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*********************************************** 
WILLIAM FRANCINI v. GOODSPEED

AIRPORT, LLC, ET AL.

(SC 19705)

Rogers, C. J., and Palmer, Eveleigh, McDonald,

Robinson, D’Auria and Espinosa, Js.

Syllabus

The plaintiff landowner, who enjoyed a deeded right-of-way over certain

real property owned by the defendant, sought, inter alia, a judgment

declaring the existence of an easement by necessity for the purpose of

underground commercial utilities. The trial court rendered summary

judgment in favor of the defendant, concluding that Connecticut law

does not permit the creation of easements by necessity for commercial

utilities. The plaintiff appealed to the Appellate Court, which determined

that the case law of this state and other jurisdictions, as well as treatises,

supported the creation of easements by necessity for commercial utilities

and, accordingly, reversed the trial court’s judgment. On the granting

of certification, the defendant appealed to this court. Held that the

Appellate Court properly concluded that the trial court should not have

rendered summary judgment in favor of the defendant, as a genuine

issue of material fact existed as to whether an easement by necessity

over the defendant’s property should be granted for the installation of

commercial utilities: consistent with the broad principle that easements

by necessity require only a reasonable necessity, the public policy

favoring the effective use of land, the implied conveyance of rights

necessary to reasonable enjoyment of property, and the law of other

jurisdictions, this court concluded that public policy favors recognition

of easements by necessity for utilities over a preexisting deeded rightof-way; furthermore, when a right-of-way already exists, an expansion

of that easement for commercial utilities will be allowed as long as it

is reasonably necessary for the beneficial enjoyment of the dominant

estate and does not unreasonably impair the beneficial enjoyment of

the servient estate, and trial courts should balance the intent of the

parties regarding use at the time of severance, the relative enjoyment

of the properties, and the burdens imposed by the easement in order

to determine the overall costs and benefits to the parties.

Argued September 18, 2017—officially released January 2, 2018

Procedural History

Action for, inter alia, a judgment declaring an easement by necessity over certain real property owned by

the named defendant, brought to the Superior Court in

the judicial district of Middlesex, where the plaintiff

withdrew certain counts of the amended complaint;

thereafter, the court, Aurigemma, J., granted the

named defendant’s motion for summary judgment and

rendered judgment thereon; subsequently, the plaintiff

withdrew the remaining count of the amended complaint and appealed to the Appellate Court, DiPentima,

C. J., and Lavine and Lavery, Js., which reversed the

trial court’s judgment and remanded the case with direction to deny the defendant’s motion for summary judgment and for further proceedings, and the named

defendant, on the granting of certification, appealed to

this court. Affirmed.

Mary Mintel Miller, with whom was John R. Bashaw,

for the appellant (named defendant).

William Francini, self-represented, the appellee
(plaintiff).
Opinion

EVELEIGH, J. In this certified appeal, we are tasked

with determining whether easements by necessity can

be granted for commercial utilities. More specifically,

we consider whether an easement that affords ingress

and egress to an abutting property can later be

expanded, by necessity, for utilities. The plaintiff, William Francini, commenced the present action seeking,

inter alia, a judgment declaring that he is entitled to

an easement by necessity for underground utility lines

across the property of the named defendant, Goodspeed

Airport, LLC, and an injunction permitting use of the

easement.1 The defendant appeals from the judgment

of the Appellate Court, which reversed trial court’s

award of summary judgment in favor of the defendant.

We affirm the judgment of the Appellate Court.

The Appellate Court’s opinion and the record contain

the following facts and procedural history. ‘‘The following facts, as alleged by the plaintiff and admitted by

the defendant, are not in dispute for the purpose of this

motion for summary judgment. The plaintiff owns a

parcel of land in East Haddam. The parcel’s only access

to a public highway is over an abutting property, owned

by the defendant. [Both properties were originally part

of a single parcel of land, subsequently divided into

many parcels for residential use and conveyed through

a series of transfers over the years to various individuals

or entities.] The defendant took title to its property

by warranty deed in 1999, subject to a right-of-way

easement now enjoyed by the plaintiff as well as several

of the plaintiff’s neighbors, landowners who also own

land abutting the defendant’s property. The 1999 warranty deed expressly described the right-of-way, in general terms and without limitations on its use, by

