Dis-unity of Title in Connecticut
| Publication year | 2021 |
| Pages | 61 |
75 CBJ 61. Dis-Unity of Title in Connecticut
BY JONATHAN M. STARBLE(fn*)
In 1999, the Connecticut Supreme Court decided Bolan v. Avalon Farms Property Owners Assn., Inc.,(fn1) a case in which the Court purported to abolish an ancient rule of property law known as the "unity of title" doctrine. Unbeknownst to the Court, however, what Bolan abolished was not an established rule at all; rather, it was an ill-defined concept that the Court had created only eleven years earlier in the case of Ozyck v. D'Atri.(fn2) The accidental "doctrine" % entirely unique to Connecticut % owed its relatively brief existence to Ozyck, a decision in which the Court's misinterpretation of its own precedent spawned a misconceived amalgamation of two unrelated property concepts % one a black-letter easement principle (referred to herein as the "appurtenance principle") and the other a formalistic remnant of ancient feudal law (referred to herein as the "reservations to strangers" doctrine).
Despite its ostensible demise in Bolan, the unity of title era has left quite a legacy in Connecticut. At the most basic level, the doctrine's genesis, evolution, and "abolition" present a fascinating case study in how blind recitation of precedent, in the absence of true comprehension, can result in new and often obscure law. In the case of unity of title, even the decision "abolishing" the mistake has created its own problem: In a spin-off from the series of errors committed by the Supreme Court, the Connecticut Appellate Court has misinterpreted Bolan as abolishing a legitimate black-letter easement principle that was not even involved in the Supreme Court's unity of title cases. Yet the most prominent legacy of the Court's unity of title blunder is that it produced Carbone v. Vigliotti,(fn3) a 1992 decision in which the Court propounded a revolutionary new
easement principle that is of independent national significance.
This article tells the story of the unity of title doctrine, from cradle to grave and beyond. For the purpose of providing background, Part I of this article discusses black-letter easement principles as they existed in Connecticut prior to 1988, with particular emphasis on the principles that later would be disrupted by the unity of title era. Part II discusses the 1988 case of Ozyck, in which the Supreme Court first confused these principles and attempted to preserve a fictional doctrine under the misnomer "unity of title." Part III explores the 1992 case of Carbone, in which the Court's perpetuation of the Ozyck confusion accidentally led to a revolutionary new principle of easement law that has most recently been shaped by the 2001 case of Abington Limited Partnership v. Heublein.(fn4) Part IV analyzes the 1999 case of Bolan, in which the Court further perpetuated the Ozyck- Carbone confusion, ironically resulting in the "abolition" of the nonexistent unity of title doctrine. Part V discusses the legacy of the misconceived doctrine and the significant impact that Ozyck, Carbone, and Bolan have had % and may continue to have % on Connecticut easement law.
I. PRE-1988 EASEMENT LAW IN CONNECTICUT
Prior to 1988, Connecticut's easement law was based on well-established common-law principles and was in general accord with the law of the majority of other jurisdictions. Part I of this article summarizes the established principles governing the creation and transferability of easements in Connecticut, with a focus on three central concepts that would later be transformed by the life and death of the unity of title doctrine. An explanation of these three concepts % referred to herein as the ownership principle, the appurtenance principle, and the inalienability principle % is a necessary prerequisite to the analysis contained in Parts II through V of this article.
An easement is an interest in land that "creates a nonpos-
sessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement."(fn5) The property that is burdened by an easement % that is, the property interest in which an easement interest is granted % is referred to as the "servient" estate.(fn6) The only person with the right to grant such an interest is the owner of the estate.(fn7) Accordingly, in order for an easement interest to be valid, the original grantor of the easement must own the servient estate at the time of the original grant.(fn8) This rule % which is based on the fundamental principle that "a grantor cannot effectively convey a greater title than he possesses"(fn9) % shall be referred to herein as the ownership principle.(fn10)
Connecticut law has traditionally recognized four ways in which easements are created: (1) express grant or reservation; (2) implication; (3) prescription; and (4) governmental condemnation.(fn11)
1.
Easements by Express Grant or Reservation (and the "Reservations to Strangers" Doctrine)
In most cases, easements are created expressly by written documents,(fn12) in the form of either a grant or a reservation.(fn13) An easement is created by express grant when a landowner expressly grants another the right to utilize the landowner's property in a particular manner.(fn14) An easement is created by express reservation when a landowner conveys a portion of his or her land and, in connection therewith, expressly reserves to himself or herself an easement for use of the conveyed portion.(fn15) Although there is no functional analytical difference between a grant and a reservation,(fn16) the distinction has traditionally been significant in Connecticut, due to an ancient rule that shall be referred to herein as the "reservations to strangers" doctrine.
The reservations to strangers doctrine is not a fundamental easement principle; rather, it is a formalistic rule of property law under which "a reservation in a deed to one not a party to it is void."(fn17) The doctrine applies to reservations of all types of property rights and can be explained as follows:
The broad rule grounded in the precedents and technicalities of the common law, and which still generally prevails, is that in a deed neither a reservation nor an exception in favor of a stranger to the instrument can, by force of ordinary words of exception or reservation, create in the stranger any title, right, or interest in or respecting the land conveyed. The strict reasoning which ordinarily gives support to the rule is that in point of fact the stranger has no interest in the land to be excepted from the grant, and likewise none from which a reservation can be carved out, an exception or reservation in his favor being therefore deemed quite impossible.(fn18)
The reservations to strangers doctrine is a technical
prohibition rather than a substantive one. Indeed, the doctrine does not prohibit a landowner from granting an easement interest in a parcel of land while contemporaneously conveying to a third party the fee subject to the easement. The doctrine merely states that as a matter of semantics, such an interest cannot be created by use of a "reservation" or "exception" in the deed to the fee. Due to the fact that this rule may often serve to frustrate the intent of a grantor, the doctrine has been expressly abolished in many jurisdictions.(fn19)
The Connecticut Supreme Court first expressly recognized the reservations to strangers doctrine in 1866, in the case of School District v. Lynch.(fn20) As discussed in Parts III and V of this article, the doctrine would later become a central source of confusion during the unity of title era, leaving unclear the doctrine's continuing viability in Connecticut.
2. Easements by Implication
In the absence of an express grant or reservation, an implied easement may be inferred from certain "terms or circumstances surrounding the conveyance of another interest in land."(fn21) Connecticut law recognizes implied easements where there is a transfer of land coupled with (1) prior use; (2) necessity; or (3) the creation of a subdivision map.(fn22)
In Connecticut, the law of implied easements based on prior use has been summarized as follows:
Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.(fn23) As to an implied easement based on necessity:
The basis of this right, if it exists, is the presumption of a grant or reservation arising from the circumstances of the case. Although called a way of necessity, the necessity does not create the way but merely furnishes evidence as to the real intention of the parties. Such a way is, therefore, not created by mere necessity; it always originates in some grant or change in ownership to which it is attached by construction as a necessary incident, presumed to have been intended by the parties. A way of necessity is dependent upon unity of ownership or title, followed by a severance thereof.(fn24)
In the quotations above, the terms "unity of ownership" and "unity of title" both refer to common ownership of lands that are...
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