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VILLAGE APARTMENTS, LLC v. STANLEY P.

WARD, JR., ET AL.

(AC 38047)

Lavine, Alvord and Bear, Js.

Argued September 21—officially released December 13, 2016

(Appeal from Superior Court, judicial district of New

London, Moukawsher, J.)

Matthew G. Berger, for the appellant (plaintiff).

Garon Camassar, for the appellees (named defendant et al.).
Opinion

BEAR, J. The plaintiff, Village Apartments, LLC,

appeals from the judgment of the trial court rendered

in favor of the defendants Stanley P. Ward, Jr., and

Rose Mary Ward, after a trial to the court, quieting title

to a claimed easement in the form of a right-of-way

(right-of-way) over the defendants’ real property (property).1 The court determined that the Marketable Title

Act(act), General Statutes § 47-33b et seq., extinguished

the right-of-way because it was not preserved in the

roots of title of the parties as required by the act and did

not meet the apparent easement exceptions in General

Statutes § 47-33h. On appeal, the plaintiff claims that

the court erred in finding that the act extinguished

its right-of-way (1) because it predated and was not

properly set forth in either root of title; and (2) although

there were visible, physical indicators of the existence

of the right-of-way. We affirm the judgment of the

trial court.

In the first count of its complaint against the defendants, the church, and Citizens Bank, dated July 9, 2012,

and returned to the court on August 1, 2012, the plaintiff

sought to quiet title to the alleged deeded right-of-way

over the defendants’ property and the church’s property.2 The defendants alleged as a special defense, inter

alia, thatthe act extinguished any rights thatthe plaintiff

had to the claimed right-of-way. Following a trial to the

court,3

the court, Moukawsher, J., rendered judgment

in favor of the defendants and Citizens Bank on June

9, 2015, and in favor of the plaintiff, as stipulated

between it and the church. This appeal followed.

The following factual findings of the court are relevant to this appeal. In 1877, an easement in the form

of a right-of-way was created over property now owned

separately by the defendants and the church in favor

of property now owned by the plaintiff. Pursuant to

the act, the plaintiff’s root of title4

is a 1968 deed that

conveyed the property ‘‘[t]ogether with and subject to

such rights of way, pipe line and other easements and

privileges as will of record appear.’’ The defendants’

roots of title are one or two 1944 deeds5

that referred

to a ‘‘Frank Calvert’’ ‘‘right of way.’’6 The 1944 deeds

did not set forth that the property is subject to the

Frank Calvert right-of-way, did not describe the rightof-way’s metes and bounds, and did not incorporate by

volume and page the title transaction that created that

right-of-way.

The court found that as of the dates of the trial, the

alleged right-of-way area showed no evidence of ruts

or marks that might suggest that it had been used as a

cart path or track as claimed by the plaintiff. Photographs in evidence showed that the only open area

within the alleged right-of-way revealed nothing to suggest its use as a cart path or track. The photographs
showed that much of the disputed area was strewn

with boulders, was covered with mature trees, and was

incapable of accommodating any kind of path. From

this and other evidence, the court concluded that there

were no signs of a cart path or track on the property.

In its memorandum of decision, the court concluded

that the defendants’ muniments of title7 did not describe

the right-of-way sufficiently to enforce it and that the

muniments of title did not specifically identify the

recorded title transaction that created the right-of-way.

In its analysis,the courtrejected the plaintiff’s argument

that references to the right-of-way in the 1944 deeds

were necessary to determine the location of the five

tracts conveyed therein. Consequently, the court concluded that the act extinguished the right-of-way unless

an exception applied. The plaintiff argued that merestones8 marking the right-of-way, a wire fence running

along it, and signs of a cart path were physical evidence

sufficient to satisfy one of the § 47-33h exceptions. The

court concluded that fences and merestones were not

included in the list of exceptions contained in § 47-33h

and, although roads and tracks were included in the

list, there were no signs of a cart path or tracks on the

property. Accordingly, the court found that § 47-33h did

not apply. In light of these determinations, the court

declared that the defendants’ property was not subject,

under General Statutes § 47-31, to the purported rightof-way described in volume 21, page 99, and volume

21, page 100 of the Montville land records.9 This

appeal followed.

I

The plaintiff claims that the trial court erred in

determining that the act extinguished the right-of-way

because the right-of-way predated the roots of title.