providing for ‘[s]uch rights as others may have to a

[right-of-way] over a passway or driveway as set forth

in a deed from [the property’s prior owner], dated

August 16, 1963 and recorded in . . . the East Haddam

[l]and [r]ecords . . . .’2

‘‘In 2001, the defendant entered into an agreement

with several of the plaintiff’s neighbors, who also share

the plaintiff’s right-of-way across the defendant’s property, to allow the neighbors to improve the right-ofway by installing and maintaining a utility distribution

system under the existing right-of-way easement. As

a result, a commercial utility system was constructed

under the existing right-of-way and now provides electricity to the plaintiff’s neighbors. In exchange for this

utility easement, each of the plaintiff’s neighbors paid

the defendant $7500. The plaintiff offered to pay the

defendant the same $7500 that his neighbors had paid

for use of the utility easement, but the defendant

requested that the plaintiff not only pay the $7500, but

also grant it the power to move the location of the

easement at will. The plaintiff declined the additional
terms and the two parties never reached an agreement.

Without an agreement, the plaintiff does not enjoy an

easement for commercial utilities and his property is

currently landlocked from access to commercial electricity. Currently, the plaintiff’s house is powered by a

generator, but the generator is alleged to be insufficient

to run and maintain the basic requirements of the plaintiff’s house such as powering security devices, turning

on automatically in the event of a flood, and running

a refrigerator to preserve perishable food without constant operation of the generator.’’ (Footnote added.)

Francini v. Goodspeed Airport, LLC, 164 Conn. App.

279, 281–82, 134 A.3d 1278 (2016).

In 2012, the plaintiff filed an amended complaint seeking a judgment declaring the existence of an easement

by necessity for commercial utilities across the defendant’s property and seeking an injunction requiring the

defendant to permit use of that easement.3 The defendant, in response, filed a motion for summary judgment

claiming that, although Connecticut law permits easements by necessity for ingress and egress to landlocked

parcels, it does not permit similar easements for commercial utilities. The trial court granted the defendant’s

motion, and the plaintiff appealed to the Appellate

Court. The Appellate Court determined that, although

there was no precedent in this state favoring the grant

of an easement by necessity for commercial utilities,

the prior language of this court regarding easements

by necessity, multiple treatises on the subject, and precedent from other jurisdictions throughout the country

support expanding the scope of easements by necessity

to include commercial utilities. Id., 284–93. The Appellate Court remanded the case to the trial court to deny

the motion for summary judgment and for further proceedings. Id., 296. In reaching this conclusion, the

Appellate Court did not specify the appropriate test to

be used by the trial court to determine whether an

easement by necessity existed. Instead, the Appellate

Court concluded that easements by necessity for utilities are permissible, generally, and that ‘‘the facts as

alleged by the plaintiff, viewed in the light most favorable to the plaintiff and undeveloped by any evidence,

prevent the defendant from prevailing on its motion

[for summary judgment].’’ Id. This appeal followed.4

We begin with the standard of review. ‘‘The standard

of review of a trial court’s decision granting summary

judgment is well established. 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. In deciding a motion for

summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving

party. . . . The party moving for summary judgment

has the burden of showing the absence of any genuine
issue of material fact and that the party is, therefore,

entitled to judgment as a matter of law. . . . Our

review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . .

On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically

correct and whether they find support in the facts set

out in the memorandum of decision of the trial court.’’

(Internal quotation marks omitted.) St. Pierre v.

Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017).

Although the scope of an easement is normally a question of fact; Deane v. Kahn, 317 Conn. 157, 166, 116

A.3d 259 (2015); the issue raised in the present case is

whether an easement by necessity can be granted for

commercial utilities, a question of law over which our

review is plenary. See id., 175.

In the context of easements by necessity for access

to a landlocked parcel, this court’s precedent directs

us to engage in a three-pronged analysis, considering

(1) the cost of obtaining enjoyment from, or access to,

the property by means of the easement in relation to

the cost of other substitutes, (2) the intent of the parties

concerning the use of the property at the time of severance, and (3) the beneficial enjoyment the parties can

obtain from their respective properties with and without the easement. See id., 181–82; Hollywyle Assn., Inc.

v. Hollister, 164 Conn. 389, 398–99, 324 A.2d 247 (1973);

Marshall v. Martin, 107 Conn. 32, 38, 139 A. 348 (1927);

Robinson v. Clapp, 65 Conn. 365, 385, 32 A. 939 (1895);

Collins v. Prentice, 15 Conn. 39, 44 (1842).

