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WILLIAM THOMAS ET AL. v. BRUNO PRIMUS

(AC 35985)

DiPentima, C. J., and Lavine and Mihalakos, Js.

Argued November 22, 2013—officially released February 4, 2014

(Appeal from Superior Court, judicial district of

Hartford, Hon. Richard M. Rittenband, judge trial

referee.)

David S. Rintoul, for the appellants (plaintiffs).

Benjamin Ancona, Jr., for the appellee (defendant).
Opinion

MIHALAKOS, J. The plaintiffs, William Thomas, Craig

B. Thomas and Andrea Thomas Jabs, appeal from the

trial court’s declaratory judgment granting an easement

by necessity and implication in favor of the defendant,

Bruno Primus. On appeal, the plaintiffs claim that the

court erred in finding an easement by necessity.1 The

plaintiffs also claim that the defendant’s claim for an

easement should have been barred by the defense of

laches. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to this appeal. The plaintiffs own property located

at 460 Camp Street in Plainville. The defendant owns

one and one-quarter acres of undeveloped land abutting

the eastern boundary of the plaintiffs’ property. The

dispute atissue here concerns the northernmost portion

of the plaintiffs’ property, a twenty-five feet wide by

three hundred feet long strip of land known as the

‘‘passway,’’ which stretches from the public road on

the western boundary of the plaintiffs’ property to the

defendant’s property to the east.

Both the plaintiffs’ and the defendant’s properties

originally were part of a single lot owned by Martha

Thomas, the grandmother of the plaintiffs. In 1959, Martha Thomas conveyed the one and one-quarter acres of

landlocked property, currently owned by the defendant,

to Arthur Primus, the defendant’s brother. At the conveyance, which the defendant attended, Martha Thomas

and Arthur Primus agreed that access to the landlocked

property would be through the passway, which until

that time had been used by Martha Thomas to access the

eastern portions of her property. In 1969, the defendant

took possession of the land. In 2002, the plaintiffs took

possession of the western portion of Martha Thomas’

property, including the passway.

In 2008, the plaintiffs decided to sell their property.

When the defendant learned of their intention, he sent

a letter to the plaintiffs asserting his right to use the

passway to access his land. In 2009, the plaintiffs signed

a contract to sell their property, but the prospective

purchasers cancelled the contract when they learned

of the defendant’s claimed right to use the passway.

The plaintiffs then brought the action to quiet title that is

the subject of this appeal, seeking, among otherthings, a

declaratory judgment that the defendant had no legal

interest in the property. The defendant brought a counterclaim asking the court to establish his right to use

the passway uninterrupted by the plaintiffs. In response

to the defendant’s counterclaim, the plaintiffs asserted

the special defense of laches.

A trial was held on June 5 and 6, 2012. On August

31, 2012, the court issued its decision, finding in favor

of the defendant on the plaintiffs’ complaint and on his

counterclaim, and concluding that the defendant had an
easement by necessity and an easement by implication

over the passway. Specifically, the court found an easement by necessity was created when Martha Thomas

conveyed a landlocked parcel to Arthur Primus, as it

was absolutely necessary in order to access the property. The court rejected the plaintiffs’ special defense

of laches. On September 20, 2012, the plaintiffs filed a

motion to reargue, which subsequently was denied. This

appeal followed. Additional facts will be set forth as

necessary.

I

EASEMENT BY NECESSITY

On appeal, the plaintiffs claim that the court erred

in finding an easement by necessity because (1) the

defendant’s predecessor in title had the right to buy

reasonable alternative access to the street, (2) the

defendant failed to present full title searches of all

adjoining properties, and (3) Martha Thomas and Arthur

Primus did not intend for an easement to exist.

The plaintiffs’ claims present questions concerning

the court’s application of the law of easements by necessity, over which our review is plenary. See Christensen

v. Reed, 105 Conn. App. 578, 583, 941 A.2d 333, cert.

denied, 286 Conn. 912, 944 A.2d 982 (2008) (whether

court properly construed burden of party seeking easement by necessity is question of law over which review

is plenary); see also Montanaro v. Aspetuck Land Trust,

Inc., 137 Conn. App. 1, 27, 48 A.3d 107, cert. denied,

307 Conn. 932, 56 A.3d 715 (2012) (whether alternative

access precludes finding of easement by necessity is

question of law over which review is plenary). Nonetheless, ‘‘[t]he court’s factual findings are binding upon

this court unless they are clearly erroneous in light of

the evidence and the pleadings in the record as a whole

. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . 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.’’ (Internal quotation marks

omitted.) Christensen v. Reed, supra, 583.