Specifically, it contends that the reference to the Frank

Calvert right-of-way in the 1944 deeds that constitute

the defendants’ roots of title is a specific reference

satisfying § 47-33h. Additionally, the plaintiff argues

that reference to the right-of-way in the deeds puts a

reasonable title searcher on notice of the existence of

an easement and that determination of the location of

the right-of-way was necessary to ascertain the location

of the three parcels constituting the defendants’ property. The defendants argue that theirroots of title do not

specifically identify a recorded title transaction creating

the right-of-way and that the description of the rightof-way was too vague to convey it. We agree with

the defendants.

We begin by setting forth the applicable standard of

review. ‘‘The interpretation of a statute, as well as its

applicability to a given set of facts and circumstances,

presents a question of law over which our review is

plenary. . . . Furthermore, the meaning of language

used in a deed also raises a legal issue such that, when

faced with a question regarding the construction of
language in deeds, the reviewing court does not give

the customary deference to the trial court’s factual

inferences.’’(Citation omitted; internal quotation marks

omitted.) Johnson v. Sourignamath, 90 Conn. App. 388,

393–94, 877 A.2d 891 (2005).

‘‘Pursuant to the act, any person who has an unbroken

record chain of title to an interest in land for a period

of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title

instrument of earlier record10 (which is the root of title

under the act) has a marketable record title11 subject

only to those pre-root of title matters that are excepted

under the statute or are caused to reappear in the latest

forty year record chain of title. . . . The act declares

null and void12 any interest in real property not specifically described in the deed to the property which it

purports to affect, unless within a forty year period, a

notice specifically reciting the claimed interest is placed

on the land records in the affected land’s chain of title.’’

(Footnotes added; internal quotation marks omitted.)

Coughlin v. Anderson, 270 Conn. 487, 507, 853 A.2d

460 (2004).

‘‘Even marketable record title, however, may be subject to certain interests. Section 47-33d13 provides in

relevant part: ‘Such marketable record title is subject

to: (1) All interests and defects which are created by

or arise out of the muniments of which the chain of

record title is formed . . . .’ Thus, if an easement over

a subject piece of property arises out of one or more

of the muniments, including the deeds, of which the

chain of record title is formed, a property owner takes

the land subject to that easement. This general provision is subject to a proviso contained in § 47-33d (1),

however, which provides that ‘a general reference in

the muniments, or any of them, to easements, use

restrictions or otherinterests created priorto the root of

title are not sufficient to preserve them, unless specific

identification is made therein of a recorded title transaction which creates the easement, use restriction or

other interest . . . .’ ’’ (Footnote added.) McBurney v.

Cirillo, 276 Conn. 782, 808–809, 889 A.2d 759 (2006),

overruled in part on other grounds by Batte-Holmgren

v. Commissioner of Public Health, 281 Conn. 277, 284–

89, 914 A.2d 996 (2007). Section 47-33d therefore

requires either a specific reference in the muniments

to easements, use restrictions, or other interests or a

general reference to such interests accompanied by a

specific identification of a recorded title transaction

creating the easement.

‘‘The reason that a general reference to pre-root of

title interests is not sufficient to preserve and prevent

their extinguishment is to avoid any necessity for a

search of the record back of the root of title, as well

as to eliminate the uncertainties caused by such general

references. Connecticut Bar Association, Connecticut
Standards of Title (1999), standard 3.10, comment one.

Effectively, it requires one claiming a deeded right-ofway over the property of another to establish conclusively that at some point, some owner in the servient

estate’s chain of title actually made a conveyance validly

creating that right-of-way. Otherwise, an invalid or nonexistent right-of-way could ripen into existence over a

period of time through the mere insertion into the land

records of language asserting it.’’ (Internal quotation

marks omitted.) Johnson v. Sourignamath, supra, 90

Conn. App. 401.

‘‘[T]he ultimate purpose of [the act] is to simplify

land title transactions through making it possible to

determine marketability by limited title searches over

some reasonable period of the immediate past and thus

avoid the necessity of examining the record back into

distant time for each new transaction. . . . [The act

is] designed to decrease the costs of title assurance by

limiting the period of time that must be covered by a

title search.’’ (Citation omitted; internal quotation

marks omitted.) Il Giardino, LLC v. Belle Haven Land

Co., 254 Conn. 502, 537, 757 A.2d 1103 (2000).