In the present case, however, the plaintiff is not seeking an easement by necessity for physical access for

the purpose of ingress and egress to his property, but

an easement by necessity for utility access along that

preexisting right-of-way. Although this court has never

directly addressed this question, it has recognized the

broader principle that an easement by necessity may

arise from a reasonable, but not strict, necessity. See

Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 399.

Consistent with this broad principle, scholarly treatises generally agree that the scope of an easement by

necessity includes those uses that are for the beneficial

enjoyment of the property. See J. Bruce & J. Ely, Law

of Easements and Licenses in Land (2017) § 8:7, p. 8-

32; R. Powell, Real Property (M. Wolf ed., 2017) §§ 34.07

and 34.13, pp. 34-45 and 34-149; G. Thompson, Real

Property (J. Grimes ed., 1980) § 336, pp. 419–23; 25 Am.

Jur. 2d 688, Easements and Licenses § 18 (2014).5

This view is consistent with the Restatement (Third)

of Property, Servitudes, which provides: ‘‘A conveyance

that would otherwise deprive the land conveyed to the

grantee, or land retained by the grantor, of rights necessary to reasonable enjoyment of the land implies the

creation of a servitude granting or reserving such rights,

unless the language or circumstances of the conveyance
clearly indicate that the parties intended to deprive the

property of those rights.’’ (Emphasis added.) 1

Restatement (Third) Property, Servitudes § 2.15, p. 202

(2000). The commentary to this section discusses the

policy rationales for easements by necessity, specifically, promoting the effective use of land and giving

effect to the presumed intent of the parties. Id., comment (a), pp. 203–204. The commentary further

observes that the rights necessary for the enjoyment of

property are normally related to access to the property;

however, it further provides: ‘‘a servitude will be implied

to do whatever is reasonably necessary for the enjoyment of property, if the conveyance would otherwise

eliminate the property owner’s right to do those things.’’

Id., comment (b), pp. 204–205. The commentary also

specifically addresses the scope of an easement of

necessity beyond just access to property, providing:

‘‘[U]ntil recently, access for foot and vehicular traffic

tended to be the only rights regarded as necessary for

the enjoyment of surface possessory estates. However,

the increasing dependence in recent years on electricity

and telephone service, delivered through overland

cables, justif[ies] the conclusion that implied servitudes

by necessity will be recognized for those purposes.

Whether access for other utilities and services has also

become necessary to reasonable enjoyment of property

depends on the nature and location of the property and

normal land uses in the community.’’ Id., comment (d),

p. 208.

Support for this view is also reflected in case law of

other jurisdictions that have recognized easements by

necessity for utilities, especially where a preexisting

right-of-way existed. The earliest case involving a utility

easement by necessity was Davis v. Jefferson County

Telephone Co., 82 W. Va. 357, 95 S.E. 1042 (1918). In

Davis, several property owners utilized a shared rightof-way, and one of these owners wished to construct

telephone lines along that easement for his own use.

Id., 358. The plaintiff in that case, the property owner

of the servient estate, challenged the construction of

the telephone lines, claiming that the initial grant of

the right-of-way did not also give that owner the right

to construct utility lines. Id. The West Virginia Supreme

Court of Appeals examined the necessity of having electricity as follows: ‘‘If then those living in a rural district

with only such unlimited private ways as that involved

here are to enjoy any of the modern conveniences, such

as electric light, natural gas, telephones, and the like,

they must of necessity rely upon such ways by which

to obtain them. To deny them such right would be

to stop to some extent the wheels of progress, and

invention, and finally make residence in the country

more and more undesirable and less endurable.’’ Id.,

360. Insofar as the plaintiff in Davis also challenged

the additional burden on the original right-of-way due

to digging and installing telephone poles, the court
observed that there was no additional burden on the

land so long as it was reasonable to do so and in accordance with private, rather than public, use. Id., 360–61.

The Court of Appeals of Maryland has also determined that an easement by necessity may permit modifications and repairs to property in order to conform to

modern conditions. Specifically, in Tong v. Feldman,

152 Md. 398, 136 A. 822 (1927), the plaintiff had obtained

a lease for a portion of a building in Baltimore that he

attempted to adapt into a restaurant, but needed to

modify gas lines that passed through another tenant’s

property. Although the court observed that easements

by necessity ‘‘are more familiarly met [within] rights of

way . . . they are not confined to such rights.’’ Id., 402.