Originating in the common law, easements by necessity are premised on the conception that ‘‘the law will

not presume, that it was the intention of the parties,

that one should convey land to the other, in such manner that the grantee could derive no benefit from the

conveyance . . . .’’ Collins v. Prentice, 15 Conn. 39, 44

(1842). An easement by necessity is ‘‘imposed where a

conveyance by the grantor leaves the grantee with a

parcel inaccessible save over the lands of the grantor

. . . .’’ Hollywyle Assn., Inc. v. Hollister, 164 Conn.

389, 398, 324 A.2d 247 (1973). The party seeking an

easement by necessity has the burden of showing that
the easement is reasonably necessary for the use and

enjoyment of the party’s property. Schultz v. Barker,

15 Conn. App. 696, 702, 546 A.2d 324 (1988).

A

First, the plaintiffs claim that an easement by necessity does not exist because the defendant’s predecessor

in title had the right to buy reasonable alternative access

to the street. We disagree.

In considering whether an easement by necessity

exists, ‘‘the law may be satisfied with less than the

absolute need of the party claiming the right of way.

The necessity need only be a reasonable one.’’ Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 399.

In this case, the plaintiffs presented evidence at trial

that, at the time he purchased the property from Martha

Thomas in 1959, Arthur Primus maintained bonds for

deed that allowed him to purchase access to Camp

Street through a different piece of property for $900.

Although he did not exercise this right, the plaintiffs

contend that the fact that Arthur Primus held this option

establishes that the defendant’s use of the passway is

not reasonably necessary.

The plaintiffs correctly note that the ability of a party

to create alternative access through his or her own

property at a reasonable cost can preclude the finding

of reasonable necessity required to establish an easement by necessity. See Marshall v. Martin, 107 Conn.

32, 38, 139 A. 348 (1927) (‘‘the test of necessity is

whether the party claiming the right can at reasonable

cost, on his own estate, and without trespassing on his

neighbors, create a substitute’’). Nonetheless, we are

aware of nothing in our case law that suggests that a

party is required to purchase additional property in

order to create alternative access, even at a reasonable price.2

Furthermore, easements by necessity need not be

created at the time of conveyance. See D’Addario v.

Truskoski, 57 Conn. App. 236, 247, 749 A.2d 38 (recognizing easement by necessity created by state taking

and natural disaster), cert. denied, 253 Conn. 918, 755

A.2d 214 (2000); see also Pender v. Matranga, 58 Conn.

App. 19, 26, 752 A.2d 77 (2000)(‘‘[a]n easement of necessity may occur when a parcel has become landlocked

from outside access such that the owner would have

no reasonable means of ingress or egress except over

lands promised by another and a right-of-way is necessary for the enjoyment of the parcel’’). Even if we were

to assume, arguendo, that Arthur Primus’ bonds for

deed made use of the passway unnecessary at the time

he owned the property, those bonds for deed expired

in 1962, several years before the defendant owned the

property, and provide no reasonable alternative access

today. Thus, we see no reason to disturb the court’s

finding that use of the passway is currently necessary
for the use and enjoyment of the defendant’s property.

B

Next, the plaintiffs claim that the court improperly

found an easement by necessity because the defendant

failed to present full title searches of all adjoining properties. We are not persuaded.

In this case, the court found that the defendant met

his evidentiary burden. See Schultz v. Barker, supra, 15

Conn. App. 702. Although the defendant did not provide

evidence of title searches for all adjacent properties,

the court was presented with maps and deeds of the

property at issue and testimony to the effect that the

defendant’s property was landlocked. This, coupled

with the evidence that the passway traditionally had

been used to provide access, was sufficient to support

the court’s finding that the easement was reasonably

necessary.

The plaintiffs argue that this court’s holding in Christensen v. Reed, supra, 105 Conn. App. 578, imposes

an obligation on any party seeking an easement by

necessity to perform title searches on all adjacent properties and to present those title searches to the court

in order to satisfy the burden of showing reasonable

necessity. We decline to subscribe to such a broad interpretation of Christensen. In that case, the party

defending against the claimed easement by necessity

specifically argued that there was alternative access

through property owned by a third party, and the trial

court found that the party seeking the easement had

made use of that property for access on several occasions. Id., 584–87. The trial court concluded that, under

those circumstances, a title search of that property and

other adjacent properties was necessary to show that

the purported easement was truly the sole means of

access, as the party seeking the easement had claimed.

Id., 586–87. On appeal, this court deemed that determination to be proper. Id., 587. In the present case, however, the plaintiffs did not argue at trial that the

defendant had access through an alternate property,

nor did they present any evidence that the defendant

had used alternate access in the past. Thus, the court

here acted properly in relying upon the maps, documents, and testimony before it as sufficient evidence

to establish the reasonable necessity of the easement.

C

Finally, the plaintiffs argue that an easement by

necessity does not exist because Martha Thomas and

Arthur Primus did not intend for the easement to exist.