In the present case, the parties agree that the defendants’ roots of title are two 1944 deeds that refer to a

Frank Calvert right-of-way.14 The two 1944 deeds do

not provide that the property is subject to that rightof-way, do not describe the right-of-way’s metes and

bounds, and do not incorporate by volume and page

the title transaction that created the right-of-way. The

reference to the right-of-way is used only to describe

the boundaries of certain tracts of land conveyed to

the defendants’ predecessor in title. Additionally, the

deeds fail to provide any reference to a record title

transaction creating the right-of-way as required by

§ 47-33d; indeed, Frank Calvert is not named in the

1877 deed creating the right-of-way or in any other

transaction in the defendants’ chain of title.15 See Johnson v. Sourignamath, supra, 90 Conn. App. 401 (purported interests and claims must appear in chain of

title of property against which interest or claim is

being made).

Consequently, the court did not err in concluding

that the right-of-way does not burden the defendants’

property unless an exception delineated in the act

applies.

II

The plaintiff claims that the court erred in finding

that the act extinguished the right-of-way despite visible

evidence of the right-of-way. Specifically, the plaintiff

argues that the court erroneously concluded that merestones, the remnants of a fence, and the remnants of

a cart path did not constitute physical evidence

excepted by the nonexclusive list contained in § 47-33h.

Essentially, the plaintiff argues that the statute allows
for any physical evidence of an easement. The defendants counter that the statute does not include merestones, fence posts, or car tracks, but is limited to ‘‘large

industrial equipment typically used by public service

companies . . . .’’ Although we disagree with both

interpretations advanced by the parties, we conclude

that the statutory exception contained in § 47-33h does

not apply to preserve the right-of-way claimed by the

plaintiff.

We begin by setting forth the applicable standards

of review. ‘‘The interpretation of a statute, as well as its

applicability to a given set of facts and circumstances,

presents a question of law over which our review is

plenary.’’ Johnson v. Sourignamath, supra, 90 Conn.

App. 393–94. Whether certain physical markers and conditions such as a fence, cart path, or merestones existed

on the property are questions of fact to which we apply

a clearly erroneous standard of review. See Reiner,

Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107,

897 A.2d 58 (2006) (‘‘Questions of fact are subject to the

clearly erroneous standard of review. . . . 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. . . . Because

it is the trial court’s function to weigh the evidence

. . . we give great deference to its findings.’’ [Internal

quotation marks omitted.]).

Section 47-33h,16 which codifies certain exceptions

to the act, provides in relevant part that the act ‘‘shall

not be applied to . . . extinguish any easement or

interest in the nature of an easement, or any rights

granted, excepted or reserved by the instrument creating such easement or interest, including any right for

future use, if (1) the existence of such easement or

interest is evidenced by the location beneath, upon or

above any part of the land described in such instrument

of any pipe, valve, road, wire, cable, conduit, duct,

sewer, track, hole, tower or other physical facility and

whether or not the existence of such facility is observable . . . .’’ (Emphasis added.)

In the present case, the plaintiff argues that a cart

path, fence, and merestones constitute ‘‘other physical

evidence’’ of the easement. The court found that there

were no physical signs of a ‘‘cart path’’ running over

the contested property, and the evidence presented

does not demonstrate that this conclusion was clearly

erroneous. We must determine then, whether merestones and fences, as a matter of law, can be evidence

of an apparent easement under § 47-33h that may have

preserved the right-of-way and, specifically, whether

either of these items is included as an ‘‘other physical facility.’’

Our state courts have not expounded on the meaning
and application of the term ‘‘other physical facility’’ as

used in § 47-33h, and, therefore, its interpretation is an

issue of first impression. ‘‘When construing a statute,

[o]ur fundamental objective is to ascertain and give

effect to the apparent intent of the legislature. . . . In

other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied

to the facts of [the] case, including the question of

whether the language actually does apply. . . . In seeking to determine that meaning General Statutes § 1-2z

directs us first to consider the text of the statute itself

and its relationship to other statutes. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered.’’ (Internal quotation marks omitted.)

Joseph General Contracting, Inc. v. Couto, 317 Conn.

565, 586, 119 A.3d 570 (2015).