The court looked to the purpose for which the original

right or easement was established and held: ‘‘Whenever

it has arisen from necessity it would seem to be [coextensive] with the reasonable needs, present and future,

of the dominant estate for such a right or easement,

and to vary with the necessity, [insofar] as may be

consistent with the full reasonable enjoyment of the

servient tenement.’’ Id., 405. The only restriction upon

the plaintiff’s easement was that any modifications cannot ‘‘materially interfere with [the defendant’s] reasonable enjoyment of the cellar, in which they are

located.’’ Id.

Davis and Tong provided the background for many

subsequent cases from other jurisdictions recognizing

the necessity of utility access. The Indiana Supreme

Court reached a similar conclusion in New York Central

Railroad Co. v. Yarian, 219 Ind. 477, 485, 39 N.E.2d

604 (1942), stating: ‘‘The same public policy which

requires that a way of necessity will be implied where

none is expressly reserved, requires that an express

reservation of a way shall be construed to grant rights

sufficient for the full reasonable enjoyment of the estate

if the language of the reservation will permit such a

construction. Electricity is largely used for power and

light and for the operation of refrigerating and laborsaving machines on farms and in farm homes, and that

its use contributes to the full and profitable enjoyment

of a farm can hardly be doubted.’’ Likewise, in Dowgiel

v.Reid, 359 Pa. 448, 460, 59 A.2d 115 (1948), the Supreme

Court of Pennsylvania also permitted an easement by

necessity for utilities along an express right-of-way. The

court observed that erecting poles and wires is ‘‘something which is essential to the livableness of the home,

to wit, electricity . . . . Such a use is in this modern

era one of the ordinary purposes of such a way . . . .

Poles and wires along the highways are concomitants

of this mechanized age and the sensitivity of those who

find the sight of them offensive is somewhat beyond

the pale of a court of equity’s protection. Civilization

has its burdens as well as its benefits and those who

enjoy its benefits must philosophically bear its burdens.’’ Id. The Supreme Judicial Court of Maine also
granted an easement by necessity for utilities in Morrell

v. Rice, 622 A.2d 1156, 1160 (Me. 1993), explaining that

‘‘[a]n easement created by necessity can include not

only the right of entry and egress, but also the right to

make use of the easement for installation of utilities,

essential for most uses to which property may reasonably be put in these times.’’ Accord Fleming v. Napili

Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316 (1967); Brown

v. Miller, 140 Idaho 439, 443, 95 P.3d 57 (2004); Gacki

v. Bartels, 369 Ill. App. 3d 284, 293, 859 N.E.2d 1178

(2006); Cline v. Richardson, 526 N.W.2d 166, 169 (Iowa

App. 1994); Stroda v. Joice Holdings, 288 Kan. 718,

728–29, 207 P.3d 223 (2009); Ashby v. Maechling, 356

Mont. 68, 78, 229 P.3d 1210 (2010); Firstenberg v. Monribot, 350 P.3d 1205, 1218 (N.M. App.), cert. denied, 367

P.3d 850 (N.M. 2015); Regan v. Pomerleau, 197 Vt. 449,

465, 107 A.3d 327 (2014); Atkinson v. Mentzel, 211 Wis.

2d 628, 639, 566 N.W.2d 158 (App. 1997).6

Several state legislatures have weighed in on this

issue as well. In 1973, the Massachusetts legislature

enacted a law granting owners of express easements for

ingress and egress an additional easement for utilities,

provided that the utilities do not unreasonably obstruct

the existing easement. See Mass. Ann. Laws c. 187, § 5

(LexisNexis 2011); 1973 Mass. Acts 930. The Massachusetts Court of Appeals extended this statute to include

access easements granted by implication and necessity,

but not to those easements granted by prescription.

Adams v. Planning Board, 64 Mass. App. 383, 392, 833

N.E.2d 637 (2005). Florida has also enacted legislation

to address easements by necessity and the use of the

easement for utilities. See Fla. Stat. Ann. § 704.01 (West

2013). The first subdivision in that statute codifies the

common-law right to easements by necessity. Fla. Stat.

Ann. § 704.01 (1) (West 2013). The second subdivision

expands the scope of easements by necessity to include

uses for ‘‘cable television service, and any utility service,

including, but not limited to, water, wastewater,

reclaimed water, natural gas, electricity, and telephone

service . . . .’’ Fla. Stat. Ann. § 704.01 (2) (West 2013).