We disagree.

The seminal case in this state on easements by necessity recognized that ‘‘the law will not presume, that it

was the intention of the parties, that one should convey

land to the other, in such manner that the grantee could

derive no benefit from the conveyance . . . . The law,
under such circumstances, will give effect to the grant

according to the presumed intent of the parties.’’ Collins

v. Prentice, supra, 15 Conn. 44. This rationale does not,

as the plaintiffs suggest, establish intent as an element

of an easement by necessity. Instead, ‘‘[t]he 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.’’ (Citation omitted.) Hollywyle Assn.,

Inc. v. Hollister, supra, 164 Conn. 400. Thus, absent an

explicit agreement by the grantor and grantee that an

easement does not exist, a court need not consider

intent in establishing an easement by necessity. See

O’Brien v. Coburn, 46 Conn. App. 620, 633, 700 A.2d

81 (holding that ‘‘the intention of the parties [was] irrelevant’’ in case establishing easement by necessity), cert.

denied, 243 Conn. 938, 702 A.2d 644 (1997).

In this case, the court found that the defendant’s

property was landlocked and that access over the passway was reasonably necessary for the use and enjoyment of the defendant’s property. Therefore, the court

found an easement by necessity to exist over the passway. This conclusion was supported by the record and

there is no legal deficiency in the court’s analysis.

II

LACHES

The plaintiffs also claim that the trial court incorrectly concluded that the defendant’s claims for an easement were not barred by the defense of laches.

Whether the defense of laches applies is ‘‘[a] conclusion . . . of fact for the trier and not one that can be

made by this court, unless the subordinate facts found

make such a conclusion inevitable as a matter of law.

. . . We must defer to the court’s findings of fact unless

they are clearly erroneous. . . .

‘‘The defense of laches, if proven, bars a [party] from

seeking equitable relief . . . . First, there must have

been a delay that was inexcusable, and, second, that

delay must have prejudiced the [opposing party]. . . .

The burden is on the party alleging laches to establish

that defense. . . . The mere lapse of time does not

constitute laches . . . unless it results in prejudice to

the [opposing party] . . . as where, for example, the

[opposing party] is led to change his position with

respect to the matter in question.’’ (Citations omitted;

internal quotation marks omitted.) Caminis v. Troy,

112 Conn. App. 546, 552, 963 A.2d 701 (2009), aff’d, 300

Conn. 297, 12 A.3d 984 (2011).

In this case, the defendant did not assert a right to

an easement over the passway until 2008, decades after

he took an interest in the property. Nonetheless, the

trial court found that this delay was not inexcusable,

as the defendant ‘‘had not yet decided what to do with

his easement but took action when he learned that . . .
the sale of the [plaintiffs’ property] would cut off access

to his property.’’

The plaintiffs contend that, as a matter of law, any

claim based on a nonrecord interest in property should

be barred by laches in cases where that interest would

have been extinguished by the Marketable Title Act3

if

the interest had been duly recorded. The plaintiffs’ brief

contains no case law or other authority in support of

this contention. ‘‘We repeatedly have stated that [w]e

are notrequired to review issues that have been improperly presented to this court through an inadequate brief.

. . . Analysis, rather than mere abstract assertion, is

required in orderto avoid abandoning an issue by failure

to brief the issue properly. . . . Where a claim is

asserted in the statement of issues but thereafter

receives only cursory attention in the brief without substantive discussion or citation of authorities, it is

deemed to be abandoned.’’ (Internal quotation marks

omitted.) Baranowski v. Safeco Ins. Co. of America,

119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Accordingly, we decline to consider this argument.

We are left to review the court’s factual finding that

the defendant’s delay in asserting his right to an easement over the passway was not inexcusable. This finding is supported in the record by the defendant’s

testimony that he had no reason to assert his right until

the looming sale jeopardized his access to his property.

As such, there is no cause to disturb the court’s conclusion that the defendant’s claim is not barred by the

defense of laches.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiffs also claim that the court erred in finding an easement by

implication. Because we conclude that the court properly found an easement

by necessity, we need not consider this claim.

2 The plaintiffs’ sole authority in support of their position; Griffeth v. Eid,

573 N.W.2d 829 (N.D. 1998); is distinguishable from the case before us. In

that case, the North Dakota Supreme Court upheld a trial court’s ruling

that a party seeking an easement by necessity had not met his burden of

establishing reasonable necessity because potential alternate access existed,

including the possibility of purchasing an easement over another abutting

property, and the party had not provided evidence that he had pursued

these options and found them unavailing. Id., 834. In this case, there is no

evidence in the record that the defendant had the opportunity to purchase

alternate access.

3 See General Statutes § 47-33b et seq.