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CHIJIAN ZHANG ET AL. v. OMNIPOINT COMMUNICATIONS ENTERPRISES, INC., ET AL. (SC 16959)
Norcott, Katz, Palmer, Zarella and Levine, Js. Argued October 21, 2004--officially released February 1, 2005

Nathalie Feola-Guerrieri, with whom, on the brief, was Daniel Shepro, for the appellants (plaintiffs). Stephen J. Humes, with whom were Charles D. Ray and, on the brief, Dennis F. Kerrigan, Jr., and Michael Menapace, for the appellee (defendant Omnipoint Communications, Inc.). Robert J. Bourne and Vincent P. Pace filed a brief for the Connecticut Light and Power Company as amicus curiae.
Opinion

KATZ, J. The plaintiffs, Chijian Zhang and Yuzhi Hu, brought this action alleging that the defendant,1 Omnipoint Communications, Inc., also known as Voicestream Wireless, had trespassed on their property by placing wireless telecommunications equipment on and near a tower installed by the Connecticut Light and Power Company (power company), which has easement rights over the plaintiffs' property. The trial court rendered summary judgment in favor of the defendant on the grounds that the power company's easement rights for ``telephone purposes'' encompass use for wireless telecommunications and that the power company could partially assign its easement rights to the defendant. The plaintiffs now appeal from the trial court's judgment,2 claiming that the court improperly: (1) construed the easement to include wireless telecommunications; (2) concluded that the defendant had obtained a valid partial assignment of the power company's rights under the easement; and (3) declined to consider whether the defendant's use had overburdened the easement.3 We conclude that the easement encompasses the use of the property for wireless telecommunications, but that the trial court improperly rendered summary judgment in favor of the defendant

because there were material issues of fact as to whether the defendant had obtained easement rights from the power company and whether the defendant's use had overburdened the easement. Accordingly, we reverse the trial court's judgment and remand the case for further proceedings. The record reveals the following facts and procedural history. The plaintiffs own real property located at 280 Morehouse Drive in Fairfield. In 1923, the plaintiffs' predecessor in title conveyed by deed to the power company, ``an easement . . . for poles, towers and wires for the transmission of electric current . . . .'' The deed conveyed, inter alia, the right to ``enter upon said land and erect, inspect, operate, replace, repair and patrol, and permanently maintain on said right of way, poles and towers, with necessary conductors, wires . . . and other usual fixtures and appurtenances used or adapted for the transmission of electric current for light, heat, power or any other purpose, and used or adapted for telephone purposes . . . .'' The deed was duly recorded. On March 1, 2000, the plaintiffs acquired title to the subject property by quitclaim deed. Prior to the plaintiffs acquiring title, certain equipment had been installed in the area subject to the easement. The power company had installed a steel lattice tower structure, which rested on a cement pad, to support electric wires. A wood stockade fence surrounded the structure. Sprint, another wireless telecommunications company, had installed a monopole that supported telecommunications antennas, which ran through the middle of the power company's lattice tower, and an equipment cabinet on the cement pad. The defendant is licensed by the Federal Communications Commission to hold a ``Wideband PCS'' license for personal communication services covering an area that includes the entire state of Connecticut. The defendant provides wireless service in the form of voice-data telephone systems, offering its customers ``state-of-theart communications service with privacy to users, and the convenience of a pager, answering machine, and modem in one phone.'' The defendant determined that it needed an antenna on the tower situated on the plaintiffs' property to allow it to achieve cellular coverage on the Merritt Parkway and thereby establish a link to other sites for more contiguous coverage. Pursuant to a request by the defendant, on June 28, 2000, the power company issued a letter regarding ``[s]ite [p]ermitting [a]uthorization'' (authorization letter), granting the defendant permission to obtain any permits necessary to construct and maintain a wireless communications system and antenna site on the plaintiffs' property over which the power company had easement rights. On September 1, 2000, the Connecticut siting council issued a letter to the defendant notifying it that the siting council had approved the defendant's petition to modify

the power company's existing electric transmission facility. In December, 2000, the defendant entered onto the plaintiffs' property and installed its antenna under the existing antennas on the monopole. By way of a complaint dated February 2, 2001, the plaintiffs commenced this trespass action, seeking damages and injunctive relief. On March 7, 2001, the defendant filed a motion for summary judgment, claiming that the deed granting the easement authorizes it to undertake the actions challenged by the plaintiffs. Specifically, the defendant contended that the power company has easement rights for ``telephone purposes,'' which includes wireless telephone equipment, and the deed permits the power company to assign to the defendant the authority to install such equipment. The plaintiffs opposed the defendant's motion for summary judgment on the grounds that: (1) the deed does not grant easement rights for wireless telecommunications, but, rather, only for the transmission of electric current; (2) the defendant did not obtain a valid assignment of the power company's easement rights because the deed does not permit a partial assignment and there was no evidence of an assignment; and (3) in the alternative, that the defendant's use overburdened the easement. With respect to their overburdening claim, the plaintiffs attested that the defendant recently had expanded a gravel driveway to reach a stone wall on the plaintiffs' property and had installed, inter alia, a wood utility pole with a transformer and electrical cabinets both inside and outside the wood fence surrounding the lattice tower structure. On May 17, 2001, the plaintiffs filed a cross motion for summary judgment. After hearing argument on the motions, the trial court rendered summary judgment in favor of the defendant. In its memorandum of decision, the trial court rejected the plaintiffs' construction of the deed limiting the power company's easement rights solely for the transmission of electric current. The trial court concluded that the deed had granted easement rights for both ``the transmission of electric current'' and ``telephone purposes.'' The court further concluded that, under this court's decision in Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998), courts should construe easements to allow beneficiaries to incorporate technological advances into their use. It therefore construed ``telephone purposes'' to encompass wireless telecommunications. With respect to the validity of the defendant's assignment of rights from the power company, the trial court noted that the claim raised an issue of first impression and turned to case law from other jurisdictions, under which the dispositive issue is whether the deed grants an exclusive or nonexclusive easement. The trial court found that the power company had obtained an exclusive easement and, accordingly, it was entitled to make a partial assignment of its rights to the defendant. Finally, the trial

court refused to address the plaintiffs' overburdening claim on the ground that they had not pleaded overburdening, which the court concluded was a separate cause of action from the plaintiffs' trespass action. Accordingly, the trial court granted the defendant's motion for summary judgment and denied the plaintiffs' cross motion for summary judgment. This appeal followed. Before turning to the merits of the plaintiffs' claims, we note the well established standards that guide our inquiry. ``Practice Book [

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