As the foregoing summary demonstrates, the majority

of jurisdictions that have considered the issue have

recognized that easements by necessity for utilities may

arise when there is a preexisting right-of-way. The rationale among these jurisdictions is to support the continued use of property, while also giving effect to the intent

of the parties when granting the original conveyance

for the beneficial enjoyment of the property owner.

This rationale is consistent with our own precedent

regarding the creation of easements by necessity, which

likewise recognizes the importance of allowing the productive use of property and accomplishing its intended

use. See Deane v. Kahn, supra, 317 Conn. 176–77. We

are persuaded by these authorities and conclude that

public policy favors recognizing easements by necessity

for utilities over an existing right-of-way when the requi-
site necessity is established.7

Having thus concluded, we take this opportunity to

provide guidance on the proper standard to apply when

determining whether an easement by necessity for utilities has been established. When an easement of physical

access already exists, an expansion of that easement

will be allowed so long as it is reasonably necessary

for the beneficial enjoyment of the dominant estate

and does not unreasonably impair the servient estate

owner’s beneficial enjoyment of his or her property.

New York Central Railroad Co. v. Yarian, supra, 219

Ind. 485; Tong v. Feldman, supra, 152 Md. 404; Davis

v. Jefferson County Telephone Co., supra, 82 W. Va.

359–60.

With regard to determining what is reasonably necessary for the beneficial enjoyment of the property, this

court’s jurisprudence has routinely recognized that the

intent of the parties regarding the use of the property

at the time of severance of the parcels is a factor of

vital importance in determining the existence and scope

of easements by necessity for access. See Hollywyle

Assn., Inc. v. Hollister, supra, 164 Conn. 398–401; Marshall v. Martin, supra, 107 Conn. 36; Robinson v. Clapp,

supra, 65 Conn. 385.8 We conclude that the parties’

intent as to the use of the property at the time of severance should also be considered for easements by necessity for utilities along a preexisting right-of-way for two

reasons. First, it fairly accounts for the expectations

of both property owners as to the general use of the

property. See Ashby v. Maechling, supra, 356 Mont. 76

(‘‘easements by necessity cannot be used at will, but

must be exercised with due regard to the rights of both

parties so that the use does not encroach upon the

land of his grantor further than circumstances render

it necessary’’ [internal quotation marks omitted]). Second, it furthers public policy insofar as it assumes that

the parties reasonably would not have intended for the

land to be left incapable of being put to beneficial use.

See Hollywyle Assn., Inc. v. Hollister, supra, 400 (‘‘the

presumption as to the intent of the parties is a fiction

of law . . . and merely disguises the public policy that

no land should be left inaccessible or incapable of being

put to profitable use’’).

Although prior use of the property may evidence the

parties’ intentions, when the original conveyance was

made long before the advent of modern utilities, such

as electricity, a question arises as to whether the parties

could have intended for the property’s future use to

include such developments. Some jurisdictions gauge

the necessity in relation to the time of the original

conveyance. See Gacki v. Bartels, supra, 369 Ill. App.

3d 293; see also 1 Restatement (Third), supra, § 2.15,

comment (c), p. 206. Courts in other jurisdictions, however, interpret the prior use to include those uses that

could have been reasonably foreseen by the other party
at the time of severance. See, e.g., Stroda v. Joice Holdings, 288 Kan. 718, 722–23, 207 P.3d 223 (2009) (‘‘[p]rior

use, as a factor in determining the intent of the parties,

includes not only uses that were known at the time of

the conveyance, but also those that had a possibility

of being known at that time and those that a party

might reasonably have foreseen the other party . . .

expected’’ [internal quotation marks omitted]); id., 728

(‘‘[e]ven when the use of the easement at the time of

creation has not included utility support, courts have

found that the reasonable use of the property in current

times requires utility services’’ [internal quotation

marks omitted]); Ashby v. Maechling, supra, 356 Mont.

78 (‘‘[T]he scope of an implied easement should consider the actual uses being made [of the dominant

estate] at the time of the severance, such uses as the

facts and circumstances show were within the reasonable contemplation of the parties at the time of the

conveyance, and such uses as the parties might reasonably have expected from future uses of the dominant

tenement. . . . [I]f the severance occurred at a time

prior to the general use of motor vehicles and electric

power, an easement by necessity may still allow for

reasonable technological developments . . . .’’ [Internal quotation marks omitted.]); see also 1 Restatement

(Third), supra, comment (d), pp. 207–208.