Because of the ambiguity of the statutory term ‘‘other

physical facility,’’ the doctrine of ejusdem generis is

useful in determining its meaning. ‘‘[T]he rule of ejusdem generis, which explains that where a particular

enumeration is followed by general descriptive words,

the latter will be understood as limited in their scope

to . . . things of the same general kind or character as

those specified in the particular enumeration.’’(Internal

quotation marks omitted.) Stratford v. Jacobelli, 317

Conn. 863, 871–72, 120 A.3d 500 (2015). ‘‘The principle

of ejusdem generis applies when ‘(1) the [clause] contains an enumeration by specific words; (2) the members of the enumeration suggest a specific class; (3)

the class is not exhausted by the enumeration; (4) a

general reference [supplements] the enumeration . . .

and (5) there is [no] clearly manifested intent that the

general term be given a broader meaning than the doctrine requires.’ 2A J. Sutherland, Statutory Construction

(5th Ed. Singer 1992) § 47.18. Thus, ‘[t]he doctrine of

ejusdem generis calls for more than . . . an abstract

exercise in semantics and formal logic.Itrests on particular insights about everyday language usage. When people list a number of particulars and add a general

reference like ‘‘and so forth’’ they mean to include by

use of the general reference not everything else but

only others of like kind. The problem is to determine

what unmentioned particulars are sufficiently like those

mentioned to be made subject to the [clause’s] provisions by force of general reference.’ Id.’’ 24 Leggett

Street, Ltd. Partnership v. Beacon Industries, Inc., 239

Conn. 284, 297, 685 A.2d 305 (1996).

In the present case, the doctrine of ejusdem generis

limits the definition of ‘‘other physical facility’’ to the

relationship of the preceding class of terms. The defendants argue that the class is limited to the large industrial equipment of public utilities. The list includes

however ‘‘road,’’ ‘‘track,’’ and ‘‘hole’’ as physical facili-
ties that may evidence an easement. Although the facilities pipe, valve, cable, conduit, duct, sewer, and tower

connote a class of public utility items, road, track, and

hole are not limited to such uses. This court has applied

the § 47-33h exception for roads to cases not involving

uses by utility companies. See Simonds v. Shaw, 44

Conn. App. 683, 684–85, 689–90, 691 A.2d 1102 (1997)

(holding § 47-33h excepted easement in roadway from

prohibition of act). Additionally, § 47-33d clarifies that

this portion of § 47-33h applies to apparent easements

and interests in the nature of easements. Section 47-

33h protects the interest of ‘‘the United States, of this

state or any political subdivision thereof, of any public

service company as defined in section 16-1 or of any

natural gas company’’ apart from the enumeration

herein described. Accordingly, the class enumerated in

the statute cannot be limited to public utility uses.

Defining the class as ‘‘those physical objects that

evidence an easement that themselves effectuate the

easement itself’’ includes all of the items enumerated

in § 47-33h, but not dissimilar items. For example, the

location of a sewer beneath a property would evidence

a sewer easement, whereas the location of poles and

wires traversing the property would evidence an easement to a telephone company or electrical company

for such use. Stated this way, the class does not include

items that may be found on a property that are not set

forth in § 47-33h or otherwise within the class of those

items, which are only, at best, mere indirect, possible

indicators of an easement.17

After setting forth the proper class, it is clear that

merestones and fences are not a part of the class of

other physical facilities creating an exemption from

the application of the act. Merestones are defined as

markers of a boundary, but not necessarily of an easement in the form of a right-of-way within or across a

parcel of land. A fence also is not necessarily a marker

of an easement in the form of a right-of-way. It is common knowledge that a fence can have many uses aside

from marking a boundary of a parcel of land; for example, it can separate one interior parcel of land from

another, it can restrict pets or livestock to a certain

area within a parcel of land, it can surround and protect

against access to a hazardous condition, or it can be

purely decorative.A fence or a merestone, even if visible

on part on the defendants’ property, is not necessary

orintegral to the definition, use, existence, oridentification of the plaintiff’s claimed right-of-way in this case

in the way that a road, sewer, or pipe would identify

and carry out the purposes of an easement excepted

by § 47-33h.

Moreover, although this court and the plaintiff might

be able to imagine other physical evidence that could

suggest the possibility, or even probability, of an easement, our legislature made its choice in creating a list
of indicators of an apparent easement to achieve its

goal of ‘‘simplify[ing] land title transactions through

making it possible to determine marketability by limited

title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the

record back into distant time for each new transaction.’’

