FIRST UNION NATIONAL BANK v. EPPOLITI REALTY CO., INC. ET AL.[1]

2005 Ct. Sup. 13965
No. CV02-0346826 SConnecticut Superior Court Judicial District of Danbury at Danbury
November 1, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[1] The plaintiff spells Eppoliti with an “E” as to the individual defendant, while the defense attorney spells it Ippoliti with an “I” for that individual defendant. It seems to this court that defense counsel should be the more knowledgeable person with respect to the spelling of the individual defendant’s name and therefore it chooses to use the spelling “I” vice “E.”

MEMORANDUM OF DECISION
HOWARD J. MORAGHAN, JUDGE TRIAL REFEREE.

At the time of trial, the plaintiff moved for substitution of the plaintiff’s name from First Union National Bank to Wachovia National Bank Association. Reference to either the First Union or to Wachovia is reference to the plaintiff in this memorandum.

In the calendar year 1947, one Primo Principi purchased a piece or parcel of land on North Street in Ridgefield, Connecticut. In 1967, he divided the original parcel into four lots, two of which, Lots #1 and 2 front on North Street and two Lots # 3 and 4 are rear lots. All of which are shown on a certain map entitled “Property of Primo Principi, North Street, Ridgefield, Conn. Scale 1” = 40′ Oct. 25, 1965 certified substantially correct Charles J. Osborne R.L.S. New Milford, Conn., which map is on file in the office of the town clerk of the town of Ridgefield as map number 4175.[2]

A driveway runs from North Street across Lot 1 over to Lot 4 which is the parcel in issue in this particular litigation. Before the parcel was subdivided, the driveway across Lot 1 was used to access a storage shop that eventually became the house situated on Lot 4. Principi also owned a certain 25-foot Right of Way also shown on Exhibit 4 which runs in a generally southeasterly direction from North Street along Lot #7 which was described on Exhibit 4 as the property of one Robert Hanson, then due south along the easterly border of Lot 4 the so-called “Right of Way.”

Edgardo Ippoliti migrated to the United States in 1995 with his father CT Page 13966 both being sponsored by Principi’s mother. Ippoliti and Principi were second cousins and Ippoliti developed a close relationship with Principi beginning at the time he went to work for him as a young man and continued until the time of Principi’s death on April 29, 2001. He died testate and named the plaintiff then the First Union National Bank as the Executor and Trustee of his estate.

Principi’s activities with these lots is somewhat significant. In 1971, he sold Lot #3 which is immediately adjacent to Lot # 4 to his sister Evo J. Prinicipi. The conveyance is significant in that it sets forth the Right of Way which is the subject matter of this appeal. The language that created the Right of Way is “[T]ogether with an easement for all lawful purposes over the 25′ Right of Way as shown on the subject map, subject to a similar right to be granted to others.” In the same year he also conveyed out Lot #3 with the same easement. Finally in 1971, he sold Lot #4 to Ann P. Mahoney and Daniel Mahoney, together with the easement previously described subject to the same reservation about subsequent grantees of the Right of Way. Prior to that conveyance, he owned both Lots 1 and 4 for some twenty-four (24) years. In the year following conveyance to the Mahoneys, they conveyed Lot 4 back to Primo together with the same easement and subject to the same limitation. He continued to own that lot from 1972 until he died on April 29, 2001.

During the last fifteen years of his life, Principi suffered from a number of physical ailments including diabetes, which made it difficult to care for himself or his property. He remained mentally alert, however, during that period. Because of his physical problems, Ippoliti took care of Principi during the last several years his life. He chauffeured him to his doctor’s office, grocery stores, changed light bulbs, took out his garbage, and generally did what was necessary to maintain the house and Principi. In the 1980s, Principi with the help of Ippoliti, converted the shed on Lot #4 into the house which stands on said lot. When he conveyed Lot laway to a third party, he retained no access across that lot to Lot #4. He paved a 25-foot Right of Way and asserted his access to Lots 3 and 4 on the Principi subdivision map and also to a lot on the adjacent subdivision which is referred to as Lot #7.” (Hansen.) From the time Principi moved into the house on Lot 4, he used the 25-foot Right of Way for access to North Street. As part of the improvements to the structure, Principi constructed a driveway and parking area on Lot #4 leading to this 25-foot Right of Way. The owners of Lot #7 (Hansen) and Lot #3 continued to use the 25-foot Right of Way but neither owner of those lots individually or severally take care of or maintain that right of way. In his addition to his physical problems, Principi was quite concerned that because of his declining condition, he might need money to pay for a nursing home. He was also concerned that CT Page 13967 his condition might well prevent him from maintaining the Right of Way. He therefore conceived an idea to resolve this problem. That idea was to convey the title to the Right of Way to Eppoliti Realty, and he would sell Lot #4 to Eppoliti Realty for one hundred twenty thousand ($120,000) dollars providing that he could continue to live in the house on Lot 4 until it was necessary for him to go to a nursing home. The sale of Lot #4 to Eppoliti Realty would thus provide him with funds to pay his way into a nursing home as it became necessary. In part performance of this plan, he conveyed the Right of Way to Eppoliti Realty on March 9, 1999, which conveyance does not reserve an easement over the Right of Way for the benefit of Lot #4.