We agree with those jurisdictions that permit the

expansion of preexisting access easements to include

a new easement by necessity for changes in technology.

Their position is more in accord with our case law,

which has never determined the scope of an implied

easement solely by examining what was necessary at

the time of severance. See Marshall v. Martin, supra,

107 Conn. 36–37; see also Deane v. Kahn, supra, 317

Conn. 175–77. Accordingly, when examining the intent

of the parties when the conveyance was made and the

extent to which the property was intended to be used,

our courts must also consider modern technological

developments to ensure that ‘‘the wheels of progress

and invention’’ do not stop and society can continue to

change and improve. Davis v. Jefferson County Telephone Co., supra, 82 W. Va. 360. To not do so would

ignore the public policy of encouraging the profitable

use of property, and leave property to be underutilized

or even abandoned. See Deane v. Kahn, supra, 317

Conn. 177; Robinson v. Clapp, supra, 65 Conn. 385; see

also 1 Restatement (Third), supra, § 2.15, comment (d),

pp. 207–208.9

When evaluating the relative enjoyment of the respective properties and the burden on those properties,

courts must examine not only what enjoyment the dominant tenement’s owner can obtain from the expansion

of the access easement to include utilities, but also

what effect the installation of utilities would have on

the servient tenement and its owner’s beneficial enjoyment of his or her own property. See Collins v. Prentice,
supra, 15 Conn. 44. In many cases, courts have concluded that installing the utilities, such as through electrical poles and underground electrical access, would

not significantly burden the servient estate to foreclose

imposing the easement. New York Central Railroad Co.

v. Yarian, supra, 219 Ind. 484–87; Morrell v. Rice, supra,

622 A.2d 1160; Ashby v. Maechling, supra, 356 Mont.

78–79; Dowgiel v. Reid, supra, 359 Pa. 460; Regan v.

Pomerleau, supra, 197 Vt. 465; Davis v. Jefferson

County Telephone Co., supra, 82 W. Va. 361. Easements

for utilities will not, however, always trump the servient

estate owner’s right to beneficial enjoyment of his or

her own property. In Fleming v. Napili Kai, Ltd., supra,

50 Haw. 70, the Hawaii Supreme Court rejected the

proposed utility easement, which was to be used as a

drainage ditch, as it unreasonably interfered with the

use of the road. The court still recognized, however,

that an easement was necessary, and tasked the trial

court with determining the proper placement of the

easement to benefit both parties. Id. This approach

evidences that courts may impose conditions to account

for the interest of both estates.

In sum, to evaluate properly the beneficial enjoyment

of the parties’ respective properties, the court must

engage in a balancing test. The court must examine the

relative enjoyment of the respective properties and the

burden on those properties, and determine whether

the burden is disproportionately weighted toward one

party. See Hollywyle Assn., Inc. v. Hollister, supra, 164

Conn. 401; Robinson v. Clapp, supra, 65 Conn. 385; see

also Restatement (Third), supra, § 2.15, comment (d).

An easement by necessity for utilities should be granted

over an existing physical access easement when the

dominant estate has a reasonable need for the utility,

in accordance with the intention of the parties as to

the use of the property, unless the burden interferes

with that owner’s beneficial enjoyment of the property.

See Hollywyle Assn., Inc. v. Hollister, supra, 401; Robinson v. Clapp, supra, 385; Restatement (Third), supra,

§ 2.15, comment (d), pp. 207–208. In the event use of

the easement for utilities does impair the enjoyment

of the servient estate, the court must then determine

whether the need of the dominant estate is so great

that the easement should still be granted or if it could

be altered so as to limit the burden on the servient

estate. See Fleming v. Napili Kai, Ltd., supra, 50

Haw. 70.

Having reached this conclusion, we briefly explain

why we are not persuaded by the defendant’s arguments, which effectively advocate for a test of strict

necessity. The defendant substantially relies upon

Deane v. Kahn, supra, 317 Conn. 157, and its predecessors. Simply put, those cases relate to a different question, namely, the right to physical access for ingress

and egress when no easement previously exists. Such

physical access, by its very nature, involves a substan-
tial infringement on the rights of the owner of the servient estate. An expansion of an existing easement to

accommodate additional use for the beneficial enjoyment of property is of a different nature. It is true that

our case law has restricted the granting of easements

by necessity to property that is truly landlocked; however, as explained previously in this opinion, this court

has never been presented with a situation involving an

easement by necessity for commercial utilities over a

preexisting right-of-way easement.