(Internal quotation marks omitted.) Il Giardino, LLC

v. Belle Haven Land Co., supra, 254 Conn. 537. To

expand the excepted list of items contained in § 47-

33h to include dissimilar items, such as fences and

merestones, could expose landowners to stale claims

against their properties and, thus, counteract the broad

remedial purposes of the act.

Accordingly, fences and merestones are not included

as a matter of law within the definition of ‘‘other physical facility,’’ and, therefore, the court did not err in

concluding that the presence of a fence and merestones

on the defendants’ property did not except the plaintiff’s

claims to a right-of-way from application of the act.

The judgment is affirmed.

In this opinion the other judges concurred.

1 St. John’s Roman Catholic Church of Montville (church) and Citizens

Bank, also known as RBS Citizens, N.A. (Citizens Bank), were also defendants in this action. In accord with a stipulation, the court rendered judgment, quieting title to and confirming a right-of-way over the church’s

property. The church and Citizens Bank have not appealed and, therefore,

all references to the defendants herein are to Stanley P. Ward, Jr., and Rose

Mary Ward.

2

In the second and third counts of its complaint, the plaintiff alleged

trespass and interference with its easement rights by the defendants.

Because the plaintiff has not raised these claims in its appeal, they are not

before us.

3 The trial was held before the court, Hon. Thomas F. Parker, judge trial

referee, on June 24, 2014. The parties submitted posttrial briefs and an

additional hearing was held before Judge Parker on January 14, 2015, at

which the parties waived the 120 day deadline for the issuance of a decision.

On April 7, 2015, the court, Cole-Chu, J., transferred the case to the court,

Moukawsher, J., without a decision having been rendered by Judge Parker.

Judge Moukawsher reviewed the transcripts, exhibits, and briefs, and held

an additional hearing for arguments on June 5, 2015.

4

‘‘ ‘Root of title’ means that conveyance or other title transaction in the

chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies

as a basis for the marketability of his title, and which was the most recent

to be recorded as of a date forty years prior to the time when marketability

is being determined. The effective date of the root of title is the date on

which it is recorded . . . .’’ General Statutes § 47-33b (e).

5 Although the court, Moukawsher, J., stated that the parties agreed that

the defendants’ root of title was a 1944 deed, the parties now argue, the

chain of title reveals, and Judge Parker noted, that the defendants’ roots of

title are two deeds from 1944 conveying undivided one-half interests from

Rose Sepowitz, individually and as executor of the estate of Peter Sepowitz,

to John Sepowitz.In describing the property,the deeds are identical. Whether

the defendants’ root of title was one deed, or two deeds that were identical

except for the parties thereto, it does not affect our analysis or conclusions.

For convenience, we will refer to the defendants’ root of title as the two

1944 deeds. The 1944 deeds conveyed five tracts. The defendants purchased

only three of those tracts in 1986 with Paul Ward, and in 1990, they purchased

Paul Ward’s interest in those tracts.

6 The so-called Frank Calvert right-of-way is not defined, explained, or

set forth in the 1944 deeds or any other muniment of title.

7

‘‘The term ‘muniments of title’ is defined, in relevant part, as ‘[t]he records

of title transactions in the chain of title of a person purporting to create

the interest in land claimed by such person and upon which he relies as a
basis for the marketability of his title, commencing with the root of title

and including all subsequent transactions.’ Black’s Law Dictionary (6th

Ed.1990).’’ Johnson v. Sourignamath, 90 Conn. App. 388, 398 n.14, 877 A.2d

891 (2005).

8 A merestone is ‘‘[a] stone that marks land boundaries.’’ Black’s Law

Dictionary (9th Ed. 2009).

9 General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may

be brought by any person claiming title to, or any interest in, real or personal

property, or both, against any person who may claim to own the property,

or any part of it, or to have any estate in it, either in fee, for years, for life

or in reversion or remainder, or to have any interest in the property, or any

lien or encumbrance on it, adverse to the plaintiff, or against any person

in whom the land records disclose any interest, lien, claim or title conflicting

with the plaintiff’s claim, title or interest, for the purpose of determining

such adverse estate, interest or claim, and to clear up all doubts and disputes

and to quiet and settle the title to the property. Such action may be brought

whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.’’

