2004 Ct. Sup. 12919
No. CV-03-0823163 SConnecticut Superior Court, Judicial District of Hartford at Hartford
August 30, 2004
MEMORANDUM OF DECISION
RITTENBAND, JUDGE TRIAL REFEREE.
FACTS
This case arises out of caveats recorded in the Glastonbury Land Records by the defendant (hereinafter also “MDC”) against property known as 1029 Hebron Avenue, Glastonbury, Connecticut (hereinafter also “Property”) owned by the plaintiffs (hereinafter also “Ziegras”) with regard to charges concerning assessments for the laying of water mains along the frontage of said property for connection to public water service. The plaintiffs allege that on March 30, 1966, the said defendant caused a caveat against the property in the defendant’s favor with regard to charges pending connection to public water service with said caveat recorded in the Glastonbury Land Records in Volume 145 at Page 507 (hereinafter “Caveat #1”). Further, the plaintiffs allege that on July 10, 1967, the defendant caused another caveat against said property in the defendant’s favor with regard to charges pending connection to public water service recorded in the Glastonbury Land Records in Volume 153 at Page 95 (hereinafter “Caveat #2”). Prior to filing Caveat #2 the defendant issued a letter to the plaintiffs’ predecessor in title, Herbert H. Keidasch (hereinafter also “Keidasch”) on June 2, 1967 stating in pertinent part “Your frontage is exempt due to cross-county main through your land” On March 6, 2002 the plaintiffs recorded the aforementioned letter in the Glastonbury Land Records in Volume 1559 at
The defendant claims an amount due and payable for connection to public water service in connection with said caveats.[1] The plaintiffs initiated this action requesting a declaratory judgment that they are exempt from these public water connection assessments as a result of the language of the June 2, 1967 letter which is Plaintiff’s Exhibit 1.
A trial was held before this Court on April 8, 2004, and the parties subsequently filed briefs and reply briefs. CT Page 12920
ISSUES 1. Does the Alleged Exemption Dated June 2, 1967 Apply to Caveat #1?
The short answer to this question is no. Caveat #1 was filed prior to the alleged exemption and the alleged exemption cannot be construed as being retroactive to Caveat #1. The issue of retroactivity of a statute or a promised exemption by a public or quasi-public entity is well established. “. . . Statutes affecting substantive rights shall apply prospectively only . . . The legislature only rebuts this presumption, however, when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” (Citations omitted; internal quotation marks omitted.) Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282, 304-05, 695 A.2d 1051 (1997). There is a general presumption that legislation is intended to operate prospectively, and a statute does not operate retroactively without a clear expression of intent by the legislature for it to operate retroactively. The same can be applied to a promise of an exemption by the MDC. Accordingly, the alleged exemption in Plaintiffs’ Exhibit 1 is prospective only because there is absent any intent to apply it retroactively. Therefore, Caveat #1 is not covered by the alleged exemption.
2. Was There Consideration For the Alleged Exemption?
The simple answer to this question is no.
The consideration for the alleged exemption in Plaintiffs’ Exhibit 1 is either the granting of an easement by the plaintiffs or their predecessor in title to the MDC to lay a water main across the subject property or to install a cross-country main through the subject property. However, it is clear from the easements granted in Plaintiffs’ Exhibits 7 and 8 that easements for the installation of a cross-country water main were previously granted on July 13, 1892 and July 19, 1892 respectively. It has been admitted by the testimony of plaintiff, Gary Ziegra (TT[2] page 18) that John G. Keidasch is the predecessor in title to the plaintiffs. This Court finds that Exhibits 7 and 8 as aforementioned are easements granted by said John G. Keidasch to the East Hartford Water Company which has been admitted to be and the Court so finds the predecessor to the MDC. Each easement provides in pertinent part that the said John G. Keidasch “grants, bargains, sells and confirms unto the said East Hartford Water Company the following described real estate, water rights, rights of way and easements situated . . .” and describes the subject property and further states: “hereby . . . intending by this deed to grant to the said East Hartford Water Company the right and privilege CT Page 12921 to construct and maintain a water pipeline in and through my land at or near the location described above and to convey the water of the Salmon Brook so called or any of its tributaries through the said pipeline to said place as said East Hartford Water Company may desire, and also the further right to enter said land to inspect and repair said pipeline.” These are broad grants of easements/rights of way for the installation, repair and maintenance of water lines over the subject property. Although no title search has been presented to the Court, it is a reasonable inference that such easements were granted by the plaintiffs’ predecessor in title to the MDC for the aforementioned purposes “. . . a promise to do that which one is already bound by his contract to do is not sufficient consideration to support an additional promise by the other party to the contract . . .” Benedetto v. Wanat, 79 Conn.App. 139, 150, 829 A.2d 901 (2003). This Court finds, therefore, that the alleged consideration for the exemption, namely an easement for the installation of a cross-country main through the subject property is a consideration already given to the defendant by said easements to the defendant’s predecessor in title, the East Hartford Water Company, and, therefore, the alleged consideration described in Plaintiffs’ Exhibit 1 is to do something which the plaintiffs’ predecessor in title has already done.[3] Accordingly, there is no consideration for the alleged promise or alleged consideration described in Plaintiffs’ Exhibit 1. Therefore, Plaintiffs’ Exhibit 1 which plaintiffs claim is a binding contract between the MDC and the plaintiffs fails for lack of consideration because the plaintiffs cannot give as consideration to the defendant what has already been given to it. This Court concludes that there is no consideration to the MDC for its promise of an exemption in Plaintiffs’ Exhibit 1, and, therefore, the alleged contract in Plaintiffs’ Exhibit 1 is unenforceable.
3. Is the Alleged Exemption in Plaintiffs’ Exhibit 1 Ambiguous, and, Therefore, Unenforceable?
The short answer to this question is yes.
This Court finds that the consideration described in Plaintiffs’ Exhibit 1, namely “due to cross-country main through your land” is ambiguous. It is unclear as to whether the property owner was giving a right to have a cross-country main installed or whether the consideration was the installation of the cross-country main. Because it is ambiguous, it is unenforceable.[4] The only way that the ambiguity could be corrected is by parol evidence as to what was meant by the party that drafted Plaintiffs’ Exhibit 1. Parol evidence may be admissible if relevant to explain an ambiguity appearing in the instrument. Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609-10, 849 A.2d 804
CT Page 12922 (2004). However, there was no parol evidence introduced at the trial of this case to clear up or explain the ambiguity. This is understandable because it may not have been possible to find the person who prepared and signed Plaintiffs’ Exhibit 1 in 1967 or anyone who has any knowledge of it. A representative of the defendant did testify as to what was in the MDC records, and there was nothing to explain the ambiguity, and the witness could not offer any explanation himself because he was not present in 1967. Accordingly, the contract fails because it is sufficiently ambiguous so as not to show the intent of the parties, and there is no evidence to clear up the ambiguity. Therefore, the alleged contract is unenforceable.
CONCLUSION
For the foregoing reasons the plaintiffs’ request for a declaratory judgment is denied and judgment is entered for the defendant.
Rittenband, JTR
CT Page 12923