For similar reasons, we also disagree with the defendant that the court must necessarily engage in an analysis of whether other substitutes exist to provide utilities

to the dominant estate. In Marshall v. Martin, supra,

107 Conn. 37, this court stated that if the cost of finding

another substitute to access the parcel would exceed

the value of the property, then an easement by necessity

could be granted. In Marshall, this court emphasized

the proportionality of the cost when finding a suitable

substitute, and that an easement will be granted only

if a substitute could be obtained at a disproportionate

cost. Id., 38. When an easement by necessity for utilities

is being considered, however, it would not be prudent

to examine the cost of finding a substitute compared to

the overall value of the property—the cost of obtaining

access to utilities would rarely, if ever, exceed the value

of the property. This is in accord with many other jurisdictions that have examined this same issue, and avoids

the thorny evaluation of cost and how it relates to the

value of the property. See New York Central Railroad

Co. v. Yarian, supra, 219 Ind. 484–87; Morrell v. Rice,

supra, 622 A.2d 1160; Dowgiel v. Reid, supra, 359 Pa.

448, 453; Davis v. Jefferson County Telephone Co.,

supra, 82 W. Va. 360–61. Nonetheless, the availability

of alternative reasonable methods of obtaining utilities

for the dominant estate may be relevant, as such considerations could bear on the question of reasonable necessity in some cases—for example, examining the need

for cable lines where satellite would provide the same

services without intruding on the servient estate.

Applying the foregoing standards to the present case,

we conclude that the motion for summary judgment

should have been denied. Taking all evidence in favor

of the nonmoving party, the plaintiff, we conclude that

a genuine issue of material fact exists as to whether

an easement by necessity over the defendant’s property

should be granted for the instillation of commercial

utilities.

It is without question that the plaintiff’s property was,

and is, intended to be used as a residential lot, simply

from the surrounding lots and the residential character

of the neighborhood. Even if the original conveyance

did not anticipate the availability of modern conveniences, easements by necessity for utilities can accommodate those needs reasonably necessary for the
beneficial enjoyment of property in the modern era.

The defendant has proffered no evidence at this stage

to demonstrate that it would be burdened by granting

the easement, as it appears that the plaintiff need only

connect to an existing electrical conduit.10

Indeed, although we conclude that the trial court

should not have rendered summary judgment in favor

of the defendant because a genuine issue of material

fact exists, we make no determination as to whether

the plaintiff has satisfied his burden of establishing that

he is entitled to an easement by necessity for utilities.

The record at this stage in the proceedings is inadequate

to make that determination. On remand, the trial court

must make factual determinations about the intent of

the parties regarding the use of the property at the time

of severance, the relative enjoyment of the respective

properties, and the burden that would be placed on

those properties by the easement. The court should

then balance those factors in order to determine the

overall costs and benefits to the parties and arrive at

an equitable solution.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1 The complaint names seven additional defendants who reside on certain

nearby properties. These additional defendants previously entered into an

agreement with Goodspeed Airport, LLC, granting utility line access to their

respective properties. The plaintiff claims in his complaint to have named

these additional defendants for purposes of notice pursuant to General

Statutes § 52-102. We note that the plaintiff subsequently withdrew the action

with respect to these additional defendants and that they are not parties to

the present appeal. For the sake of simplicity, we refer to Goodspeed Airport,

LLC, as the defendant.

2 The right-of-way for the benefit of abutting properties had been acknowledged in various deeds throughout the years preceding the defendant’s 1999

warranty deed.

3 The plaintiff originally filed a complaint in 2011 alleging the creation

of an easement by necessity and implication. The trial court granted the

defendant’s motion to strike these claims, and, thereafter, the plaintiff filed

an amended complaint. The plaintiff’s amended complaint omitted the claim

alleging the creation of an easement by implication, retained the claim

alleging the creation of an easement by necessity, and added claims alleging

a violation of General Statutes § 52-480, negligence, nuisance, and obstruction of a right-of-way. The plaintiff later withdrew all claims except the count

alleging the creation of an easement by necessity for commercial utilities.

