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HYDE ROAD DEVELOPMENT, LLC v. PUMPKIN ASSOCIATES, LLC (AC 32328)
DiPentima, C. J., and Gruendel and Mihalakos, Js. Argued May 16--officially released July 12, 2011

(Appeal from Superior Court, judicial district of New Britain, Swienton, J.) Eric H. Rothauser, with whom were Jay B. Weintraub and, on the brief, Louisa S. Lindberg, law clerk, for the appellant (defendant). Sheila A. Huddleston, with whom were R. Michael Meo, Jr., and, on the brief, Alison P. Baker, for the appellee (plaintiff).

Opinion

GRUENDEL, J. The defendant, Pumpkin Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Hyde Road Development, LLC. The dispositive issue in this appeal is whether the grantee of an express easement appurtenant must also be the owner of the dominant estate to which the benefit of the easement purportedly belongs. The court concluded that, pursuant to Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999), the grantee of an express easement appurtenant need not hold title to the dominant estate. We disagree and, accordingly, reverse the judgment of the trial court. The record reveals the following relevant facts and procedural history. The plaintiff is principally owned by Roger Toffolon. Toffolon is also the principal owner of White Oak Excavators, Inc., and its successor, the White Oak Corporation (White Oak), and the Connecticut Sand and Stone Corporation (Stone). In 1967, Stone owned a parcel of property in Farmington (parcel one) and the Balf Corporation (Balf) owned a parcel of property adjacent to parcel one, also located in Farmington (parcel two). In July, 1967, Balf conveyed a right-ofway by quitclaim deed (1967 deed) to White Oak, granting White Oak, ``its successors and assigns forever, a . . . permanent easement to construct, maintain and repair a roadway, fifty . . . feet in width'' over parcel two (right-of-way). The 1967 deed specifically identified White Oak as grantee of the right-of-way and included a metes and bounds description of both parcel two and the right-of-way. Toffolon explained that the right-ofway was used by White Oak and Stone to haul raw earth materials from parcel one, although it is undisputed that White Oak never held an ownership interest in parcel one or any other property in the surrounding area. On February 14, 2001, parcel two was sold to the defendant.1 On November 21, 2001, Stone sold parcel one to the plaintiff.2 In 2003, the plaintiff was approached by AT&T, which was interested in acquiring a site for a cell phone tower (tower) on parcel one. Subsequently, the plaintiff and AT&T entered into an agreement, whereby AT&T would lease a portion of parcel one for the purpose of installing and maintaining the tower. Prior to construction of the tower, however, the plaintiff was informed that the right-of-way would need to be developed into a roadway and that utilities would need to be installed under it so that the tower could be serviced adequately. Accordingly, the plaintiff contacted the defendant regarding the modifications to the right-of-way that the plaintiff sought to have installed to consummate the transaction with AT&T. The defendant objected to the plaintiff's proposed modifications, claiming, inter alia, that the right-of-way was invalid and that the plaintiff had no right of access over

the right-of-way.3 On December 2, 2005, White Oak, by way of a quitclaim deed, granted its interest in the rightof-way to the plaintiff. In 2007, the plaintiff commenced this action, seeking, inter alia, a declaratory judgment ``decreeing that as the owner of the [right-of-way] . . . [it] has a clear and unambiguous right to construct, maintain and repair a road over the [right-of-way], including the right to install underground utilities . . . .'' In response, the defendant filed a counterclaim seeking, inter alia, a declaratory judgment that the ``[p]laintiff's alleged [right-ofway] is invalid . . . .'' The matter was tried to the court on November 18 and 19, 2009, during which the court heard testimony from five witnesses and received numerous exhibits into evidence. Following posttrial briefing, the court, on May 26, 2010, issued a memorandum of decision, ruling in favor of the plaintiff and concluding, inter alia, that the right-of-way ``is a valid easement appurtenant containing the right to build a roadway containing utilities . . . .'' Specifically, the court determined that, although parcel one was not identified as the dominant estate in the 1967 deed conveying the right-of-way to White Oak, the plaintiff had proven that parcel one was the dominant estate pursuant to our Supreme Court's decision in Branch v. Occhionero, 239 Conn. 199, 206, 681 A.2d 306 (1996), and, therefore, the benefit of the right-of-way inured to the plaintiff as the owner of parcel one. Additionally, the court reasoned that, given the Supreme Court's decision in Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 135, the fact that White Oak, as the express beneficiary of the right-of-way in the 1967 deed, did not own parcel one was not dispositive given Connecticut's abolition of the unity of title doctrine. Id., 143

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