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****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** IL GIARDINO, LLC v. THE BELLE HAVEN LAND COMPANY ET AL. (SC 16267)
Borden, Norcott, Katz, Sullivan and Vertefeuille, Js. Argued June 2--officially released September 5, 2000 Counsel

Andrew P. Nemiroff, with whom was Eric R. Posmantier, for the appellants (defendants). Richard E. Castiglioni, with whom, on the brief, was Craig P. Nowak, for the appellee (plaintiff).
Opinion

BORDEN, J. The defendants, the Belle Haven Land Company and David F. Ogilvy,1 appeal2 from the judgment of the trial court rendered after a court trial, granting a permanent injunction in favor of the plaintiff, Il Giardino, LLC. The defendants claim that the trial court improperly concluded that: (1) the plaintiff holds an express easement over the roads of the Belle Haven Land Company; (2) alternatively, the plaintiff holds an implied easement over such roads; and (3) under Whitton v. Clark, 112 Conn. 28, 32, 151 A. 305 (1930), a predecessor in title of Ogilvy had the right to convey

his interest in such roads to a predecessor in title of the plaintiff. We agree with the defendants and, accordingly, we reverse the judgment of the trial court. The record reveals the following undisputed facts. All of the parcels of real property involved in the present case are located in the private communities of Belle Haven and Field Point within the town of Greenwich (town). They were developed respectively by the Belle Haven Land Company and the Field Point Land Company, which is currently the Field Point Park Association, Inc.3 The plaintiff is the owner of a parcel of property located in Field Point. On the easterly side of the plaintiff's property is Field Point Circle, a private road that the plaintiff has the right to use by virtue of its ownership of Field Point property. Thomas P. Clephane and Ogilvy own separate, adjoining Belle Haven parcels of property, which are contiguous to the plaintiff's property on the westerly side. On the westerly side of Clephane's property and Ogilvy's Belle Haven property4 is Glenwood Drive, a private road owned by the Belle Haven Land Company. From the plaintiff's property and Ogilvy's Field Point property, running westerly along the property line that divides Clephane's property and Ogilvy's Belle Haven property, is a twenty foot wide right-of-way in favor of the plaintiff's property and Ogilvy's Field Point property, which leads to Glenwood Drive. It is by virtue of this easement that the plaintiff claims it has the right to use the roads of Belle Haven. The following facts relate to the chains of title to the relevant Belle Haven properties, namely, Clephane's property, Ogilvy's Belle Haven property and Glenwood Drive. In 1884, the Belle Haven Land Company acquired from James R. Mead a parcel of property, which included what are now, among other parcels, Clephane's property, Ogilvy's Belle Haven property and Glenwood Drive. On August 26, 1897, the Belle Haven Land Company conveyed various parcels of that property to Nathaniel Witherell and Robert M. Bruce, as trustees of the company, to sell the parcels for a reasonable value, the proceeds of which were to be distributed among stockholders of the company. One of these parcels was described in the deed as follows: ``The third of said parcels of land with the bathing house thereon, is bounded northerly by land now or formerly of The Belle Haven Land Company, easterly by land of Oliver D. Mead, Southerly by the waters of Long Island Sound and westerly by Glenwood Drive (so called).'' The deed also recited that those parcels were conveyed ``together with the right to use in common with others to whom such right has been or maybe hereafter granted by said Company, the ways and avenues of said company as the same may be necessary and convenient in passing to and from said premises hereby conveyed . . . .'' The deed further provides: ``To Have and To Hold, the above granted and bargained premises with the privileges and