10 General Statutes § 47-33c provides: ‘‘Any person having the legal capacity

to own land in this state, who has an unbroken chain of title to any interest

in land for forty years or more, shall be deemed to have a marketable record

title to that interest, subject only to the matters stated in section 47-33d. A

person has such an unbroken chain of title when the land records of the

town in which the land is located disclose a conveyance or other title

transaction, of record not less than forty years at the time the marketability

is to be determined, which conveyance or other title transaction purports

to create such interest in land, or which contains language sufficient to

transfer the interest, either in (1) the person claiming that interest, or (2)

some other person from whom, by one or more conveyances or other title

transactions of record, the purported interest has become vested in the

person claiming the interest; with nothing appearing of record, in either

case, purporting to divest the claimant of the purported interest.’’

11 General Statutes § 47-33b (a) provides: ‘‘ ‘Marketable record title’ means

a title of record which operates to extinguish such interests and claims,

existing prior to the effective date of the root of title, as are stated in section

47-33e . . . .’’

12 General Statutes § 47-33e provides: ‘‘Subject to the matters stated in

section 47-33d, such marketable record title shall be held by its owner and

shall be taken by any person dealing with the land free and clear of all

interests, claims or charges whatsoever, the existence of which depends

upon any act, transaction, event or omission that occurred prior to the

effective date of the root of title. All such interests, claims or charges,

however denominated, whetherlegal or equitable, present orfuture, whether

those interests, claims or charges are asserted by a person sui juris or under

a disability, whether that person is within or without the state, whether that

person is natural or corporate, or is private or governmental, are hereby

declared to be null and void.’’

13 General Statutes § 47-33d provides: ‘‘Such marketable record title is

subject to: (1) All interests and defects which are created by or arise out

of the muniments of which the chain of record title is formed; provided a

general reference in the muniments, or any of them, to easements, use

restrictions or other interests created prior to the root of title are not

sufficient to preserve them, unless specific identification is made therein

of a recorded title transaction which creates the easement, use restriction

or other interest; (2) all interests preserved by the recording of proper notice

or by possession by the same owner continuously for a period of forty years

or more, in accordance with section 47-33f; (3) the rights of any person

arising from a period of adverse possession or use, which was in whole or

in part subsequent to the effective date of the root of title; (4) any interest

arising out of a title transaction which has been recorded subsequent to

the effective date of the root of title from which the unbroken chain of title

of record is started; provided such recording shall not revive or give validity

to any interest which has been extinguished priorto the time of the recording

by the operation of section 47-33e; (5) the exceptions stated in section 47-

33h as to rights of reversioners in leases, as to apparent easements and

interests in the nature of easements, and as to interests of the United States,

this state and political subdivisions thereof, public service companies and

natural gas companies.’’

14 See footnote 5 of this opinion.

15 We have also reviewed the 1986 and 1990 deeds conveying the defen-
dants’ property to them and Paul Ward. The defendants first purchased their

property with Paul Ward as tenants in common from John Sepowitz as set

forth in a deed recorded on the Montville town records on June 30, 1986.

Paul Ward then conveyed his interest in the property to the defendants by

a quitclaim deed recorded on May 24, 1990. The 1986 and 1990 deeds each

contain a reference to the ‘‘Plan of the Sepowitz Property Jerome Road,

Montville, Connecticut Date July, 1982 Scale: 1’’ = 50’,’’ which was recorded

on the Montville town records. That plan, however, does not depict any

alleged right-of-way for the benefit of the plaintiff’s property.

16 General Statutes § 47-33h provides: ‘‘Sections 47-33b to 47-33l, inclusive,

shall not be applied to bar any lessor or successor of the lessor as a reversioner of the right to possession on the expiration of any lease or to bar or

extinguish any easement or interest in the nature of an easement, or any

rights granted, excepted or reserved by the instrument creating such easement or interest, including any right for future use, if (1) the existence of

such easement or interest is evidenced by the location beneath, upon or

above any part of the land described in such instrument of any pipe, valve,

road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical

facility and whether or not the existence of such facility is observable, or

to bar, extinguish or otherwise affect any interest of the United States, of

this state or any political subdivision thereof, of any public service company

as defined in section 16-1 or of any natural gas company, or(2) such easement

or interest is a conservation restriction, as defined in section 47-42a, that

is held by a land trust or nonprofit organization.’’ (Emphasis added.)

17 Thus, by way of example, fences, merestones, trees, and shrubs, standing

alone, in the absence of specific evidence of a road or track running between

them, do not satisfy the requirements for a § 47-33h exception.