4 The defendant filed a petition for certification to appeal from the judgment of the Appellate Court, which we granted, limited to the following

question: ‘‘Did the Appellate Court properly determine that the trial court

incorrectly concluded, as a matter of law, that an easement by necessity

may be granted to a landlocked parcel only for the purpose of ingress and

egress?’’ Francini v. Goodspeed Airport, LLC, 321 Conn. 919, 137 A.3d

764 (2016).

5 The defendant contends that the reliance upon many of these treatises,

insofar as they discuss implied easements and not easements by necessity,

is misplaced. We disagree. Both easements by implication and easements

by necessity are inherently ‘‘implied’’ easements, because they are not

‘‘express.’’ Thus, many of the treatises cited within this opinion use the

term ‘‘implied’’ easements to refer to both easements by implication and

easements by necessity and, thereafter, distinguish between the two types

of implied easements. See 25 Am. Jur. 2d, supra, § 18, p. 688; see also J.

Bruce & J. Ely, supra, §§ 4:1 and 4.2, pp. 4-2 through 4-7; 1 Restatement

(Third) Property, Servitudes § 2.11, p. 153 (2000). Indeed, the first

Restatement of Property did not distinguish the two types of easements, but

instead provided a list of varying factors to consider with implied easements
generally. See, e.g., 5 Restatement, Property §§ 474 through 476, pp.

2972–89 (1944).

6 The defendant contends that many of these cases should not be relied

upon, as they interpret the necessity of utilities in the context of a preexisting

right-of-way and that the courts in these cases looked to the scope of the

original deed granting the right-of-way. We disagree. Although these cases

arose in the context of a preexisting right-of-way, they stand for the proposition that access to utilities is indeed necessary in modern times, and examine

the scope of the original easement in relation the purpose for which the

dominate estate was intended to be used. See Fleming v. Napili Kai, Ltd.,

supra, 50 Haw. 69–70; Cline v. Richardson, supra, 526 N.W.2d 169; Dowgiel

v. Reid, supra, 359 Pa. 460; Davis v. Jefferson County Telephone Co., supra,

82 W. Va. 360;Atkinson v. Mentzel, supra, 211 Wis. 2d 639–40. The defendant’s

attempt to distinguish these cases carries even less weight considering that

the present case also involves a preexisting right-of-way and otherwise

extremely similar facts.

7 We underscore that our holding in the present case is limited to the

expansion of an existing access easement for ingress and egress to allow

for the provision of utilities, a commodity recognized as essential to most

property uses. This opinion should not be read to suggest that expanding

an access easement for the provision of every modern convenience would

likewise be viewed as a reasonable necessity. See Robinson v. Clapp, supra,

65 Conn. 396 (stating ‘‘that enjoyment is not reasonable which deprives the

defendant of any use of his property, in order merely that the plaintiff may,

by reason of such deprivation, have a more comfortable, convenient and

better use of his own’’ and finding error where trial court applied ‘‘the wrong

standard, substituting convenience for necessity as the test by which to

determine the existence of the right claimed’’).

8 The defendant contends that examining the intent of the parties and the

beneficial enjoyment of property are factors in examining easements by

implication, and that the test for easements by implication and easements

by necessity have been confused by both trial and appellate courts through

the years. Although we agree that the line between the two kinds of implied

easements has been blurred, the intent of the parties and the beneficial

use of property are still key components of both types of easements. The

distinction between the two arises from the way the intent is determined:

by examination of the express terms of the deed in cases of easements by

implication, and by examination of the presumed intent of the parties by

the circumstances of the conveyance in cases of easements by necessity.

See Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 401; D’Amato v.

Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954); Marshall v. Martin, supra,

107 Conn. 36; Robinson v. Clapp, supra, 65 Conn. 385.

9 This opinion should not be interpreted as granting unrestricted rights

across any person’s land in order to satisfy the needs of another property

owner. The only rights reserved in an easement by necessity are those

between the original and subsequent owners and the new owners of the

severed parcel. See Robinson v. Clapp, supra, 65 Conn. 385; 1 Restatement

(Third), supra, § 2.15, comment (c), p. 206.

10 We observe that this conduit appears to exist because of costs borne

by other property owners who are currently using the utility lines. Should

the trial court determine that the plaintiff has an easement by necessity for

utility access, it would be free to fashion an equitable remedy regarding the

plaintiff’s share in those costs, but we will not comment on that matter in

this opinion.