Subject to Principi’s death, Ippoliti inquired of the First Union regarding whether it would sell Lot #4 to Eppoliti Realty as previously promised by Principi. First Union refused to discuss the sale because there was “no written contract.” In 2001, First Union, in its Fiduciary capacity, contracted to sell Lot #4 and during a title search it was discovered that Lot #4 did not enjoy an express easement over the Right of Way. Its counsel contacted Ippoliti by telephone and the conversation was indeed and imaginably curt. Counsel requested that Ippoliti convey to First Union an easement over the Right of Way to which he responded “why would I do that.” One may well imagine a click as the phone went dead. At no time did counsel provide Ippoliti with any reason or justification for the easement legal or otherwise. There was no further communication between the plaintiff and Ippoliti until after this litigation was commenced. First Union never offered to purchase an easement or any way to pay for the upkeep and maintenance of the Right of Way. From the evidence and the briefs the court is led to the conclusion there had been a discussion of money with respect to the conveyance of the Right of Way to First Union that this litigation never would have occurred.[3] There is no evidence that Ippoliti had any knowledge of whether or not Lot 4 was landlocked, or that Lot 4 was legally entitled to an easement over the Right of Way. During that Ippoliti relationship with Principi they obtained ingress and egress to Lot 4 by both the Right of Way in issue and the driveway that runs across Lot 1 as shown on Exhibit 4 previously identified. It is significant to note that Eppoliti Realty never precluded any one from using the Right of Way. Counsel for the plaintiff indicated that he had used that Right of Way to visit Lot # 4 at least four or five separate occasions and there are no signs of barriers that would otherwise preclude or inhibit anyone’s use thereof. Eppoliti Realty maintained the Right of Way by plowing snow in the winter, picking up downed tree limbs and paying taxes thereon. Neither Eppoliti Realty or Ippoliti own any property that is immediately adjacent to or can be accessed by way of the Right of Way and it receives no benefit from the ownership of that Right of Way. The plaintiff is quick to point out, the CT Page 13968 agreement between Ippoliti and the plaintiff was oral and there it was never memorialized in any document.

Eppoliti Realty is a Connecticut corporation, it is in good standing, it pays taxes and maintains its own books and records.

The quitclaim deed which conveyed the Right of Way to Eppoliti Realty was drawn by Ippoliti’s son and witnessed by him and his mother. The Right of Way conveyed to Eppoliti Realty was dated March 9, 1999 and the grantee was designated by Ippoliti and recorded on May 31, 2001, a period in excess of thirty days after the death of Principi.

Attorney Robert Jewell, an associate with the law firm of Donnelly, McNamara and Gustafson, is the attorney who spoke with Mr. Ippoliti with respect to the use of the Right of Way described in his explanation of the access that he had utilized to enter the subject property and return therefrom. Entry to Lot #4 is off North Street by way of a 25-foot right of way. The driveway to Lot #4 is off that access to the east and is accessed by the driveway that serves it, which driveway leads to a parking area. Lot #4 and Lot #1 have a common border that is described as having a stand of significant trees along the boundary line consisting of several white pines in a row along that boundary line. There is testimony that there is no other manifestation of any physical means of access to Lot #4 other than the Right of Way into it and the driveway. In addition to the stand of frees, supposedly shrubs, a fence and a hill or an incline along the northerly boundary of Lot # 4 conclude or complete the description of that area.

It is against this scenario that the primary issue for the court to determine is whether the plaintiff as the owner of Lot #4 on the Principi subdivision map is entitled to an easement by necessity over the disputed 25-foot Right of Way.

A request to revise generated the first revised complaint wherein the plaintiff seeks to “quiet title to the land” pursuant to § 47-31 of the General Statutes. Count two of the three-count complaint seeks a “declaratory judgment” to the effect that Principi’s conveyance of the Right of Way to Eppoliti Realty is invalid. Conversely if the conveyance of the Right of Way to Eppoliti Realty is valid should be reformed to include an easement in Lot 4 by virtue of its ownership of Lot 4, and First Union has the right to pass and repass over the Right of Way. The third count would assert a “tortious” interference with “contract” claim against both Ippoliti and Eppoliti Realty for their alleged refusal to grant an easement over the Right of Way. On the first day of trial, the plaintiff withdrew his second count of the first revised complaint.[4]
CT Page 13969

Our courts have adopted a common-law rule respecting easements by necessity:

“[T]he law will not presume, that it is the intention of the parties . . . [the grantor] should so convey a portion as to deprive himself of the enjoyment of the remainder.” Collins v. Prentice, 15 Conn. 39, 43, 44. Whether arising from presumption of intent or from the necessity of the party claiming it, an easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the said grantor, or where the grantor retains an adjoining parcel which can be reached only through the lands conveyed to the grantee. Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 399. The requirement of the unity of ownership is a strict one. Leonard v. Bailwitz, 148 Conn. 8, 11 and cases cited therein; but to fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. Necessity need only be a reasonable one. See Marshall v. Martin, 107 Conn. 32, 35, 37; Hollywyle Assn., Inc. v. Hollister, supra, 399. It is self-evident that the imposition of an easement by necessity impairs the dominion of the servient estate owner over his own soil. Hence, although the court concluded that the creation of a right of way over the plaintiff’s roads would work an inequity on the plaintiff, this conclusion merely acknowledges the unavoidable consequences of easements by necessity. The court, however, was not said to be blind to the countervailing interest of the property owners in the plaintiff’s position. For that reason, the element of necessity has been further strictly construed and made to depend upon the situation of both parties, the nature and adaptability of the property, and the surrounding circumstances. Robinson v. Clapp, 65 Conn. 365, 387; Hollywyle Assn., Inc. v. Hollister, supra, 401.

In this instance, the conveyance of Principi to Eppolit Realty resulted in Lot #4 on the reference map (4175) clearly resulted in the condition that Lot #4 is indeed landlocked. Its boundaries on the east are the 25-foot Right of Way; on the south Lot # 3; on the west CT Page 13970 Lot #1; and on the north, property now or formerly of one Hansen. This fulfills the requirement, if indeed it be such a requirement, that the parcel in issue must be found to be landlocked before this doctrine can apply.[5]
To fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. Necessity need only be a reasonable one. Hollywyle Assn., Inc. v. Hollister, supra, 398-99. This proceeding or a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor or the grantor retains an adjoining parcel which he can only reach through the lands conveyed to the grantee, an easement of necessity will be imposed. The requirement of unity of ownership is a strict one. Leonard v. Bailwitz, 148 Conn. 8, 11.

The court is satisfied that the plaintiff has established its right to a right of way by necessity over the 25-foot strip with which this case has been concerned since its inception. All of the suggested elements and actual elements of the doctrine seem to be satisfied. There was unity of ownership, there was a conveyance away by the owner without reservation of a right. Access to the property can be gained only over the parcel that was conveyed out by the owner with no reservation, and the property is totally landlocked. With possession of the right to pass and repass over the 25-foot Right of Way for all the general purposes in this context, it becomes the duty of the users to maintain the Right of Way for its prorated share of the expenses and improvement.

Eppoliti Realty’s suggestion that it had a contract or added agreement with Principi to purchase Lot #4 for one hundred twenty thousand ($120,000) dollars, together with the receipt of the title of the 25-foot Right of Way leaves much to be desired in terms of proof. There is no evidence whatsoever Mr. Ippoliti or Eppoliti Realty ever paid or tendered the one hundred twenty thousand ($120,000) dollar purchase price for Lot #4. The so-called agreement being oral at best is unenforceable by several considerations including the Statute of Frauds. The assertion that Ippoliti through his personal actions and inaction, intentionally caused CT Page 13971 the plaintiff to lose the benefit of contract to sell Lot #4 to a third party, is not persuasive in any sense of the word. The foundation for that claim that he knew of the dealings with Lot #4 falls far short of proof. The testimony of Mr. Jewell, according to his own words, was that the telephone conversation lasted less than a minute. Mr. Jewell claims to have explained to Mr. Ippoliti what the situation was and leads to the conclusion clearly that an explanation such as is necessary to understand this case, understand what is being requested, or even suggested, is impossible to conduct in one minute. The court finds this incredible and refuses to grant any relief on that count.

Judgment may enter according to the foregoing.

[2] Map number 4175 is Exhibit 4 from a trial.
[3] That conclusion is clearly speculation and does not draw sufficient factual support to cause it to be considered a finding.
[4] There may be some question as to whether or not the plaintiff seeks to incorporate the so-called driveway across Lot #1 as shown with dotted lines on Map 4175 and include it in its quest for an easement over the 25-foot Right of Way, or it is completely irrelevant as it appears to be from a perfunctory view of the indicated area on the said map. Any attempts to quantify the width thereof in accordance with the scale produces the same result.
[5] To suggest that the Right of Way of claimed necessity by the plaintiff is the so-called driveway, the court is aided by the fact that the driveway is only a fraction of the 25 feet that it referred to constantly throughout the case. The only possible Right of Way that they are talking about that they are discussing is the 25-foot Right of Way which runs from North Street along the land of Hansen then turning due north running along the land of Principi’s Lot #4 and Lot #3 to a point 65.26 feet south of the southeasterly corner of Lot # 3 to a point.

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