

FN6. As in many human statements and products, including testimony in court, there appear to be errors in Richard Johnson's work.   For example, in the plaintiff's chain of title, exhibit 2, at volume 317, page 701, “south district” is written instead of “seventh school district.”   In the defendants' chain of title, reference to the Stanton–Wheeler deed should be page 106 of volume 19, not page 16.   Such errors do not diminish the propriety or discretion of the court crediting the affidavit, especially since the plaintiff does not challenge its substance..  FN6. As in many human statements and products, including testimony in court, there appear to be errors in Richard Johnson's work.   For example, in the plaintiff's chain of title, exhibit 2, at volume 317, page 701, “south district” is written instead of “seventh school district.”   In the defendants' chain of title, reference to the Stanton–Wheeler deed should be page 106 of volume 19, not page 16.   Such errors do not diminish the propriety or discretion of the court crediting the affidavit, especially since the plaintiff does not challenge its substance.

Cole–Chu, Leeland J., J.