appurtenances thereof unto them the said grantees, their successors and assigns forever, to their own proper use and behoof. . . . And the several covenants, agreements and provisions herein contained shall run with the land hereby conveyed and be binding upon said grantees, their successors and assigns forever.'' On May 18, 1901, Witherell and Bruce conveyed a portion of this ``third parcel'' to John F. Leahy. The deed describes the parcel as follows: ``All that certain lot of land situated at Belle Haven in the said town of Greenwich and bounded and described as follows; Northerly about one hundred and thirty two (132) feet by lot, No. 94 as shown on map entitled `Map of Belle Haven in the Town of Greenwich, Fairfield County, Connecticut' made by B.S. Olmstead, topographical engineer, on file in the office of the clerk of the Town of Greenwich; easterly two hundred and one (201) feet by land of The Field Point Land Company; southerly one hundred and forty one and three tenths (141.3) feet by land of The Greenwich Casino association and westerly about two hundred and six (206) feet by Glenwood Drive. Together with all the rights and privileges and subject to all the covenants, conditions and provisions in so far as they affect said premises set forth in said deed from said Belle Haven Land Company to said Trustees, recorded in said records book 77 page 240. To have and to hold the above granted and bargained premises, with the privileges and appurtenances thereof unto him the said grantee his heirs and assigns forever, to his and their own proper use and behoof.'' That same day, Leahy, serving as a strawman, conveyed that parcel to Witherell, in his individual capacity. The deed of such conveyance generally contained the same language that was quoted from the deed by which Leahy obtained the parcel. Several conveyances of this property, which need not be described herein, subsequently took place. Clephane and Ogilvy currently own separate, contiguous Belle Haven parcels, which were once owned by Witherell. Glenwood Drive is currently and since 1884 has been owned by the Belle Haven Land Company. Sometime prior to 1901, the Field Point Land Company acquired several parcels of property in Field Point, two of which are referred to as lots 7 and 8, which include what are now the plaintiff's property and Ogilvy's Field Point property, respectively, the plaintiff's property being the northerly parcel. The following relates to the easement granted in favor of lots 7 and 8. On November 5, 1901, Witherell, in his individual capacity, granted a twenty foot wide easement over the parcel conveyed to him by Leahy in favor of the Field Point Land Company. On November 20, 1901, this right-of-way was recorded. The easement is described in the deed as follows: ``[A] right of way for all purposes of travel twenty feet wide from Lots 7 &

8 on a certain map entitled `Map of Field Point, Greenwich, Conn.' filed or to be filed in the office of the Town Clerk of said Town of Greenwich, across land conveyed to me by John F. Leahy by deed dated May 18, 1901, to the Belle Haven Road, known as Glenwood Drive. Said right of way is over a strip of land twenty feet wide throughout its entire length bounded northerly by Lot No. 94 as shown on a map entitled `Map of Belle Haven in the Town of Greenwich, Fairfield County, Connecticut,' made by B.S. Olmstead, topographical engineer, on file in the office of the Town Clerk of said Greenwich, easterly by said lots 7 & 8, southerly by other land of the grantor, and westerly by said Glenwood Drive. Said right of way is to be used by said Field Point Land Company and by all persons, their heirs and assigns, to whom said The Field Point Land Company shall convey any part of the real estate now owned by said Company, together with the right to use said above described right of way. TO HAVE AND TO HOLD the above granted and bargained right of way with the privileges and appurtenances thereof unto the said grantee, its successors and assigns, forever, to its and their own proper use and behoof.'' The following facts relate to the plaintiff's chain of title. On December 3, 1901, the Field Point Land Company conveyed lot 7 to Frank L. Froment, one of the plaintiff's predecessors in title. Several conveyances of lot 7, which need not be described herein, subsequently took place. In 1978, a predecessor in title of the plaintiff subdivided lot 7, and, in 1995, the plaintiff acquired the westerly portion thereof, ``together with such rights as the grantor may have to use a right of way 20 feet wide from said premises to Glenwood Drive, which said right of way is described in a grant dated November 5, 1901 . . . .'' With respect to Ogilvy's Field Point property, the Field Point Land Company conveyed lot 8 to Frederick Hilliard, Ogilvy's Field Point predecessor in title. Lot 8 subsequently was divided and Ogilvy acquired the westerly portion of lot 8, which we refer to as his Field Point property. Additional facts and procedural history will be provided as necessary. The plaintiff brought this action against the defendants and Clephane, seeking a declaratory judgment quieting title in the twenty foot right-of-way and the right to use the Belle Haven roads, and also seeking a permanent injunction to have removed a certain barrier that the Belle Haven Land Company had erected across the egress to Glenwood Drive from the twenty foot right-of-way on Clephane's property and Ogilvy's Belle Haven property. In the first count of an amended two count complaint, the plaintiff alleged that it ``has an express and/or implied right to the use and enjoyment of a Right-of-Way across [Clephane's property and Ogilvy's Belle Haven property], and to use the adjoining ways

and avenues of the [Belle Haven Land Company], including Glenwood Drive.'' The plaintiff also alleged that its right to use the twenty foot right-of-way and the Belle Haven roads is established by the Connecticut Marketable Title Act (act). General Statutes

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